Smt. Sahana Ahmed Basu, member.
This is an application u/s.12 of the C.P. Act, 1986.
The instant case in brief is that the complainant being an editor-in-chief of a Bengali daily newspaper opted for Matrix SIM card for his own use in abroad tour by depositing Rs.6,000/-in connection with mobile No.447452354483 and SIM No.89445385 24004464187 from 14/09/2017 to 13/10/2017. Despite the assurance of providing quality service by the O.Ps. Matrix Cellular (International) Services Ltd. the complainant faced extreme difficulties and harassment in the aforesaid trip with regard to the SIM card and related network services. The complainant communicated his grievance to the O.Ps. through telephonic conversations and via e-mail, but the problem was not solved and the complainant did not get full services. Moreover, the basic free incoming facility as per tariff chart was inactivated throughout the trip for which the complainant had to incur colossal loss and damage. The trip plans and programs of the complainant were also jeopardized. Finding no other alternative the complainant was forced to opt for Vodafone international roaming service at high tariff. For both outgoing and incoming calls. The O.Ps. partially admitted their deficiency via e-mail. The complainant served a legal notice upon the O.Ps. on 15/12/2017 claiming the damages thereof amounting to Rs.2,00,000/-. In spite of compensate the loss the O.Ps. sent a reply by letter dated 21/12/2017 denying the allegation and they also sent a legal notice on 09/01/2018 claiming Rs.12,672.11 from the complainant as charges towards services which were not provided to the complainant. Such activities of the O.Ps. tantamount to deficiency in service and unfair trade practice. Hence, the consumer complaint.
The O.P.-1 contested the case by filing W.V. contending inter alia that the consumer complaint is false, frivolous, misleading in nature and not maintainable in its present form and in law. That the complainant does not come under the scope of consumer as per the C. P. Act, 1986 as the SIM Card was hired by the complainant for usage in business trip for commercial purpose. The documents filed by the complainant are of the later stage when O.P.-1 sent bills and demanded outstanding amount. There was no conversation / communications during the trip has been filed by the complainant. The usage are reflected in the item wised bills which did not support the complainant’s allegation. O.P.-1 denied that incoming facility on the said connection was deliberately stopped and O.P. was not provided service. O.P.-1 also denied the responsibility for any loss of the complainant. As per the O.P.-1 the legal notice of the complainant was replied but the complainant had not filed the same which is suppressive and fraudulent act. O.P.-1 stated that complainant complainant is liable to pay the legitimate amount towards the usages of the international mobile service. There was no deficiency in service or unfair trade practice on the part of the answering O.P. Therefore, the O.P.-1 prayed for dismissal of the complaint.
Complainant has tendered evidence through affidavit and also filed BNA. O.P.-1 prays for time to file questionnaire more than once, but failed to do so. They prayed for time to file questionnaire more than once but they did not appear before this Forum. Thus, they missed the opportunity to file E/Chief and BNA. So we have examined the materials on record and given a thoughtful consideration to the arguments advanced before us.
In spite of service of notice O.Ps.-2 to 5 did not turn up. It is submitted by the Ld. Advocate for the O.P.-1 that the O.Ps.-2 to 5 prayed for adopting the W.V. filed by the O.P.-1 earlier in this case as their W.V. but no petition was filed by them to that effect. Despite several opportunities neither any of the O.Ps. nor their representative did not turn up. Thus,the case was heard ex-parte against the O.Ps.-2 to 5.
On pleadings of the parties the following points came up for proper and effective adjudication of the instant case.
- Is the consumer complaint maintainable ?
- Are the O.Ps. deficient in rendering services ?
- Is the complainant entitled to get relief / reliefs as prayed for ?
Decision with Reasons
Points No.-1 to 3.
All the points are taken up together for the sake of convenience and brevity in discussion.
It is undisputed that the complainant opted for Matrix SIM Card in connection with Mobile No.447452354483 and SIM No.8944538524004464187 for the period from 14/09/2017 to 13/10/2017 for usage in abroad tour. It is also admitted that the complainant paid Rs.6,000/- as security charge.
The O.P.-1 raised maintainability point on the ground that complainant had been to trip for business purpose. On the other hand, complainant submitted that he is not a businessman. He had been to foreign trip being the editor-in-chief of a daily newspaper. His tour was on behalf of that media house. He opted the international SIM Card for his personal use and that was not opted on behalf of his employer. So, undoubtedly he is a consumer under the O.P.-1. Therefore, the complaint is maintainable.
The complainant stated that he chose the Matrix SIM (International) Card for uninterrupted service and in their Website they claimed on their portfolio of countries which focuses on fulfilling customers’ specific communication needs when travelling abroad. But the complainant faced difficulties and harassment in the afore said trip with regard to the SIM Card and related network services provided by the O.Ps. The item wised bill filed by the O.P.-1 shows that the complainant made call to India from Spain for 7 hour 56 minutes (From 16/09/2017 to 06/10/2017, sent 419 international text, made international voice call on 20/09/2017 for 8 minutes, sent local 35 local texts, local voice call for 3 hours 39 minutes from 15/09/2017 to 06/10/2017. Among the local calls there was 81 outgoing calls and 40 incoming calls.
On perusal of the call details, we find that the complainant did not receive any international call, which is one of the important point of his grievance. Although he received local incoming calls. On perusal of evidences furnished by the complainant we find that O.Ps. have claimed on their Website that “With Matrix you can save big on your International Roaming expenses and can always stay in touch with your loved ones whenever and wherever you are in the world”. But when the complainant reported about the problems he was facing regarding their service, O.Ps. did not pay any heed to solve the problem but sent mails on 26/09/2017 and 28/09/2017 for unbilled usage and for realization of interim payment of INR 5,000/- to keep the line active. The complainant replied on 28/09/2017 through e-mail mentioning that he is a very old customer and reliable & trusted customer of O.Ps. Due to Puja Vacation all Banks were closed in Kolkata, for which he could not made any payment. He also requested the O.Ps. to continue the service till 06/10/2017. On 05/10/2017 O.Ps. sent a mail to inform about unbilled usage. In reply, the complainant told that he is going to file complaint at Indian Court of Law against O.Ps. for a criminal breach of contract. That on 06/10/2017 O.Ps. informed through e-mail about unbilled usage and also informed that their concerned team had been trying to contact the complainant to resolve the dispute. But in spite of that they disconnected the service on 12/10/2017. After returned back to India the complainant sent an e-mail dated 22/11/2017 and a legal notice dated 15/12/2017 to the O.Ps. about his grievance. The O.Ps. replied the legal notice denying the allegation and demanding Rs.12,371.11 as outstanding dues along with interest at the rate of18 percent p.a. from the date of due till the date of realization.
In view of the above, we find that the O.Ps. showed utterly unprofessional attitude to their old customer who relies and kept trust upon them. they denied the grievances made by the complainant but fails to prove their case. This demonstrate their gesture of deficiency in service and has caused also harassment.
The O.P.-1 submitted that they are not liable for the interruption of SIM / Data Services as they are not service provider. As per clause-8 of the agreement we find that “Matrix shall not be liable for any compensatory / speculative damages, in case of non-working of service that is provided by the network service provider through the SIM / Data Card. The liability of MCIS in this regard culminates with MCIS supplying a SIM / Data Card to the client. Further, without prejudice to the above, the liability of MCIS is limited to the amount of advance money deposited by the client with / to MCIS, if any. The client agrees that no further costs / damages compensatory or otherwise will be payable by MCIS to the client”. But in this instant case this clause cannot be applied as it was the postpaid plan of Matrix. We found that the SIM or Data Card supplied by the O.Ps. is not working. The service was poor. It was a postpaid network (Matrix MVNO Postpaid) in which there is no such clause in the terms and conditions. So they are fully liable for the difficulties and harassment faced by the complainant. Therefore, there is deficiency in service on the part of the O.Ps. Moreover, we find that the O.Ps. demonstrated utter negligence in legal procedure. They prayed for time to file questionnaire for more than once and their prayer was allowed for the ends of justice. But ultimately they did not turn up to contest the case. It reflects the irresponsible attitude on the part of the O.Ps.
In absence of controverting materials on record on the part of the O.Ps. and having regard to the documents on record on the part of the complainant, we are of the opinion that complainant is entitled to get reliefs as prayed for.
Thus, all the points under consideration answered in the affirmative.
In result, the case succeeds.
Hence,
Ordered
That the complaint case be and the same is allowed on contest against the O.P.-1 and ex-parte against the rest with cost of Rs.5,000/-.
O.Ps. are jointly and severally directed to pay Rs.1,00,000/- for compensation towards damages, losses, harassment, mental pain and agony within 30 days from the date of this order.
Liberty be given to the complainant to put the order into execution,if the OP transgress to comply the order.
Let copies of the order be supplied to the parties when applied for.