DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016.

Case No. 439/06

Sh. B.K. Agarwal

B-7/60/2, DDA Flat

Safdarjung Enclave

New Delhi – 110029.                                      -Complainant

                                Vs

Idea Cellular Ltd.

A-30, Mohan Co-operative Industrial Estate,

Mathura Road, New Delhi – 110 044.                           -Opposite Party

                                    Date of Institution: 08.06.06                                     Date of Order:        27.02.16

Coram:

N.K. Goel, President

Naina Bakshi, Member

O R D E R

          The complainant who is a senior citizen of 75 years of age  has inter-alia stated that in December 2002 he had bought a pre-paid mobile connection bearing No. 9891237855 from the OP which was available under the brand name ‘Idea Chit Chat’ which promised to give world class service. He was not aware of the various functions of the mobile phone.  However, the OP unilaterly  and arbitrarily provided caller tune ‘Kajrare Kajrare’ on the said phone which hurted his feelings, besides crossing the decency limits.  The OP had been deducting Rs. 30/- month after month for this forced service and did not discontinue the same despite telephonic requests and legal notice.  It is inter-alia stated that he remained admitted in AIIMS Hospital from 8.1.06 to 28.1.06 and during this period his wife used the said mobile phone; that the caller on the mobile phone of the complainant had to pre-force  listen to the very very irritating caller tune ‘Kajrare Kajrare’.    It is stated that the OP neither discontinued the playing of the said song nor replied to the legal notice dated 20.4.06.  Hence, the prayer of the complainant is that the OP be directed to at once stop playing the song ‘kajrare kajrare’ on his mobile phone, to refund the amount of Rs. 30/- p.m. since October 2005 for providing the said tune, to pay Rs. 75,000/- towards compensation for undergoing mental agony and harassment and Rs. 10,000/- towards litigation expenses due to the negligent and arbitrary attitude of the OP.

        OP has inter-alia stated that to access the personalized service, a customer needs to dial “456” to enter into the voice  portal and then choose a hit song and that without the Dialer Tone accessibility of the subscriber, the same will not be activated without the consent of the subscriber.  Hence, it is denied that the OP has arbitrarily provided caller tune ‘Kajrare Kajrare’ to the complainant.  It is stated that the complaint bearing no. 3789599 was lodged by the complainant in the customer care on 4.6.06 and the said song was deactivated from the mobile phone of the complainant on 6.6.2006.  Hence, pleading that there is no deficiency on the part of the OP,   OP has prayed for dismissal of the complaint.

        Complainant has filed a rejoinder to the reply wherein he has inter-alia stated that it is the duty of the OP to produce the records to substantiate the reply that it was the complainant who had requested for activation of this service.

        Complainant has filed his own affidavit in evidence.  On the other hand, affidavit of Ms. Seema Nair, constituted attorney of the OP has been filed on behalf of the OP.

        Written arguments have been filed on behalf of the complainant.

        None has been appearing on behalf of the parties since after 30.7.13.  Therefore, we propose to decide the complaint.

        The OP has not filed any request form or any document to show that the said song had been activated on the mobile phone of the complainant on his request.  However, at the same time, complainant has also not filed any document or evidence to show that the said song had been activated on his mobile phone without his consent. Admittedly, the complainant had taken the said mobile phone in December 2002 and he noticed the said Hindi song on his mobile phone sometimes in the month of Oct. 2005.  Therefore, in the absence of any convincible evidence, we are not inclined to believe that after a gap of more than 2 years and 10 months the OP had arbitrarily and unilaterly activated the said song on the mobile phone of the complainant.

        In any case, the case of the OP is that after receipt of complaint bearing No. 3789599 on 4.6.06 from the complainant, the said song had been de-activated from the mobile phone on 6.6.06.  The said fact has not been specifically denied by the complainant.  The OP has also filed the dialer tune record as Exh. RW1/1 which in fact has not been marked exhibit number on the document.  We mark it as mark AA for the purposes of identification.  The said record clearly proves that the OP must have received a complaint from the complainant on 4.6.06 and the needful was done by the OP on 6.6.06.  Therefore, in our considered opinion, complainant has failed to prove any deficiency in service on the part of the OP.

            In view of the above discussion, we do not find any merit in the complaint and dismiss it with no order as to costs.

         Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

(NAINA BAKSHI)                                                  (N.K. GOEL)

    MEMBER                                                            PRESIDENT

Announced on  27.02.16.

Case No. 439/06

27.2.2016

Present –   None.

        Vide our separate order of even date pronounced, the complaint is dismissed.  Let the file be consigned to record room.

(NAINA BAKSHI)                                                  (N.K. GOEL)

    MEMBER                                                            PRESIDENT