Date of Filling: 22.05.2017
Date of Disposal: 26.10.2018
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
THIRUVALLUR-1
PRESENT: THIRU.S.PANDIAN, B.Sc., L.L.M. ….PRESIDENT
THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP., …MEMBER
CONSUMER COMPLAINT No.24/2017
FRIDAY, THE 26th DAY OF OCTOBER 2018
K.Krishnakumar,
3A/30, 7th Street,
Vanchi Nagar,
Ebinezer Church,
Korattur,
Chennai - 600 080. …Complainant.
//Vs//
1.M/s.Sistema Shyam Tele Services Ltd.,
Regd. Office at No.3, MTS Towers,
Amrapalli Circle
Vaishali Nagar, Jaipur
Rajasthan State.
2.M/s.Sistema Shyam Tele Services Ltd.,
Ambit IT Park 2nd Floor,
No.32, A&B Indl. Estate,
Ambathur,
Chennai -600 058. …….opposite parties
This complaint is coming on for final hearing before us 15.10.2018 in the presence of M/s.T.Jayaraman, Counsel for the complainant and Thiru.R.Damodaran, Counsel for the opposite parties and upon hearing arguments having perused the documents and evidences this Forum delivered the following.
ORDER
PRONOUNCED BY THIRU.R.BASKAR KUMARAVEL, MEMBER.
This complaint is filed by the complainant U/S 12 of the Consumer Protection Act-1986 against the opposite party for seeking direction to pay the amount a sum of Rs.5,00,000/- towards compensation for causing mental agony and physical suffering and financial loss caused due to the deficiency of service on the part of the opposite parties.
2. The brief averments of the complaint are as follows:-
The complainant has approached the 2nd opposite party office at Chennai for availing a Wi-Fi service connection and accordingly the 2nd opposite party office has given the connection No.20809398150, MDN No.864912971. Further from 03.04.2016 onwards, each and every month, according to the usage, the complainant has regularly paid the said amounts to the opposite parties as per the receipts issued to the complainant. But the said Wi-Fi service does not come properly and hence the complainant used to inform the same to the opposite parties and the 2nd opposite party used to rectify the defects thereof. Accordingly the complainant has so far paid the service amounts as determined by the opposite parties. Each and every month receipt, the opposite parties used to mention about the month and date thereof, sometimes however, the complainant is used to pay the same in any person and through online. The complainant was used to pay the Wi-Fi charges, meant for 2nd August 2016 by way of a cheque payment to the 2nd opposite party office at Chennai. But however due to pressure of work, the staff of the opposite parties have misplaced the cheque issued by the complainant negligently and very carelessly and with a ulterior intention to cause demotion to the complainant, the 2nd opposite party office seems to have very belatedly presented the above cheque on 09.02.2017 for encashment. In the meantime the 2nd opposite party’s staff erroneously stopped the Wi-Fi service to the complainant.
3. The complainant has sent an e-mail message as well as through mobile phone message also and the said complaint of the complainant has been duly recorded by the 2nd opposite party office vide Ref. No.Feb/1182 and that as soon as the 2nd opposite party office at Ambattur, Chennai has received the above complaint, and resorted to compromise with the complainant herein and said that the complainant’s cheque has been unfortunately misplaced and therefore this lapse on the party of 2nd opposite party is a mistake on the party of opposite parties. However the 2nd opposite party has orally promised to set right the Wi-Fi services to the complainant. Believing that promise and oral assurances of the 2nd opposite party that they would set right the above defective services to the complainant, the complainant was waiting for some times but the 2nd opposite party at Ambattur, Chennai has failed to keep up their above promises to set right the defects on their parts. Hence the complainant has put into un-bearable mental hardship and severe sufferings in the family also.
4. The opposite parties services are public in nature they are bound to continue to give the Wi-Fi connection to the complainant. They cannot stop the same arbitrarily or illegally against the complainant’s interest, which is very clear deficiency of service of the opposite parties. Even now the complainant hereby assures that he would remit his Wi-Fi charges very promptly through proper mode of remittances etc.
5. The complainant has sent a legal notice through his Advocate to the opposite parties herein on 04.04.2017, it was duly served on them. In turn the 1st opposite party had sent a reply notice with false and suppression of fact. Hence this complaint.
6. The contention of written version of the opposite parties is briefly as follows:-
The complaint is devoid of merits and is not maintainable on facts or in law and is therefore liable to be dismissed in limine. All the averments and allegations made in the complaint are denied as false except to the extent admitted herein. The complainant has suppressed material facts and there is no cause of action to the complainant as against this opposite parties and the complaint is a created one with ulterior motive to make unlawful gain.
7. The opposite parties did not misplace the cheque issued by the complainant nor presented the cheque belatedly on 09.02.2017 for encashment. The complainant had dropped his cheque (Cheque No.286070 for an Amount of Rs.1140) on the 9th of August 2016 at M/s.Caretal Communications which is the Authorized Branded Retail Outlet of the opposite parties. The payment got updated on the same day, i.e.9th of August 2016 based on the opposite parties vendor M/s CMS MIS report. CMS team had deposited the cheque in the ICICI Bank on the 10th of August 2016 itself along with cheque payments received from other customers, totaling Rs.85,711.85/- which was acknowledged by the Bank on the Deposit slip. Subsequently, the opposite parties received a communication from their corporate office to reverse the cheque amount since the said amount was not received from the Bank. In fact, vide a written communication from M/s.Quadpro e Services Pvt.Ltd., to ICICI Bank, Hyderabad the issue of the cheque being lost in transit was mentioned in detail and requested the Bank to contact the complainant for issuing stop payment instructions and obtain a duplicate instrument in lieu thereof. Most significantly, ICICI Bank vide e- mail dated 13.07.2017 forwarded the above letter copy to the opposite parties for their reference and specifically mentioned We regret the inconvenience caused. The Customer Care team of the opposite parties had been in constant communication with the complainant on this issue since the time it became known that the cheque issued by the complainant had been misplaced at the Bank. When the opposite parties Customer team tried speaking to the complainant on the 9th of February 2017 regarding the cheque misplacement and amount reversal but unfortunately the complainant without giving an opportunity to the opposite parties to explain and clarify the issue, repeatedly disconnected the calls.
8. As explained in the preceding para, the cheque issued by the complainant was not misplaced by the opposite parties or presented belatedly. The vendor assigned by the opposite parties to collect the cheques that customers remit at the Branded Retail outlets of the opposite parties had subsequently remitted the cheques of the customers including that of the complainant with the ICICI Bank. Where upon, the complainant’s account was updated as paid. Subsequently, when the Bank reversed the status in view of the cheques having been misplaced by the Bank, the opposite parties were intimated of the same and since then the opposite parties were trying to inform complainant that he needed to issue a fresh cheques since the previous cheque had been misplaced by the Bank. However, strangely, the complainant had been repeatedly disconnecting the calls without ascertaining for what reason the opposite parties were trying to speak to him. Most importantly, the complainant would have been communicated from his bank of a debit of the amount mentioned in the cheque signed by him issued to the opposite parties by way of a SMS and a Bank Statement. The complainant would have known that the payment as instructed by him in the opposite parties favour was never acted upon by the Bank. It is reasonable to expect that the complainant would have then either picked up the calls from the opposite parties or himself tried to communicate to the opposite parties and find out what happened to his payment. Very strangely, the complainant did neither. All along, the opposite parties ensured that the services to the complainant were not disconnected on account of this issue. Hence, the question of unbearable mental hardships and severe sufferings in the family’ does not arise.
9. Most importantly, an amount of Rs.2621/- is due and payable by the complainant to the opposite parties for the usage of services made by him. The complainant has very conveniently omitted to mention this before this Forum for reasons best known to him. This only shows that the complaint has been filed with ulterior motives without bonafides. Hence this complaint may be dismissed.
The opposite parties submit that the complainant would have come to know from his Bank via. SMS and monthly Statement of Account, that the cheque bearing No.286070 dated 08.02.2016 drawn on canara Bank for an amount of Rs.1140/- issued by him in favour of the opposite parties, was never debited from his account for the reason mentioned earlier. As a result, the complainant was classified as a payment defaulter.
10. The complainant having signed the customer application form (CAF) with the opposite parties at the time of subscribing to its services was contractually obliged to comply with the terms and conditions detailed in the CAF. Having availed the services, the complainant was duty-bound to pay for the services so availed. The complainant should have made a fresh payment for the services availed by him from the opposite parties.
11. There is no default in service either jointly or severally, not have the opposite parties violated any norms in performing the services to the customers. Hence the claim of compensation payable by the opposite parties to the complainant on account of alleged mental agony, physical suffering and financial loss is wholly denied as being baseless, unsubstantiated and frivolous. The compensation sought for by the complainant is highly exorbitant and can only be classified as special damages. Hence the complaint may be dismissed with costs.
12. In order to prove the case, on the side of the complaintant, the proof Affidavit submitted for his evidence and Ex.A1 to Ex.A4 were marked. While so on the side of the opposite parties proof Affidavit submitted for his evidence and Ex.B1 and Ex.B2 are marked on their side.
13.At this juncture, the point for consideration before this Forum is:-
1. Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?
2. To what other reliefs, the complainant is entitled to?
14. Written arguments filed and oral argument also adduced on both sides.
Point No.1:-
15. As per the averments of the complaint, though the complainant was regularly paying the charges for the Wi-Fi Service connection of the complainant to the 2nd opposite party, the 2nd opposite party has disconnected the Wi-Fi service connection to the complainant as the complainant is a defaulter in paying the charges. Hence the complainant has filed this complaint against the opposite parties have committed deficiency of service against the complainant.
16. On the other hand, through written version of the opposite parties denied the allegations alleged in the complaint and in fact the opposite parties have not disconnected the Wi-Fi service connection given to the complainant though he is a defaulter in paying the charges. Therefore, they have denied the allegations made by the complainant against them.
17. At the outset, this Forum has to look into the matter as to whether the complainant has come forward to prove above said allegations against the opposite parties beyond any reasonable doubt by means of consistent and cogent evidence, which is the primary duty of the complainant. In this regard, on careful perusal of the complainant evidence adduced by means of proof Affidavit, it is stated that the complainant has availed Wi-Fi service connection bearing No.20809398150, MDN No.864912971 from the 2nd opposite party for this service connection regularly every month according to the usage he was paying the charges to the 2nd opposite party for which the receipts has been filed on the side of the complainant which is marked as Ex.A4(s). Further the complainant in his complaint had pleaded that he used to pay the charges through on line and some time in person and further pleaded that whenever he pay the service charges to the opposite party, the opposite party will give a receipt mentioning the date, month and year. While, in such circumstances, the complainant pleads in the complaint for the month of August 2016 he has paid Wi-Fi- service connection charges to the 2nd opposite party by way of cheque but no proof for the same on the side of the complainant produced before this Forum. Therefore any oral claim cannot be taken in to consideration, without necessary documents to be filed on the side of the parties.
18. Moreover, the complainant affirmatively makes allegations against the opposite parties have misplaced the cheque issued by the complainant, which amount to the act of negligence and carelessness on the side of the opposite parties with an ulterior intention to cause demotion to the complainant in Para No.4 of the complaint. It is legally unsustainable issue against the opposite parties without proving this above claim by filing acceptable and legally valid documents. Therefore this Forum has very much declined to consider this claim of the complainant against the opposite parties has committed deficiency of service against the complainant. Further in the same Paragraphs the complainant makes an averment that the opposite party belatedly presented the above cheque on 09.02.2017 for encashment. Thereafter, what had happen to the instrument whether it is encashed by the opposite party or has returned to the cheque to the complainant. So, there is no clear pleading on the side of the complainant, it shows that the complainant had made vogue and ambiguous pleading without any concrete proof for his claim against the opposite parties. The complainant makes averment in his complaint that the staff of the 2nd opposite party’s erroneously stopped the Wi-Fi service connection to the complainant but the complainant has failed to prove this issue with reliable evidence. Further the complainant states that he has send the e-mail message as well as mobile phone to the 2nd opposite party office regarding act of the staff of the 2nd opposite party disconnecting Wi-Fi service connection but no documentary evidence produced on the side of the complainant regarding the above averments. The complainant pleads that the 2nd opposite party promised orally to the complainant that he will restore the Wi-Fi service connection but the 2nd opposite party fails to do so. Therefore the complainant and his family member put into unbearable mental tension and severe hardship. Thereafter the complainant has sent a legal notice through his Advocate to the opposite party on 04.04.2017 demanding the opposite party to restore the Wi-Fi service connection to him and the same has been marked as Ex.A2 and the reply notice sent by the 2nd opposite party on 18.04.2017 which is marked as Ex.A3 and the Author card has been filed on the side of the complainant marked as Ex.A1.
19. On the other hand, the opposite parties have filed their proof Affidavit along with the documentary evidence to prove their defence claim against the complainant that any event as per the terms and conditions agreed upon in the customer application form executed by the complainant CFA dated 20.10.2015 is marked as Ex.B1 on the side of the opposite party and the tariff enrollment form dated 20.10.2015 continuing the traffic plan monthly rental etc., agreed by the complainant is marked on the side of the opposite party as Ex.B2. On careful perusal of the evidence of the opposite parties adduced by means of proof Affidavit the Ex.B1 proves clearly that the complainant availed the Wi-Fi service connection to him and the Ex.B2 Tariff enrollment form –post paid mblaze crystal clearly proves that the complainant agreed to the terms and conditions stipulated in it regarding the (1) SSTL offers credit limit based on the tariff plan, (2) Service tax extra as applicable, this documentary evidence proves before this Forum that there is bilaterally agreed contract between the parties for the Wi-Fi service connection availed by the complainant. While going through the written version filed by the opposite parties it clearly shows that the opposite parties as acted as per the contract with the complainant. Moreover, though the complainant has not pleaded very clearly about the cheque transaction between the complainant and opposite parties, but the opposite parties are clearly stated that the cheque was not misplaced and the same was presented in time before the ICICI bank on10.08.2016 itself along with other cheques issued by the other customers of the opposite parties. Eventhough the complainant has not clearly stated or pleaded in his complaint that the instrument belongs to which bank and the cheque issued for what amount in the cheque and the cheque number etc., the opposite parties in his written version have clearly pleaded that the cheque belongs to Canara Bank and Cheque No.286070 for an amount of Rs.1140/- this is true and clear pleading on the side of the opposite parties without suppressing any fact, but the complainant is suppressed the above fact, though the instrument is belongs to him, it proves that the opposite party will not be having any malafide intention to neither deceive nor cause any demotion to the complainant as he pleaded in the complaint. Further thoroughly going in to the written version, proof Affidavit and written Argument of the opposite parties it clearly reveals that the cheque was lost during transit by the ICICI Bank. This information was received by the opposite parties from their corporate office and they instructed the opposite parties to reverse the cheque amount, since the said amount was not received from the said Bank. A written communication from M/s.Quadpro e -Services Private Limited was also sent to ICICI Bank, Hyderabad. The loss of cheque during transit was intimated to the complainant through ICICI Bank to get instruction from stop payment and obtain a duplicate instrument in lieu thereof and the ICICI bank also sent e-mail letter, dated 13.07.2017 to the opposite party mentioning as We regret the inconvenience caused to the opposite party, the above promptly act of the opposite parties reveals that in order to do good for the complainant, they have intimated the Bank and conveyed the message of loss of cheque during transit and to obtained stop payment instruction from the complainant crystal clearly proves that the opposite parties have no malafide intention to cause deficiency of service to the complainant. Further, to avoid causing breach of contract with the complainant and with good intention of maintaining their business with the opposite parties they have tried with all their efforts to contact with complainant to pass the communication of loss of cheque occurred during transit. But all their efforts went in vain because of not responding to the phone calls of the opposite parties by the complainant. Whenever they tried to contact over the phone with the complainant the complainant was repeatedly disconnected the calls, this shows on the side of the complainant committed a contributory negligence on his side. This is being the fact, making unlawful claim against the opposite parties do not creates any liability against the opposite parties as they have committed deficiency of service towards the complainant.
20. However, the very purpose of serious efforts on the side of the opposite parties taken to contact with complainant, asked him to make the payment of the cheque amount, charge for the service rendered by the opposite parties for the month of August 2016 from the complainant to avoid inconvenience and discomfort to the complainant in disrupting the Wi-Fi- service connection. In spite of the opposite party demand the complainant has not paid the service charges for the month of August 2016. Moreover, apart from the due for the above month, as per the pleading of the written version the complainant has to pay an amount of Rs.2,621/- is due for the usage of services by him, regarding this averment by the opposite party in their written version the complainant has not denied neither in his proof Affidavit nor in the written argument of the complainant, which also presumes that the complainant is a defaulter as per the averment of the opposite parties.
21. Moreover the complainant would have been known the fact of non-encashment of cheque issued by him to the opposite parties immediately he could have called the customer care and resorted the issue by making further payment, but the complainant fails to do so, therefore he becomes a defaulter. Further on going into the facts and circumstances of this case and evidences of the complainant the Canara Bank cheque drawn in favour of M/s.Quadpro e Services Private limited, Hyderabed, it clearly shows that when the same was presented by drawee in the payee Banks of ICICI Branch, Hyderabed. The ICICI Bank sent the cheque for collection to the Canara Bank, during this transit only the cheque was lost. Therefore the complainant would have impleaded the M/s. Quadpro e -Services Private limited, Hyderabed and ICICI Bank, Hyderabed, as necessary parties, but the complainant fails implead them as necessary parties to the complaint. Therefore the complaint becomes bad for non-joinder of necessary parties, the claim of the complainant against the opposite parties are unsustainable as per law. So, this Forum came to a conclusion that, considering the facts and circumstances of the case in hand on either sides and the documentary evidence adduced on both sides it is crystal clearly shown that the complainant is a defaulter. Moreover, as the complainant alleged in his complaint that the opposite parties have not committed any deficiency of service against the complainant. Thus the point No.1 is answered accordingly.
22. Point No.2:-
As per the conclusion arrived in point No.1, the complainant is not entitled to get any relief as prayed in the complaint. Thus the point No.2 is answered accordingly.
In the Result, this Complaint is Dismissed. No Cost.
Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the member and pronounced by us in the open Forum on this 26th October 2018.
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MEMBER PRESIDENT
List of Document of filed by the complainant:-
Ex.A1 | | Aathar card | Xerox |
Ex.A2 | 04.04.2017 | Legal notice sent by the complainant to the opposite parties. | Xerox |
Ex.A3 | | Reply notice sent by the 1st opposite party to the complainant. | Xerox |
Ex.A4 | | Receipts issued by 2nd opposite party for the payment made by complainant. | Xerox |
List of document filed by the opposite parties.
Ex.B1 | 20.10.2015 | Customer application form | Xerox |
Ex.B2 | 20.10.2015 | Tariff Enrollment Form | Xerox |
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MEMBER PRESIDENT
