BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A.,LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.144/2009 Order dated this the 20th day of April 2010 COMPLAINANT/S Sri.C.Chowdegowda S/o Channegowda, R/o Arechakanahalli, Maddur Taluk, Karadakere Post, Mandya District. (INPERSON) -Vs- OPPOSITE PARTY/S 1. The Reliance Communication, Sujan Ram Mohan, Customer Care Leader, No.2940, D.8 Swetha Complex, 1st Floor, Temple Road, V.V.Mohalla, Mysore 570 002. 2. Sri.Mahadeshwara Tele Links, Main Road, Halaguru, Malavalli Taluk, Mandya District. (By Sri.U.V.Girish., Advocate for O.P.1) Date of complaint 01.12.2009 Date of service of notice to Opposite parties 18.12.2009 Date of order 20.04.2010 Total Period 4 Months 2 Days Result The complaint is allowed, directing the 1st Opposite party to pay compensation of Rs.10,000/- to the Complainant with cost of Rs.500/-. M.O.1 the phone set, shall be returned to C.W.2. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 against the Opposite parties claiming compensation of Rs.80,000/-. 2. The case of the Complainant is that the Reliance Company telephones are sold in the villages at lower rate of Rs.399/- and Rs.699/- to the villagers and they have deceived the consumers and nearly sold 300 phones in each village which are out of order, some phones are taken back saying to get repairs, but they are not returned. The Complainant purchased phone set on 12.04.2009 and from the date of purchase it was not working and he complained to the Reliance Customer Care and then on 23.04.2009, the Company persons came and took his phone bearing No.08232 359770, but they did not return at all. Though, he made calls several times to the company, they replied irresponsibly and to get back the phone purchased by him, he has spent nearly Rs.2,000/- as phone charges and he suffered mentally and he spent so much of time for this purpose on these grounds he has sought for suitable action against the company not to deceive the public and sought for compensation of Rs.80,000/-. 3. The notices were served on the 1st Opposite party. The 2nd Opposite party was not served. The 1st Opposite party has filed version contending that the complaint is not maintainable under the C.P.Act, in view of the decision of the Honble Supreme Court reported in AIR 2009 SCW page 5631 and this Forum has no jurisdiction to entertain the complaint. The 1st Opposite party is the Telecommunication Service Provider and according to the agreed terms, it is not liable for defects, if any, in the instrument provided to the customer. The Opposite party is not the manufacturer or dealer of the questioned telephone instrument and the Complainant has failed to implead necessary party and Complainant suffers from mis-joinder of unnecessary party and necessary party. The Complainant has subscribed for telecommunication services provided by the Opposite party by duly filling and signing customer application form and the terms and conditions agreed therein bind the parties and the Complainant has not pleaded that the Opposite party has violated the terms of the agreement. The Opposite party Company is licensed by Government of India to provide telecommunication services to general public. The Complainant has purchased the questioned telephone instrument from retail outlet run by Sri.Mahadeshwara Telelinks (2nd Opposite party) and opted for the services provided by the 1st Opposite party. The Opposite party denies that the Reliance Company is selling handsets at cheap rates and thereby cheating rural public and other allegations are false. The Complainant has purchased Classic 2208 model handset manufactured by Huwei through retailer and opted for telecommunication services provided by 1st Opposite party. The Complainant has raised some problems in using handset and handed over the instrument to representatives of the retailer. Subsequently, the issue was forwarded to the Opposite party through service contractor on 01.06.2009. It is denied that the 1st Opposite party took back the instrument and did not return. The Service Contractor had handed over to the phone set to the representatives of the 1st Opposite party and they immediately processed for the verification of replacement with the manufacturer. With good will gesture, the 1st Opposite party is helping their customer to get the issues related instrument get resolved and the same requires time as per the process. The questioned instrument got replaced and due to the unavailability of stock the instrument was handed over to the service contractor only on 25.08.2009. Thereafter, the 1st Opposite party was surprised to receive the notice from this Forum. The Complainant refused to accept the replacement from service contractor and insisted for Rs.5,000/- as costs for calling through his Airtel phone during alleged period. The Complainant was not ready to take instrument without Rs.5,000/-. The Complainant is trying to make unlawful gain out of the good will shown by the Opposite party. The 1st Opposite party is not liable nor responsible in anyway, there is no deficiency in service by the Opposite party. The Complainant cannot plead the cause of the general public and the complaint is not maintainable and therefore, complaint is liable to be dismissed with exemplary costs. 4. During trial, the Complainant and one witness are examined and Complainant has produced Ex.C.1 to C.10 and also witness produced phone set M.O.1. The 1st Opposite party is examined, the Officer at Mysore Branch and produced the documents Ex.R.1 and R.2. 5. We have heard the both sides. 6. Now the points that arise for our considerations are:- 1. Whether this Forum has no jurisdiction to entertain the complaint? 2. Whether the 1st Opposite party has committed deficiency in service? 3. Whether the Complainant is entitled to the compensation as sought for? 7. Our findings and reasons are as here under:- 8. POINT NO.1:- The Complainant has pleaded the deficiency in service under the Consumer Protection Act, in respect of the telephone facility provided by 1st Opposite party. But, the contention of the 1st Opposite party is that this Forum has no jurisdiction to entertain the complaint and complaint is not maintainable before this Forum and the learned counsel for the Opposite party has relied upon the decision reported in AIR 2009 SCW page 5631 and the decision of Honble State Commission, Chennai. The Chennai Honble State Commission has relied upon the decision of AIR 2009 SC page 5631. The Honble Supreme Court in the case of General Manager, Telecom Vs- M.Krishnan, ruled that in view of Section 7B of the Telegraph Act, there is an implied bar, to invoke the Consumer Protection Act, and the dispute relating to Telecom service should be decided only by the arbitrator, appointed by the Central Government and that all services made to telephone are subject to Telegraph Rule and when there is a remedy provided in Section 7-B of the Indian Telegraph Act, with regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is the implication barred. The Honble Supreme Court allowed appeal setting aside the order of the District Forum. But, in the present case, the dispute is not relating into any telephone bill and even the complaint is not against the Telecom Authority. Even though, the Chennai State Commission in the decision referred above held that the disputes regarding the telegraph and other related matters are not maintainable before the Consumer Forum under the Consumer Protection Act, and allowed appeals of the BSNL, but Section 7B provisions are applicable to only disputes between the customer and Telegraph Authority and the disputes shall be determined by arbitration. The definition of Telegraph Authority in the Indian Telegraph Act reads; telegraph authority means the Director, General of Posts and Telegraphs and including any officer empowered by him to perform all or any of the functions of the telegraph authority under the Act. This definition does not include any other private person or company providing telecommunication service. Even the Telecom Regulatory Authority Act, 1997 under Section 14 has given a protection to the individual consumer which says; provided that nothing in this clause shall apply in respect of matters relating to (1) the complaint of an individual consumer maintainable before any Consumer Fora under Section 9 of the Consumer Protection Act. (2) dispute between telegraph authority and any other person referred to sub-section (1) of Section 7B of the Indian Telegraph Act. Therefore, the decisions cited by the learned counsel for the 1st Opposite party are not helpful to contend that the complaint under Consumer Protection Act, is not maintainable before this Forum and this Forum has no jurisdiction to entertain the complaint. Therefore, we hold that this Forum has jurisdiction to entertain the complaint under the provisions of C.P.Act, and hence, we answer point No.1 against the 1st Opposite party. 9. POINT NO.2:- The grievance of the Complainant is that he has purchased phone set provided by the 1st Opposite party Company on 12.04.2009 and when he complained to the Reliance Customer Care, the company persons came on 23.04.2009 and took back the phone set and did not return at all. In spite of several telephone calls to the company, they have replied irresponsibly and they have sold the phone set at cheaper rate to Rs.399/- and Rs.699/- to the illiterate villagers which are not functioning properly. 10. The 1st Opposite party though disputing the sale of phone set to the Complainant contended that it is not the manufacturer of the phone set, but it is a provider of phone services and contended that the Complainant has purchased the telephone set from retail outlet belonging to 2nd Opposite party. According to the 1st Opposite party, the Complainant handed over the instrument to representative of retailer and subsequently the issue was forwarded to the Opposite party through Service Contractor on 01.06.2009 and they immediately processed and in good will gesture to help the customer, the instrument got replaced and handed over to the Service Contractor on 25.08.2009 and it is learnt that the Complainant refused to accept the replacement from service contractor and Complainant insisted for Rs.5,000/- as costs from the service contractor and to make unlawful gain, the complaint is made against the 1st Opposite party. 11. Of course, the Complainant has not produced the bill having purchased the phone set. But, the evidence of the Complainant and his witness clearly go to show that the company agents and officers came in a vehicle with the board of the Reliance Company on the vehicle and sold the telephone sets to the villagers and according to the Complainant, Ex.C.4 is the delivery challen of 15 sets in the name of 2nd Opposite party and Ex.C.1 clearly proves that the persons of Reliance Communication have collected phone instrument bearing No.2208 Classic and the RSN No.RHWFW 6040039729 was received on 23.04.2009 from the Complainant with the signature. This Ex.C.1 does not disclose the seal or signature of the any representative of the retailer or retailer. But, admittedly the Service Contractor of the Opposite party Company has received the phone set and Ex.C.1 clearly proves that the Service Contractor of 1st Opposite party directly received the phone set from the Complainant by issuing Ex.C.1 on 23.04.2009. Even, the evidence of C.W.2 another customer of the Reliance Company who has produced M.O.1 the phone set clearly proves that company men came with publicity and sold the phone sets to the villagers and the Complainant got sold number of phone sets in the village and it is not disputed that M.O.1 is not serviced by the 1st Opposite party Company. We have seen M.O.1 and it contains only the seal of the Reliance Company and another side words Classic, it does not disclose name of the any company of manufacturer. The Complainant has produced Ex.C.9, it is undisputed that the Reliance Company has advertised the Reliance Village Phones at cheap rate of Rs.699/- having specialty and better to landline telephones. The Complainant and witness evidence is that they purchased these phone sets when the Company person came to sell in their vehicle with board of the Reliance Company. In Ex.C.9, there is no company name on the telephone set, but it is mentioned as Classic Phone below the telephone figure. But, according to the 1st Opposite party, the telephone instrument is manufactured by Huwei. But, the 1st Opposite party has not produced any document and we do not see any marks of company on telephone set M.O.1 or on the brochure Ex.C.9. Ex.C.9 clearly proves that it is the Reliance Company has manufactured the wireless telephone sets at cheaper rate to provide to the villagers branding as Reliance Village Phone and the Complainant has proved to purchase the telephone set from the Reliance Company through their officers and the evidence of R.W.1 who is the representative of 1st Opposite party Company is evasive and does not know the Customer Care Leader at Mysore Branch Office and even he has not aware that a letter was received at Customer Care, Mysore Branch, as per the postal acknowledgement Ex.C.2(a). Ex.C.2 is the letter of the Complainant to Sujan Ram Mohan, Customer Care Leader, Mysore with regard to the non-return of the Reliance Company phone set, since 7 8 months and this witness of the 1st Opposite party does not know name of the Sujan Ram Mohan or one Nagesh, the Agent of the Opposite party Company. 12. When admittedly the 1st Opposite party Company has received the phone set sold to the Complainant and it is proved that it belongs to 1st Opposite party Company by the evidence on record and conduct of the Opposite party, though it is contended that the Complainant refused to receive the phone set which was replaced demanding Rs.5,000/- as per the say of the Service Contractor, but the 1st Opposite party has not examined the Service Contractor to prove that the Complainant demanded Rs.5,000/- for taking the replaced telephone set. It is an admitted fact that in the version that there was delay for returning the phone set and there is no document produced by the Opposite party or its Opposite party representative that a letter was addressed to the Complainant to take back the phone set which was replaced for the earlier one and the Complainant did not respond. It is proved by the letter Ex.C.2 and the phone bill extract Ex.C.3 and Ex.C.10 that the Complainant has made so many calls to the Company Branch demanding for return of the phone set, but his claim was not at all attended by the Opposite party representatives. Therefore, it proves the deficiency in service by 1st Opposite party in selling the phone set at cheaper rate and non-attending the customers requisition. 13. The Complainant has sought for compensation of Rs.80,000/- for the deficiency in service by 1st Opposite party. Even though, it is contended that company has not sold phone set and as per Ex.C.4, 2nd Opposite party is the dealer. But Ex.C.4 proves that the 1st Opposite party Company has sold the phone sets under Ex.C.4 to 2nd Opposite party. But, the evidence proves that the representatives of 1st Opposite party Company came to the village and sold phone sets to the villagers at cheaper rate issuing delivery challen Ex.C.4 in the name of 2nd Opposite party and therefore, 1st Opposite party is liable for the deficiency in service and to pay the compensation to the Complainant. In the circumstances of the case, in view of the conduct of the 1st Opposite party in providing cheaper rate telephone sets telephone to the villagers with false propaganda of better quality telephone sets, but not working properly as per evidence of P.W.1 & 2, it is reasonable to grant compensation of Rs.10,000/- to the Complainant for his efforts and waiting business caused by the 1st Opposite party Company supplying defective phone set. 14. In the result, we proceed to pass the following order; ORDER The complaint is allowed, directing the 1st Opposite party to pay compensation of Rs.10,000/- to the Complainant with cost of Rs.500/-. M.O.1 the phone set, shall be returned to C.W.2. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 20th day of April 2010). (PRESIDENT) (MEMBER) (MEMBER)
