Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2021 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that the complainant is having two mobile connection of the Opposite Parties No.1 and 2 company bearing No. 98724-01912 and 98727-47882 with credit limit of Rs.12,900/- according to the bill dated 01.04.2017. Further alleges that on 04.03.2017 the complainant applied for International Roaming Services at Idea Service Centre and deposited Rs.2000/- vide receipt No. 146149 on Mobile No. 98724-01912 for international roaming and accordingly, as per the message dated 07.03.2017 the international services were activated. Similarly, the complainant applied for international roaming pack i.e. S1199 Asia which was charged in the bill dated 01.04.2017. On 09.03.2017 Mukesh Kumar was traveling to Hong Kong and China for the business purposes, where said Mukesh Kumar want to use the said services as provided in the pack i.e. S1199 for international roaming which was charged lateron. But on 09.03.2017 at 1:12 PM Mukesh Kumar received a message that your request for barring is registered and would be auctioned within 6 hours through communication IDCI-86309433679. The complainant was shocked and immediately called and the Opposite Parties told that the service will resume after depositing Rs.2000/- which was immediately deposited vide receipt dated 09.03.2017 but the services of the said pack were remained suspended. Again the officials of the Opposite Parties told the complainant to deposit another Rs.2000/- for resuming the international roaming services i.e. under pack S1199 and at that time, the complainant was having no choice, so the complainant deposited another Rs.2000/- for the activation of the international roaming services pack. Besides all the efforts, the complainant’s international roaming services remained suspended during the foreign business trip and entire business trip of the complainant become spoiled due to the deficiency in service on the part of the Opposite Parties. As such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to refund the security amount of Rs.6000/- as well as the excess charge amount which was paid by the complainant to the Opposite Parties and also to pay Rs. 1 lakh as compensation for causing huge mental and physical agony.
b) To pay the litigation costs of Rs.22,000/-
c) Or any other relief to which this District Consumer Commission may deem fit be also granted.
3. Opposite Parties No.1 and 2 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that the mobile numbers 98724-01912 and 9872747882 mentioned in the present complaint were issued by the opposite Parties number 1 and 2 to a firm named "East Point Distribution Co." in the corporate category. It is pertinent to mention herein that Mr. Mukesh Kumar signed and fulfilled the requisite formalities as an Authorised Signatory/Proprietor of the said firm for availing the corporate connections in the name of his firm. Copies of the Customer Application Forms showing that both the aforesaid mobile numbers have been issued to "East Point Distribution Co. "in the category of Corporate Connections are annexed as Annexure OP-1(Colly). A copy of the purchase order issued on behalf of "East Point Distribution Co." and signed by Mr. Mukesh Kumar requesting the opposite party number 1 and 2 for the issue of new Corporate Connections is annexed herewith as Annexure OP-2 (Colly). Upon perusal of the purchase order it evident that the firm is engaged in business as "Manufacturers, Distributors, Promoters, Importers and Exporters". It further implies that the said firm is run by a number of employees and hence the aforesaid numbers are being used for a commercial purpose. A copy of the website information regarding "East Point Distribution Co. "is annexed herewith as Annexure OP-3. 4. That the present complaint is not maintainable as per the provisions of the Consumer Protection Act due to the following reasons:
a) The provisions of the Consumer Protection Act are inapplicable in respect of any commercial activity other than for self-employment and for earning an individual livelihood. The purchase order and other documents submitted by the Firm clearly establishes that the mobile numbers purchased by the Firm were for its proprietor and executive Harish Kumar and the Firm would be responsible for the regular bill payment of all the mobile numbers. It is thus evident that "East Point Distribution Co. "is a corporate customer of the opposite party number 1 and 2.
b) The present complaint is not maintainable as the provisions of the Consumer Protection Act are inapplicable in respect of any commercial activity and the numbers issued to the Firm are used purely for commercial purposes. The averments of the complaint itself shows that the number in dispute was used by the proprietor of the Firm for business purpose.
c) The paragraph 4 of the complaint categorically mentions that "On 09.03.2017 Mukesh Kumar was travelling to Hong Kong and China for the business purposes, where said Mukesh Kumar want to use the said services......". Further in paragraph 5 of the complaint it is mentioned that "It is pertinent to mention here that besides all the efforts, the complainant international services were remained suspended during the foreign business trip and the entire business trip of the complainant has become spoiled.......". The prayer clause also mentions that ...the respondent to pay compensation to the tune of Rs.1,00,000/-for spoiling the business trip.......".
d) It is not in dispute that there is no averment in the complaint mentioning that the number in dispute was used by the proprietor for his business/commercial purpose exclusively for the purposes of earning his livelihood by means of self-employment and hence the complainant does not fall in the ambit of the definition of a consumer as per the Act.
e) The Hon'ble Supreme Court of India in GMMCO Limited v. Ecovinal International Private Limited Civil Appeal No. 1385 of 2015 D/d. 30.01.2015 has held that, 'Provisions of Consumer Protection Act are inapplicable in respect of any commercial activity other than for self-employment, and for earning an individual livelihood".
f) The Hon'ble NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI in Trio Elevators Company (India) Ltd. v. Tansingh Chauhan, Revision Petition No. 863 of 2013 D/d. 22.7.2013 held that, "Complainant does not fall within purview of consumer under C.P. Act, as elevators were to be installed in hotel run for commercial purposes - In such circumstances, District Commission had no jurisdiction to entertain complaint and complaint was liable to be dismissed". Thus from the aforesaid facts and the law laid down by the Hon'ble Apex Court and National Commission, it is evident that this Hon'ble Forum (now Commission) has no jurisdiction to adjudicate the present complaint.
On merits, it is submitted that when the number 98724-01912 was used in International Roaming, the credit limit of the said number was Rs. 750/-. Snap-shots showing the credit limit of both the numbers are annexed as Annexure OP-4(Colly). The salient features pertaining to the concept of Credit limit are explained below:
(a) Credit limit is a dynamic feature and depends upon number of factors such as the constant good credit worthiness of the customer, usage of subscriber, regular payment of bills in time, etc. It is the usage limit defined for the Postpaid subscription in the bill cycle.
(b) The credit limit is the credit worthiness of the customers and is fixed by the service providers by seeing the history and usage pattern of the customer.
The purpose of fixing the credit limit of the subscribers by all the telecom service providers is Customer Retention for the reason that the mobile phone industry is highly competitive as its customers have many options and retaining the existing customers is easier for the companies, than finding a new customer. All the service providers, irrespective of being public or private follow retention strategies and fixing the credit limit is one of them.
(d) The bill is generated entirely on the basis of usage of services and not on the basis of the credit limit fixed. Rather the credit limit is fixed as per the bills generated of the subscriber from time to time.
(e) Credit limit is always enhanced and/ or reduced as per the amount of each invoice raised in one billing cycle. It is pertinent to mention herein that since the complainant became a subscriber of the answering Opposite Party, he has been assigned various credit limits which show that the credit limit keeps varying.
The credit limit is updated on the bill received by the customer every month. Alternatively, it is available on the Post-paid self-care section by logging on to the Idea website.
In the present case too, when the usage of the customer increased while in International Roaming, the invoice dated 01.04.2017 generated thereafter, as annexed by the complainant showed an increased credit limit of Rs.12,900/-, It is further pertinent to mention herein that the first page of the bill dated 01.04.2017 placed on record by the complainant is pertaining to both the corporate numbers and hence, there is no deficiency in service on the part of Opposite Parties and prayed for the dismissal of the complaint.
4. In order to prove his case, none has come present on behalf of the complainant despite availing sufficient opportunities, hence the evidence of the complainant is closed by order.
5. On the other hand, to rebut the evidence of the complainant, Opposite Parties also tendered into evidence the affidavit of Ex.RA alongwith copy of document Ex.OP1 to Ex.OP5 and close the evidence.
6. We have heard the ld.counsel for the Opposite Parties and also gone through the documents placed on record.
7. Ld.counsel for the Opposite Parties No.1 and 2 has mainly reiterated the facts as narrated in the written statement respectively. We have perused the complaint of the complainant as well as rival contention of the ld.counsel for the parties.
8. The main contention of the ld.counsel for the Opposite Parties No.1 and 2 is that there is no averment in the complaint mentioning that the number in dispute was used by the proprietor for his business/commercial purpose exclusively for the purposes of earning his livelihood by means of self-employment and hence the complainant does not fall in the ambit of the definition of a consumer as per the Act. On this point, Hon'ble Supreme Court of India in GMMCO Limited v. Ecovinal International Private Limited Civil Appeal No. 1385 of 2015 D/d. 30.01.2015 has held that, 'Provisions of Consumer Protection Act are inapplicable in respect of any commercial activity other than for self-employment, and for earning an individual livelihood". Hon'ble NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI in Trio Elevators Company (India) Ltd. v. Tansingh Chauhan, Revision Petition No. 863 of 2013 D/d. 22.7.2013 held that, "Complainant does not fall within purview of consumer under C.P. Act, as elevators were to be installed in hotel run for commercial purposes - In such circumstances, this District Consumer Commission has no jurisdiction to entertain complaint and complaint was liable to be dismissed". Thus from the aforesaid facts and the law laid down by the Hon'ble Apex Court and National Commission, it is evident that this District Consumer Commission has no jurisdiction to adjudicate the present complaint.
9. Keeping in view the aforesaid facts and circumstances of the case, the instant complaint is not maintainable in this District Consumer Commission for its proper adjudication and the same stands dismissed. However, the complainant can get redressal of his grievance from the Civil Court/ or any other competent authority, in accordance with law, for which the time spent before this District Commission shall stand excluded under Section 14 of the Limitation Act in the light of the judgment of the Hon'ble Supreme Court in case titled 'Lakshmi Engineering Works vs PSG Industrial Institute reported in 1995(3) SCC 583'. However, keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
10. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
