STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Appeal No.598 of 2009)

                                                                   Date of Institution: 20.10.2009

                                                                   Date of Decision  : 08.11.2010

Sh. Mohinder Kumar Nandwani, Aged about 55 years, son of Late Sh. Kesho Ram Nandwani resident of House No.925, Sector 8, Panchkula (Haryana).

……Appellant

V e r s u s

1.      M/s Matrix Cellular International Services Pvt. Ltd., H.Q.7, Khullar Farms, 140, New Manglapuri, Mandi Road, Mehrauli, New Delhi – 110030.

2.      The Branch Manager, Matrix Cellular International Services Pvt. Ltd., Plot No.45, Apex Motors, Ist Floor, Industrial Area Phase II, Chandgiarh – 160002.

              ....Respondents.

BEFORE:            HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT.

                        MRS. NEENA SANDHU, MEMBER

                        SH. JAGROOP SINGH MAHAL, MEMBER.

Argued by:          Sh. Abhinav Sood, Advocate proxy for

                        Sh. Amar Vivek, Advocate for the appellant.

                        None for the respondents.

PER JAGROOP SINGH MAHAL, MEMBER.

1.                     This is complainant’s appeal under section 15 of the Consumer Protection Act, 1986 against the order dated 6.8.2009, passed by Learned District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter referred to as District Forum), vide which the complaint filed by him was dismissed.

2.                     The complainant was planning to go to U.S.A and obtained the S.I.M Card for a mobile phone from the OPs/respondents. He paid Rs.10,000/- as security and according to him, the representative of the OPs told him that if his usage exceeded the aforesaid amount of Rs.10,000/- then his SIM Card would be blocked. He continued using the phone on the assumption that the SIM Card would be blocked in case he exceeded the aforesaid credit limit of Rs.10,000/- but he never received any SMS or phone alerts from the OPs. The OPs started demanding from him exorbitant amount of Rs.96,995.13Ps for the usage of the phone and sent to him wrong bills. He, therefore, filed the present complaint for restraining the OPs from enforcing the said illegal demand of the billed amount; prayed for compensation of Rs.50,000/- for harassment and deficiency in service and refund of Rs.10,000/- paid by him as security along with litigation costs of Rs.15,000/-.

3.                     The complaint was opposed by the OPs admitting that the SIM Card was issued to the complainant on his payment of Rs.10,000/- as security. It was denied if Rs.10,000/- was ever fixed as his credit limit. According to them, there was no such agreement between the parties that the SIM Card would be blocked or phone would be deactivated when he reached the alleged credit limit of Rs.10,000/-. According to them, they never agreed not to cover from him more than Rs.10,000/- as they could not allow the complainant to use the mobile phone in U.S.A for a meager amount of Rs.10,000/-. The billed amount was admitted but it was alleged that the same is correct according to the usage and the complainant was liable to pay the same because he utilized their service in this respect. OPs prayed for dismissal of the complaint.

4.                     Both the parties were given opportunity to lead evidence in support of their contentions.

5.                     After hearing the learned counsel for the parties and perusing the record, the learned District Forum dismissed the complaint vide its order dated 8.6.2009 holding that there was no deficiency in service on the part of OPs. The complainant has challenged the said order through this appeal.

6.                     The certified copy of the impugned order was received at the house of the appellant on 9.8.2009 but the appeal was filed on 20.10.2009 with a delay of 42 days. The contention of the complainant is that on 9.8.2009, he along with his family was out of station and the copy of judgment was received by one of the lady member in his house. She kept it in the pile of post received in his absence and when he returned to Chandigarh on 12.9.2009, he received a message from the OPs/respondents to negotiate about the possibility of compromise between the parties. The complainant/appellant thought that the copy of the judgment may have been obtained by his lawyer from the District Forum and when no compromise was effected between the parties, he met his counsel on 16.9.2009 and asked him to file the appeal. The counsel of the appellant assured him that the appeal would be filed and the appellant should not worry about it. He signed the vakalatnama and again left for his business to Bombay, Chennai and Bangalore and came back on 15.10.2009. However, when he contacted his lawyer, it was found that the appeal could not be filed in the absence of the certified copy of the order, which had been received by some lady member in his house. He searched for the copy and supplied the same to the counsel on 18.10.2009 and therefore, the present appeal was filed on 20.10.2009. He prayed for condonation of delay of 42 days in filing the appeal.

7.                     This request for condonation was opposed.

8.                     We have heard the arguments of learned counsel for the parties and have perused the record.

9.                     It is the contention of the appellant that he was out of station on 9.8.2009 and came back on 12.9.2009. He has not mentioned anything as to where he had been during that period and have not produced any evidence to the effect that he was out of station continuously for a period of more than a month. Again he says, he remained out of station from 15.9.2009 to 15.10.2009 but again, there is no evidence to prove the same. In the absence of evidence to this effect, it becomes clear that  the complainant has shown his absence from Chandigarh only to strengthen his request for condoning the delay. However, without any evidence and proof to the effect that he was not in Chandigarh during that period, the  delay in filing the appeal cannot be condoned.

10.                   There is no denying the fact that the certified copy of the order was received at the house of the complainant/appellant on 9.8.2009. His contention that it was received by some lady member and she placed it in the pile of the post is not proved. He has not mentioned the name of the said lady member who received the copy of the judgment and did not produce her affidavit on record to prove if she acted like that. Otherwise also, the complainant was aware that the case was decided against him and before proceeding out, he should have made arrangement for filing of the appeal before he went out of Chandigarh especially when he was going out for more than a month. He, however, did not bother to confirm either from his lawyer or from his house if they had received the copy of the order. It was gross negligence and carelessness on his part. He instructed his counsel only on 15.9.2009 to file the appeal, and by that date, when he instructed his counsel, the limitation period was already over.

11.       The complainant has mentioned in his application that on 12.9.2009, he had received a message from the OP for negotiation about the possibility of compromise between the parties. He met the OPs on 15.9.2009 but no compromise could be reached at. It appears, OP thought of filing the present appeal only after he received the communication from the OPs for a compromise and prior to that there was no intention on his part to file appeal. It, therefore, cannot be said that the delay in filing the appeal was unintentional, rather till 15.9.2009, the complainant himself claims not to have thought of filing any appeal.

12.                   In view of the above discussion, we are of the opinion that the application for condonation of delay cannot be allowed and the same is accordingly dismissed. Consequently, the appeal is dismissed with costs being barred by time.

13.                   Even on merits the complainant has no case. The first contention of the learned counsel for the appellant is that Rs.10,000/- was fixed as a credit limit for use of the SIM Card and when the said limit was reached it was necessary for the OPs to have disconnected his phone. According to him, non disconnection of the phone amounts to deficiency in service, which caused the loss to the complainant. This contention was not accepted by the learned District Forum. We are also not inclined to accept the same. The complainant has not been able to prove any such document entered into between the parties vide which Rs.10,000/- was fixed as his credit limit or they agreed to deactivate his phone when the said amount was exhausted. It may be mentioned that it was not a pre-paid connection in which the telephone is deactivated when the amount is exhausted. The amount of Rs.10,000/- was in fact security given by the complainant.

14.                   The learned counsel for the complainant/appellant has referred to Clause 3(h) of the terms and conditions attached with Annexure C-1, which reads as under: -

“h) Customers shall use the services only upto the limits of its respective credits/deposit amount(s) and Matrix shall be entitled to as per its prevalent policy, bar, fully or partly, the availability of services upon reaching and or exceeding the credit limits/deposits without any prior intimation. To avoid any such bar/deactivations of Sim card services, the customer may make interim payments and any such allowance made by Matrix shall not create any right in favour of the Customer, in any circumstance whatsoever, to such increased amounts against the usage of SIM Card/s.”

                        The Counsel for the OP has argued that in fact these terms and conditions do not apply to the SIM Card issued for international roaming but these are for the telephone connections used within India. Otherwise also, a perusal of Clause 3(h) shows that there was no such direction given by the complainant to the OP to disconnect or deactivate the phone when the amount of Rs.10,000/- was exhausted. In order to disconnect the telephone, a specific direction was needed to be given, which may be clear either from the agreement between the parties or from a separate request in writing made by the complainant to the OP whether at the time of taking the SIM Card or at any time thereafter during its use. Admittedly, in the present case, there is no such direction or request made by the complainant that his SIM Card should be deactivated or barred or disconnected the moment the amount of Rs.10,000/- was exhausted. It is true that Clause 3(h) gives a discretion to the OP to disconnect or deactivate the phone when the credit limit is reached but it does not lead to the only conclusion that the SIM Card/telephone was to be disconnected or deactivated at that relevant time. The OPs used the discretion as they felt necessary and allowed the complainant to use the phone. They, however, reminded him of the usage through bills being issued in this connection and if even inspite of the receipt of the bills and knowing fully well as to what his usage was, the complainant continued using the SIM Card, it is the complainant and not the OPs who are deficient in their duty. Needless to mention that it was for the complainant to control the use/usage of the telephone and if he continued using the phone, he was liable to make the payment of the bills.

15.                   While obtaining the connection, the complainant had given his address of House No.925, Sector 8, Panchkula. The OPs had sent to him bill (Annexure R-2) dated 18.7.2008 on the said address and he was required to pay the amount by 12.8.2008. The bill amount is Rs.3,978.32Ps. Thereafter, another bill dated 26.8.2008 was issued to him for a sum of Rs.15,848.02Ps and the payment was to be made by 11.9.2008. This amount also was not paid by the complainant. The third bill dated 18.9.2008 was then sent for a sum of Rs.65,287.13Ps and the fourth bill dated 23.10.2008 for a sum of Rs.11,881.66Ps. In this manner, four bills had been sent to the complainant one after the other for a total sum of Rs.96995.13Ps but he has not paid anything to the OPs. Under these circumstances, it cannot be said if the complainant was not informed by the OPs about his usage. The contention of the complainant is that he along with his family were out of India but he has not produced any air ticket, boarding pass or other document to suggest if his family members accompanied him to U.S.A. There is no evidence to suggest if there was nobody at his residence when the telephone bills were sent. Had it been so, he would not have given the address of the said house for correspondence and since he gave the said address, it is presumed that there was somebody deputed by him at the said address to receive the telephone bills and to communicate to him the amount thereof. It was, therefore, a deficiency on the part of the complainant himself if he did not make adequate arrangements at the given residence in this respect.

16.                   The contention of the complainant is that the OPs were bound to give him SMS or phone alerts with respect to his usage. He has not been able to refer to any such term or condition under which it was obligatory on the part of OPs to give such an alert to him apart from the bills. There was no request from him to give the alerts on phone. Otherwise also, Customer Care number was available with the complainant and if he needed any information about his usage, he would have collected the same from the concerned person. If he did not obtain the information, it was his own fault. Since he was using the phone himself, it was necessary for him to keep a control over his phone bill.

17.                   Annexure C-1 (Colly) is the document, which contains details of Hire Charges of the SIM Card obtained by the complainant. It bears complete address and phone numbers of the complainant have been mentioned. The complainant himself was using the phone, making calls and sending SMS and could very well assess roughly, if not specifically, as to how many calls and SMS are being sent by him and calculate the amount of his usage. The bill dated 18.7.2008 shows that his total usage covers one page containing 52 entries. The next bill dated 26.8.2008 contains the usage covering four pages, each page containing above 60 entries. The bill dated 18.9.2008 contains seven pages, six of the pages contain more than 60 entries whereas the 7^th page contained 40 entries (totaling approximately 400 entries). The 4^th bill dated 23.10.2008 has four pages, the first three pages contain more than 60 entries each  (totaling approximately 200) and the fourth page contains 8 entries. In this manner, the complainant used the phone during his period for approximately 940 times. When the phone was being used extensively and the complainant was aware of the charges for each call and SMS, it cannot be said if he did not know what is his usage was and what the amount of the bill would be. He, therefore, used the telephone extensively for his convenience knowing fully well the charges he would pay and have subsequently raised the dispute to avoid the payment of the bill charges.

18.                   In view of the above discussion, It is clear that the complainant is a dishonest customer. He had filed this false and frivolous complaint just to avoid payment of the bills. When he had already used the services of the OPs, it was necessary for him to pay the bills, which he did not. After the complaint was dismissed, he has filed the present appeal, even after the limitation was over knowing well that he has no case but even then dragged the OPs into this frivolous litigation.

19.                   We are of the opinion that there is no merit in this appeal and the same is dismissed with litigation costs of Rs.5,000/-.

20.                   Copies of this order be sent to the parties free of charge.

Pronounced.

8^th November 2010.

Sd/-

[JUSTICE PRITAM PAL]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Ad/-

STATE COMMISSION

(Appeal No.598 of 2009)

Argued by:          Sh. Abhinav Sood, Advocate proxy for

                        Sh. Amar Vivek, Advocate for the appellant.

                        None for the respondent.

Dated the 8^th day of November, 2010.

ORDER

                        Vide our detailed order of even date recorded separately, this appeal filed by the complainant has been dismissed with costs of Rs.5,000/-.

(JAGROOP SINGH MAHAL)            (JUSTICE PRITAM PAL)     (NEENA SAHDHU)

                MEMBER                                      PRESIDENT                       MEMBER