Heard the learned counsel for the appellant.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The case of the complainant, in nutshell is that the complainant has got a mobile phone bearing No.9437007484 duly prescribed by the OP. It is alleged inter-alia that the complainant got SMS on 17.04.2008 to pay the bill by 25.04.2008. But the complainant alleged that the bill has not been received by 24.05.2008. The complainant alleged that he got another SMS at 16.13.21 hours to pay the bill in order to bar the out going calls. Since the bill was not received, the complainant did not pay the bill. However, the out going call was barred at 18 hours on 02.05.2008 and immediately complainant paid the bill at 11 AM on 03.05.2005 at BNSL office and requested to restore the telephone facility. The restoration was only made on 05.05.2008. Since, the complainant failed to get the benefit of said phone from 03.05.2008 to 05.05.2008 he sustained loss of reputation, prestige and harassment. Therefore,the complaint was filed.
4. The OPs filed written version stating that the SMS itself carries the amount of bill and the complainant did not pay same for which if the outgoing calls were barred. They also submit that when amount was paid, immediately the system did not operate as it was to operate from Calcutta and also the 4th May was Sunday. So, there is no deficiency in service on the part of the OP.
5. After hearing both the parties, learned
District Forum has passed the following order:-
Xxxx xxxxx xxxxxxx
“Thus, under the circumstances, we allow the case of the complainant and direct the Ops to pay Rs.50,000/-(Rupees fifty thousand) only to the complainant as compensation within 30 days from the date of receipt of the order, failing which the Ops would be liable to pay 12 % interest per annum on the awarded amount from the date of order till the date of actual payment.”
6. Learned counsel for the appellant submitted that the complainant did not pay the bill for which the outgoing calls are barred and on payment of the bill the facility was restored. Since, the restoration is not automatic but depending on the other office of the same licensee at Calcutta and intervening Sunday was holiday, the delay was caused. Learned District Forum ought to have considered all the facts while passing the impugned order. Therefore, he submitted to set-aside the impugned order by allowing the appeal.
7. Considered the submission of learned counsel for the appellant, perused the DFR and impugned order .
8. No doubt the complainant got the SMS message to pay the bill. Complainant has to prove that bill was not served. It is always necessary that complainant has to prove his case. Here the complainant has not proved the SMS because normally the SMS carries bill amount to pay by due date. Thus, the complainant has suppressed the material fact He who seeks equity must come with clean hands, but the complainant has failed to substantiate his allegation. On the otherhand, due to non-payment of bill, the OP has barred the outgoing calls after giving warning, such action of the OP can not be said illegal. On the otherhand, the payment was made on 3rd May and due to holiday on 4th May the system was restored on 5th May, we do find any fault with the OP. It is clarified from the learned counsel for the appellant that the office at Calcutta is to restore the system. When there is other office involved and holiday intervened, the fault does not lie with the OP. Learned District Forum has not discussed all the facts and law. Therefore, the impugned order is set-aside and the appeal stands allowed. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
