M/s. Info vision solutions V/S Vishnuvardhan S/o. Sharanagouda - Consumer Court Case

Karnataka

Raichur

DCFR 17/07

Vishnuvardhan S/o. Sharanagouda - Complainant(s)

Versus

M/s. Info vision solutions - Opp.Party(s)

G.Ramanna

26 Jul 2007

ORDER

DIST. CONSUMER DISPUTES REDRESSAL FORUM
DIST. CONSUMER DISPUTES REDRESSAL FORUM,DC Office Compound, Sath Kacheri
consumer case(CC) No. DCFR 17/07

Vishnuvardhan S/o. Sharanagouda						...........Appellant(s)
Vs.
M/s. Bharati Air Tel Ltd., M/s. Bharati Mobiles Ltd., M/s. Info vision solutions M/s. R.R. Systems,						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Vishnuvardhan S/o. Sharanagouda of Raichur against four Respondents as shown in cause title of complaint. The briefs facts of the complaint are as under: The complainant is the post paid subscriber of Bharathi Mobiles Ltd., by its brand name AIRTEL bearing No. 9845528305 since many years and availed this mobile service through Respondent NO-4 being the authorized channel partner of Respondent No- 2 & 3 and he has not been a defaulter for non-payment of mobile bill. The Respondents have Invited the Public at large through publication by way of broachers and telephone calls under the name and style Airtel Free Flight Offer. After receiving the application form and broacher from Respondents, the complainant sent duly filled voucher form bearing No. 715102 along with prescribed payment under two Demand Drafts drawn on HDFC Bank bearing Nos. 996725 and 996727 dt. 06-09-06 for sum of Rs. 1,800/- and 7,300/- respectively and it was sent to Respondent NO-1 through Professional Couriers vide bearing No. 1262356 dt. 06-09-06 and it was acknowledged by the Respondent NO-1. The complainant was waiting for feed up information of his journey and made all the arrangements to go on journey along with his companion. He had also arranged to travel to leave for Bangalore from where he was to commence his flight journey. He has also to arrange for accommodation and other necessary arrangements for the tour. For this he had incurred expenses of Rs. 10,000/- The complainant had made known regarding his journey to his relatives and friends and waited for more than (21) days to get the travel tickets. But unfortunately neither Travel Ticket was sent nor there was any information sent by the Respondents. This waiting process caused mental agony and disburse on the complainant and he became laughing figure in the eyes of his friends and relatives. At last since the tour date was not informed till 31-10-06 the last date of journey prescribed in the voucher, so he made efforts through telephone requesting the Respondents for his tour programme who gave false promises that they would allow him to travel but no positive results came from the Respondent side. So with no alternative he got issued legal notice dt. 20-12-06 to Respondent No-1 to 4 by RPAD calling upon them to refund the amount sent by him and also to pay Rs. 10,000/- incurred by him for his tour arrangements. The Respondents have acknowledged the receipt of the said notice and Respondent NO-3 asked the mobile number of the complainant vide his letter dt. 10-01-07 who was informed accordingly to Respondent No.3 through the letter of the complainants advocate dt. 16-01-07. In-spite of these efforts the Respondents have not refunded his amount nor taken any steps to reply his legal notice. Respondent No-1 & 2 having tie-up mutually are the beneficiary by way of commission or rebate in conducting journeys. Moreover they had made publicity by way of broachers and contacting post paid customers like the complainant showing that they are offering such Free Flight Offer Services but they have failed in rendering services to the complainant having received the amount they have adopted un-fair trade practice and have deceived the complainant. Hence for all these reasons the complainant has sought for refund of Rs. 9,600/- being the amount paid along with application and for awarding Rs. 10,000/- towards damages and loss for tour arrangements and Rs. 25,000/- towards pains, sufferings and mental agony totaling to Rs. 44,600/-. 2. In response to service of notice, the Respondent No- 1 & 4 remained absent when called out, so they are placed Ex-parte. Respondent 2 & 3 appeared through counsel and filed Common written version admitting that the complainant is a mobile subscriber through Respondent No-4 and that Respondent NO-1 with their consent had floted a scheme under Airtel Free Flight Offer upon certain terms and conditions printed in the broacher itself. However it is not within their knowledge that the complainant had sent two DDs for Rs. 1,800/-, 7,300/- as alleged. The averment that the complainants waiting for feed back information of his journey itself shows that he was not confirmed by the OP.No-1. The other allegations that he had made all the arrangements to go on journey along with his companion and had acknowledged expenditure of Rs. 10,000/- etc., all appears to be not only absurd but also created one. The allegation that he had widely circulated his intended journey to all his relatives and friends etc., looks highly absurd as he himself admits that no intimation regarding his journey whatsoever was received from OP.No-1. The notice was issued on 20-12-06 by the complainant for refund along with expenditure of Rs. 10,000/- and further notice dt. 10-01-07 and another notice dt. 16-01-07 addressed to Respondents 2 & 3 and the later one being particularly could not answer for the reasons that they had no knowledge of payment made by the complainant and the alleged assurance given by Respondent NO-1 the same was conveyed over mobile to the complainant. It is the Respondent NO-1 who is required to return the amount since the same was collected by it and it is an independent legal entity answerable to the complainant but Respondent No- 2 & 3 are in no way liable. It is the Respondent No-1 who wanted to give a Free Flight facility to subscribers of Respondent No- 2 & 3 subject to the certain conditions to be fulfilled by the subscribers to be eligible for the benefit. As such there was no promise or collection of any money by Respondent No- 2 & 3 from the complainant and as such the allegations of un-fair trade practice is not applicable in any way. The Respondents 2 & 3 has not collected even one single Rupee towards the Air Ticket Charges and it is only the Respondent NO-1 same money. Hence the Respondents 2 & 3 have not committed un-fair trade practice or committed any act of deficiency. Hence the complainant is not entitled to any relief from Respondent NO- 2 & 3 and so they have sought for dismissal with complaint. 3. During the course of enquiry the complainant has filed his sworn-affidavit as his evidence and has got marked (10) documents at Ex.P-1 to P-10. The contesting Respondents 2 & 3 have neither filed affidavit-evidence or any documents by way of rebuttal evidence in spite of granting sufficient time. 4. Heard the arguments of the learned counsel for the complainant since the Respondents 2 & 3 and their counsel remained absent even at the stage of his arguments. 5. Perused the records. The following points arise for our consideration and determination:- 1.Whether the complainant proves unfair trade practice and deficiency in service, as alleged.? 2.Whether the complainant is entitled for the reliefs sought for? 6. Our finding on the above points are as under:- 1.In the affirmative. 2. As per final order for the following. REASONS POINT NO.1:- 7. It is worth-while to note here that when the case was set-down for written version of Respondent NO. 2 & 3 on 09-04-07 the learned counsel for complainant filed an application for having received DD amount of Rs. 9,100/- sent by Respondent NO-3 under covering letter and the complainant has received the same under protest and this application was filed along with covering letter of Respondent NO-3 with counter folio of DD and copy of protest application sent to Respondent NO-3 on 09-04-07. The written statement of Respondent No. 2 & 3 was filed on 16-04-07. As seen above in the written statement the Respondent 2 & 3 have shirked their responsibility or liability and shifted on Respondent No-1 only and they have not even whispered a single word of their having made payment of Rs. 9,100/- to the complainant through D.D. towards refund of amount to the complainant. The complainant, as stated supra has filed (10) documents including the original covering letter dt. 21-03-07 of Respondent No-3 with counter folio of refund voucher dt. 6th May 2007 at Ex.P-8 & Ex.P-9, and copy of his letter dt. 24-03-07 at Ex.Px-10 addressed to Respondent NO-3 for having received the DD amount under protest. So it follows that the contesting Respondent No- 2 & 3 who have denied the payment of Rs. 9,100/- made by the complainant under two DDs and who has specifically denied their liability for refund of the same by shifting burden of liability on Respondent NO-1, but documents at Ex.P-8 & P-9 cuts the very defence of the Respondent No- 2 & 3. Hence we hold that the complainant has proved Point No-1 so it is answered in the affirmative. POINT NO.2:- 8. The complainant has sought for refund of Rs. 9,100/-, and further sought for awarding Rs. 10,000/- towards damages caused of his tour arrangements and Rs. 25,000/- towards pain, sufferings and mental agony totaling to Rs. 44,600/-. As regards the refund of Rs. 9,100/- paid by him under two DDs for Rs. 1,800/- and Rs. 7,300/- the complainant has filed application for having received the said amount from Respondent No-3 under Ex.P-8 & Ex.P-9 and restricted his claim for Rs. 10,000/- towards damages, Rs. 25,000/- towards pain, sufferings and mental agony. So it follows that he has received refund amount of Rs. 9,100/- from Respondents. So far as claim of Rs. 10,000/- towards damages and Rs. 25,000/- towards pain and sufferings is concerned, the complainant except his bare statement regarding damages caused for his tour arrangements and his sufferings of pain and mental agony he has not substantiated by any material particulars. However having regard to the fact that he had sent his application to the Respondents for the scheme Airtel Free Flight Offer sponsored by the Respondents along with prescribed payment under two DDs for Rs. 1,800/- and 7,300/- and that he neither received travel ticket from the Respondents or any information till 31-10-06 the last date of journey prescribed in the voucher in the light of refund of the prescribed amount by Respondent NO-3 under Ex.P-8 during pendency of complaint, we feel it just and proper to award a compensation of Rs. 8,000/- including cost of litigation. In this view of the matter we pass the following order: ORDER The complaint of the complainant is allowed in part. In-consequence of receipt of refund amount of Rs. 9,100/- by the complainant sent by D.D. by Respondent NO-3 and restricting his claim for other two reliefs, so the complainant is not entitled for the first relief for refund of Rs. 9,100/- The Respondents 1 to 3 jointly and severally shall pay Rs. 8,000/- being global compensation including cost of litigation by the complainant. The Respondents 1 to 3 shall comply this order within six weeks from the date of receipt of copy of this order. Office to furnish certified copy of this order to both the parties forth with free of cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 26-07-07) Sd/- Sd/- Sri. Vishwanath Yekkelli, Sri. N.H. Savalagi, I/C. Member President, District Consumer Forum-Raichur. District Consumer Forum-Raichur.

This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Vishnuvardhan S/o. Sharanagouda of Raichur against four Respondents as shown in cause title of complaint. The briefs facts of the complaint are as under: The complainant is the post paid subscriber of Bharathi Mobiles Ltd., by its brand name AIRTEL bearing No. 9845528305 since many years and availed this mobile service through Respondent NO-4 being the authorized channel partner of Respondent No- 2 & 3 and he has not been a defaulter for non-payment of mobile bill. The Respondents have Invited the Public at large through publication by way of broachers and telephone calls under the name and style Airtel Free Flight Offer. After receiving the application form and broacher from Respondents, the complainant sent duly filled voucher form bearing No. 715102 along with prescribed payment under two Demand Drafts drawn on HDFC Bank bearing Nos. 996725 and 996727 dt. 06-09-06 for sum of Rs. 1,800/- and 7,300/- respectively and it was sent to Respondent NO-1 through Professional Couriers vide bearing No. 1262356 dt. 06-09-06 and it was acknowledged by the Respondent NO-1. The complainant was waiting for feed up information of his journey and made all the arrangements to go on journey along with his companion. He had also arranged to travel to leave for Bangalore from where he was to commence his flight journey. He has also to arrange for accommodation and other necessary arrangements for the tour. For this he had incurred expenses of Rs. 10,000/- The complainant had made known regarding his journey to his relatives and friends and waited for more than (21) days to get the travel tickets. But unfortunately neither Travel Ticket was sent nor there was any information sent by the Respondents. This waiting process caused mental agony and disburse on the complainant and he became laughing figure in the eyes of his friends and relatives. At last since the tour date was not informed till 31-10-06 the last date of journey prescribed in the voucher, so he made efforts through telephone requesting the Respondents for his tour programme who gave false promises that they would allow him to travel but no positive results came from the Respondent side. So with no alternative he got issued legal notice dt. 20-12-06 to Respondent No-1 to 4 by RPAD calling upon them to refund the amount sent by him and also to pay Rs. 10,000/- incurred by him for his tour arrangements. The Respondents have acknowledged the receipt of the said notice and Respondent NO-3 asked the mobile number of the complainant vide his letter dt. 10-01-07 who was informed accordingly to Respondent No.3 through the letter of the complainants advocate dt. 16-01-07. In-spite of these efforts the Respondents have not refunded his amount nor taken any steps to reply his legal notice. Respondent No-1 & 2 having tie-up mutually are the beneficiary by way of commission or rebate in conducting journeys. Moreover they had made publicity by way of broachers and contacting post paid customers like the complainant showing that they are offering such Free Flight Offer Services but they have failed in rendering services to the complainant having received the amount they have adopted un-fair trade practice and have deceived the complainant. Hence for all these reasons the complainant has sought for refund of Rs. 9,600/- being the amount paid along with application and for awarding Rs. 10,000/- towards damages and loss for tour arrangements and Rs. 25,000/- towards pains, sufferings and mental agony totaling to Rs. 44,600/-. 2. In response to service of notice, the Respondent No- 1 & 4 remained absent when called out, so they are placed Ex-parte. Respondent 2 & 3 appeared through counsel and filed Common written version admitting that the complainant is a mobile subscriber through Respondent No-4 and that Respondent NO-1 with their consent had floted a scheme under Airtel Free Flight Offer upon certain terms and conditions printed in the broacher itself. However it is not within their knowledge that the complainant had sent two DDs for Rs. 1,800/-, 7,300/- as alleged. The averment that the complainants waiting for feed back information of his journey itself shows that he was not confirmed by the OP.No-1. The other allegations that he had made all the arrangements to go on journey along with his companion and had acknowledged expenditure of Rs. 10,000/- etc., all appears to be not only absurd but also created one. The allegation that he had widely circulated his intended journey to all his relatives and friends etc., looks highly absurd as he himself admits that no intimation regarding his journey whatsoever was received from OP.No-1. The notice was issued on 20-12-06 by the complainant for refund along with expenditure of Rs. 10,000/- and further notice dt. 10-01-07 and another notice dt. 16-01-07 addressed to Respondents 2 & 3 and the later one being particularly could not answer for the reasons that they had no knowledge of payment made by the complainant and the alleged assurance given by Respondent NO-1 the same was conveyed over mobile to the complainant. It is the Respondent NO-1 who is required to return the amount since the same was collected by it and it is an independent legal entity answerable to the complainant but Respondent No- 2 & 3 are in no way liable. It is the Respondent No-1 who wanted to give a Free Flight facility to subscribers of Respondent No- 2 & 3 subject to the certain conditions to be fulfilled by the subscribers to be eligible for the benefit. As such there was no promise or collection of any money by Respondent No- 2 & 3 from the complainant and as such the allegations of un-fair trade practice is not applicable in any way. The Respondents 2 & 3 has not collected even one single Rupee towards the Air Ticket Charges and it is only the Respondent NO-1 same money. Hence the Respondents 2 & 3 have not committed un-fair trade practice or committed any act of deficiency. Hence the complainant is not entitled to any relief from Respondent NO- 2 & 3 and so they have sought for dismissal with complaint. 3. During the course of enquiry the complainant has filed his sworn-affidavit as his evidence and has got marked (10) documents at Ex.P-1 to P-10. The contesting Respondents 2 & 3 have neither filed affidavit-evidence or any documents by way of rebuttal evidence in spite of granting sufficient time. 4. Heard the arguments of the learned counsel for the complainant since the Respondents 2 & 3 and their counsel remained absent even at the stage of his arguments. 5. Perused the records. The following points arise for our consideration and determination:- 1.Whether the complainant proves unfair trade practice and deficiency in service, as alleged.? 2.Whether the complainant is entitled for the reliefs sought for? 6. Our finding on the above points are as under:- 1.In the affirmative. 2. As per final order for the following. REASONS POINT NO.1:- 7. It is worth-while to note here that when the case was set-down for written version of Respondent NO. 2 & 3 on 09-04-07 the learned counsel for complainant filed an application for having received DD amount of Rs. 9,100/- sent by Respondent NO-3 under covering letter and the complainant has received the same under protest and this application was filed along with covering letter of Respondent NO-3 with counter folio of DD and copy of protest application sent to Respondent NO-3 on 09-04-07. The written statement of Respondent No. 2 & 3 was filed on 16-04-07. As seen above in the written statement the Respondent 2 & 3 have shirked their responsibility or liability and shifted on Respondent No-1 only and they have not even whispered a single word of their having made payment of Rs. 9,100/- to the complainant through D.D. towards refund of amount to the complainant. The complainant, as stated supra has filed (10) documents including the original covering letter dt. 21-03-07 of Respondent No-3 with counter folio of refund voucher dt. 6th May 2007 at Ex.P-8 & Ex.P-9, and copy of his letter dt. 24-03-07 at Ex.Px-10 addressed to Respondent NO-3 for having received the DD amount under protest. So it follows that the contesting Respondent No- 2 & 3 who have denied the payment of Rs. 9,100/- made by the complainant under two DDs and who has specifically denied their liability for refund of the same by shifting burden of liability on Respondent NO-1, but documents at Ex.P-8 & P-9 cuts the very defence of the Respondent No- 2 & 3. Hence we hold that the complainant has proved Point No-1 so it is answered in the affirmative. POINT NO.2:- 8. The complainant has sought for refund of Rs. 9,100/-, and further sought for awarding Rs. 10,000/- towards damages caused of his tour arrangements and Rs. 25,000/- towards pain, sufferings and mental agony totaling to Rs. 44,600/-. As regards the refund of Rs. 9,100/- paid by him under two DDs for Rs. 1,800/- and Rs. 7,300/- the complainant has filed application for having received the said amount from Respondent No-3 under Ex.P-8 & Ex.P-9 and restricted his claim for Rs. 10,000/- towards damages, Rs. 25,000/- towards pain, sufferings and mental agony. So it follows that he has received refund amount of Rs. 9,100/- from Respondents. So far as claim of Rs. 10,000/- towards damages and Rs. 25,000/- towards pain and sufferings is concerned, the complainant except his bare statement regarding damages caused for his tour arrangements and his sufferings of pain and mental agony he has not substantiated by any material particulars. However having regard to the fact that he had sent his application to the Respondents for the scheme Airtel Free Flight Offer sponsored by the Respondents along with prescribed payment under two DDs for Rs. 1,800/- and 7,300/- and that he neither received travel ticket from the Respondents or any information till 31-10-06 the last date of journey prescribed in the voucher in the light of refund of the prescribed amount by Respondent NO-3 under Ex.P-8 during pendency of complaint, we feel it just and proper to award a compensation of Rs. 8,000/- including cost of litigation. In this view of the matter we pass the following order: ORDER The complaint of the complainant is allowed in part. In-consequence of receipt of refund amount of Rs. 9,100/- by the complainant sent by D.D. by Respondent NO-3 and restricting his claim for other two reliefs, so the complainant is not entitled for the first relief for refund of Rs. 9,100/- The Respondents 1 to 3 jointly and severally shall pay Rs. 8,000/- being global compensation including cost of litigation by the complainant. The Respondents 1 to 3 shall comply this order within six weeks from the date of receipt of copy of this order. Office to furnish certified copy of this order to both the parties forth with free of cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 26-07-07) Sd/- Sd/- Sri. Vishwanath Yekkelli, Sri. N.H. Savalagi, I/C. Member President, District Consumer Forum-Raichur. District Consumer Forum-Raichur.