KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 29/2022

JUDGMENT DATED: 09.11.2022

(Against the Order in C.C. 119/2019 of DCDRC, Palakkad)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN              : PRESIDENT

SRI.T.S.P. MOOSATH                                                                    : JUDICIAL MEMBER

SRI.RANJIT. R                                                                               : MEMBER

SMT. BEENA KUMARY. A                                                          : MEMBER

SRI. RADHAKRISHNAN K.R.                                                    : MEMBER

APPELLANT:

Dr. A.C. David, Arimboor House, ATS Road, Chalisseri, Palakkad-679 536.

(Party in person)

                                                Vs.

RESPONDENT:

Nodal Officer, Bharti Airtel Ltd., S.L. Avenue, N.H. Bypass, Kundanoor Junction, Maradu P.O., Kochi-682 304.

          (By Advs. P. Jayabal Menon & Mahesh N.G.)

JUDGMENT

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT

This is a complainant’s appeal against an order dismissing his complaint, after trial.  The appellant had approached the Consumer Disputes Redressal Forum, Palakkad (District Forum for short) with C.C. No. 119/2019 complaining of deficiency in service on the part of the respondents/opposite parties.  The District Forum has found that the complaint was barred by limitation and has dismissed the same. 

2.  According to the appellant, he was a subscriber of the Airtel mobile services with mobile No. 9895464502. He had obtained the connection in the year 2001 on payment of Rs. 999/- as a life time connection.  As per the terms of the connection, his case is that, all incoming calls were free, with the requirement of recharge being necessary only for outgoing calls.  However, the incoming calls were barred on 31.03.2008.  But, the service was restored after two days.  Thereafter, on 18.12.2018 he received some communications requiring him to recharge his connection failing which his incoming services would be discontinued.  According to him, his connection itself was discontinued thereafter.  He had earlier filed a complaint as C.C. No. 186/2018 before the District Forum.  But, he was advised to file a complaint before the Telecom Regulatory Authority of India (TRAI). Accordingly, he complained before the TRAI and his connection was restored on 22.01.2019.  But, no compensation was granted.  Therefore, he filed an appeal before the Appellate Authority on 23.01.2019.  But, according to him the same is remaining dormant.  Therefore he has filed the present complaint seeking compensation.

3.  The respondent filed version and contested the complaint.  According to them, the complaint was not maintainable since the earlier complaint filed by the appellant, C.C. No. 186/2018 had been dismissed, for non-prosecution.  In the version, it has been admitted that the appellant had taken a life-time connection in 2001.  Later on, after obtaining necessary sanction from TRAI, the respondent announced a nationwide launch of the ‘Super life time validity plan’ for pre-paid customers with effect from 03.11.2007.  This plan was available to the existing life time validity customers like the appellant also.  One of the salient features of the plan was that the existing 999 life time validity customers would get automatically migrated to the benefit on the reduced tariff rates without any kind of recharge with effect from 09.11.2007.  Such customers would remain active on the super life time validity tariff, provided he does a minimum recharge of Rs. 200/- in 180 running days.  Customers not fulfilling the above criteria would lose their life time validity benefit and would be permanently deactivated.  At no point of time after the launch of the life time validity or super life time validity plan had the appellant chosen to do the minimum recharge, to be treated as a life time customer.  Admittedly, the appellant had received calls and text messages from the respondent informing him of the details of the above plans.  Since the appellant failed to recharge his connection as required, his services were disconnected on 31.03.2008.

4.  The respondent further contended that the appellant had filed C.C. No. 186/2018 before the District Forum earlier for the same reliefs and that the same had been dismissed for default, since he was continuously absent.  Therefore, the complaint was barred by the principle of resjudicata. 

5.  Both parties went to trial on the above pleadings. 

6.  The evidence on the side of the appellant consists of Exts. A1 to A10 documents and the oral evidence of the appellant as PW1.  No evidence was adduced by the respondent. 

7.  On a consideration of the evidence on record, the District Forum held that since there was no finding on the merits in C.C. 186/2018, the principle of resjudicata was not attracted.  However, the complaint has been dismissed finding that the same was barred by limitation. 

8.  According to the appellant, the District Forum went wrong in finding that the complaint was barred by limitation.   His case is that, the cause of action for filing the complaint had arisen only on 18.12.2018 and therefore the complaint was filed within the period of limitation.  It is further contended that, C.C. No. 186/2018 had not been considered by the District Forum on merits.  Therefore, it is contended that the principle of resjudicata would not be attracted.  Since unfair trade practice has been committed by the respondent/opposite party compensation as claimed in the complaint ought to have been granted.  He therefore seeks setting aside of the order appealed against, allowing the appeal.  According to the respondent, however, no interference with the order appealed against is called for even on merits.  The plan of the appellant was altered strictly in accordance with law.  No high handed action or unfair trade practice has been committed by the respondent.  The complaint is barred by time.  It is also barred by the principle of resjudicata. 

9.  Heard.  We have perused the Lower Court Records called for by us.  It is not in dispute that an earlier complaint C.C. No. 186/2018 had been filed by the appellant before the very same District Forum.  The case of the appellant is that, the said complaint was for restoration of his telephone service and that the present complaint is for compensation.  He also contends that the earlier complaint had not been dismissed on merits and therefore, the present complaint is not barred.  However, the said contentions cannot be accepted.  It is a settled principle of law that a litigant has to seek all the reliefs that he wants in respect of a cause of action in the case filed by him.  It is not permissible for him to seek a part of the relief in the first case and then file a second case for the rest of the relief that he wants.  According to the appellant, though he had filed C.C. No. 186/2018, he had approached the TRAI with his complaint, where he had sought for restoration of his telephone connection and also compensation.  But, since TRAI did not grant any compensation, he filed C.C. No. 119/2019, the present complaint.  He states that he had also filed an appeal against the order of TRAI which is still pending, but remaining inconclusive.  A litigant who has two remedies with respect to the same cause of action, cannot be permitted to pursue both the remedies simultaneously.  He has to select one of the remedies, pursue the same to its conclusion and take the consequences.  In this case, even according to him, the proceedings before the Appellate Authority against the order of TRAI are still pending.  The said circumstance is another impediment against granting relief to the appellant here.  Apart from the above, C.C. No. 186/2018 was dismissed for non-prosecution.  According to the respondents, the same was dismissed because of the continuous absence of the appellant.  Be that as it may, the fact remains that an order was passed by the District Forum dismissing the earlier complaint filed on the very same cause of action as in this case.  The said order was not challenged by the appellant before the Appellate Forum.  Therefore, the said order has become final and binding on him.  It is not therefore open to him to agitate the very same cause of action in the subsequent complaint instituted by him.  The earlier order which is still in force, that he himself has suffered, would bar the complaint from which this appeal arises.  Therefore, the principles of resjudicata would apply, disentitling the appellant from claiming any relief on the same cause of action in these proceedings. 

10.  Though the respective counsel have addressed us on the question of limitation also, we refrain from considering the said aspect for the reason that, even if it is not barred by limitation, the dismissal of the earlier complaint filed by the appellant himself bars the present complaint.  In the above view of the matter, the findings of the District Forum on the aspect of resjudicata are vacated. 

For the foregoing reasons, this appeal fails and is accordingly dismissed. No costs.

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                            T.S.P. MOOSATH  : JUDICIAL MEMBER

                     RANJIT. R                : MEMBER

                                                                                                  BEENA KUMARY. A         : MEMBER

                                                                                                   RADHAKRISHNAN K.R.  : MEMBER

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