BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.624 of 2014
Date of institution: 21.10.2014
Date of Decision: 21.10.2015
Dr. A.A. Siddiqui, IPS, Chairman, Police Task Force, Punjab Govt. Reforms Commission, resident of House No.1108, Sector 8-C, Chandigarh.
……..Complainant
Versus
1. Manager (Customer Services) Matrix Cellular International Services Pvt. Ltd. having its head office at Ashoka Lane, Mandi Road, Mehrauli, New Delhi.
2. Manager Matrix Cellular Matrix Cellular International Services Pvt. Ltd., Branch Office, SCO 188-189, First Floor, Sector 8-C, Chandigarh 160009.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Kabir Chopra, counsel for the complainant.
Shri Vikas Gupta, counsel for OP No.2.
OP No.1 exparte.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following directions to the OPs to:
(a) waive off the bill of Rs.5,812/- and pay him Rs.1.00 lac as compensation alongwith interest @ 18% per annum.
(b) pay him Rs.50,000/- as damages for unnecessary harassment.
(c) pay him Rs.11,000/- towards litigation expenses.
The case of the complainant is that he took Sim Cards from the OPs on 05.08.2013 before travelling to Africa from 06.08.2013 to 13.08.2013 i.e. Kenya and Tanzania. The complainant when tried to put the Sims in the phone and he found that the Sim card meant for Kenya was broken. The complainant immediately informed the OPs and new sim was given to him. After reaching Kenya the complainant switched on the phone but found that the Kenya Sim was not working. The complainant even changed the phone but to no avail as the Sim did not work. The other meant for Tanzania was active on roaming mode. The complainant had to use his Indian Airtel No.089686628822 on international roaming. After reaching Tanzania, the Sim meant for that country was still on roaming mode and the efforts to change it on normal mode failed to get any result. After reaching India, the complainant immediately informed the entire problems through e-mail dated 18.08.2013 to the OPs. An executive from the OPs came to the complainant on 30.08.2013 to take Sim cards on the ground that the same are required for billing but he failed to give any satisfactory reply to the e-mail of the complainant. The complainant under protest handed over the Sim Cards to the executive. Till today the OPs have failed to address the grievance of the complainant. The Ops have sent a bill of Rs.5,812/- to the complainant on 08.03.2014 which the complainant is not liable to pay as the Sim cards did not work in the respective countries. Thus, this act of the Ops amounts to unfair trade practice. With these allegations the complainant has filed the present complaint.
2. Upon notice, OP No.2 in the preliminary objections of its written statement has pleaded that this Forum does not have territorial jurisdiction to entertain the complaint. The complaint has been filed beyond limitation as the SIM cards were purchased on 05.08.2013 and the Sim card did not work on 06.08.2013 and 13.08.2013, thus the cause of action arisen on 06.08.2013 and 13.08.2013 and the complaint has been filed on 21.10.2014. On merits, it has denied the averments made in the complaint and stated that the cards when were handed over to the complainant were in working condition.
3. Notice sent to OP No.1 through registered post. As per the parcel tracking report the notice was delivered on it on 26.11.2014 but one appeared for it and presuming its absence as willful, OP No.1 was proceeded against ex-parte vide order dated 04.12.2014.
4. To succeed in the complaint, the complainant tendered in evidence affidavit Ex.CW-1/1 and copies of the documents Ex.C-1 to C-2.
5. Evidence of OP No.2 consists of affidavit of Amar Sinha, its Administrative Executive Ex.OP-1/1 and copies of documents Ex.OP-2/1 to Ex.OP-2/6.
6. I have heard learned counsel for the parties and have also gone through the written arguments submitted by them.
7. The issue involved in the present complaint is regarding purchase of two SIM cards by the complainant from OPs on 05.08.2013 for use while travelling to Africa from 06.08.2013 to 13.08.2013 i.e. Kenya and Tanzania. As per the complainant, after purchase when the SIM for Kenya was to be inserted in the phone it was found broken and the complainant informed the OPs about the same and the Ops have replaced the broken SIM. However, the said SIM when put to use in Kenya it was found non functional. The other SIM meant for Tanzania though was found functional but was on a roaming mode and the complainant informed the status of both the SIMs to the OPs through his Indian Airtel No.089686628822 on international roaming. Despite the fact that SIM for Kenya was non functional and the Tanzania SIM was on roaming mode. The complainant informed the OPs about the sequence of events vide e-mail dated 18.08.2013 Ex.C-1 and further handed over the defective SIM cards to the executive of the OPs on 30.08.2013 vide his handwritten letter. The SIM cards were collected by the Executive of the OPs from the complainant for billing purposes, still without redressing his grievance, the OPs raised a bill of Rs.5812/- to the complainant on 08.03.2014 which as per the complainant he is not liable to pay as the SIM Cards did not work in the respective countries. The raising of bill of Rs.5812/- without usage of the SIM Cards is an act of unfair trade practice as per the complainant.
8. The OP No.2 in its version has raised the preliminary objection of limitation of filing the present complaint as well as territorial jurisdiction to entertain the complaint besides contesting the complaint on merits.
9. So far the territorial jurisdiction of this Forum to entertain the present complaint is concerned, the complainant has filed the complaint against OP No.2 which was having its office at E-256, 2nd Floor, Phase-8-B, Industrial Area, Mohali. However, during the course of proceedings it was learnt that OP No.2 has shifted its office from the said address to the new address at Sector 8-C, Chandigarh and, therefore, the fresh notice was issued to OP No.2 at the new address. The service of notice to OP No.2 on the new address at Chandigarh in no way takes out the jurisdiction of this Forum to entertain and adjudicate the complaint as the SIM Cards in question were purchased from OP No.2 when it was having its office in the territorial jurisdiction of Mohali and the complainant has made the correspondence regarding his grievance with the officer in charge of the OP No.2 at Mohali Ex.C-2. Therefore, the plea of the OPs is not sustainable.
10. Regarding limitation, it is admitted that the complainant has purchased the SIM card on 05.08.2013 for usage of the same while travelling to Africa from 06.08.2013 to 13.08.2013. Once the SIM for Kenya was not found operational and the Tanzania SIM being on international roaming and the matter being informed to the OPs by the complainant through his India Airtel No.089686628822 through international roaming, followed by e-mail dated 18.08.2013 Ex.C-1 and further a hand written communication dated 30.08.2013 Ex.C-2 to OP No.2, the sequence of events starting from 05.08.2013 to 13.08.2013 clearly gives the complainant the right to file the complainant within two years from 30.08.2013 i.e. the last date of last communication Ex.C-2. The complaint has been filed on 18.12.2014 well within the two years limitation period as per Section 24-A of the Consumer Protection Act. Therefore, the preliminary objection of limitation raised by the OPs is not sustainable.
11. The purchase of SIM cards is not disputed. The non operational of SIM card for Kenya and allegation of international roaming mode of SIM Card for Tanzania as alleged by the complainant and duly supported by his affidavit and proved through his E-mail Ex.C-1 and C-2 remains unrebutted in the hands of the OPs. The OP No.2 in their written statement has simply denied the parawise contents of the complaint being wrong and denied. The OPs have failed to produce any rebuttal evidence of the allegations i.e. non functional SIM card meant for usage at Kenya and the SIM card meant for Tanzania being on international roaming mode when put to use by the complainant. Therefore, an adverse inference under Section 114 (g) of the Indian Evidence Act is drawn against the OPs as they have failed to produce the documents which are in their possession to show whether the SIM meant for Kenya was non operational upon usage by the complainant during his stay in Kenay from 06.08.2013 to 13.08.2013 and further to show that the SIM meant for Tanzania was on roaming mode when put to use by the complainant while in that country. Therefore, it will be presumed that the documents are unfavour to the OP No.2 who has chosen not to produce the same. It is a common knowledge that all the data and information of mobile use is stores, preserved and protected by the mobile service provider. Hence, we are of the considered opinion on the basis of evidence produced by the complainant and simple denial by the OP No.2 without any supportive rebuttal evidence, the OPs have indulged into unfair trade practice by selling defective SIM cards for Kenya and by charging international roaming mode charges for the SIM used in Tanzania and raising a bill of Rs.5812/-. Since the complainant has proved his case against the OPs, therefore, the complaint deserves to be allowed and the complainant deserves to be compensated.
12. The complaint is allowed. Both the OPs are jointly and severally directed to:
(a) to withdraw the bill of Rs.5,812/- (Rs. Five thousand eight hundred twelve only) and not to charge any amount from the complainant.
(b) to pay to the complainant a lump sum compensation of Rs.10,000/- (Rs. Ten thousand only) for mental agony, harassment and costs of litigation.
Compliance of the above order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
October 21, 2015.
(Mrs. Madhu P. Singh)
President
I do not agree with it
and give My separate view.
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.624 of 2014
Date of institution: 21.10.2014
Date of Decision: 21.10.2015
Dr. A.A. Siddiqui, IPS, Chairman, Police Task Force, Punjab Govt. Reforms Commission, resident of House No.1108, Sector 8-C, Chandigarh.
……..Complainant
Versus
1. Manager (Customer Services) Matrix Cellular International Services Pvt. Ltd. having its head office at Ashoka Lane, Mandi Road, Mehrauli, New Delhi.
2. Manager Matrix Cellular Matrix Cellular International Services Pvt. Ltd., Branch Office, SCO 188-189, First Floor, Sector 8-C, Chandigarh 160009.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Kabir Chopra, counsel for the complainant.
Shri Vikas Gupta, counsel for OP No.2.
OP No.1 exparte.
Dissent view of the Member
(Amrinder Singh Sidhu, Member)
I do not agree with the order of the Ld. President and Ld. Lady Member of this Forum vide which they allowed the complaint. I do not agree especially on the point of territorial jurisdiction whereby the they held that the plea of the Opposite Parties is not sustainable. My view is that the objection of the opposite party is sustainable in view of Section 11 (2) of the Consumer Protection Act, 1986 (as amended upto date) which is reproduced as below:
“Section 11 (2). A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction:
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or [carries or business or has a branch office or] personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or [carries on business or has a branch office] or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties, who do not reside or [carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
In the present complaint neither the Opposite parties either falls within the territorial jurisdiction or cause of action arose to the complainant within the territorial jurisdiction of this Forum. The words “at the time of institution of the complaint” used in Section 11 (2) of the above mentioned Act are important. In the present complaint when the complaint is instituted neither the OPs falls within the territorial jurisdiction of this Forum because OP No.1 is situated at New Delhi and OP No.2 is situated at Chandigarh nor cause of action arose to the complainant within the territorial jurisdiction of this Forum as cause of action arose to the complainant in Kenya when he put the SIM in use in Kenya and found it non functional and in Tanzania when another SIM was on a roaming mode. Hence this Forum lacks territorial jurisdiction to adjudicate upon the present complaint.
I don’t agree especially with Para No.9, 11 and 12 of the orders of Ld. President and Ld. Lady Member because a letter which is Ex.C-2 proves only that the letter is addressed to the official incharge of Mattrix Mohali, Punjab is written by the complainant but does not prove in any manner that it is delivered to the addressee and, therefore, it cannot be taken into consideration to the effect that it was ever delivered to the addressee or even that OP No.2 has office at Mohali. Though complainant failed to prove that there is any office of the Opposite Party at Mohali yet even for the sake of arguments if there is any office of the Opposite party at Mohali, then also complainant is not entitled to relief because Sonic Surgical Vs. National Insurance Company Ltd. Page No.252 2010(1) CLT forbids to entertain a complaint where there is no direct nexus between cause of action and branch office as it will amount to bench hunting. There is nothing on record that establish that Opposite Party has office at Mohali at the time of institution of the present complaint whereas the report of the postal authorities states that “the addressee left” and meaning thereby OP No.2 has no office at the time of institution of the present complaint. Further learned counsel for the complainant gave an application for filing correct address of OP No.2 and thereafter filed the address of OP No.2 at Chandigarh. It is immaterial if OP No.2 has its office within territorial jurisdiction of this Forum earlier to institution of this complaint unless the cause of action arose to him within territorial jurisdiction of the concerned District Forum.
Further the complaint has neither sought permission from this Forum to pursue the complaint nor acquiesce of OP No.1 which is situated at New Delhi as required under Section 11 (2) (b) of Consumer Protection Act, 1986 (as amended upto date) which is mandatory and, therefore, fatal to this complaint.
So in view of above discussion, it can safely be concluded that there is no proof on record that proves that any of the conditions mentioned in Section 11 (2) of the Consumer Protection Act, 1986 (as amended upto date) that brings the complaint within territorial jurisdiction of this Forum is fulfilled. This complaint is dismissed on the ground of lack of territorial jurisdiction of this Forum.
Pronounced
October 21, 2015
(Amrinder Singh Sidhu)
Member
