O R D E R
PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT
1) By this complaint the Complainant has prayed that it be held that there was deficiency in service on the part of the Opposite Party as well as unfair trade practice committed by the Opposite Party by issuing bills dtd.24/04/06 and 26/05/06. It is also prayed that the Opposite Party be directed to withdraw the said disputed bills and issue the correct bills as per the agreement entered into between the parties giving all the particulars in respect thereof. It is also prayed that the Opposite Party be directed to pay Rs.20,000/- towards mental agony and Rs.20,000/- towards legal and other expenses incurred by the Complainant.
2) The Complainant has filed this complaint for reversal of roaming incoming calls as well as double charge in the bill amount in respect of calls made from the said mobile number 32485227406 as well as the line excess charges charged by the Opposite Party on the higher side to which the Complainant is not liable to pay the same. It is submitted that the Complainant is consumer as defined u/s.2(d)of the Consumer Protection Act, 1986 (hereinafter referred to as the Act). The present complaint is filed as provided under the said Act for the deficiency in service on the part of the Opposite Party. According to the Complainant, his friend Mr. Amit Shah went to the Belgium and he wanted mobile sim card of the Opposite Party for Belgium. It is submitted that as some documentary formality were not completed by him therefore the Complainant had produced all the documents and entered into an agreement with the Opposite Party. The copy of the customer agreement as well as terms and conditions and tariff of sim card given by the Opposite Party to the Complainant is at Exh.‘A’. It is submitted by the Opposite Party issued above referred mobile number and the sim card in respect thereof. According to the Complainant, the bill dtd.18/01/06 and 22/03/06 were incorrect bills. The Opposite Party corrected those bills. The bill dtd.28/02/06 was in order. The Complainant had paid those bills. The copies of which are marked as Exh.‘B’ to ‘D’ respectively.
3) It is the case of the Complainant that the bill dtd.24/04/06 for the period 02/03/06 to 01/04/06 for Rs.58,283.35 paise received from the Opposite Party was extremely on higher side as the line excess charges as well incoming roaming charges were charged wrongly and on higher side and there was double charges shown in the bill for the aforesaid period. The Complainant also received the bill dtd.26/05/06 for the period 02/04/06 to 01/05/06 for Rs.10,536.59 paise from the Opposite Party which was also contrary to the terms and conditions as agreed between the parties. The copies of the said bills are marked as Exh.‘E’ & ‘F’. It is submitted that the Complainant called upon the Opposite Party and Mr. Prashant Konda, the Asst. Manager from Mumbai who had attended the complaint of the Complainant and had admitted the mistake of the Opposite Party and promise to issue the correct bills as per the agreement. It is the case of the Complainant that he was waiting for the reply from the Opposite Party regarding the said disputed bills. However, in the meantime he had received the legal notice dtd.12/10/06 from the Advocate of the Opposite Party from New Delhi under which the Opposite Party illegally demanded Rs.69,694.66 paise alongwith interest and by the said notice the Complainant was threatened for criminal proceedings for cheating and criminal breach of trust. The copy of the said notice is marked as Exh.‘G’. The Complainant through his Advocate replied the said notice on 04/11/06 and called upon the Opposite Party to withdraw the said notice as the Complainant is not liable to pay the huge amount claimed in the said notice to the tune of Rs.69,694.66 paise. The copy of the reply notice is at Exh.‘H’. According to the Complainant, by issuing the aforesaid two disputed bills the Opposite Party had adopted unfair trade practice as provided under the Act as the Opposite Party had issued the disputed bill in breach of the terms and conditions of the agreement entered with the Complainant. The Complainant alleged that he had made repeated requests and reminders to the Opposite Party for issuing the correct bills but Opposite Party failed to do so. The Complainant has therefore, suffered mental agony and also required to spend towards the legal fees to the advocate for no fault on his part. The Complainant has therefore, prayed for grant of the reliefs claimed in para one of this order. It is submitted that the Complainant is residing in Mumbai, the Opposite Party has issued the sim card in Mumbai. The Opposite Party’s office is situated in Mumbai and as the major cause of action arose within the jurisdiction of this Forum this Forum has jurisdiction to entertain and try the complaint. The Complainant has therefore, prayed to allow the complaint.
4) The Opposite Party has filed written statement and contested the claim. It is contended that the complaint is not maintainable as this Forum has not jurisdiction to entertain the present complaint. It is contended that in the agreement form signed by the Complainant it is specifically mentioned that the said agreement shall be subject to the jurisdiction of Courts at New Delhi only. It is contended that the present complaint is filed in order to extort money from the Opposite Party and for evading payments of legitimate dues of the Opposite Party. According to the Opposite Party there is no deficiency on its part in providing services to the Complainant. The complaint is filed with malafide intention to avoid the dues of the Opposite Party. It is denied that the Opposite Party issued the incorrect bills as alleged by the Complainant. It is contended that all incoming calls are free only in the network i.e. base network in Belgium and for outside the panel network i.e. out of Belgium incoming calls are not free. It is contended that being a Belgium based number of the Complainant it is on roaming outside the present network (base network) and the calls are chargeable for both incoming as well as outgoing. It is submitted that rental has been charged as per the agreement and therefore, the question of issuing incorrect bills does not arise at all. It is denied that the bill dated 24/04/06 was excessive as alleged. It is also denied bill dtd.26/05/06 was contrary to the terms of the agreement. The Opposite Party denied that Prashant Konda – Asst. Manager of the Opposite Party from Mumbai admitted the mistake on the part of the Opposite Party. It is contended that the present complaint is of abuse to the process of law and is liable to be dismissed with heavy cost. It is denied that the sim card was issued from Mumbai, on the other hand it is contended that it was issued from Delhi as Opposite Party has its said office in Delhi. It is however, contended that in order to facilitate the Complainant the sim was provided in Mumbai. It is thus, contended that this Forum has no jurisdiction to entertain the complaint and the complaint is liable to be dismissed with cost.
5) The Complainant has filed affidavit in support of his case. The Opposite Party has filed affidavit Ratandeep – Manager working at Mumbai. The Complainant has filed written argument, however, the Opposite Party did not file its written argument. We heard the advocate for the Complainant Shri. Arun Mehta the Opposite Party and its advocate S.I. Shah in spite of notice remained absent at the time of oral argument.
6) The contention raised by the Opposite Party that this Forum has no jurisdiction to try the preset complaint cannot be accepted as the Opposite Party is having its office at Nariman Kendra, 6th floor, Famous Studio Lane, Mahalaxmi, Mumbai, and the Complainant has alleged that all the transaction in respect of the dispute had taken place in Mumbai. The Opposite Party has also admitted in written statement that the sim card was provided in Mumbai. We therefore, hold that the contention of the Opposite Party that this Forum has no jurisdiction to try this complaint is liable to be rejected.
7) In the document produced by the Complainant at page 11 alongwith the complaint issued by the Opposite Party the tariffs for the sim card for Belgium have been mentioned by the Opposite Party. In the said document incoming calls/minutes is shown as free. However, upon going through the bill at Exh.‘E’ & ‘F’ i.e. disputed bills it appears that the Opposite Party had charged on several dates roaming incomings which are specifically pointed out by the Complainant in the said bills. In our view by considering the tariff charge issued by the Opposite Party to the Complainant for sim card for Belgium which is placed on record at page 11 though it is specifically mentioned that the incoming calls would be free but the Opposite Party has improperly charged for roaming incoming charge against the Complainant. In our view the said bills therefore, can be considered as incorrect and improper bills and against the terms of agreement agreed by the Opposite Party with the Complainant. We therefore, hold that by issuing such bills at Exh.‘E’ & ‘F’ to the Complainant the Opposite Party has adopted unfair trade practice which amounts to deficiency in service. The Opposite Party is therefore, guilty of such deficiency in service and unfair trade practice. The Opposite Party is therefore, required to be directed to withdraw the disputed bills dtd.24/04/06 and 26/05/06 issued to the Complainant. The Opposite Party in our view is liable to pay compensation for the mental agony suffered by the Complainant for issuing incorrect bills and the legal notice to the Complainant to the tune of Rs.3,000/- and cost of Rs.2,000/- towards this proceedings. In the result the following order is passed –
O R D E R
i. Complaint No.01/2007 is partly allowed against the Opposite Party.
ii. It is held that the Opposite Party failed to provide proper service to the Complainant to his Mobile No.32485227406 and there was deficiency in service which amounts to unfair trade practice on the part of the Opposite Party regarding the disputed bills dtd.24/04/2006 and 26/05/2006. The Opposite Party is directed to withdraw the said bills and to issue correct bills as per agreement entered into between the parties giving all the particulars in respect thereof.
iii. The Opposite Party is directed to pay an amount of Rs.3,000/- (Rs. Three Thousand Only) to the Complainant as compensation towards mental agony suffered by the Complainant and Rs.2,000/- (Rs. Two Thousand Only) as legal expenses and cost of this proceedings.
iv. The Opposite Party is directed to comply the aforesaid order within one month from the date of receipt of this order.
v. Certified copies of this order be furnished to the parties.
