Idea Cellular Limited, C-105, (Erstwhile Spice Communication Limited) A company registered under the Companies Act having its registered office at Suman Tower, Plot No.18, Sector 11, Gandhi Nagar – 382 011 (Gujarat) and Punjab Circle Regional Office at C-105, Phase VII, Industrial Focal Point, Mohali-160055 (Punjab) through its Authorized Signatory/Manager Legal Mr. Manoj Madan.

                                                                                                .…Appellant/OP.

Versus

Lt. Col. (Retd.) Vipin Bakshi, resident of House No.1618, Sector 7-C, Chandigarh.

                                                                        …. Respondent/Complainant

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:    JUSTICE SHAM SUNDER, PRESIDENT.

                        MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:     Sh. Vishal Gupta, Adv. for the appellant.

                        Sh. Vipin Bakshi, Respondent in person.

PER  JAGROOP  SINGH   MAHAL, MEMBER

                        This appeal is directed against the order dated 3.5.2011, rendered by the ld. District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the complainant/respondent and directed the OP to discontinue the additional devotional songs service; refund Rs.2,270/- deducted towards providing the said service and also to pay Rs.2,000/- as compensation for harassment and mental agony as well as litigation expenses. The OP was further directed to comply with the order within thirty days failing which it was to pay the aforesaid Rs.4,270/- alongwith interest @ 18% per annum from the filing of the complaint i.e. 21.12.2010 till actual payment.

2.                              The facts, in brief are that the OP charged from the complainant a sum of Rs.30/- per month for devotional song service on his mobile No. 9814479807, though the same was never subscribed by him. He sent an e-mail dated 19.10.2010 to the OP to stop deducting Rs.30/- per month for devotional songs. It was stated that he had ringtone service for the last two-three years for which, he paid Rs.30/- per month but the same was discontinued on his request about six months back but the OP started devotional song service without his permission. Despite request, he was again charged a sum of Rs.30/- for the devotional song service, upon which, he immediately rang up their Customer Care Service. He received an SMS on his mobile that the devotional song service would be renewed on his mobile number on 15.11.2010 and if he intended to de-activate the service, he would have to send a message ‘DT DCT’ to the OP. The complainant immediately sent message to the OP to stop the abovesaid service on the same day but again on 15.11.2010, he got an SMS from the OP for the renewal of devotional song service and deduction of Rs.30/- for thirty days. On 20.11.2010, he sent a notice to the OP through Registered Post for refund of the charges of devotional song service, but even after receipt of the same, the OP again deducted Rs.30/- in the month of December, 2010. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) was filed.

3.                              The OP in their reply took a preliminary objection regarding the maintainability of the complaint, in view of the judgment of Hon’ble Supreme Court of India titled as General Manager, Telecom Vs. M. Krishnan & Anr.  On merits, it was denied that there was no subscription of the devotional songs by the complainant. It was stated that the said service was activated from the end of the complainant himself. It was denied that he was not aware of the activation of the devotional pack or that any e-mail dated 19.10.2010 for deactivation was received from him.  It was stated that he got the SMS for the renewal of the devotional pack as he did not deactivate the same. It was denied that any legal notice dated 20.11.2010 was received by the OP and as such there was no letter for deactivation of the devotional services and reversal of the same and, as such, the service was continuing on his number. Remaining averments were denied being wrong.  Pleading that there was no deficiency in service on its part, prayer for dismissal of the complaint was made.

4.         The parties led evidence, in support of their case.

5.         The learned District Forum allowed the complaint, in the manner, referred to, in the opening para of the judgment.  

6.         Aggrieved against the order passed by the learned District Forum, the appellant/OP filed the instant appeal. 

7.         We have heard learned Counsel for the appellant and respondent in person and have perused the record, carefully.

8.       The learned Counsel for the appellant/OP argued that in view of the decision General Manager, Telecom  Versus M. Krishnan and Ors; III (2009) CPJ 71 (SC)  , the Consumer Fora has no jurisdiction to entertain and try the complaints of this nature.  This contention is refuted by the respondent.  In aforesaid authority, it was held,

“In our opinion, when there is a special remedy provided in Section 7B of Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred.”.

In that case a dispute arose about the correctness of the amount levied by the telecom authority for the calls allegedly made by the complainant, due to the non-payment of which the telephone connection was disconnected.  It is not so in the present case because neither the appellant is a telecom authority, nor is there any dispute about telephone bill, nor the telephone has been disconnected.  The question in the present case is whether the complainant had requested for a devotional song and secondly whether he had requested the appellant/OP to discontinue the said song, which request has not been accepted by the appellant/OP on the ground that they have not received any such request.

9.         The devotional song is not the service, for which the appellant/OP-Company was established.  In fact, they are to operate as a cellular mobile company and started giving add on services in the shape of devotional songs and other ring tones.  The devotional song was not a part of the services required by the complainant. The appellant/OP has not been able to place on file any request made by the complainant to start devotional song on his mobile phone.  The learned Counsel referred to Annexure R-2. which was attached by the appellant along with reply to the complaint.  It is alleged that Sub-mode (for starting devotional song) was OBD meaning thereby that it was an Out Bound Call.  The learned Counsel for the OP/appellant argued that a request for starting the devotional song was made by the complainant, which fact has been denied by him.  The OP could not produce any request made by the complainant to start such a devotional song. In fact, when the complainant came to know about it that under the garb of the devotional song the OP has started deducting Rs.30/- per month, he approached the customer care service and sent an E-mail Annexure-A to them but the OPs say, they have not received any. He also wrote a letter Annexure B and also a letter by registered post vide Annexure-C to stop the said song but they did not do so.  He had also sent SMS to the required telephone number to discontinue the service but to his surprise it was not discontinued but was rather renewed subsequently.  After serving a legal notice the complainant filed the present complaint to seek a relief of discontinuing the said service but even then the OPs were adamant and continued the service.  We fail to understand as to what better a request for discontinuing the devotional song should be, than the filing of the complaint before the Consumer Fora to discontinue the said song.  It is therefore, not only deficiency in service on the part of the OP but high handedness and a means to cheat its customers  of their valuable money on the pretext that request for devotional song was received from them, even though no such request is proved to have been made. The number of telephone subscribers is running into crores and starting such services without the consent of a customer, brings crores of rupees every month to the Kitty of service providers.  Needless to mention, that everybody cannot approach the Consumer Fora for a meager amount of Rs.30/- per month but on the other hand the mobile company earns crores of rupees, taking undue advantage of the helplessness of the subscribers.  It is therefore, an unfair trade practice to start any such add on service without the consent or written request of the subscriber.

10.                   It is argued by the respondent/complainant that after the orders were pronounced by the District Forum, thereafter the devotional song service was first disconnected but again activated on his mobile phone, though he never made any such request.  The circumstances of the case show that the OP/appellant has misused its position as a service provider by starting a devotional song without the consent of the complainant and did not discontinue the same even after repeated requests.  The learned District Forum was therefore, right in allowing the complaint.  The OP/appellant is bound to refund the entire amount received by them from the complainant towards the devotional song

11.       In view of the above, we are of the opinion that there is no merit in this appeal, the same is accordingly dismissed with litigation costs of Rs.10,000/-

          Certified copies be sent to the parties, free of cost.