Date of filing : 01-06-2011
Date of Disposal: 18-07-2012
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.
PRESENT: - Sri T.Sundara Ramaiah, B.Com., B.L., President (FAC)
Sri S.Niranjan Babu, B.A., B.L.,Male Member
Sri Kum. M.Sreelatha, B.A., B.L., Lady Member
Wednesday, the 18th day of July, 2012
C.C.NO. 114/2011
Between:
S.Kiran Kumar
S/o S.Narasinga Rao
D.No.1-3-554, 5th Road
Near B.S.N.L. Office
Anantapur. … Complainant
Vs.
- K.K.Tele Links rep. by its
Owner-cum-Chair Person,
Distributors of Reliance Info Comm.,
D.No.15/570, Pallavi Towers,
Subash Road,
Anantapur.
- Reliance Communication Ltd.,
Rep. by its Managing Director,
H-Block,1st floor, Dheerubhai
Ambhani Knowledge City
Navi Mumbai -400 710
Maharashtra. …Opposite Parties
This case coming on this day for final hearing before us in the presence of Sri M.Nagesh and Sri S.Surendra Chari, advocates for the complainant and 1st opposite party is called absent and Sri Ravi and Sreekanth, advocates for the 2nd opposite party and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:
O R D E R
Kumari M.Sreelatha, Lady Member: - This complaint has been filed by the complainant under section 12 of Consumer Protection Act, 1986 against the opposite parties 1 & 2 claiming a sum of Rs.1,599/- towards Cost of USB Data card (Modem), Rs.5,000/- towards expenditure, Rs.2,000/- towards legal expenses and Rs.10,000/- towards mental agony in total Rs.18,599/- with interest @ 24% p.a. till the date of payment and costs of the complaint.
2. The brief facts of the complaint are that :- The 1st opposite party is the authorized dealer of 2nd opposite party. The 2nd opposite party offered a scheme as Reliance Net Connect +USB Modem at the rate of Rs.1599/- and in that offer they have also promised that 20 times faster internet with speed upto 3.1 Mbps. The complainant submits that believing words of the opposite parties, the complainant approached the 1st opposite party and purchased the Broad Band Plus USB Modem by way of Post paid connection on 11-02-2011 by paying Rs.1599/- cash and the 1st opposite party allotted RIM No.9390578546, RSN.R2TCDC100418971 to the complainant. It is submitted that on 22-02-2011 i.e. within 10 days from the date of connection a problems arise in USB net connection due to which the data card was not functioned. Immediately the complainant approached the 1st opposite party. Then the 1st opposite party promised that the problem will be rectified very soon but in vain. In the 1st week of March, the complainant received monthly bill No.304019310341 dt.22-02-2011 The complainant again approached the 1st opposite party and he advised the complainant to pay bill and contact Mr.Kalyan, who is Zonal Officer of 2nd opposite party by giving his Cell No.9393912913 and the complainant paid the monthly bill for Rs.294/- dt.07-03-2011 and approached Mr.Kalyan. It is submitted that Mr.Kalyan was not rectified the problem though he took 10 days time. The complainant approached the 1st opposite party and requested to rectify the problem. Then the 1st opposite party advised the complainant to approach their authorized service centre by name NEOTEL Service Centre situated at Kamalanagar, Anantapur. On 14-03-2011 the complainant approached the service centre situated at Kamalanagar, Anantapur and the said Service Centre kept the USB Data card of the complainant for a period of 12 days but problem was not yet rectified. Again as per their advise, the complainant approached Mr.Kalyan. The said Kalyan again advised the complainant to approach Mr.Ramakrishna, who is Signal Technician of the 2nd opposite party by giving his Cell No.9393093082 on 27-03-2011. The complainant again received 2nd monthly bill No.304091501457 dt.22-03-2011 even though the USB Data card was not worked. Then the complainant approached the 1st opposite party and asked about his problem. The 1stoppostie party again advised the complainant to pay the present monthly bill and to approach one Manmohan stating that he is Head of Customer Care Centre by giving his No.9346726139. Accordingly, the complainant approached Mr.Manmohan he was also not rectified the problem of the complainant. It is submitted that the complainant purchased Broad Band Internet Connection with great hope that it is working properly and desired it will be more useful to his family in summer vacation. The complainant invested Rs.1,599/- with great difficulties because of irregular response of the opposite parties and did not disclose the facts about the USB Data Card and the complainant suffered a lot and he is not in a position to use USB Data Card due to irregular activities of the opposite parties and the same was caused mental agony and inconvenience to the complainant. The action of the opposite parties clearly shows their negligent attitude and there is a clear deficiency of service on the part of the opposite parties while discharging their duties with consumers. Subsequently on 19-04-2011 the complainant got issued legal notice and the same was served on the opposite parties. Inspite of service of notice the opposite parties have not rectified the problem. Hence, the complainant prays this Forum to pay Rs.18,599/- with interest @ 24% p.a. till the date of payment and grant costs of the complaint.
3. The 1st opposite party called absent.
4. The 2nd opposite party filed counter stating that the complaint is neither maintainable in law nor on facts as such deserves to be dismissed in limini. It is submitted that this Forum has no territorial jurisdiction to entertain this complaint as there is a special remedy provided in section 7B of the Indian Telegraph Act with regard to any dispute concerning any line, appliance or apparatus arises between the parties or whose benefit the line, appliance or apparatus is, or has been provided the dispute shall be determined by arbitration and shall for the purpose of such determination be referred to an arbitrator. It is submitted that the Hon’ble Supreme Court of India by an order dt.01-09-2009 in Civil Appeal No.7687/2004 also held that as there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding the disputes, then the remedy under the Consumer Protection Act is by implication barred. It is submitted that this Forum has no territorial jurisdiction since the complainant and opposite party agreed to submit to the jurisdiction of courts at Mumbai in terms and conditions of the Customer Application Form. A reading of the averments in the complaint shows that the case of the complainant is bereft of prima-facie case, which is the vital ingredient for the grant of any relief. It is significant to note that the complainant except leveling un-substantiated allegations have not filed even a shred of competent evidence in support thereof and not even a single document is filed by the complainant to show that there is a deficiency of service by the opposite parties. It is submitted that the complainant discloses no deficiency of service, attributable to this opposite party and consequently no cause of action has accrued to the complainant. Without prejudice to what is stated herein above and hereinafter the opposite party shall now deal with the complaint as under and the opposite partyNo.2 deny the material allegations of facts contained in the complaint and any such allegation of facts contained in the complaint not specifically denied herein shall be deemed to have been denied by this opposite party. With reference to the averments in the complaint the allegations of the complainant are baseless, unsubstantiated and accordingly denied in toto. It is submitted that the complainant is due a sum of Rs.1,677/- till May, 2011 to this opposite party for the services utilized by him from the opposite party. Two outstanding bills fro an amount of Rs.826.79 for the month of March, 2011 and Rs.850.56 for the month of April, 2011 were due by the complainant. It is submitted that suppressing the outstanding dues payable by him, the present complaint was filed before this Forum leveling several allegations which are false and baseless. The complainant has utilized the services of this opposite party and without clearing the outstanding against his bill has come out with this complaint so as to evade the payment to be made to this opposite party. As per the plan opted by the complainant the speed of the data card beyond certain consumption comes down from HSD Speed to IX Speed. It is true that the complainant had approached and purchased the Broad Band Plus USB Modem by way of post paid connection on 11-02-2011 and accordingly allotted RIM No.9390578546 RSN RTCDC100418971 to the complainant. With reference to averments in para 2 of the complaint it is submitted that the allegations that on 22-02-2011 i.e. within 10 days from the date of connection a problem arise in USB net connection due to which the data card was not functioned and immediately the complainant approached the opposite party No.1 and it informed that the problem will rectified very soon but in vain is hereby denied. The averment that in the 1st week of March the complainant received monthly bill No.304019310341 dt.22-02-2011 and the complainant again approached the 1st opposite party and he advised the complainant to pay bill and contact Mr.Klayan and Zonal Officer of the 2nd opposite party by giving his Cell No.9393912913 and accordingly the complainant paid the monthly bill for Rs.294/- dt.07-03-2011 and approached Mr.Kalyan is false and misconceived. It is submitted that the complainant never approached the opposite parties making any complaints in service and the complainant has also paid the bill for Rs.294/- to the opposite parties for the utilization of services from the opposite parties. If at all really any complaints are there, definitely the complainant would raised the issued before clearing the bills and not have paid the bills. With reference to the averments in para 3 of the complaint that Mr.Kalyan was not rectified the problem though he took 10 days time and again the complainant approached the 1st opposite party and requested to rectify the problem and then the 1st opposite party advised the complainant to approach their authorized service centre by name NEOTEL Service Centre situated at Kamalanagar, Anantapur is false and baseless. It is submitted that for the first time the complainant approached the Customer Relation Centre on 14-03-2011 situated at Kamalanagar, Anantapur informing about the complaint in USB Data Card and after due verification by the staff of the opposite party found that the data card is in order and informed that the USB is in condition. The allegation in para 4 of the complaint that the complainant again received 2nd monthly bill No.304091501457 dt.22-03-2011 even though the USB Data card was not worked is false and incorrect. It is submitted that the complainant approached the 1st opposite party and asked about his problem and the 1st opposite party again advised the complainant to pay the present monthly bill and to approach one Manmohan stating that he is Head of Customer Care by giving his Cell No.9346726139 is false and incorrect. The complainant never approached this opposite party second time making any complaints on USB Board and he utilized the services of the opposite party by using the internet services of the opposite party by using the internet services and the usage is also clearly mentioned in the bills raised by this opposite party. If the internet is not in working condition as alleged by the complainant then there would not be any usage. But the bills of this opposite party raised as per the usage of its customers. The averments in para 5 to 9 that the complainant purchased Broad Band Internet Connection with great hope that it is working properly and desired it will be more useful to his family in summer vacation and the complainant invested Rs.1,599/- with great difficulties because of irregular response of the opposite parties and did not disclose the facts about the USB data card and the complainant suffered a lot and he is not in a position to use USB Data Card due to irregular activities of the opposite parties and the same was caused lot of mental agony and inconvenience to the complainant is misconceived. The complainant had obtained the Broad Band connection and utilized the same and for the usage the complainant had paid the bills initially and later he stopped the payment of bills for the reasons best known to him. The averments that the action of the opposite parties clearly shows their negligent attitude and there is a deficiency of service of the opposite parties while discharging duties with consumers is misconceived. It is submitted that there is no cause of action whatever to espouse and the complaint is purely fictional and speculative. The opposite parties vehemently deny the allegations of the complainant about the deficiency of service on the part of the opposite parties. It is the complainant who has not paid the pending bills and had outstanding dues can not seek any relief. It is submitted that the claims for the allegations that the complainant has suffered lot of mental agony on account of the opposite parties is hereby denied intoto. It is submitted to substantiate his statements the complainant has not put any evidence before this Forum. There is no deficiency on the part of the opposite parties and the complainant is not entitled to any of the reliefs prayed for muchless Rs.18,599/ which is any case he has not explained how he is entitled to. For the resisted hereinabove the complainant is not entitled for any of the reliefs as prayed for. The present complaint is filed by the complainant only to avoid the legitimate dues payable by him, which in any case this opposite party reserves its right to recover the same from the complainant. Therefore the complaint may be dismissed with costs .
5. Basing on the above pleadings, the points that arise for consideration are:-
1. Whether there is deficiency of service on the part of the opposite parties 1 & 2 ?
2. Whether this Forum has jurisdiction to entertain the complaint?
3. To what relief?
6. To prove the case of the complainant, the evidence on affidavit of the complainant has been filed and marked Exs.A1 to A10 documents. On behalf of the 2nd opposite party, evidence on affidavit of the 2nd opposite party has been filed and no documents have been marked on behalf of the 2nd opposite party.
7. Heard both sides.
8. POINT NO.1:- The counsel for the complainant argued that the 1st opposite party is the dealer of 2nd opposite party and the 2nd opposite party offered a scheme as Reliance Net Connect + USB Modem at Rs.1599/-. In that offer the 2nd opposite party promised that 20 times faster internet speed upto 3.1 mbps. The complainant purchased the USB Modem from the1st opposite party (Ex.A1) by paying a sum of Rs.1,599/- and the 1st opposite party allotted RIM No. 9390578546, RSN.R2TCDC100418971. After 10 days the data card was not functioned and the same was informed to the 1st opposite party. The 1st opposite party has not rectified the same. Meanwhile the complainant received monthly bill on 22-02-2011 for a sum of rs.294/- and he paid the same on 07-03-2011 on the advise of 1st opposite party. The 1st opposite party also advised the complainant to contact Mr.Kalyan, who is Zonal Manager to rectify the problem. But the above said person was not rectified the same. Again the complainant approached the 1st opposite party and he advised him to approach Neotel Authorized Service Center at Kamalanagar, Anantapur. The complainant approached the above said Service Centre on 14-03-2011 and they kept the USB Card for12 days but the problem was not rectified. Again as per the advise of Mr.Kalyan, Zonal Officer, he approached Ramakrishna, who is Signal Technician of 2nd opposite party. He was also not rectified the same. In that course the complainant received 2nd bill on 22-03-2011 though the complainant has not used the USB Card as it is not working properly. Again the complainant approached the 1st opposite party but he advised to pay bill and contact one Manmohan to rectify the problem. But he has not rectified the same. Due to the act of the 1st opposite party, the complainant has not used the Internet connection in summer vacation. Thus caused lot of mental agony and inconvenience and it is clear case of deficiency of service on the part of the opposite parties. Hence, the complainant is entitled the claim.
9. The counsel for the 2nd opposite party argued that the complainant purchased USB Modem from the 1st opposite party and he utilized the services of internet and he paid a sum of Rs.294/- towards charges. The counsel argued that when there is really complaints are there, the complainant would raise the same before clearing the bills and not have paid the bills. The counsel also argued that the complainant is due a sum of Rs.1677/- till May, 2011 to the 2nd opposite party for the months of March and April, 2011. To evade the two outstanding bills he filed the present complaint with false allegations and the same was clearly shows in Ex.B1 and B2 bills of 2nd opposite party. As per the plan opted by the complainant speed of data card beyond certain consumption comes down from HSP Speed to IX speed. The opposite party further argued that the complainant approached number of persons on the advise of the 1st opposite party and all those persons have not rectified the problem is not true. For the first time the complainant approached the Service Center on 14-03-2011 with a complaint in USB Card and the staff verified the same and found that the USB is in condition. When the internet is not in working condition as alleged by the complainant, then there would not be any usage but the opposite party raised bills as per usage. The complainant failed to file any documentary evidence to prove his case. Hence, there is no deficiency of service on the part of the opposite parties and the complainant is not entitled for any relief as the complainant filed the present complaint only to avoid the legitimate bills payable by the complainant to the opposite parties.
10. There is no dispute with regard to purchase of Reliance Net Connect + USB Modem at Rs.1,599/- from the 1st opposite party as the 1st opposite party is authorized dealer of 2nd opposite party. On 11-02-2011 by way of post paid connection Ex.A1. It is clear that the complainant utilized the services of Internet for 10 days for that he paid an amount of Rs.294/- (Ex.A4). There is no proof that he paid the amounts on the advise of the 1st opposite party as the complainant paid the same for usage of the internet. As per Ex.A2 brochure the USB Modem cost is Rs.1599/- and the customer has to choose the plan which were given on the back side of the brochure. As per Ex.B1 the complainant has chosen the plan as RG Simple PP199 and he has to pay a sum of Rs.950/- towards net connection monthly charges and monthly bill will be generated on the 22nd of every month. As per plan the 1st opposite party issued bill for Rs.294/- on 22-02-2011 as the complainant utilized the services for 10 days i.e. from 11-02-2011 to 22-02-2011 and the monthly bill will be generated on the 22nd of every month. There is no question arises that the complainant paid the bill only on the advise of the 1st opposite party as the he paid the same for the utilization of the services.
11. The complainant stated that after 10 days the problem arose in net connection so the complainant unable to use Internet and he approached the 1st opposite party and the 1st opposite party advised him to contact the Zonal Officer. He approached the Zonal Officer but he was not rectified the problem though he took 10 days time, then he approached the Neotel Service Center on 14-03-2011. They have also not rectified the problem by keeping the modem for a period of 12 days. Later the Zonal Officer advised on 27-03-2012 to contact one Ramakrishna, who is Signal Technician of 2nd opposite party he was also taken 4 days time but the problem not rectified. Again he approached one Manmohan who is Head of Customer Care Centre but he was also not rectified. The complainant has not filed any documentary evidence to show that he contacted the number of persons as stated in the complaint. When he contacted them and what they advised him except mentioning Mobile Nos. Every prudent man used to take a receipt when he surrender any goods for rectification. The casein hand the complainant filed the receipt or bill of surrender of Modem to the authorized service centre at Anantapur on 14-03-2011. In general course the service centre used to give receipt for the items taken for repairs by noting the problem. But in the present case the complainant filed receipt which shows that USB Modem was given on 14-03-2011. The document i.e. Ex.A7 clearly shows that all the columns about the repairs remained blank except mentioning USB Card No. On the other hand the opposite party argued that for the first time the complainant approached the Service Center on 14-03-2011 with a complaint and their staff verified and found no defects in the Modem and USB is in condition. There are no believable grounds that the USB Modem gave troubles due to it the complainant suffered a lot.
12. As per Ex.B1 and B2 the complainant is due a sum of rs.1677/- for the months of March and April, 2011 as the complainant opted RG Simple PP 199 and the customer has to pay monthly charges of Rs.950/-. In that connection the 1st opposite party issued March bill Ex.B1) for a sum of Rs.826.79 on 22-03-2011. As per the plan opted by the complainant he has to pay monthly amount of Rs.950/-. There isno iota of evidence that USB Card is not working properly. As per Ex.B1 and B2 he was due a sum of Rs.1,677/- to the opposite parties. If the internet is not working there would not be any usage but in this case the complainant contended that because of irregular act of the opposite parties, the complainant failed to utilize the services. But Ex.B1 and B2 shows that the complainant used internet then only they sent bills for the units used by the complainant. As per Ex.B1 and B2 the complainant has not raised any objection as they are fabricated one. The complainant narrated that on receiving the 2nd monthly bill he approached the 1st opposite party and the 1st opposite party advised to contact one Manmohan, who is Head of Customer Care Centre. When the modem was received by the 1st opposite party on 14-03-2011 for rectification as per Ex.A7 and they kept the same for 12 days and not rectified, then the question of approaching the Head of Service Center on 22-03-2011 does not arise. The complainant totally failed to prove that there is deficiency of service on the part of the opposite parties. Hence this point is answered accordingly in favour of the opposite parties and against the complainant.
13. POINTNO.2 – The counsel for the complainant argued that this Forum has got territorial jurisdiction to entertain the complaint as there is no agreement with regard to arbitration as alleged by the opposite party. If at all there is an agreement between the complainant and the opposite party, there is no bar to the complainant not to approach this Forum to file the complaint and basing on that ground only complaint should not be quashed and the complaint would be entertained. The counsel for the opposite party No.2 argued that this Forum has no territorial jurisdiction to entertain the complaint as there is special remedy provided under section 7-B of Indian Telegraphic Act with regard to any dispute concerning any line, appliance or apparatus arises between the parties the dispute shall be determined by arbitration and for the purpose of such determination be referred to arbitrator as per the Hon’ble Supreme Court by an order dt.01-09-2009 in Civil Appeal No.7687/04 held that there is special remedy under section 7-B of Indian Telegraphic Act.
14. The decision reported in 1998 ALD Consumer 179 between Secretary, A.P.Poultry Farm Co-operative Marketing Society Vs. S.Jagannatha Naidu. In the above case the Hon’ble court held that though arbitration clause is there the Forum has territorial jurisdiction to entertain the complaint. This point is answered accordingly in favour of the complainant and against the opposite parties as this Forum has got territorial jurisdiction to entertain the complaint. Though the Forum has got jurisdiction the complainant failed to prove that there is deficiency of service on the part of the opposite parties, no merits to allow the complaint. Hence the complainant is not entitled any compensation as claimed y him.
15. POINT NO.3 - In the result the complaint is dismissed without costs.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 18th day of July, 2012.
MALE MEMBER LADY MEMBER PRESIDENT (FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR ANANTAPUR
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT: ON BEHALF OF THE OPPOISITE PARTIES
-NIL- -NIL-
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 – USB Modem purchased by the complainant from the 1st opposite party.
Ex.A2 - Brochure relating to Reliance Net Connection issued by the 1st opposite
Party
Ex.A3 - Bill dt.11-02-2011 issued by K.K.Tele Links, Anantapur in favour of the
Complainant.
Ex.A4 - Bill for Rs.293.54 issued by the 1st opposite party to the complainant.
Ex.A5 - Receipt dt.07-03-2011 issued by the1st opposite party to the complainant.
Ex.A6- Bill for Rs.827.25 issued by the 1st opposite party to the complainant.
Ex.A7 - Photo copy of document issued by customer care centre.
Ex.A8 - Office copy of legal notice dt.19-04-2011 got issued by the complainant to
the opposite parties 1 & 2.
Ex.A9 – Postal acknowledgement signed by 1st opposite party.
Ex.A10 – Postal acknowledgement signed by the 2nd opposite party.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES
MALE MEMBER LADY MEMBER PRESIDENT (FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR ANANTAPUR
Typed by JPNN
