BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 28th March 2014
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
COMPLAINT NO.225/2013
(Admitted on 31.8.2013)
M.Ganapathi Bhandarkar,
So Late M.Narayana Bhandarkar,
Residing at Melandagudde,
Maroor 574 227.
Via Moodabidri (D.K. District). …….. COMPLAINANT
(Complainant: Appeared in person)
VERSUS
1. Mr.Niranjan Bhat,
Hamsini Prepaid Shop,
Airtel Mobile Centre,
Ground Floor,
Vijayaraj Commercial Complex,
Near Indian Oil Petrol Pump,
Moodabidri 574 227 (D.K. District)
2. Bharti Airtel Ltd.,
No 3-1-46,
Narohna House,
Near Bijai church,
P.O. Bijai,
Mangalore 575 004. ……. OPPOSITE PARTIES
(Opposite Party No.1 :Exparte)
(Advocate for Opposite Party No.2: Sri.B.J. Mahesh)
ORDER DELIVERED BY HON’BLE MEMBER
SMT.LAVANYA M. RAI:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant stated that, he is the senior citizen and approached opposite party for re-credit the entire amount deducted illegally in his prepaid account. On 21.1.2013 there was a balance of Rs.71/- in his mobile prepaid account and he was not made calls thereafter. The complainant further submitted that after illegal deduction from his account he approached by issuing a registered notice through R.P.A.D for re-credit the entire amount deducted. But he had not received reply from them. The complainant also submitted that the illegal deduction of amount is against the rules prescribed under TRAI guidelines and not providing him the required details of information is negligence on the part of the Opposite party No.1 and 2 which leads to deficiency of service. Thereafter the complainant issued another letter on 3.5.2013 to opposite party No.1 to provide complete details for illegal debit of Rs.71/- from prepaid account. After receiving the notice the opposite party No.1 and 2not replied the same. Hence the complainant filed present complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to re-credit the amount of Rs.71/- and Rs.750/- as cost of the proceedings.
II. 1. Version notice served to the Opposite Party No.1 and 2 by R.P.A.D. Opposite Parties appeared through their counsel filed and version on behalf of Opposite party No.1 and 2 stated that the dispute raised by the complainant is not maintainable in view of the judgment rendered by Supreme Court of India in Civil Appeal reported in 2009 AIR SCW 5631. As per the said judgment, since the dispute raised by the complainants between the subscriber and telecom service provider, the remedy available for the complainant is under Section 7-B of the Indian Telegraph Act which provides for adjudication of dispute under the provisions of Arbitration Act, hence sought for dismissal. The Opposite party further submitted that the complainant not arrayed the administrative office situated at Bangalore instead a circle office is made as Opposite party No.2. The Opposite parties also submitted that an alleged wrong and illegal debit of Rs.71/- was done from his pre-paid account by the Opposite party. At the outset is submitted that, there is no wrongful debit made to the account of the complainant and deduction is based on the usage made by the subscriber. Hence the allegation of wrong deduction of Rs.71/- from his pre-paid account is denied as false and the entire cal detail record are kept in the administrative office, Bangalore and as per the TRA1 licensing policy a telecom service provider is required to keep the call detail record only for a period of six months and by the time of notice received from this FORA, the call detail records are churned, hence Opposite Party No.2 is not furnished the records and prayed for dismissal of the complaint.
III. 1. In support of the complaint, one Mr.M.Ganapathi Bhandarkar (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and produced Ex C1 to C6. On behalf of Opposite Parties No.1 and 2 One Mr. Jayanth M.C., Assistant Manager- legal authorized signatory of the Opposite party company filed only version and not filed evidence before the FOR A, hence we treated Opposite Party’s evidence taken as ‘nil’.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainants proved that the opposite parties are committed deficiency in service?
- If so, whether the Complainants are entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the complainant and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) to (iv): As per the final order.
REASONS
IV. 1. POINTS NO. (i) to (iii):
In the instant case, the complainant approached the Opposite Party for re-credit the entire amount of Rs.71/- deducted illegally by the Opposite Parties. To prove this fact the complainant produced documents same is marked as Ex.C1 to C6. On several occasion the complainant approached the Opposite Party No.1 and 2 and but they are not response the complainant without reasons. Ex.c1 andC2 are the letters issued to the Opposite parties and Ex.C3 to C6 are notice issued to the Opposite Parties by R.P.A.D. Hence complainant filed this complaint.
On the other hand opposite party denied that the complaint is not maintainable and complainant is under Section 7-B of Indian Telegraph Act, the dispute under provisions of Arbitration Act and also stated that complainant not made a party of their administrative office, but made a circle office as Opposite Party No.2. Hence prays for dismissal. The opposite party also denied that deduction from the prepaid account is based on the usages made by the subscriber and the transaction is pertains to the month of January 2013 and the call details records keep only for a period of 6 months and by the time of notice received from this FORA the call detail records are churned.
On perusal of the oral as well as documentary evidence available on record we noticed that except version, opposite parties not lead any evidence, opposite parties evidence treated ‘nil’ and also not produced any document on behalf of them. We also noticed that the principles laid down under Section 71(B) of Indian Telegraph Act is confined to dispute concerning any telegraph line, appliance or apparatus arising between the telegraph authority and the consumer for whose benefit these are provided. Further Section 7B does not speak about the dispute regarding in connection with the present case. It is submitted that the remedy provided under the Consumer Protection is in addition and not in derogation of other status. Hence Section 7B is not a bar to file complaint before this FORA and jurisdiction of FORA not barred even if provision of other statute provides alternate remedy to consumer. Further the Opposite Parties stated that call detail records churned by the time of receiving the notice form this FORA. But it is not believable version of the opposite parties because before issuing notice from this FORA the complainant was already given notice to the Opposite parties by R.P.A.D. and same is marked as Ex.C3 and C4 . Ex.C5 and C6 acknowledgment duly signed by the Opposite Parties. Hence this version of the opposite parties is not believable. In the present case, we also observed that the complainant being a senior citizen coming far from this FORA and knocking the door of the justice is really appreciable. Thereafter we also noticed that only for a megar amount the complainant is not come before this authority, but only for teach a lesson for these opposite parties and Opposite parties must learn the lesson from this senior citizen. Further we also noticed that in this case Opposite Party No.1 is the prepaid shop and the complainant made Opposite Party No.1 as party. But Opposite Party No.1 is not necessary party in connection with the above case. Hence the case against Opposite Party No.1 is dismissed.
In view of the above discussion by considering the facts and circumstances, we are of the considered opinion that, the Opposite Party No.2 i.e. Bharthi Airtel Ltd. represented by its authorized signatory hereby directed to refill of the amount deducted from the complainant prepaid account and also pay Rs.5,000/- (Rupees Five thousand one hundred only) as compensation. And also pay Rs.2,000/- (Rupees Two thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Party No.2 i.e. Bharthi Airtel Ltd. represented by its authorized signatory hereby directed to refill of the amount deducted from the complainant prepaid account and also pay Rs.5,000/- (Rupees Five thousand one hundred only) as compensation. Further pay Rs.2,000/- (Rupees Two thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
In case of failure to pay the above mentioned amount within the stipulated time, the Opposite Party No.2 directed to pay interest at the rate of 12% per annum on the above said total amount from the date of failure till the date of payment
The complaint against Opposite Party No.1 is hereby dismissed.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 8 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 28th day of March 2014)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.M.Ganapathi Bhandarkar – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 3.5.2013 : Documents complaint to Niranjan Bhat.
Ex C2 –18.7.2013: Reminder for the above complaint sent to Niranjan Bhat.
Ex C3 –18.7.2013 : Posta Regn. Addressed to Niranjan Bhat.
Ex C4 18.7.2013: Posta Regn. Addressed to Bharati Airtel Ltd. Mangalore.
Ex C5 & C6 – 19.7.2013: Postal acknowledgments(2)
COURT DOCUMENT:
DOC.NO.1: Postal Acknowledgment.
Witnesses examined on behalf of the Opposite Parties:
RW-1: Mr. Jayanth M.C., Assistant Manager- legal authorized signatory
Documents produced on behalf of the Opposite Parties:
-nil-
Dated:28.3.2014 MEMBER
