Date of Filing:15.05.2008<br /> Date of Order:03.03.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 3RD DAY OF MARCH 2009<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> <br /> COMPLAINT NO: 1138 OF 2008<br /> <br /> B. Krishna Prasad,<br /> S/o Late Balakrishna Prasad,<br /> Prasad Tyres & Lubricants,<br /> 112/179, Seppings Road,<br /> Bangalore 01. Complainant<br /> <br /> <br /> V/S<br /> <br /> 1. M/s Reliance Communications Ltd.,<br /> (Formerly M/s. Reliance Infocom Limited) <br /> No.2, III Floor, Janardhan Towers,<br /> Residency Road,<br /> Bangalore 01.<br /> <br /> 2. The Officer in Charge,<br /> M/s Reliance Communications Customer <br /> Care Development, No.121, II Floor, <br /> Dickenson Road, <br /> Next to Manipal Centre, <br /> Bangalore-42. Opposite Parties<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> This is a complaint filed under section 12 of the Consumer Protection Act, 1986 to return the excess amount and Rs. 90,000/-as compensation. <br /> The brief facts of the case are that the complainant is the customer of opposite party, using mobile services vide Telephone bearing No.9341212347, DAE No.22794131 billing A/c No.2022115035 since 2003. The initial scheme was POFI, and subsequently on 01/12/2003 the complainant availed the scheme of DAPO which continued till 01/04/2004 and thereafter the plan was got changed to DEMR from 01/05/2004 which was in force till 31/01/2006 and the said plan was very much convenient to his needs. Soon after 31/01/2006 the said DEMR plan came to be changed to NJ 149 which is without any prior notice to him, and the said plan also once again came to be changed to another scheme DELIGHT-499 from 01/08.2006 even the said change of plan was also made without any notice to him, and the opposite party called upon him to pay the deposit of Rs.1,122/- as scheme charges plus rental charges, for the scheme which I have not sought for. The act of the opposite party is highly arbitrary and an unfair trade practice opted to make wrongful gain and causing loss to him. Due to change of plan he was suffering loss. At the time of availing the connection he has paid a sum of Rs.10,000/- and Rs.3,000/- vide cheque No.156245 dated 24/01/2003 and the opposite parties have received 12 post dated cheques for Rs.1,800/- each. The opposite parties have utterly failed to provide the proper serviced to him in spite of the fact that there was no default on his part. Hence, the complainant. <br /> 2. Notice issued to opposite parties. Opposite parties put in their appearance through Advocate and filed defence version stating that the complainant had availed the telephone services provided by the opposite parties to carry on his business and has availed telephone services for the usage in the course of its business and therefore the services availed by him are for commercial purposes and therefore the complaint is not maintainable and the same is liable to be dismissed. The opposite parties are not aware of the activities carried out by the complainant or the business run by him. The opposite party company is dealing with business of providing Telecommunication Services to the public at large and has introduced various schemes and tariff plans beneficial to its subscribers and customers are free to choose the services under the tariff opted by them. The A/c number given by the complainant is wrong and the correct A/c number of the complainant’s connection is 2002115035. The DAE agreement was entered by the complainant with opposite parties and the same is already terminated long back in 2003 itself and he is no more a DAE. The complainant became a subscriber to the service provided by the opposite parties taking benefit of “Dhirubhai Ambani Pioneer Offer”(DAPO), after entering into a valid concluded contract with opposite parties. Under the DAPO scheme the payment option selected by the complainant was ROFI, wherein he had made initial upfront payment as club membership charges of Rs.3,000/- for the entire three years of contract period, with financing option of taking loan from M/s Reliance Capital Limited and issuing 12 post dated quarterly cheques of Rs.1,800/- each. It is pertinent to note that when the complainant opted to become a DAE, the opposite party company to help him in facilitating in the procurement work to improve business of the company, had put him to DEMR plan which is available too dealers of the company. There is no agreement between the opposite parties and the complainant that they will provide DEMR plan to the complainant. But, only as an incentive the said plan was allotted to DAES. The DAE agreement was terminated in the year 2003 itself and also the deposit amount paid by the complainant towards to the said entrepreneurship was refunded to him. A copy of the SAP statement showing the refund of Rs.10,000/- is produced as per Annexure-R3. But, though the agreement was terminated the complainant has used the service connection under DEMR plan till the year 2006 i.e., till the end of the contract entered for service as per PAF dated 24/01/2003. The offer duration was 3 years and after completion of three years, customers had wide options to get there plan migrated to other plans especially introduced for the benefit of the DAPO customer or to continue in the same tariff plan of DAPO. The complainant being well aware of all the facts, has tried the other plans and when he grasped the DEMR plan is the most beneficial one, is trying to create a story by making false allegations to get the said plan. The complainant can opt to any plan available in the market, which is beneficial to his requirements and in which, tariff rates are nominal and suitable to his requirements. The complainant is using the services without any interruption and regular payments made by complainant without any whisper shows that there is no negligence with regard to the services. The complainant has enjoyed the services provided by the opposite party under DEMR plan for his personal usage even after termination of DAE agreement, by making and receiving thousands of calls and now, willfully making to false claim against the opposite party. In view of all these reasons stated above, the opposite parties have prayed to dismiss the complaint. <br /> 3. Both the parties filed affidavit evidence. Arguments are heard.<br /> 4. The point for consideration is:-<br /> “Whether there was any deficiency in service part of the opposite parties?” <br /> REASONS<br /> 5. It is the case of the complainant that, he is a social worker involved himself in various social activities conducting various medical camps, meditation for the needy parsons. He is connected with Anniappa Charities which is engaged in giving education, training in music and welfare of the poor. The complainant is also Secretary of Seva Nikethan of Rural Development Center which is engaged in non-formal education and yoga training for the good and happiness of all. The objectives of Seva Nikethan are to educate people in Yogic health, to empower people through non-formal education, to inculcate scientific thinking free from superstitions and dogmas, to provide a common place for collective meditation and to create awareness about health and hygiene. The beneficiaries of the Seva Nikethan are all people in the respective area irrespective of caste, creed, religion or sex. The complainant argued in person, he had not engaged an Advocate on his behalf. Complainant submitted that he is a social worker and participated in so many social works. He has produced certificate of appreciation given by Amrut Global Secretary-ACB, Sri. Shyamsunder Goenka. The certificate states that Sri. B. Krishnaprasad rendered commendable service in assisting the District Administration in Tsunami Relief Measures. Another certificate of appreciation produced issued by Director of Rural Development, Chennai, Dr. M Rajaram, I.A.S. Complainant is one of the customers of the opposite party using mobile services bearing No.9341212347. He is an honoured customer of the opposite party company. The complainant submitted that on 01/12/2003 he had availed the scheme called DAPO which is continued till 01/04/2004 and the said plan was got changed to DEMR from 01/05/2004 which was in force till 31/01/2006 and the complainant submitted that the said scheme/plan was very much convenient to his needs. After 31/01/2006 the DEMR plan came to be changed to NJ 149 which is without any prior notice and the said plan changed to another scheme called DELIGHT-499. This change of plan was also made without giving notice to him. Complainant submitted that opposite party is acting on its whelms and fancies and the act of the opposite party is highly arbitrary and unfair. The case of the complainant is that there is a deficiency in service on the part of the opposite party in not intimating him regarding changes of plan. The complainant had been correspondence with the opposite party and he got issued legal notice to the opposite party highlighting all the issues. The complainant has prayed that opposite party may be directed to restore the original DEMR plan and return the excess amount that has been collected from him from 01/02/2006. The learned Advocate for the opposite party submitted that the DEMR plan or DAPO-1 plan re no more in existence. Therefore, it is not possible to restore the DEMR or DAPO to the complainant. The learned counsel submitted that company is entitled to change or withdraw any service at its discretion for one or more or of its subscribers. No doubt the company has got right to withdraw or change the services but the discretion shall not be exercised arbitrarily. Before changing plan or service the company should follow the Rules of Natural Justice. Admittedly, the opposite party has not intimated the change of plan. No consent of the complainant is obtained for change of plan. Therefore, the opposite party had violated the Principles of Natural Justice. Under the terms and conditions 3(v) the Company is entitled to change the scheme or service except in the case of discounts or other special benefits or schemes/plans announced by the company from time to time. So under this rule the plan announced by the company having a special benefit cannot be withdrawn or changed without informing the subscribers. The complainant has produced a recent bill in respect of a subscriber by name Ananth Padma. The bill is dated 22/07/2008 in respect of bill No.321889708639 and Mobile No.9342500664. Plan name is mentioned as DAPO-1 in the said bill. When this is the case the arguments of learned counsel for the opposite party that DAPO-1 plan has been withdrawn are not in existence cannot be accepted. When the company had given benefit of plan DAPO-1 to another customer the same benefit or plan can be given to the complainant in this case also. The complainant prayed that opposite party be directed to restore BEMR plan. During the course of argument the complainant submitted that DAPO-1 plan and DEMR plan are one and the same. Therefore, there is nothing wrong in restoring the DAPO-1 to the complainant. A Consumer is the most important visitor to the premises of the service provider. He is not dependent on the service provider, on the other hand the service providers are dependent on him. Consumer Protection Act is a social and benevolent legislator intended to protect better interest of the consumers. The enactment is a social measure intended to protect the exploitation of big business houses. If the earlier plan provided to the complainant is restored to him, no injustice will cause to the opposite party. Therefore, the opposite party can be directed to restore BEMR plan or DAPO-1 plan to the complainant. The complainant has prayed for return of excess amount collected from him from 01/02/2006. But the complainant has not come up with a clear picture. He has not specified any specific amount. He has not given any details of the amount collected from him from 01/02/2006. When the complainant has not come with clear case of refund he has not produced any documents or proof as to how much amount has been collected on account of change of plan. Therefore, without there being any details and proper proof and evidence the second relief asked by the complainant cannot be granted. The third relief asked by the complainant is for award of Rs.90,000/- for mental and physical agony on account of change of plan. There is no basis to claim compensation of Rs.90,000/-. The complainant has not proved that he has suffered loss of Rs.90,000/- on account of change of plan. It is not justified and proper to award compensation of Rs.90,000/- to the complainant. Therefore, the third prayer sought by the complainant cannot be granted. In the result, I proceed to pass the following:-<br /> ORDER<br /> <br /> 6. The Complaint is partly allowed. The opposite party company is directed to restore the DEMR plan or DAPO-1 plan to the mobile services bearing No. 9341212347 of the complainant forthwith. <br /> 7. The complainant is entitled for Rs. 2,000/- towards cost of the present proceedings from opposite parties.<br /> 8. Send the copy of this Order to both the parties free of costs immediately as a statutory requirement. <br /> 9. Pronounced in the Open Forum on this 3RD DAY OF MARCH 2009. <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> <br /> MEMBER MEMBER<br /> <br /> Rhr., <br />