Date of Filling:      02.05.2016

                                                                                                                       Date of Disposal:  22.05.2018

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.26/2016

Tuesday, THE 22 DAY OF MAY 2018

D.Jayabalachandran,

S/o, C.Dharman,

A1B1, Ground Floor,

Arunachala Concepts,

Thanigai Salai

Arulmurugan Nagar,

Kilkattalai, Chennai -117                                      ….. Complainant/Party in person

//Verses//

M/s Sistema Shyam,

Tele Services Ltd., (MTS)

Ambit I.T. Park,

32 A&B, Industrial Estate,

2^nd Floor, Ambattur, Chennai -600058                              ….. Opposite Party.

This complaint is coming upon before us finally on 08.05.2018 in the presence of complainant, who has appeared as party in person Mr.R.Damodaran, Counsel for opposite party and having perused the documents and evidences, written and oral arguments of both sides, this Forum delivered the following.

ORDER

PRONOUNCED BY THIRU.S.PANDIAN, PRESIDENT

            1.This complaint has been preferred  by the complainant U/S 12 of Consumer Protection Act,1986 against the opposite party for refund of the amount of Rs.1000/- and for claiming compensation for  a sum of Rs.5,00,000/- with cost Rs.20,000/-

2.The brief averments of the complainant as follows:-

The complainant had purchased a Data Card MTS from the Opposite party during 10^th the month of August 2015. The details of the date card (MTS) as follows.

1.MTS:86449451502.

2.Code:150697263.

3.MRp:Rs2190/-

3. That on demand by Shri Ashok who is the employee of the said organization, the complainant has paid Rs.1,000/- for data card(MTS) and  produced  the following documentary proof for activation of the data card MTS.

1. Passport size photos-2

2. Copy of PAN card

3. Complete copy of IOB pass book including the 1^st page where the

     Passport size photo affixed and stamped by IOB, Kilkattalai, Chennai.

4. Copy of EB card and the sanction letter of EB department, madipakkam Chennai.91

4. The Opposite party did not provide any receipt even on demand by the copy for the payment of Rs.1000/- towards cost. In addition to that the complainant voluntary handed over a copy of sale deed of his own property.

5.  The complainant asked Shri Ashok who is the exployee of the said organization if those documents provided are sufficient or not. In turn the employee has replied that these documents are more than sufficient and the Data Card will be activated within 24 hours.

6. When the complainant used the data card on his laptap, after 24 hours he found that the Data card MTS has not been activated even after three days lapses.  The complainant talked to the employee of the organization through his mobile they have informed that this will be activated within another two days. These are all the information available in the mail box of my mobile till date.  They did not activate the Data cord MTS even till date.

7. After two days one employee again has visited complainant’s residence and again have collected all those documents which were already handed over to them. Even then the data card has not been activated.  After one week have elapsed the complainant contacted them but the reply given by the exployees that they will activate the data card immediately. This is a repeated reply from the employees used to give.  After lost his patience, the complainant again made a mobile call.  One female employee who will often will reply to his call by picked up the mobile.  The complainant requested her to refund the money and take back the data card MTS since the data card MTS was not activated on that day also.

8. The complainant lost all the hope, got tension, upset and with mental agony he has sent a letter dt.02.05.2015 by speed post.  That even after lapse of more than 4 months periods the organization did not take any interest to refund Rs.1000/- plus compensation etc.  Hence this complaint is filed.

9.The contention of written version of the Opposite party 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 in the complaint are denied as false except to the extent admitted herein and the complainant is put to strict proof of the same. The entire averments made in the complaint are all not true and correct.

10. The Data Card allegedly purchased by the complainant could not be activated since the address mentioned by the complainant is not traceable.  Nor the complainant answered the call to his phone number.  As such the opposite party is left with no alternative on account of the non-cooperation by the complainant in the verification process.  The Department of Telecom, Government of India has laid down stringent norms in respect of the customer verification, before providing the service.  When the complainant had an obligation to furnish the correct address or to attend to the calls made to him, having failed to comply, cannot allege any deficiency on the part of the opposite party in preceding the activation of the data card.

11.The  complainant did not come under the category of consumer on account of the fact that he never became a customer of the opposite party, as  his address verification could not be processed due to non-traceability of the complainant’s address and non-reachability of the complainant over phone.

12. The said Ashok is not impleaded as a party to the above proceedings for reasons best known only to the complainant.  The allegations that the complainant has spoken to the employees of the opposite party appears to be incredible and unbelievable.  No details of names or designations or any dates or e-mails of his alleged conversation are furnished by the complainant.

13. The averments of the complainant that after two days one employee from the opposite party visited him and again collected documents from him and that the complainant spoke to a lady, allegedly an employee of the opposite party are all untenable.  As a prudent man, the complainant ought to have contacted the customer care of the opposite party and registered his complaint or grievance.  The customer care number is distinctly marked on the outer box of the data card.  But the complainant did not register any complaint with the customer care in respect of the allegations averred by him.  On the other hand the complainant has choosen to call unknown and unauthorized numbers for getting his complaint resolved.  Having failed to co-operate in the verification process, the complainant cannot allege any deficiency of service on the part of the opposite party.  Without furnishing any proof for the purchase of the data card from the opposite party, the complainant’s claim for refund of Rs.1000/- is not maintainable.  Hence the alleged deficiency of service on the part of the opposite party and the consequent compensation for a sum of Rs.5,00,000/- is not sustainable.  Since it is an exorbitant sum.

14. The claim of compensation is not only exorbitant, excessive but also whimsical and not substantiated with any proof of evidence.  Hence this complaint is liable to be dismissed.

15. In order to prove the case, on the side of the complainant, the proof affidavit submitted and ExA1 to ExA4 are marked on his side. On the side of the Opposite party proof Affidavit filed but not produced any documents.

16.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?

17. Written arguments filed and oral arguments also adduced by both sides.

Point No:1:-

18. As per the case of the complainant is that he has purchased Data Card of MTS from the Opposite party on due consideration of Rs.1000/- but as per promise, the opposite party has not come forward to activate the said Data Card within the reasonable time and made repeated demands, the opposite party has not either to rectify defects or to refund the money of Rs.1000/- which has paid by the complainant towards cost of the Data Card and thereby caused lot of tension mental agony and loss to the complainant which amount for deficiency of service on the part of the Opposite party.

19. On the other hand,  it is contented by the Opposite party that the allegation made in the complaint are all baseless  and infact the Data Card could not be activated since the address mentioned by the complainant is not traceable and also the complainant has not answered the call from the opposite party.  Moreover, it is contended that the complainant did not come under the category of the consumer. Only because of non cooperation of the complainant in the verification process for non activation and therefore there is no deficiency of service on the part of the opposite party.

20.  At this juncture, on careful perusal of the evidence of the complainant it is stated that he has purchased the Data Card of MTS from the Opposite party on 10.08.2015 and during that time, on demands of complainant Exhibit A1 Pan Card and Exhibit A2 first page of the Indian overseas Bank with clear address and Exhibit A3 Electricity Board letter to show the address of the complainant.  Further it is  seen from the evidence that after the lapse of 24 hours as her promise by the opposite party the Data Card did not have activated and same was immediately informed to opposite party through e-mail but he did not have activated even after 3  days  lapse and further perusal  it is learn that even the lapse of one weeks and the opposite party  the Data Card have not been activated and therefore the complainant has sent Exhibit A4 letter dated 02.11.2015  through speed post with  demands to refund Rs.1000/- and compensation  for not providing service and even receipt of the same the opposite party has not given any reply or to rectify demands of the complainant.  Such being so, it is seen from the evidence of the opposite party stated through his Proof Affidavit that the allegations made in the complaint are all baseless and in fact due to the  non traceable of the correct address and non cooperation of the complainant in verification process even several phone calls made by the opposite party and therefore the opposite party could not be activated the Data Card  but not otherwise as stated by the complainant.

21. At the outset, the foremost duty of the forum is to consider as to whether the complainant has proved the allegations made in the complaint beyond any reasonable doubt by means of consistant, concrete and reliable evidence.  At this point of time, on going through the averments made by both the parties in the Proof Affidavit, it is crystal clear that the purchase of the Date Card by the complainant from the opposite party is admitted one.  The only contention raised by the opposite party is the non production of any receipt for due consideration of Rs.1,000/- paid by the complainant. At this instance this Forum wants to enlighten that when the opposite party clearly admitted the purchase of the Data Card, certainly some amount would have been paid or otherwise there is no possibility of purchasing the Data Card without any due consideration.  If for arguments sake, it is taken as, that the receipt for the purchase of Date Card has not been issued, what necessity arises to the Opposite party make several phone calls to the complainant regarding the non traceable of the address given by the complainant is in question.  Further on what basis, it is stated by the Opposite party that the activation of the Data Card could not be done because of the non cooperation of the complainant in verification process.

22. Moreover, when the purchase of Data Card by the complainant from the opposite party is admitted one, this forum wants to state that the admitted facts need not be proved further by means of any documents.  Therefore, there is no doubt regarding the purchase of Data Card MTS by the complainant from the opposite party.

23. The next point to be taken into consideration is that whether the opposite party has failed to activate the Data Card within the reasonable time.  But on careful perusal of evidence, the complainant has clearly stated that on promise made by the opposite party, the Data Card have not been activated within 24 hours and even repeated demand and request, the said  activation has  not been done by the opposite party even after lapse of one week.

24. At this instance, the only contention raised by the opposite party is, the non cooperation of the complainant in verification process regarding the given address by the complainant in spite of several phone calls.  It is seen from the facts already pointed out in the previous paragraph, the purchase of the Date Card has been admitted.

25. Further, if it is seen from Exhibit A4, the complainant has sent the letter through speed post to the opposite party by clearly mentioning about the non activation of Data Card and other facts.  But the opposite party has not given any reply to Exhibit A4 and thereby it can be easily presumed that the contents in Ex.A4 have been admitted by the opposite party.  Moreover, even in the Written version the opposite party has not at all denied the Exhibit A4.  In such circumstances, the opposite party has not come forward to prove with concrete evidence about the non cooperation of the complainant in verification process and also the non traceable address given by the complainant in the Exhibit A1 to A3 is not correct while verification.  So, such contention raised by the opposite party for non cooperation by the complainant is utterly baseless one and thereby the same is rejected.

26.  In the light of the above discussion and other circumstances, it is crystal clear that the complainant has clearly proved the deficiency of service on the part of the opposite party.  Accordingly the point No.1 is answered

Point No:2:-

27. As per the view concluded in point No.1 it goes without saying, that the complainant is entitled to get relief of refund to the tune of Rs.1,000/- with reasonable interest and reasonable compensation  with cost.  Thus the Point No. 2 is answered accordingly.

28. In the result, this Complaint is allowed in part. Accordingly the Opposite party is directed to refund the purchase amount of Rs.1,000/- (One Thousand only) with interest at 9% per annum(02.05.2016) from the date of Complaint till the date of this order (22.05.2018) and also to pay a sum of Rs.5,000/-(Rupees Five Thousand Only)  towards cost of the complaint to the complainant.

The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, the said amount shall carry interest at the rate of 9% per annum till the date of payment.

This order was dictated by the President to the Stent-typist, typed by her, corrected, signed and pronounced by us in open Forum, today on this 22^th day of May 2018.

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               MEMBER                                                                              PRESIDENT

List of documents filed by the complainant:-

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 MEMBER                                                                                      PRESIDENT