COMPLAINT FILED: 27.08.2009<br /> DISPOSED ON: 29.07.2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 29TH JULY 2010<br /> <br /> PRESENT:- SRI. B.S. REDDY PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> COMPLAINT NO.2075/2009<br /> <br /> COMPLAINANT Mary Kotharay,<br /> 15, Nalanda Block,<br /> Palace Garden Apartments,<br /> 23/24 Palace Cross Road,<br /> Bangalore – 560 020.<br /> <br /> Advocate: Sri James P Arun Kumar<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. Reliance Communications <br /> Infrastructure Ltd.,<br /> Mota Royal Arcade, <br /> Ground Floor,<br /> No.156, Brigade Road,<br /> Bangalore – 560 010.<br /> <br /> 2. Mr. Sridhara Rao S.,<br /> Reliance Communications <br /> Infrastructure Ltd.,<br /> No.121, 2nd Floor, “The Estate”,<br /> Dickenson Road,<br /> Bangalore – 560 042.<br /> <br /> <br /> 3. Registered Office,<br /> Reliance Communications Ltd.,<br /> “H” Block, 1st Floor, <br /> Dhirubhai Ambani <br /> Knowledge City, <br /> Navi Mumbai – 400 710.<br /> <br /> Advocate: Sri / Smt Saritha D.<br /> <br /> O R D E R S<br /> <br /> SRI. B.S. REDDY, PRESIDENT<br /> <br /> This complaint is filed by the complainant seeking direction against Opposite Parties (herein after called as O.Ps) for refund of initial payment of Rs.2,820/- and for payment of compensation of Rs.10,000/- on the allegations of deficiency in service and unfair trade practice on the part of the OPs. <br /> <br /> 2. In the complaint it is stated that the complainant came to Bangalore for a period of 15 days from Dubai in the last week of December – 2008. She applied for reliance net connect on 25th December and paid an amount of Rs.2,820/-. A person from OP came home to install the device and told it would be activated from the next day. It never got activated. Repeated calls to technical office at Cunningham Road for activation did not bear fruit. Since she has to be constant touch with the office and her visit only for 15 days, out of desperation she went to technical office with the laptop, but could not make it work. Since it was almost to leave the country and she could not make use of service and she requested them on 30th December to terminate their service and refund the amount as their connection did not work even for a single day. Meanwhile she received a bill dated 08.01.2009 for Rs.210/- towards monthly charges, she went to Brigade Road office and questioned them for sending a bill for service charges, when the mobile net connect had ever been activated. She asked them to refund the amount, but they expressed their helplessness as they only represented by the billing section and not the operations section. The next day she went to Brigade Road office along with her sister to take up the matter with Manager of billing section. The Manager refused to hear under some pretext or the other. The sister of the complainant followed up with repeated phone calls and personal visits to the Cunningham Road office and even spoke to nodal officer to Mr. Shankar without any success. Neither the amount was refunded nor the system was activated. The complainant received notice dated 04.02.2009 for non payment of the bill from one Mr. S. Sridhara Rao of Dickenson Road office of Reliance Communications Infrastructure Ltd., She informed of the reason for non payment of the bill for service charges and to terminate the service. The 2nd bill dated 08.02.2009 for Rs.626/- was sent to the complainant. Meanwhile they continued calls and visits to the technical office on Cunningham Road and billing section on Brigade Road, but to no avail. On their last visit to Brigade Road office on 19.03.2009, explained their problem to make them understand reason why they did not want to pay the bill amount. One of the staff kind enough to advice to fill up service termination request form, they did so and obtained xerox copy of the same. In the form under the column, reasons for cancellation they have clearly stated connection never worked despite several phone calls and visits to show room. Request refund of Rs.2,820/- being initial payment, since it was never activated. We had requested for termination within a week of initial connection i.e., 30.12.2008. Hence the complainant is seeking above stated reliefs through this complaint. <br /> <br /> 3. On appearance, OP filed version contending that in the light of recent judgement of Hon’ble Supreme Court in Civil Appeal No.7687/04 (2009 AIR SCW 5631) the complaint is not maintainable and the same is liable to be dismissed in limine as this Court has no jurisdiction to entertain the complaint. The OPs are licensed by Government of India to provide data services and telecommunication services to general public respectively. The address mentioned in cause title for OP-1 is that of reliance world, which is the name of the business premises controlled and run by M/s Reliance Web Store Limited, a separate legal entity. OP-2 is a circle office of OPs, OP-3 is registered office of the OPs. It is admitted that complainant had subscribed for net connect services provided by the OP on 25.12.2008 and the device was installed and immediately upon the receipt of request, the services to the number opted by the complainant i.e., 9379186159 were activated on 26.12.2009. The complainant was visiting the reliance world outlets, which are run and controlled by M/s Reliance Web Store Ltd., who is not arrayed as party to this complaint. It is learnt from the outlet that after three days of subscription, the complainant visited the outlet with a complaint that she was not able to use the connection. Upon verification it was confirmed to the complainant that there is no problem with the service and the services are in active condition. Further, observing that there may be problem in the device purchased by the complainant, she was advised to visit authorized service centre (ASC) of the manufacturer to get the device rectified. It is denied that the complainant requested for termination of connection on 30.12.2008. The services to the MDN provided to the complainant was activated the very next day of the subscription and accordingly bills were generated against the service connections subscribed by her. OPs are not aware nor liable to answer the allegations made with respect to reliance world. It is denied that the complainant spoke to the Nodal Officer Mr. Shankar. OPs do not have nodal officer by name Mr Shankar. When the services were activated, there is no question of refunding the amount on the part of the OP. As per the agreed terms the complainant is liable to make payment of service charges irrespective of the reason for which she was not able to use the services, once the services are made available to her by the OPs. It is reliably learnt by the OPs that there was a defect in the data card purchased by the complainant; hence she was not able to use the data card after two days of activation. When she had approached reliance world complaining about the said problem, she was advised to visit authorized service centre of the manufacturer. Accordingly she is said to have data card replaced by the authorized service centre as the same was blocked. The complainant is trying to suppress these facts and without arraying the necessary parties to the complaint, she is building up a false case against OP with dishonest intention. The complainant produced only first page of the bills dated 08.01.2009 and 08.02.2009 and failed to produce the remaining pages, which reveals that services were activated. The complainant produces the termination request form and alleged refund calculation sheet, without acknowledged by OPs for having received the same. There is no deficiency of service on the part of OPs. OPs are not liable to refund any amount or pay any compensation to the complainant. Hence it is prayed to dismiss the complaint with exemplary costs by awarding damages of Rs.10,000/- as contemplated u/s 26 of C.P. Act. <br /> <br /> 4. The complainant filed rejoinder to the version of OPs contending that the order of the Hon’ble Supreme Court in Civil Appeal No.7687/04 is not applicable to this case. Regarding the averment of OPs that Reliance Communication Infrastructure, Reliance Communication Ltd., Reliance Web Store Ltd., are all different legal entities, the complainant humbly submits that in case of sale of defective goods as in this case, both the manufacturer and dealer are jointly responsible. The product is not considered delivered if it is delivered only partially. Providing a defective data card, usage services is deficiency of services. The reliance company has to show more responsibility for its actions and must not indulge in intimidatory tactics such as this to save a few rupees. <br /> <br /> 5. In order to substantiate the complaint averments, the complainant filed her affidavit evidence. Sri. K.S. Gopinath Constituted Attorney of OPs filed affidavit evidence in support of defence version and produced documents. <br /> <br /> 6. Both the parties filed written arguments, arguments heard. Points for consideration are: <br /> <br /> Point No.1:- Whether the complainant proved the <br /> deficiency in service on the part of <br /> the OPs?<br /> <br /> Point No.2:- Whether the complainant is entitled for<br /> the reliefs now claimed?<br /> <br /> Point No.3:- What Order?<br /> 7. We record our findings on the above points: <br /> <br /> Point No.1:- Affirmative. <br /> Point No.2:- Affirmative. <br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 8. At the out set it is not at dispute that the complainant applied for a reliance net connect on 25.12.2008 and paid an amount of Rs.2,820/- to OP-1. Receipt cum acknowledgement dated 25.12.2008 produced by the complainant reveals that OP-1 has received the said amount of Rs.2,820/- towards device cost and activation charge. On 26.12.2008 a person from OP-1 visited the house of the complainant and installed the device and told that it would be activated from the next day. The grievances of the complainant is the device never got activated she could not make use of service as she was unable to access to the internet services. The complainant visited the office of the OPs at Cunningham Road for activation and she also visited the technical office with her laptop. OPs failed to activate the device facilitating to access the internet. Inspite of the same the complainant received bill dated 08.01.2009 of Rs.210/- towards monthly charges. She went to the Brigade Road office of OPs and questioned as to how the bill was sent towards service charges when the mobile net connect had not been activated. She also visited the office of OP at Brigade Road to enquire with the Manager of billing section, but the Manager refused to hear the complainant. The complainant received notice dated 04.02.2009 from OP-2 regarding non-payment of the bill. She replied the said notice on 11.02.2009 narrating the details of her efforts to get the net connection, but net connect has not worked for a single day, hence she requested to terminate the connection and to refund the amount. The 2nd bill dated 08.02.2009 for Rs.626/- inclusive of the 1st bill amount was sent to the complainant. On 19.03.2009 they visited the office of OP-1 at Brigade Road and explained the problem and tried to make them understand the reason why the bill amount was not paid. At that time the office staff advised her to fill up the termination request form. Hence she submitted the form showing the reasons for cancellation and for refund of the amount paid. <br /> <br /> 9. The arrears of bill amount regarding usage charges was waived by OPs while settling the dispute before permanent lok adalath. Therefore there is no dispute regarding the payment of bill between the parties. <br /> <br /> 10. The main contention of the OP is after the complainant subscribed for telecommunication services and purchase of data card, the services were activated on 26.12.2008. There was no problem with the services, the problem may be with the device purchased; the device was replaced by the authorized service center on 18.02.2009 and the same was suppressed by the complainant. The bills are already issued for the usage from that it becomes clear that the services were activated. There is no any deficiency in service on the part of the OP. Thus it is contended that OPs are not liable to refund any amount and to pay compensation. <br /> <br /> 11. In the version filed it is stated that OP-1 do not have their office in the address mentioned in the cause title. The address mentioned in the cause title is that of a reliance world, which is the name of the business premises controlled and run by M/s Reliance Web Store Ltd., a separate legal entity. It is stated that OP-2 is circle office and OP-3 is the registered office of the OPs. <br /> <br /> 12. The learned counsel for the complainant contended that the complainant is not denying the fact that sim card has been activated by OPs, but mere activation of sim card is not sufficient to access the internet. Activation of sim card does not automatically guarantee to access the internet service. Since software to access the internet has to be installed in the computer and appropriate settings are to be made in the computer to use the data card to access the internet. Thus it is contended that though the OPs help desk tried to help the complainant in accessing applications over the internet, but it was not helpful. Therefore it is contended that complaint was unable to make use of the net connection as the same was not worked as such the amount paid is to be refunded. <br /> <br /> 13. In our view merely because OPs activated the sim card is not sufficient to hold that the complainant was provided to access the internet. The device purchased from OP-1 was defective as admitted by OPs; on account of the same; complainant was unable to make use of the data card. Merely because the replacement of the data card by authorized service center on 18.02.2009 is not disclosed in the complaint, it cannot be said that the complainant has come up with a false complaint. In case if she had made use of the data card to access the internet there was no reason for her to come up with a false complaint. The device contains the data card which helps connecting computer to the internet. The data card consists of an in activated sim card and other software and hardware. The software and hardware should also work properly. It appears that OPs failed to provide the required services to access the internet, the same amounts to deficiency in service. Under these circumstances we are of the view that the complainant proved the deficiency in service on the part of the OP. <br /> <br /> 14. There is no merit in the contention that in view of the principles laid down in 2009 AIR SCW 5631 General Manager, Telecom V/s M.Krishnan and another; this Forum has no jurisdiction to entertain the complaint as there is special remedy provided in Section 7-B of Indian Telegraph Act regarding such disputes. In our view Section 7-B of the Indian Telegraph Act provides with respect to any dispute between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been provided. OPs are not the telegraph authority as defined u/s 3(6) the said Act. It is only a licensee under the said Act; hence Section 7-B cannot be made applicable in respect of this dispute. <br /> <br /> 15. The contention of the OPs is the very fact of bills for usage generated is sufficient to hold that the system was activated. In our view while in the process of making efforts by the OPs Help desk to access the internet, the usage must have been recorded resulting in generating the bills. Only on the basis of the bills generated we are unable to accept that the internet connection was used by the complainant. Under these circumstances the complainant is entitled for refund of the amount. The complainant has suffered mental agony and physical strain, as she was made to visit the office of OPs several times for no fault of her. In view of the same the ends of justice would be met by awarding compensation of Rs.3,000/- towards mental agony and harassment suffered by the complainant. Accordingly we proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is allowed in part. <br /> <br /> OPs are directed to refund an amount of Rs.2,820/- and pay compensation of Rs.3,000/- with litigation cost of Rs.2,000/- to the complainant within four weeks from the date of this order and take back the device supplied. <br /> <br /> Send copy of this order to both the parties free of costs. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 29th day of July 2010) <br /> <br /> <br /> PRESIDENT<br /> <br /> MEMBER MEMBER <br /> <br /> Snm:<br /> <br />