Chandigarh

DF-I

CC/740/2014

Rajesh Garg - Complainant(s)

Versus

Matrix Cellular International Services Private Limited. - Opp.Party(s)

Nimrata Shergill

29 May 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

========

 

 

                                     

Consumer Complaint No.	:	CC/740/2014
Date of Institution	:	11/11/2014
Date of Decision	:	29/05/2015

 

 

Rajesh Garg son of late Sh. M.L. Garg, Resident of House No.2070, Sector 21-C, Chandigarh.

…..Complainant

V E R S U S

Matrix Cellular International Services Private Limited, SCO 188-189, Madhya Marg, Sector 8-C, Chandigarh.

Registered Office at 7, Khullar Farms, 140, Mandi Road, Mehrauli, New Delhi 110030.

……Opposite Party

 

QUORUM:	P.L.AHUJA	PRESIDENT
	MRS.SURJEET KAUR	MEMBER

                                               

                                               

                       

ARGUED BY	:	Complainant in person
		Sh. Vikas Kumar Gupta, Counsel for OP

                       

                 

PER P.L.AHUJA, PRESIDENT

1.         Sh. Rajesh Garg, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Matrix Cellular International Services Private Limited, Opposite Party (hereinafter called the OP), alleging that he was to travel to his sister’s place in Singapore and for that purpose he applied for an international mobile connection from the OP in December 2011.  The complainant paid Rs.5,000/- through credit card authorisation to the OP as advance charges for usage of the telephone connection.  According to the complainant, he was specifically informed that the mobile connection would work upto exhaustion of the limit of Rs.5,000/- and thereafter he would have to telephonically inform the OP to get it further recharged. Upon return from Singapore in the 2^nd week of January 2012, the complainant was shocked to receive a bill from the OP informing outstanding dues of Rs.47,364.77 and was further shocked to know that the OP had withdrawn a sum of Rs.20,000/- from his credit card account, without intimating him, which prompted him to immediately inform his bankers that no such further drawl be allowed to the OP in future.   

                According to the complainant, he chose to forget the issue and assumed that instructing its bank against further withdrawal would put a decent burial to the matter.  However, the complainant received a bolt from the blue when the OP filed a summary suit for recovery of Rs.22,364/- in the civil court. Alleging that the aforesaid acts amount to cheating, deficiency in service and unfair trade practice on the part of the OP, the complainant has filed the instant complaint. 

2.         In its reply by way of affidavit, OP has taken a number of preliminary objections including that the complaint is not maintainable before this Forum in view of the Judgment of the Hon’ble Apex Court in General Manager, Telecom Vs. M. Krishnan & Anr. It has been admitted that the complainant applied for an international mobile connection with it.  It has been submitted that the authorization of the amount of Rs.5,000/- was only provided to the OP as a blocking amount or a security fee.  It has been averred that the complainant preferred to bear the charges put on the services utilized through his credit card through an explicit authorization in favour of the OP in the Customer Agreement Form. It has further been admitted that a bill of Rs.47,364.77 was generated on 4.1.2012 and sent to the complainant. It has been pleaded that based on the intention indicated by the complainant in the Customer Agreement Form and the authorization provided in the same, the OP withdrew a total amount of Rs.25,000/- in three different transactions on 12.1.2012. It has further been admitted that a recovery suit for the amount of Rs.22,364/- was filed against the complainant in April 2014.  It has been contended that the complainant has not denied using the services he was being charged for nor has he challenged the computation of the billing amount.  Pleading that there is no deficiency in service or unfair trade practice on its part, OP has prayed for dismissal of the complaint.
3.         In his rejoinder, the complainant has controverted the stand of the OP and reiterated his own. It has been averred that the complainant definitely does not want to pay the amount which the company/OP is fraudulently intending to charge against the terms of the agreement and practice relating to prepaid sim card usage. 
4.         The parties led evidence in support of their contentions.
5.         We have gone through the entire evidence, written arguments submitted by both sides and heard the arguments addressed by the complainant in person and learned Counsel for the OP. 
6.         As far as the objection of the OP that this Forum has no jurisdiction to entertain the case relating to telephone disconnection/non-payment in view of the law laid down by the Apex Court in case titled as General Manager, Telecom Vs. M. Krishnan and Anr.-III 2009 (8) SCC 481 is concerned, it is important to mention that the Govt. of India vide letter No.J 24/11/2014 CPU dated 21.8.2014 has sent a copy of letter No.2-17/2013-Policy-I dated 24.1.2014 to the Hon’ble National Commission as well as State Commissions of all State Governments and U.Ts.  Paras No.4 & 6 of the letter are reproduced as under :-

“4.    The matter has been examined in this Department. It is mentioned that the matter referred to in the Hon’ble Supreme Court (General Manager, Telecom Vs. M. Krishnan and Anr.) involved a dispute between Department of Telecommunications (DoT) as a service provider prior to the hiving off telecom services into a separate company namely Bharat Sanchar Nigam Limited (BSNL).  Since DoT was also the telegraph authority, reference was made by the Hon’ble Supreme Court to the provisions of Section 7B.  However, powers of the telegraph authority have neither been vested nor are available to private telecom service providers and BSNL. Therefore, recourse to section 7B in case of disputes between consumers and private service providers and BSNL would not be available. The Hon’ble Supreme Court’s judgment is sui generis in its application and has to be read with reference to the particular facts and circumstances of the case before it.

6.     In view of the above position, this Department is of the view that the request from Government of West Bengal proposing to consider preferring an SLP before the Hon’ble Supreme Court of India for making the position of law unambiguous in the context of Section 3 of Consumer Protection Act, 1986 is not required and the District Forums are competent to deal with the disputes between telecom consumers and telecom service providers.”

The Hon'ble High Court of Delhi in JK Mittal Vs. Union of India & Ors., WP (C) 8285/2010 decided on 6.2.2012 has considered the provisions of Section 7B of the Indian Telegraph Act, 1885 and held that the consumer claim is maintainable before the District Forum. So, we are not impressed with this contention that this Forum has no jurisdiction to try the dispute involved between the parties. 

7.         The complainant has urged that he was to travel to Singapore and he applied for an international pre paid mobile connection from the OP in December 2011.  He paid an amount of Rs.5,000/- through credit card authorization to the OP as advance charges for usage of the telephone connection. He has contended that he was specifically informed that the mobile connection would work upto the exhaustion of the limit of Rs.5,000/- and thereafter he would have to telephonically inform the OP to get it further recharged. He has submitted that he had considered the amount of Rs.5,000/- was sufficient according to his need.  Further, the amount of Rs.5,000/- was deposited as a pre paid usage charge only and in the column of security amount in the Customer Agreement Form (Annexure C-1), no amount is mentioned which shows that the amount of Rs.5,000/- was not relating to security fee. He has contended that on return from Singapore, he received a bill of outstanding dues of Rs.47,364.77 from the OP.  He was further shocked to know that the OP had already withdrawn a sum of Rs.20,000/- from his credit card account. This prompted him to immediately inform his bankers that no such further drawl be allowed.  The complainant has urged that he chose to forget the issue and wanted to put a decent burial to the matter but the OP filed a summary suit for recovery on 15.4.2014 in civil court for recovery of an amount of Rs.22,364/- from him. The complainant has contended that he nowhere denies the usage of phone but denies the fraudulent scheme to entrap consumers at a later stage. He has contended that the OP is fraudulently intending to charge against the terms of the agreement and practice relating to prepaid sim card usage.
8.         We have given our thoughtful consideration to the above arguments of the complainant but we regret our inability to accept the same. Admittedly, the complainant wanted to visit his sister in Singapore and for that purpose he applied for an international mobile connection with the OP in December 2011.  The copy of the Customer Agreement Form (Annexure C-1), duly signed by the complainant, nowhere shows that the complainant had applied for an international pre paid mobile connection. The copy of the customer agreement form shows that an amount of Rs.5,000/- was paid to the OP through the credit card of the complainant and the duration of the trip was from 14.12.2011 to 5.1.2012 and the expected sim return date was 6.1.2012. Significantly, the complainant gave the following undertaking in the Customer Agreement Form (Annexure C-1) :-

                “I, being the Customer or the Guarantor, authorize Matrix Cellular (International) Services Pvt. Ltd. to transact through my credit card (as above) security deposit, bill payments, recovery against SIM/Handset lost or any other liability occurring out of this agreement. The credit card would be charged in single or multiple transactions upto full and final bill generated.”

According to the OP, the authorization of the amount of Rs.5,000/- was only provided to it as a blocking amount or a security fee. It is no doubt true that the column of security deposit in the Customer Agreement Form is lying blank, therefore, the amount of Rs.5,000/- cannot be considered to be the security fee.  However, the contention of the OP that it was a blocking amount seems to be correct because there is absolutely no mention in the Customer Agreement Form that the amount of Rs.5,000/- related to prepaid international card and after exhausting the limit of Rs.5,000/- the card was to be further recharged. In the absence of any written undertaking or assurance in the Customer Agreement Form, the contention of the complainant that he was specifically informed that the mobile connection would work upto the exhaustion of the limit of Rs.5,000/- cannot be accepted. According to the bill received by the complainant, an amount of Rs.47,364.77 was outstanding towards him. The complainant has not denied using the services he is being charged for nor he has challenged the computation of the billing amount, therefore, in view of the undertaking given by him in the Customer Agreement Form, the OP was well within its rights to transact his credit card for bill payment. In fact, the complainant did not raise any objection when the amount of Rs.20,000/- was withdrawn from his credit card account without intimation to him.  As per his own case, the complainant chose to forget the issue and assumed that instructing his bank against further withdrawal would put a decent burial to the matter.  We are of the view that the OP is well within its rights in accordance with the Customer Agreement Form to recover the bill payment through credit card.

9.         As far as the contentions of the complainant that the OP is fraudulently intending to charge against terms of the agreement and practice relating to pre paid sim card usage and its conduct amounts to cheating are concerned, fraud is to be proved like a criminal charge which requires detailed evidence, including cross examination of the witnesses and the same is beyond the purview of the summary jurisdiction of this Forum.
10.         Apart from the above position, it is the admitted case of the complainant that the OP has filed a summary suit for recovery of an amount of Rs.22,364/- on 15.4.2014 in the civil court against him. The present consumer complaint has been filed before this Forum on 11.11.2014, which is evidently a counter blast to the summary suit for recovery filed by the OP. The questions involved in the present consumer complaint can very well be decided in the summary suit for recovery which was filed by the OP about 7 months prior to the filing of the consumer complaint. Though the remedy before the Consumer Forum is an additional remedy, yet it does not mean that when a particular issue is being examined by a competent court, earlier to the filing of the complaint before the Consumer Forum, then the Consumer Forum is bound to decide the consumer complaint.  We feel that having regard to the facts and circumstances of the present case, there is every likelihood of contradictory findings by this Forum and the Civil Court.  So, we are of view that we should refrain from entertaining this consumer complaint at this stage.
11.         For the reasons recorded above, the complaint is devoid of any merit and the same is dismissed, leaving the parties to bear their own costs.  
12.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

		Sd/-	Sd/-
29/05/2015		[Surjeet Kaur]	[P. L. Ahuja]
hg		Member	President