Chandigarh

DF-I

CC/708/2014

Miss Vanila - Complainant(s)

Versus

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

Anil Kumar Garg

06 Feb 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/708/2014
Date of Institution	:	29/10/2014
Date of Decision	:	06/02/2015

 

 

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

…..Complainant

V E R S U S

1.       M/s Vodafone Store, SCO No.487-488, Sector 35-C, Chandigarh through its Manager.

2.       M/s Vodafone South Limited, C-131, Industrial Area, Phase-VIII, Mohali-160071 through its Managing Director.

……Opposite Parties

 

 

QUORUM:	P.L.AHUJA	PRESIDENT
	MRS.SURJEET KAUR	MEMBER

                                                                                       

                       

ARGUED BY:	Sh. Anil Kumar Garg, Counsel for complainant
	Sh. Vishal Gupta, Counsel for OPs

                       

                 

PER P.L.AHUJA, PRESIDENT

1.         Miss Vanila, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against M/s Vodafone Store and another, Opposite Parties (hereinafter called the OPs), alleging that she is user of mobile connection No.9988346775 provided by the OPs since long.  It has been averred that on 27.9.2014 she got recharged the phone for an amount of Rs.325/- under full talk time scheme.  Accordingly she received an SMS on her mobile set of the full value of the recharged amount but after some time she received another SMS that an amount of Rs.99/- had been deducted. She contacted the official of the OPs through customer care service but they were not able to explain as to against which service the said amount of Rs.99/- had been deducted. According to the complainant, she had never requested through her mobile number nor sent any SMS for any additional service on her mobile number. The complainant thereafter sent a legal notice dated 29.9.2014 (Annexure C-1) and in response the OPs sent an email to her counsel intimating that she had been correctly charged and waiver for the same could not be processed. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part OPs, the complainant has filed the instant complaint. 
2.         In their joint written reply, OPs have taken a number of preliminary objections including that the complaint is not maintainable before this Forum as the specific remedy has been provided under Section 7-B of the Indian Telegraph Act and that the complainant has not approached the Forum with clean hands etc.  On merits, it has been admitted that the OPs had provided the mobile connection in question to the complainant. It has been denied that the amount of Rs.99/- has been deducted without providing any reason to the complainant. It has been averred that the complainant was duly informed by the officials of the OPs with respect to the deduction of the said amount. It has further been averred that the amount of Rs.99/- has been deducted on account of My Dala Services opted on 27.9.2014 by the complainant through her mobile 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. A copy of screen shot depicting the usage made by the complainant is Annexure R-1. It has been contended that the amount of Rs.99/- has been correctly deducted from the account of the complainant.  Pleading that there is no deficiency in service or unfair trade practice on their part, prayer for dismissal of the complaint has been made.
3.         The parties led evidence in support of their contentions.
4.         We have gone through the entire evidence and heard the arguments addressed by the learned Counsel for the parties. 
5.         As far as the objection raised by the OPs that this Forum has no jurisdiction to entertain the present complaint in view of the judgment passed by the Hon’ble Supreme Court in General Manager, Telecom Vs. M. Krishnan & Anr., Civil Appeal No.7687 of 2004 decided on 1.9.2009 is concerned, the Hon’ble High Court of Delhi in writ petition titled JK Mittal Vs. Union of India & Ors., WP(C) 8285/2010 decided on 6.2.2012 has held that a private service provider is not a telegraph authority and the bar under Section 7B of the Indian Telegraph Act could have applied had the dispute arisen between the petitioner and a Telegraph Authority.  The Hon’ble High Court of Delhi also cited the ruling Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) through LRs and others-(2004) 1 SCC 305 and held that mere existence of an arbitration agreement, assuming there is one between the petitioner and respondent No.2, would not bar the maintainability of the consumer claim. Apart from it, the Joint Secretary to Govt. of India, Ministry of Communications and IT, Department of Telecommunications vide letter dated 24.1.2014 has intimated the Secretary, Department of Consumer Affairs, New Delhi that the District Forums are competent to deal with the dispute between the individual telecom consumers and telecom service providers.  Consequently, this Forum has jurisdiction to entertain this complaint and try the matter.
6.         The dispute in the present case relates only to an amount of Rs.99/- deducted from the account of the complainant. The learned counsel for the complainant has contended that the complainant never requested the OPs through mobile No. nor sent any SMS for any additional service on her mobile No. and the OPs deducted the amount of Rs.99/- from her account without intimating any reason, therefore, it is a case of deficiency in service on the part of the OPs.
7.         We have given our anxious consideration to the arguments of the learned counsel for the complainant.  A perusal of the written statement on behalf of the OPs shows that the complainant had opted for My Dala Services on 27.9.2014 through her mobile No.9988346775 and took the services through Mydala website which allows the users to shop on their mobile on a range of products and services such as restaurants, spas, fashion accessories, personal care products etc.  The OPs have contended that it is the complainant who had made the request to avail the said services from the OPs. The OPs have also produced the screen shot Annexure R-1 depicting the usage made by the complainant and it is stated that in consonance with that, the deduction of Rs.99/- was made. The screen shot Annexure R-1 produced by the OPs shows that that WAP page GET/pr/1_2 HTTP/1.1” 302 1884 was visited by the customer of mobile No.9988346775 on 27.9.2014 at 10:14:44 at IP address 96.17.181.4 and the name of the service was Mydala Deal. Accordingly, an amount of Rs.99/- was deducted. The complainant has not filed any such rejoinder which could show that she did not browse the web page in question and availed the services of Mydala Deal at 10:14:44 on 27.9.2014. The averments of the OPs are supported by an affidavit of Shri Ashutosh Kalia, Senior Manager Legal, Vodafone South Ltd. and the complainant has not filed any affidavit in rebuttal. Burden to prove the fact that the deduction of Rs.99/- was illegally made by the OPs was upon the complainant, but she has failed to file any affidavit to controvert the averments of the OPs in the written statement and the contents of the screen shot Annexure R-1 produced by the OPs. Consequently, the complainant has utterly failed to prove any deficiency in service or unfair trade practice on the part of the OPs.
8.         In view of the above resume, the complaint is devoid of any merit and the same is dismissed leaving the parties to bear their own costs.
9.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
06.02.2015	[Surjeet Kaur]	[P. L. Ahuja]
hg	Member	President