Chandigarh

StateCommission

A/60/2015

Miss Vanila Garg - Complainant(s)

Versus

M/s Vodafone Store and Anr. - Opp.Party(s)

Anil Kumar Garg

11 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

First Appeal No.	:	60 of 2015
Date of Institution	:	10.03.2015
Date of Decision	:	11/03/2015

 

Miss Vanila d/o Sh. J.K. Garg, r/o # 1004, Sector 9, Panchkula.

……Appellant/Complainant

V e r s u s

1. M/s Vodafone Store, SCO No.487-488, Sector 35-C, Chandigarh.
2. M/s Vodafone South Limited, C-131, Industrial Area, Phase-VIII, Mohali-160071.

              ....Respondents/Opposite Parties

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:Sh. Anil Kumar Garg, Advocate for the appellant.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

            This appeal is directed against the order dated 06.02.2015, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant  (now appellant).

2.       The facts, in brief, are that the complainant was a user of mobile connection No.9988346775, provided by the Opposite Parties. It  was stated that, on 27.09.2014, the complainant got recharged the said phone number, for an amount of Rs.325/-, under full talk time scheme. It was further stated that, accordingly, the complainant received an SMS, on her mobile set of the full value of the recharged amount. It was further stated that, however, after sometime, the complainant received another SMS, that an amount of Rs.99/-, had been deducted, from his balance. As such, the complainant contacted the Officials of the Opposite Parties, through their Customer Care Service, but they could not explain, as to against which service, the said amount of Rs.99/- had been deducted. It was further stated that the complainant never requested the Opposite Parties, through her mobile number, nor sent any SMS, for any additional service, on her mobile number.
3.       It was further stated when the complainant was not heard by the Opposite Parties, she served legal notice dated 29.09.2014 (Annexure C-1), upon them. In response to the said legal notice, the Opposite Parties, sent an email to her Counsel, intimating that she had been correctly charged the amount of Rs.99/- aforesaid, and, as such, waiver of the same could not be processed. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.99/-, alongwith interest @18% P.A., from 27.09.2014, till realization; pay compensation, to the tune of Rs.25,000/-, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.11,000/-.
4.       The Opposite Parties, in their joint written version, pleaded that since specific remedy had been provided under Section 7-B of the Indian Telegraph Act, the consumer complaint was not maintainable. It was further pleaded that the complainant had approached the District Forum, with unclean hands.  It was admitted that the Opposite Parties, had provided the mobile connection, in question, to the complainant. It was, however, denied that the amount of Rs.99/- had been deducted by the Opposite Parties, without providing any services to the complainant. It was  stated that the complainant was duly informed by the Officials of the Opposite Parties, regarding deduction of the said amount. It was further stated that the amount of Rs.99/- had been deducted,  on account of My Dala Services, opted by the complainant, on 27.09.2014, through her mobile, which allowed the users to do shoping on their mobile phones, on a range of products and services, such as restaurants, spas, fashion accessories, personal care products etc. It was further stated that copy of the screen shot Annexure R-1, depicted the usages made by the complainant, on the said mobile connection number. It was further stated that the amount of Rs.99/- had been correctly deducted from the account of the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5.       The Parties led evidence, in support of their case.
6.       After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above. 
7.       Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
8.       We have heard the Counsel for the appellant, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully. 
9.       The Counsel for the appellant, submitted that the complainant did not opt for My Dala Services, in respect of her mobile No.9988346775. He further submitted that even the complainant did not send any SMS, for any additional service, on the aforesaid mobile no. He further submitted that the Opposite Parties, of their own, deducted the amount of Rs.99/-, from her account, without intimating the reasons, for which such deduction had been made. He further submitted that, as such, the Opposite Parties were deficient, in rendering service, and indulged into unfair trade practice. He further submitted that the District Forum fell into a grave error, in holding to the contrary. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
10.       After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. Admittedly, the complainant is having mobile connection No.9988346775 of the Opposite Parties. The only question, that for falls for consideration, is, as to whether, the complainant requested for My Dala services, on  27.09.2014, through the said mobile phone, or not. In the written statement, the Opposite Parties, in clear-cut terms, stated that the complainant opted for My Dala services on 27.09.2014, through the said mobile connection and availed of the same, through the Mydala website, which allowed the users to shop on their mobile  on a range of products and services such as restaurants, spas, fashion accessories, personal care products etc.  This fact was duly corroborated by the Opposite Parties, through the affidavit of Mr. Ashutosh Kalia, their Senior Manager Legal, which was filed by way of evidence. Not only this, further corroboration to the affidavit of Mr. Ashutosh Kalia, is provided through the screen shot Annexure R-1, depicting usages made by the complainant, and it was in consonance with the same, that the deduction of Rs.99/- was made. The screen shot, produced by the Opposite Parties showed that WAP page GET/pr/1_2 HTTP/1.1” 302 1994, was visited by the customer of mobile No.9988346775, on 27.09.2014 at 10:14:44 at IP address 96.17.181.4 and the name of the service was Mydala Deal. It was on account of such services, having been requested  by the complainant, provided by the Opposite Parties and availed of by her, that an amount of Rs.99/-, as consideration, was deducted by the Opposite Parties. In the face of such cogent and convincing documentary evidence, having been produced by the Opposite Parties, to the effect that the complainant opted for My Dala services, and availed of the same, the bald statement of the complainant to the effect that she did not request for the same, nor did she avail of the same, pales into significance. The District Forum was, thus, right in holding that there was no illegal deduction of a sum of Rs.99/-, from the account of the complainant, but, on the other hand, this deduction was made for the services availed of by the complainant. The District Forum was also right, in holding that there was neither any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.
11.       No doubt, at the time of arguments, the Counsel for the appellant, submitted that legal notice was sent by the complainant, to the Opposite Parties, wherein, she stated that she had not opted for such service, nor availed of the same, and deduction of Rs.99/- was illegal. Mere issuance of legal notice by the complainant, to the Opposite Parties, stating therein that she had not opted for such service, nor availed of the same and deduction of Rs.99/- was illegal, did not mean anything. It is settled principle of law, that when there is oral and documentary evidence, on the same point, contrary to each other, then the latter shall prevail over the former. Legal notice dated 29.09.2014 only contains the bald assertion that the complainant did neither opted for such service, nor availed of the same. However this version of the complainant was demolished through the screen shot Annexure R-1.  Had the documentary evidence, referred to above, been successfully challenged by the complainant, the matter would have been different. In the absence of production of any cogent and convincing evidence successfully challenging Annexure R-1, produced by the Opposite Parties, the bald statement of the complainant and contents of the legal notice, did not carry any weight. Under these circumstances, the submission of the Counsel for the appellant, therefore, being devoid of merit, must fail, and the same stands rejected.
12.       No other point, was urged, by the Counsel for the appellant.
13.       In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
14.       For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
15.       Certified copies of this order, be sent to the parties, free of charge.
16.       The file be consigned to Record Room, after completion.

Pronounced.

11.03.2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

 

Rg