KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURA APPEAL NO.50/05 JUDGMENT DATED.20.4.2010 PRESENTSRI.S.CHANDRAMOHAN NAIR -- MEMBER SRI.M.K.ABDULLA SONA -- MEMBER BPL Cellular Ltd. BPL Mobile Gallery, -- APPELLANT Opp.Harsales Corporation, Talap Kannur-2. (By Adv.Shyam Padman) Vs. 1. Raju, S/0 Balakrishnan Nair, Chathangail House, Near Orrupazhassi Kavu, -- RESPONDENTS P.O.Edakkad, Kannur District. 2. Global Communications, Zapa Building, Near Bus Stand, Taliparamba. JUDGMENT SRI.S.CHANDRAMOHAN NAIR,MEMBER It is aggrieved by the directions contained in the order dated 20.12.04 in OP.8/03 of CDRF, Kannur that the first opposite party has come up in appealing calling for the interference of this Commission as to the sustainability of the order passed by the Forum below. By the impugned order the opposite parties are under directions to refund the amount of Rs.1879/- with compensation of Rs.2000/- and cost of Rs.500/- to the complainant. 2. The complainant had approached the forum stating that he was a subscriber of BPL Mobile phone No. 9846138436 and that it was taken on 24.4.01 by paying an amount of Rs.3,950/- towards the deposit sim card charges and activation charges at the time of connection. It was also stated that the first opposite party made him believe that there was full coverage of the BPL mobile phone in the area of the complainants house and that it was believing the said assurance that the complainant had taken the mobile connection. The complainants case is that though he had taken the connection, it was found that there was no coverage for the mobile connection and the phone became functionless from the date of purchase. The complainant further submitted that on intimation about the non coverage, the first opposite party refunded an amount of Rs.2071/- towards full and final settlement and retained the sim card charges and activation charges of Rs.1950/-. Alleging deficiency in service the complaint was filed praying for directions to the opposite parties to pay an amount of Rs. 14450/- including the sim card charges and other charges. 3. On receiving the notice from the Forum, the first opposite party filed version contending that the complaint was not maintainable as the earlier OP. (OP 167/01) filed on the same cause of action by the complainant was dismissed and the complainant was precluded from filing a fresh complaint on the same cause of action. It was also submitted that as soon as the complainant made a request for disconnection the usual charges were refunded and the amount of Rs.2071/- sent by the first opposite party was accepted by the complainant as full and final settlement. Pleading that there was no deficiency in service the first opposite party prayed for the dismissal of the complaint. 4. The evidence consisted of the oral testimony of the complainant as PW1 and Exts.A1 to A3 were marked on the side of the complainant. 5. The learned counsel for the appellant vehemently argued before us that the complainant had approached the Forum with unclean hands as he had received the amount of Rs.2071/- towards full and final charges. It was also argued that the complaint was to be dismissed in limine as the forum had once dismissed an earlier complaint (OP.167/01) on the same subject. It is also his case that the order of the forum directing to pay Rs.1879/- with compensation and costs is illegal and unsustainable, on the ground that the first opposite party had acted in accordance with the terms and conditions entered into between the complainant and the opposite party (appellant). 6. On hearing the learned counsel for the appellant, we find that it is the admitted case of the both the parties that a BPL connection was given to the complainant by the first opposite party on 24.4.01 by accepting a sum of Rs.3950/- which included the deposit of Rs.2000/- and sim card charges and activation charges amounting to Rs.1950/-. The learned counsel for the appellant argued before us that on a request of the complainant/respondent the deposit amount was returned with interest coming to Rs.2071 and the same was accepted by the complainant towards full and final settlement. On appreciation of the entire evidence it is found that the complainant has accepted the amount of Rs.2071/- and the complaint is filed subsequently for getting the balance amount. On perusing the terms and conditions contained in the subscription form, it is found that the complainant had gone through the terms and conditions and had accepted the same. If that be so relying on clause 6.4, 6.2 and 12.1 we find that the opposite parties are not liable for any loss or other difficulties consequent to the non availability of coverage subsequent to taking the telephone connection. Any how, we find that the complainant has accepted the amount as full and final settlement and after having received the same we find that the complainant is barred from raising further claims against the opposite party. We find that the forum below had directed the opposite parties to pay the balance amount of Rs.1879/- on the presumption that the complainant was entitled to get the full amount of Rs.3950/-. We find that the complainant himself has admitted that the deposit amount is only 2000/- and the opposite party has returned the same with a nominal increase towards interest. In the said circumstance, we find that the order of the forum below is liable to be set aside. Hence we do so accordingly. In the result, the appeal is allowed. The order of the forum below in OP.8/03 of CDRF, Kannur is set aside. In the nature and circumstances of the present appeal, the parties are directed to suffer their respective costs. SRI.S.CHANDRAMOHAN NAIR -- MEMBER SRI.M.K.ABDULLA SONA -- MEMBER | 
