KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 329/2016
JUDGMENT DATED: 01.11.2018
(Against the order in C.C. 224/2009 of CDRF, Thrissur)
PRESENT :
HON’BLE JUSTICE SRI. S.S. SATHEESACHANDRAN : PRESIDENT
SRI.RANJIT. R : MEMBER
SMT. BEENA KUMARY. A : MEMBER
APPELLANTS:
- District Officer, Idea Mobile Communications Ltd., C/o Idea Cellular Ltd., Casino Complex, TB Road, Thrissur.
- Nodal Officer, Idea Cellular Ltd., Mercy Estate, 3rd Floor, Ravipuram, M.G. Road, Kochi.
- Idea Mobile Communications Ltd., Idea Cellular Ltd., A-30, Mohan Co-operative Estate, Mathura Road, New Delhi.
(By Adv. V.S. Sunil Kumar & T.L. Sreeram)
Vs.
RESPONDENT:
P. Sankarankutty, Porakkat House, Thalore P.O, Thrissur.
JUDGMENT
HON’BLE JUSTICE SRI. S.S. SATHEESACHANDRAN : PRESIDENT
Opposite parties in C.C. No. 224/2009 on the file of Consumer Disputes Redressal Forum, Thrissur, for short the forum, have filed this appeal challenging the Order of the forum directing them to refund a sum of Rs. 187/- with interest at 12% per annum from the date of complaint till realization, to refund Rs. 686/- incurred as expenses by the complainant and to pay compensation of Rs. 3,000/- with cost of Rs. 2,000/- to the complainant. In addition to the above, opposite parties were also directed to deposit a sum of Rs. 25,000/- as punitive cost to the legal benefit fund of the forum holding that they indulged in unfair trade practice to hoodwink the consumers. Aggrieved by the Order and directions they have preferred this appeal.
2. Notice given, respondent/complainant has appeared in person.
3. We heard the learned counsel for appellants and also the respondent/complainant.
4. Complainant canvassed two specific instances to impute deficiency in service against the opposite parties from whom he had taken a mobile connection. Being a discount card holder of Malayala Manorama company, according to complainant, opposite parties offered him a mobile connection providing 15 days free validity. On expiry of the validity period complainant recharged the phone paying a sum of Rs. 199/-, but before making a single call the battery of the phone became defective and it was got repaired after a period of three months. His request to provide the lost talk time for Rs. 174/- in the consequent recharging paying the sum thereof was not heeded to by the opposite parties was the first among the two instances to impute deficiency. On subsequent recharging of the phone opposite parties unauthorizedly deducted various sums totalling to Rs. 187/- and his complaint thereof was totally discarded. He approached the Legal Service Authority for redressal of his grievances, but it did not succeed due to the adamant attitude of the opposite parties. Unauthorized deduction from the amount paid for recharging of the phone as indicated above was the second instance alleged to impute deficiency. Withdrawing the petition filed before the Legal Service Authority complainant approached the forum and filed the complaint for issuing direction to the opposite parties to activate his phone for a period of two months sanctioning talk time of Rs. 360/-, to refund expenses of Rs. 686/- incurred by him and also to pay compensation and cost. Opposite parties appeared before the forum and resisted the claim questioning its jurisdiction challenging that the complaint was not maintainable. On the factual aspects alleged by complainant in his complaint to impute deficiency in service no specific contention or explanation was taken or averred by the opposite parties. The forum below turned down the challenge against the maintainability of the complaint, but the opposite parties pursued that challenge unsuccessfully before the Commission.
5. Evidence in the case consisted of the testimony of complainant as PW1 and Exts. P1 to P27 on his side. On the side of opposite parties Exts. R1 & R2 were marked. Two sim cards issued by opposite parties to the complainant were produced and identified as MO1 & MO2.
6. Appreciating the materials produced the forum below allowing the complaint passed the Order with directions as indicated above, and aggrieved opposite parties have preferred this appeal.
7. So far as the first instance alleged to impute deficiency in service that after recharging the phone for Rs. 199/- complainant could not make a single call because of the defect to the battery of the phone and his request made to opposite parties after expiry of the period to adjust talk time in the subsequent sim issued for recharging, there is absolutely no merit. There was no fault on the part of the opposite parties, but on account of the defect in the battery of the phone of the complainant he could not make use of the phone during the period of validity. He cannot insist the opposite parties to adjust the sum paid during the lost validity period on subsequent recharging of the phone. However with respect to the second instance to impute deficiency, there was unauthorized deduction of Rs. 14/- on 13.07.2007, Rs. 129/- on 16.07.2007 and Rs. 20/- on 19.08.2007 after recharging the phone paying a sum of Rs. 199/- on 07.07.2007 by the complainant the lower forum appreciating the materials produced found the case pleaded by the complainant reliable and acceptable. What we find that other than the assertion of the complainant there is nothing more to sustain his case of unauthorized deduction on subsequent recharging of the phone. Still, the findings entered by the forum in his favour in the facts and circumstances of the case is not liable to be disturbed since we find that the deficiency in service alleged by the complainant has not been disputed by the opposite parties in their version. They have confined their challenges solely to the question of jurisdiction questioning the maintainability of the complaint. Learned counsel for the appellants/opposite parties urged before us that at that point of time the decision rendered by the National Commission that a dispute between the service providers and subscribers of mobile connection has to be resolved by arbitration as provided in the terms and conditions entered by the parties and as such the opposite parties resisted the claim of the complainant solely on the challenge that the forum has no jurisdiction. Be that as it may, that challenge over maintainability canvassed by opposite parties was repelled by the forum and also by Commission in view of the law declared by the apex court. The forum has jurisdiction to entertain consumer complaint with respect to a dispute between the service provider and subscriber over mobile connection. The finding of the forum that the opposite parties had unauthorizedly deducted a total sum of Rs. 187/- by deductions made on 13.07.2007, 16.07.2007, 19.08.2007 and between 02.07.2007 and 06.07.2007 from the account of the complainant has only to be affirmed, and we do so. We also do not find any ground to interfere with the awarding of Rs. 686/- incurred as expense by the complainant for prosecuting his grievances. Similarly, the awarding of Rs. 3000/- as compensation and Rs. 2000/- as cost to complainant by the forum, which is just and reasonable, has only to be affirmed. We do so. However we find the direction issued to the opposite parties to deposit Rs. 25000/- in the Legal Benefit Fund of the forum as punitive cost cannot be sustained. Opposite parties published enticing advertisements with bulk of delusional offers colluding with the leading medias to hoodwink the consumers, according to the forum. There is nothing in materials to hold that opposite parties indulged in any such unfair trade practice and when that be so no punitive cost can be imposed against them. So much so punitive cost imposed shall stand vacated.
8. We have affirmed the finding of the forum that opposite parties had deducted a sum of Rs. 187/- unauthorizedly from the account of the complainant. The forum has directed payment of such sum with interest at 12% per annum from the date of complaint till realization. We modify that order directing opposite parties to pay a sum of Rs. 1,000/- for having unauthorizedly deducted various sums totalling Rs. 187/- from his account.
9. In modification of the order of the complaint passed by the forum we direct the opposite parties to pay a sum of Rs. 1,000/- for having unauthorizedly deducting various sums in the account of the complainant, Rs. 686/- as expenses incurred by complainant and to pay compensation of Rs. 3,000/- with cost of Rs. 2,000/-. Direction issued by the forum to the opposite parties to deposit Rs. 25,000/- as punitive cost shall stand vacated.
10. Appeal is partly allowed as indicated above. Sums ordered to be paid to the complainant shall be released from the sum deposited by the appellants to entertain their appeal. Balance amount if any due on the sum of deposit shall be released to the opposite parties on their application. Both parties are directed to suffer their costs.
JUSTICE S.S. SATHEESACHANDRAN : PRESIDENT
RANJIT. R : MEMBER
jb BEENA KUMARY. A : MEMBER
