Punjab

StateCommission

A/11/626

M/s Idea Cellular Ltd. - Complainant(s)

Versus

Rajiv Bhagat - Opp.Party(s)

Vishal Gupta

06 Feb 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.626 OF 2011

 

                                                          Date of Institution: 11.04.2011  

                                                          Date of Decision : 06.02.2015

 

Idea Celluar Ltd., C-105, (Erstwhile Spice Communication Ltd) A company registered under the Companies Act having its registered office at Suman Tower, Plot No.18, Sector 11, Gandhi Nagar 382 011, (Gujarat) and Punjab Circle Regional Office at C-105, Phase VII, Industrial Focal Point, Mohali - 160055 (Punjab) through its Authorized Signatory/Manager Legal Mr.Manoj Madan.

 

                                                          …..Appellant/Complainant.

         

                                      Versus

 

Rajiv Bhagat son of Sh.B.D Bhagat, r/o H.No.11, Pawan Kumar, Near Post Office, Batala Road, Amritsar.

 

                                                          ….Respondent/Opposite Party.

 

         

First Appeal against order dated 21.02.2011 passed by the District Consumer Disputes Redressal Forum, Amritsar.

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

Present:-

 

          For the appellant              :         Mrs.Nitika Jindal, Advocate

          For the respondent :         Ex-parte.

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                            

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The appellant (the opposite party in the complaint)  has directed this appeal against the respondent herein( the complainant in the complaint) challenging the order dated 21.02.2011 of District Forum Amritsar directing the OP to restore the mobile connection in the name of the complainant, subject to payment of all dues by him. The instant appeal has been filed by the OP now appellant.

2.      The complainant Rajiv Bhagat has filed the complaint U/s 12 of The Consumer Protection Act 1986, ( in short, "the Act") against the OP on the allegations that  he has been practicing in labour side as Advocate in Amritsar. That he obtained pre-paid mobile connection bearing no.98140-55842 from the OP for consideration for the last 10 years. He hired the services of the OP for consideration, hence he is a consumer of the OP. The above-referred mobile number has been in use of the complainant for the last more than 10 years. The above said mobile number has been in circulation with the clients, relatives, friends and public of the complainant. That at the time of obtaining the said mobile connection by the complainant, it was post-paid connection and as per scheme of the OP, the said connection was converted from post-paid to pre-paid without change of number thereof. Facility of the pre-paid connection remained unsuitable to the complainant and complainant again got connection converted from pre-paid to post-paid. The complainant received a bill dated 07.05.2009 from the OP for an amount of Rs.349.97 showing due date of bill as 22.5.2009. The complainant could not make the payment of the said bill due to over-sight. On 27.7.2009, the officials of the OP visited the complainant to collect the bill and complainant paid the aforesaid bill amount with penalty amounting to Rs. 410/- against receipt no.7523 dated  27.7.2009 of mobile no.98140-55842. The complainant remained consumer of this mobile number with the OP. The above-referred connection of the mobile of the complainant was discontinued by the OP after due date of bill dated 7.5.09 without serving any notice to the complainant. The complainant approached the OP for restoration of the above-referred mobile connection, but to no effect. The complainant has, thus, prayed that OP be directed to restore the above-said mobile no.98140-55842 of the complainant and also prayed for compensation of Rs.75,000/- and litigation expenses of Rs.10,000/- from OP.

3.      Upon notice, OP appeared and filed written reply raising preliminary objections that complaint is without any cause of action. That complaint is not maintainable in view of law in case titled as General Manager Telecom Vs. M.Krishnan and ors as special remedy U/s 7-B of the Indian Telegraph Act is available to the complainant.  On merits, the complaint was contested by the OP, by averring that mobile no. 98140-55842 was activated in pre-paid on 16.01.2010 and converted into post-paid on 16.7.2010. It was further pleaded in the reply by the OP that complainant has not paid the bill for invoice periods of 8.3.2009 to 7.04.2009,  amounting to Rs.182/- and also for the period 8.4.2009 to 7.5.2009 amounting to Rs.167/-. The above-said connection was suspended on 14.4.2009 due to non-payment of the outstanding bill by the complainant and number was erased on 14.7.2009. That the complainant's mobile connection was barred on 29.4.2009 due to non-payment of the outstanding bill by him. The complainant was regularly intimated through SMS regarding outstanding payment of the above-said mobile connection. The complainant paid the amount of Rs.410/- which was received on 28.7.2009. The above-referred mobile connection was re-issued and re-activated on the name of the City X-ray, Ultrasound on 20.08.2009 and was disconnected on 14.5.2010 under temporary disconnection and erased later on. The OP prayed for dismissal of the complaint of the complainant by controverting the averments of the complainant.

4.      The complainant tendered in evidence affidavit Ex.C-1 of Rajiv Bhagat complainant, copy of bill Ex.C-2, receipt of monthly bill payment Ex.C-3, visiting card of Rajiv Bhagat, complainant Ex.C-4 with Mark-A and B. As against it, the opposite party tendered in evidence  affidavit of Sh.Manoj Madan Manager Finance M/s Spice Communication Ltd Ex.R-1 and closed the evidence. On conclusion of evidence and arguments, the District Forum, Amritsar accepted the complaint of the complainant partly and directed the OP to restore the mobile connection in the name of the complainant, subject to payment of all dues by him. Dissatisfied with the order of the District Forum dated 21.02.2011, the instant appeal has been preferred by the OP now appellant.

5.       We have heard Ld.Counsel for the appellant and respondent in this appeal is exparte and have also examined the record of the case.

6.       The contention raised before us by the counsel for the appellant is that the date of payment of the bill expired as such, the mobile connection of the complainant was disconnected. That the instant complaint is not maintainable inasmuch as the effective remedy U/s7-B of the Indian Telebgraph Act is available to the complainant.  It was also submitted that since the complainant failed to pay the bill amount for the period 8.3.09 to 7.4.09 amounting to Rs.182/- and also 8.4.09 to 7.5.09 amounting to Rs.167/-, as such, mobile connection of the complainant was suspended on 14.4.2009 on account of non-payment of the bills and was finally erased on 14.7.2009. It was also argued that after erasing the name of the complainant, it was re-issued and re-activated in the name of City X-ray, Ultrasound on 20.08.2009 and was issued to some other consumer. These are the only submissions raised before us by counsel for the appellant. Firstly, we deal with this point as to whether this complaint is competent or not, in view of Section 7-B of the Indian Telegraph Act. The matter has been settled by the Hon'ble National Commission in Revision Petition No.1228 of 2013 titled as "Bharti Hexacom Limited Vs. Komal Prakash & Anr.", decided on 02.05.2014, wherein it has been held by the Hon'ble National Commission in its order that M.Krishnan's judgment by the Apex Court has clarified that the said decision involved a dispute between the department of Telecommunication, which was the Telegraph Authority under the Indian Telegraph Act, as a service provider prior to the hiving off of telecom services into a separate company, viz., Bharat Sanchar Nigam Limited (BSNL). The Hon'ble National Commission further observed in this order that as the powers of a "Telegraphy Authority" are not vested in the private telecom service providers, as in the case here, and also in the BNSL, hence Section 7-B of the Telegraph Act will have no application and, therefore, Consumer Foras, as constituted under the Act, are competent to entertain the dispute between the individual consumer and telecom service providers. Hon'ble National Commission based its order on the letter dated 24.01.2014 of Government of India, Ministry of Communication and IT, while responding to the communication received from the Secretary, Department of Consumer Affairs, Govt. of West Bengal on 07.10.2013, in relation to the Hon'ble Supreme Court's judgment in M.Krishnan's case (supra). On the basis of law down by the Hon'ble National Commission in "Bharti Hexacom Limited Vs. Komal Prakash & Anr.'s case (supra)  by holding that the ratio of law of M.Krishnan's case by the Apex Court is not attracted and hence, the District Forum is competent to entertain and dispose such like consumer complaints on merits and hence it is maintainable. Accordingly, this type of complaint against Private Service Provider of Mobile Connection is maintainable as per the latest view taken by the Hon'ble National Commission. On this premise, the appeal before this Commission is maintainable inasmuch as facts of the judgment of the Apex Court are on  different footings because in that case the BSNL, which was owned by the Government, which was a party herein. The OP herein is a Private Service Provider of the telephone or mobile connection, consequently relying upon the observation of the Hon'ble National Commission in the above-referred case, which is directly applicable in this case, we negative this contention of the appellant that this complaint is not maintainable.

7.      Now, coming to the merits of the case, the mobile connection of the complainant was primarily disconnected on account of non-payment of the dues by the complainant. We have examined the respective pleadings of the parties coupled with the affidavit of the complainant Rajiv Bhagat Ex.C-1, similarly, the document Ex.C-2 the bill received from the complainant by OP has also been examined by us. On the other hand, the affidavit placed on record by Sh.Manoj Madan Manager, Finance M/s Spice Communication Ltd Ex.R-1 has also been perused by us. The contention of the OP is that complainant has not paid the bill for invoice period of 8.3.09 to 7.4.09 amounting to Rs.182/- and from 8.4.09 to 7.5.09 amounting to Rs.167/-. Hence, complainant's mobile connection was barred on 29.4.09 and suspended on 14.4.09 due to default of the complainant. After erasing this mobile connection of the complainant, it was re-allotted to City X-ray, Ultrasound by activating it. The complainant made payment of the dues on 28.7.09 vide Para No.8 of the written statement filed by the OP. The OP did not inform the complainant before re-issuing the number in favour of some other customer and by reactivating it. The payment of the bill by the complainant has exhibited his sincere intention to continue with this mobile number, which was disconnected by the OP and was reactivated to some other customer. We, thus concur with the view of the District Forum that the same number should be restored to the complainant on deposit of the all dues by the complainant within a period of 45 days from the date of the receipt of copy of this order.

8.      In the light of our above discussion, there is no merit in the appeal and same is hereby dismissed.

9.      Arguments in this appeal were heard on 05.02.2015 and the order was reserved. Now the order be communicated to the parties.

10      The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                          MEMBER

 

February,06  2015.                                                                  

(ravi)