Punjab

StateCommission

A/11/625

M/s Vodafone Essar South Ltd. - Complainant(s)

Versus

Mohinder Singh - Opp.Party(s)

Vishal Gupta

19 Feb 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,    PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                       First Appeal No.625 of 2011

 

                                                          Date of Institution:11.04.2011 

                                                          Date of Decision : 19.02.2015

 

M/s Vodafone Essar South Ltd., C-131, Industrial Area, Phase 8, Mohali, through its authorized representative Mr.Ashutosh Kailia, Manager (Legal)

 

                                                          …..Appellant/Opposite party No.2.

         

                                      Versus

 

1.       Mohinder Singh son of Gurdial Singh, PSEB IOIP (VFMS-BTH) resident of a B-X1/2715, Aman Street, Street No.3, Ram Bagh Road, New Krishan Di Chakki, Barnala.

 

                                                                                                                                                              ..Respondent/ Complainant…

 

2.       The Manager /Proprietor, Vodafone, K.C. Road, Near Daawat,Hotel     Barnala.

                                                                                                                         Performa Respondents/Opposite Party No.1

 

 

First Appeal against order dated 05.01.2011 passed by the District Consumer Disputes Redressal Forum, Barnala.

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

Present:-

 

          For the appellant              :         Sh.Vishal Gupta, Advocate

          For the respondent :         Sh.Sarwinder Goyal, Advocate

 

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                            

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The appellant (the opposite party no.2 in the complaint) has directed this appeal against the respondent of this appeal (the complainant in the complaint) assailing the order dated 05.01.2011 of  the District Forum, Barnala,  accepting the complaint of the complainant and directing the OPs to waive off the present bill dated 12.08.2010 and issue the fresh bill after deduction of Rs.315/- and Rs.147/- therefrom and further awarding compensation of Rs.5000/. The instant appeal has been preferred against the same now appellant.

2.      The complainant Mohinder Singh has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he is subscriber of opposite parties of cell phone No.9646032725  with the OPs. The complainant received bill dated 12.08.2010 along with usages bills for a sum of Rs. 598/- from the OPs in respect of above cell phone on 07.09.2010. It was found that under itemized calls, ISD call has been included with regard to phone no.002392200037 for seven minutes  on 31.07.2010 by the complainant against an amount of Rs. 315/- , which is wrong and against the facts. The complainant made call to service center of OPs of mobile no.919988808816 on 03.09.2010 for rectification of the bill, but to no effect. The complainant also visited the OPs in this regard, but to no effect. The complainant also served legal notice upon OPs in this regard. The complainant has accordingly filed the complaint directing the OPs to rectify his bills, the complainant as further prayed for compensation of Rs.9000/- for mental harassment and Rs.20,000/- as costs of litigation.

3.      Upon notice, OPs appeared, filed written reply raising preliminary objections that complaint is without cause of action. That the parties agreed to exclude the jurisdiction of consumer fora at Barnala and conferred it on Delhi Consumer Forum and the latter is competent to entertain the complaint. The special remedy U/s 7-B of the Indian Telegraph Act is available to the complainant and jurisdiction of the Consumer Forum is excluded in view of judgment of the Apex Court in "General Manager Telecom Vs. M. Krishan & Anr., 2009(8) SCC 481. On merits, the OPs contested the complaint of the complainant, it was averred that complainant has been using ISD facility, which was active on his cell phone no. 9646032725 and he has been rightly charged Rs.315/-, as there has been an international call for seven minutes from his mobile on 31.07.2010. It was further stated in reply that the amount of Rs. 147/- has been charged from the complainant for flash messages sent by the complainant on 52425/- The OPs controverted the  other averments and prayed for dismissal of the present complaint.

4.      The complainant tendered in evidence affidavit of Mohinder Singh complainant  Ex.CW-1, copy of bill dated 21.7.2010 to 20.08.2010 Ex.C-1, copy of legal notice Ex.C-2, postal receipt Ex.C-3, acknowledgement Ex.C-4, e-mail reply Ex.C-5. As against it, the opposite parties tendered in evidence affidavit of Sh.Aushotosh Kalia Ex.R-1 and close evidence. On conclusion of evidence and arguments, the District Forum, Barnala accepted the complaint of the complainant by directing the OPs to waive off the present bill dated 12.08.2010 and to issue fresh bills after deducting the amount of Rs.315/- and Rs.147/- and also to pay Rs.5,000/- as compensation for mental harassment to complainant. Dissatisfied with the order of the District Forum dated 05.01.2011, the instant appeal has been preferred by OPs now appellant.

5.      We have heard Learned Counsel for the parties and have also examined the record of the case. The first point raised before us is that the jurisdiction of the District Forum is excluded in view of Section 7-B of Indian Telegraph Act, as per judgment of Apex Court in "General Manager Telecom Vs. M. Krishnan & Anr.", 2009(8) SCC 481. The matter has been settled by the Hon'ble National Commission in Revision Petition No.1228 of 2013 titled as “Bharti Hexacom Limited Vs. Komal Prakash & Anr.”, decided on 02.05.2014, wherein it has been held by the Hon’ble National Commission in its order that M. Krishnan’s judgment by the Apex Court  has clarified that the said decision involved a dispute between the department of Telecommunication, which was the Telegraph Authority under the Indian Telegraph Act, as a service provider prior to the hiving off of telecom services into a separate company, viz., Bharat Sanchar Nigam Limited (BSNL). The Hon’ble National Commission further observed in this order that as the powers of a “Telegraphy Authority” are not vested in the private telecom service providers, as is the case here, and also in the BSNL, hence section 7-B of the Telegraph Act will have no application and, therefore, Consumer Foras, as  constituted under the Act, are competent to entertain the dispute between the individual consumer and telecom service providers. Hon’ble National Commission based its order on the letter dated 24.01.2014 of Govt. of India, Ministry of Communication and IT, while responding to the communication received from the Secretary, Department of Consumer Affairs, Govt. of West Bengal on 07.10.2013, in relation to the Hon’ble Supreme Court’s  judgment in M. Krishnan’s case (supra). On the basis of law laid down by the Hon’ble National Commission in “Bharti Hexacom Limited Vs. Komal Prakash & Anr.’s case (supra) by holding that the ratio of law of  M. Krishnan's case by the Apex Court is not attracted in the case and hence, the District Forum is competent to entertain and dispose such like consumer complaints on merits and hence the complaint is maintainable.

6.       The second point is whether Consumer Fora at Barnala has no territorial jurisdiction to entertain the complaint. We find that office of OP No.1, which is concerned with this matter is at Barnala and cause of action partly accrued at Barnala. Consequently, the statutory jurisdiction of the complainant conferred by the CP Act cannot be ousted by mutual agreement between the parties.

7.       Touching the  merits of the case, the only point, which is disputed is that the OPs have wrongly charged Rs.315/- for making any international call for seven minutes and amount of Rs.147/- for flash messages from the complainant. This is only dispute in this case between the parties. The submission of the appellant is that the above-referred mobile connection of the complainant has been used for international ISD and for seven minutes, amount of Rs.315/- has been charged therefrom. The submission of appellant is that Rs.147/- has been charged from the complainant for flash messages by the complainant on 52425. Affidavit of complainant Ex.CW-1 has been examined by us. The complainant contested this amount in the affidavit Ex.C-1, vide which, the amount of Rs.147/- has been charged for flash messages and Rs.340/- as usages charges. Notice Ex.C-2 was sent by the complainant to the OPs in this regard. Ex.C-3 and Ex.C-4 are the postal receipts. Ex.C-5 is e-mail. As against it, the OPs tendered in evidence affidavit of Aushutosh Kalia, Manager (Legal) Ex.OPW-1/A on the record. He has asserted in this affidavit that the ISD facility, which was active on the mobile phone of the complainant, has been used for seven minutes and amount of Rs.315/- has been rightly charged by the OP on 31.7.2010. The amount of Rs.147/- has been charged for flash messages sent by the complainant on 52425. We find that District Forum has rightly observed that complainant complained to OP regarding unauthorized amount charged in dispute. The complaint of the complainant was accepted only on the ground that OPs had shown cavalier attitude and had not even looked into the matter to examine the authenticity of the complaint of the complainant, despite legal notice to this effect. We find that reasoning of the District Forum is quite correct. The OPs cannot arbitrarily charge the bill from the consumer. Consequently, the order of the District Forum on this point is found sustainable. That OPs kept it aside without examining the matter regarding the complaint of the complainant. The District Forum rightly came to the conclusion that OPs illegally issued the exaggerated bill to the complainant dated 12.8.2010 and to issue fresh bills after deducting amount of Rs.315/- and 147/-. It also awarded compensation of Rs.5,000/- for mental harassment to the complainant. The Op is service provider and they are supposed to redress the grievances of the consumer by duly examining the matter. They are not supposed to be callous to the consumer in rendering the services. The order of the District Forum is, thus, affirmed in this appeal.

8.       In the light of our above discussion, we find no merit in the appeal and same is hereby dismissed.

9.                 The appellant had deposited an amount of Rs.25,00/- at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the respondent/complainant by way of crossed cheque/demand draft after 45 days from the date of receipt of copy of this order. Remaining amount as per order of the District Forum shall be paid by the appellant/OPs to the respondent/complainant with 45 days from receipt of copy of this order.

10.     Arguments in this appeal were heard on 16.02.2015 and the order was reserved. Now the order be communicated to the parties.

11.     The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                          MEMBER

 

February 19  2015.                                                                  

(ravi)