This case has been arising out of the complaint filed by the complainant against the O.Ps named above u/s. 12 of the Consumer Protection Act 1986. The case of the complainant is that the O.P No 2 and 3 are registered Telecom Company used to deal with Telecom Business all over India having its branch office at Alipurduar and O.P. No 1 is the retailer shop under O.P. No 2 and 3 under name and style of Paul Telecom and the Telecom Company used to give various lucrative advertisements and being attracted with the said advertisement the complainant purchased a Sim Card for using the Telecom Service under the O.P. No 2 and 3 Vide Phone No. 9734080168 and on 05/07/2019 the complainant purchased one combo voucher at Rs. 35 from the O.P. No 1 Vide SL. No. 781085211622. In that combo voucher it is clearly mentioned that there was a 16 digits recharge code and the said voucher was packing on 15/10/2018 and it was expired on 15/10/2019. After scratching the said combo voucher there was 15 digits recharge code in place of 16 digit recharge code i.e. 961554736862733 and the complainant failed to make recharge in his above mentioned phone number and then and there the complainant rush to the shop of the O.P. No. 1 but no fruitful answer was given by the O.P. No 1 and also not replace the same.
After that the complainant visited the office of the O.P. Nos. 2 and 3 and stated all above mention facts but no fruitful result come out and thereafter the complainant filed an application against the O.Ps before the Assistant Director of Consumer Affairs and Fair Business Practices, R.O., Alipurduar and after getting the application they suggest and refer the complaint for filing before the Ld. Commission and the complainant finding no other alternative and thereafter complainant come before this Ld. Commission. The complainant claiming an amount of Rs. 30,000/- as mental agony and harassment and Rs. 10,000/- as litigation cost against the O.Ps.
It appears from the case record that the O.P. No. 3 appears and contests the case by filing W/V. O.P. No. 1 appeared before this Commission on 09/12/2019 but after that O.P No. 1 did not appear before this Commission to contest this case. O.P No 2 appear before this Commission and filed a W/V on 09/12/2019 after that from 20/04/2020 did not turn up before this Commission to contest this case.
Hence, this case has been proceeded ex-parte against the O.P No. 1 and 2 as per Vide Order No. 06 dated 18/02/2020 and Vide Order No. 28 dated 22/12/2022.
The case of the O.P No. 3 according to his W/V is that it is not maintainable in law as because allegation comes within the provision of Section - 7B of Indian Telegraph Act and he has enclosed several case laws with his W/V. The specific case of the O.P No. 3 is that the complainant bought a combo voucher of Rs. 35/- but he did not file any receipt so how it can be stated that he has purchased the said combo voucher. That a part he stated that the total code is 15 digits instead of 16 digits and the complainant file this case ulterior motive and as this case is not maintainable in law he has prayed for dismissal of the case.
In this contest, the following issues are necessarily come up for the proper adjudication of this case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s. 2(7)(ii) of Consumer Protection Act, 2019?
- Has this Commission jurisdiction to entertain the instant case?
- Have the O.Ps any deficiency in service as alleged by the complainant?
- Is the complainant entitled to get any relief/reliefs as he prayed for?
DECISION WITH REASONS
Considering the nature and character of the case all points are interlinked to each other as such all such points are taken up together for consideration for the sake of brevity and convenience.
Point Nos. 1 & 2:- The complainant bought a combo voucher of Rs. 35/- from O.P No. 1 who is the dealer of O.P No. 3 and the allegation is that after scratching the secret number complainant found only 15 digits as mentioned instead of 16 digits. So according to the C.P. Act the complainant is a consumer as he purchased the service of combo voucher from O.P No. 3 through O.P No. 1 and the case is filed within the jurisdiction of this Commission.
Point Nos. 3 and 4:- The O.Ps raised the objection regarding maintainability of this case and they stated barred by u/s. 7B of Indian Telegraph Act and he has cited several case laws in support of this case and they gone through the said case laws from which it appears that all the case laws are related to the payment of phone bills and not to purchase either sim card like this. The C.P. Act, 1986 is a special law which has been enacted to protect the consumer from any unlawful act caused against him. The case of the complainant is that he has purchased a combo voucher of Rs. 35/- and according to the instruction on the reverse of the combo voucher it appears on instruction that there is 16 digits number of recharge code but it also appears that after scratching the portion only 15 digits were there instead of 16 digits and validity of the combo voucher was 15/10/2018 to 15/10/2019. The O.Ps have stated several matters to convince this Commission but did not clear why the 15 number of digits are there instead of 16 digits number. The O.Ps can not be escaped from this case by raising the maintainability of the case. But there is several case laws mentioned as well as the Hon’ble Supreme Court that inspite of any special law the C.P. Act shall prevail of them when the right of the consumer is as stake. Here in this case we find that the complainant is purchased a combo voucher of Rs. 35/- but the recharge code was not 16 digits but only 15 digits as it appears from the combo voucher. O.Ps raised another objection that there is no proved that complainant purchased this combo voucher but the Xerox copy of the combo voucher is filed from which it reveals that complainant purchased the same. There is no such allegation that this combo voucher stolen etc. The O.Ps did not deny that this combo voucher is not release by the O.P No. 3. So when it was availed in the market that the complainant collected the same then it is definitely that he collected the same in lieu of money. We also find that as there was a 15 digits code instead of 16 digits code number. The recharge was not completed according to the instruct given in the reverse sim card. So there was a laches form the part of the O.P No. 3 at the time of releasing this voucher in the market. They did not notice how many numbers are there. There is definitely deficiency in the service from the part of the O.Ps for which the complainant was harassed. Due to the said negligent from the part of the O.P the complainant is entitled to get back the Rs. 35/- along with the compensation of Rs. 3,000/- from his mental agony and harassment and also Rs. 2,000/- as litigation cost as this combo voucher as released by the O.P 3 in the market and sold through his agent then O.P No. 3 is liable to pay the said amount of compensation as because he has received the voucher amount through his agent.
Thus all the points are disposed of accordingly.
Hence, for ends of justice; it is;-
ORDERED
that the instant case be and same is allowed on contest against the O.P No. 3 and ex-parte against 1 and 2. The complainant do get an award amounting to Rs. 35/- for the cost of combo recharge voucher and Rs. 3,000/- (Rupees Three Thousands) as compensation for his mental agony and sufferings and also Rs. 2,000/- (Rupees Two Thousands) as his litigation costs; total decreetal award amounting to Rs. 5,035/- (Rupees Five Thousands and Thirty Five). The O.P No. 3 is hereby directed to comply this order within 30 days from this day, failing which legal action will be taken against him.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
