Andhra Pradesh

Chittoor-II at triputi

CC/76/2016

Badri Jaya kumar, S/o late B.Radhakrishnaiah - Complainant(s)

Versus

Reliance Communications Limited, rep. By its Authorised Signatory - Opp.Party(s)

M.N.Mani, M.Kumar Raju

24 Aug 2017

ORDER

Filing Date: 24.08.2016

Order Date:24.08.2017

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

 

THURSDAY THE TWENTY FOURTH DAY OF AUGUST, TWO THOUSAND AND SEVENTEEN

 

 

 

C.C.No.76/2016

 

 

Between

 

 

Badri Jaya Kumar,

S/o. late. B.Radhakrishnaiah,

Hindu, aged about 50 years,

Railway Employee,

D.No.18-1-277, Bhavani Nagar,

Tirupati,

Chittoor District.                                                                              … Complainant.

 

And

 

 

1.         Reliance Communications Limited,

            Rep. by its Authorised Signatory,

            Reg. Office at ‘H’ Block, 1^st Floor,

            Dhirubhai Ambani Knowledge City,

            Navi Mumbai,

            Maharashtra.

 

2.         Reliance Communications,

            Tirupati Branch,

            Rep. by its Manager and In-charge,

1^st Floor, Central Plaza Park,

            Opp. Municipal Office,

            Tirupati.                                                                                 …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 09.08.17 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.M.N.Mani, Sri.M.Kumar Raju, counsel for complainant, and Sri.S.M.Jhan, counsel for opposite party No.2, and opposite party No.1, remained exparte, and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed under Sections –12 and 14 of C.P.Act 1986, by the complainant against the opposite parties for the following reliefs 1) to direct the opposite parties to furnish the monthly bills regularly along with call summary statement for the usage of service provided by the opposite parties for the mobile phone connection No.08099990890, by restoring the service to the complainant, 2) to direct the opposite parties to pay Rs.10,000/- towards damages for causing mental agony, and 3) to award costs of the complaint, and pass such other reliefs as the Forum deems fit and proper in the circumstances of the case.  

            2. The brief averments of the complaint are:-  That the complainant, who is working as Chief Travelling Ticket Inspector in South Central Railway, has taken       2 (two) postpaid cell phone connections bearing Nos.08099990890 and 9397399997. That the complainant wants to cancel or convert his postpaid connection No. 08099990890 into prepaid service. Therefore, he contacted opposite party No.2, in the month of January 2016 and informed his intention to opposite party No.2, who inturn suggested the complainant to go for a low paid plan of Rs.199/- instead of paying prepaid charges. On believing opposite party No.2, he availed low paid plan of Rs.199/- to his existing service connection bearing No. 08099990890. But he got more charges for the low paid plan than earlier postpaid charges. That the complainant realized that opposite party No.2 has misguided him to take low paid plan instead of providing prepaid connection as desired by him, in order to extract more amount by way of monthly bills, which caused additional burden to the complainant.

            3.  That the opposite parties used to send messages with regard to monthly bill amount, payable by the complainant without details of charges and statement of calls, enabling the complainant to know about the call charges and the tariff under which he has to pay the bill in the existing plan. The complainant made several requests to furnish monthly bills along with call summary and send the bills to his residential address through post or to him personally, but in vain. The opposite parties used to say that they will send the detailed bill in e-mail correspondence to the complainant. The complainant informed that he is not having any smart phone and he has not created any e-mail ID in his name, and he requested the opposite party No.2 to communicate the bills, either through post or personally to him. Opposite party No.2 created e-mail ID of the complainant and sending monthly bills to the said e-mail ID. He never requested to create e-mail ID in his name. Since February 2016, opposite party No.2, has been causing mental agony to the complainant without furnishing the monthly bills along with call summary and simply sending SMS for the bill amount and demanding the complainant to pay the bills within the given date in SMS in an arbitrary manner and forced the complainant to pay the bill amount to have un-interrupted service. The complainant also made several complaints in this regard to the customer care and complaint cell of the opposite party No.1, but there is no proper response from their end.

            4.  That the opposite parties are not updating the payments promptly made by the complainant. By sending a message dt:01.02.2016 at 18.53 hours (message No.18), the opposite parties acknowledged that Rs.765/- has been credited to the account of the complainant towards the bill for the month of January 2016. As per message dt:19.03.2016 (message No.40), the opposite parties acknowledged the receipt of payment of Rs.655/- towards the bill for the month of February 2016, but to his utter surprise, the complainant has received a message on 26.03.2016 at about 10.07 hours (message No.42) asking the complainant to pay due amount of Rs.1,463/- towards the bill for the month of March 2016, without adjusting the earlier payments made by the complainant. Within a span of 3 months, the complainant has received   59 messages from the opposite parties, which clearly goes to show that even though the complainant communicated his grievances to the opposite party No.1, they have not responded till. The copies of SMS from 24.01.2016 to 09.05.2016 is filed herewith. That the complainant got a message dt:12.03.2016 (message No.33), and he was informed that RGSMS Pack 95-1500, has deactivated with effect from 22.03.2016. But, the complainant never made any request to activate any such package to his service. On 16.05.2016, the complainant got issued a legal notice to opposite party No.2, with a demand to furnish bills along with call summary, to enable the complainant to know the correctness of the SMS statement with regard to the actual amount to be payable by the complainant. The said notice was returned with an endorsement as “addressee left”. Later the notice was served on opposite party No.2 by way of courier service. Inspite of it the opposite parties did not comply the demands made by the complainant. Thus, there is deficiency in service on the part of the opposite parties. That the complainant took cell phone connection bearing No.08099990890 from opposite party No.2 at Tirupati, as such this Forum has jurisdiction to entertain the complaint. Hence the complaint.

            5.  Opposite party No.1, remained exparte.

            6.  Opposite party No.2, filed its written version specifically contending that this Forum has no jurisdiction to entertain the complaint, as there is a special remedy provided under Section-7(b) of Indian Telegraph Act, that this dispute has to be determined by the arbitrator, as such the matter is to be referred to arbitrator, as was held by the Hon’ble Supreme Court in Civil Appeal No.7687/2004 dt:01.09.2009, wherein it was held that as there is a remedy provided in Section-7(b) of Indian Telegraph Act regarding the disputes, then the remedy under the Consumer Protection Act, is implication barred. That there is no deficiency in service on the part of the opposite parties and the complainant has no cause of action to file this case. That the opposite party No.2, has denied parawise allegations in the complaint.

            7.  The opposite party No.2 further contended that it never compelled the complainant to avail low paid plan for his existing service connection bearing No.08099990890. The opposite party has communicated the plans and schemes, which are available with it, and it will not insist any of its customers to opt for any particular scheme, it is for the customer to choose the plan of his choice. The complainant did not opt for Rs.199/- plan and he is put to strict proof of the same. The opposite party has promptly sent monthly bills to the complainant’s e-mail ID and made demand for the payment of said bills. The complainant never made any request for receiving detailed monthly bills as alleged, sending messages to the customers, so as to remind them of the pending bills, is a standard industry practice and it is within the rights of the opposite party to demand payments for invoices raised and services rendered. The complainant services were never barred by this opposite party. That the opposite party sent upto date bill details to the complainant’s e-mail ID. It is false to allege that opposite party has created e-mail ID of the complainant without his knowledge. The allegations made by the complainant are false and frivolous and prays the Forum to dismiss the complaint.

            8.  The complainant filed his chief affidavit as P.W.1 and got marked Exs.A1 to A6. The opposite party No.2, also filed his chief affidavit as R.W.1 and got marked Exs.B1 to B5. Both the parties have filed their respective written arguments, which are part and parcel of the record.

            9.  Now the points for consideration are:-

            (i).  Whether there is deficiency in service on the part of the opposite party

       No.2?

(ii)  Whether the complainant is entitled for the reliefs sought for?

(iii) To what relief?

10. Point No.(i):-  In order to answer this point, the complainant is under obligation to prove that he made any request to opposite party No.2, either for cancellation of his mobile No.08099990890 or for converting the same from postpaid connection to prepaid connection. Admittedly, the complainant has got 2 postpaid connections. The mobile No.08099990890 is alone in dispute and other No.9397399997 is not in dispute. No document except the notices under Exs.A3 and A5, were filed to show that he has made any representation to opposite party No.2, to convert his postpaid mobile connection No. 08099990890 into prepaid connection or that he has made any representation or request to cancel that phone. Opposite party No.2 specifically contending that complainant never made any such representation or request to opposite party No.2, either to cancel the postpaid connection No. 08099990890 or to convert the same into prepaid connection. Similarly, the complainant has not filed any scrap of paper to show that either the opposite party No.2, has suggested him to go for low paid plan of Rs.199/- or that the complainant has opted for low paid plan of Rs.199/- to his existing postpaid mobile connection No. 08099990890 at any point of time. These are the points for discussion. When these points were not established by the complainant, on what basis he has to substantiate his complaint.

11.  The learned counsel for complainant, while advancing arguments stated that the postpaid mobile connection No. 08099990890 of the complainant was disconnected and it was allotted to somebody else from the month of May 2016 onwards though the complainant is paying the mobile charges regularly. But the messages filed by the complainant under Ex.A2 shows that once on 24.01.2016 a message is sent to the complainant stating that his outgoing call facility has been barred and requested the complainant to contact the customer care for assistance. Number of messages shows that the complainant has availed high usage than the required. Again it seems the connection was restored and later outgoing calls for the mobile phone has been barred. It appears through the message dt:30.01.2016 that the outgoing call facility for the complainant did not activated. Later a sum of Rs.765/- has been credited to the complainant’s account for the bill on 01.02.2016 as per message dt:01.02.2016. Another message dt:12.03.2016 sent to the complainant shows as follows – “Dear Reliance Customer as per Sr. 243928530 Req. pack RGSMS Pack 95-1500 has De-Activated with effect from 22.03.2016”. That the said representation was made by the complainant on 11.03.2016 to opposite party No.2 and the same was processed and finally on 12.03.2016 it was deactivated. Again according to another message dt:15.03.2016 it was informed to the complainant that he has crossed due date of his mobile bill and asked the complainant to pay Rs.665.10/- to enjoy uninterrupted service. The number of messages shows that the complainant has not paid the bills regularly from the month of March 2016. Consequently, opposite party No.2 has given another message dt:28.04.2016 that his outgoing call facility has been barred. Again it was activated successfully on 09.05.2016 and on the same day itself again the outgoing call facility has been barred. By the date of barring the outgoing calls Rs.2,149-80 was due to opposite party No.2. These messages were not denied by the complainant except stating that he has received as many as 59 messages within a span of 3 months. He never denied these messages as false or against the actual cost of the call charges for the services he availed from opposite party No.2. Under those circumstances, we are of the opinion that the complainant has failed to establish that he has made any request or representation at any point of time to opposite party No.2, either to cancel his postpaid mobile connection No. 08099990890 or to convert the same into prepaid connection. Similarly, he also failed to establish that opposite party No.2 has either suggested or advised the complainant to go for low paid plan of Rs.199/- or that the opposite party No.2 has misguided the complainant at any point of time in any manner. Apart from it, it is prima facie appears that the complainant has not paid the call charges, as such it was disconnected and the said mobile No. 08099990890, has been allotted to some other person by name Gangadhar Rao Kommana, resident of old No.13-30-53-68-G, New No.13-30-52-86, Peddakapu Layout, near Group Theatres, Tirupati – 517 501. Exs.B1 to B5 shows the mobile bills for the relevant phone No. 08099990890 in the name of Gangadhar Rao Kommana, from the month of August 2016 to December 2016. So, when the mobile phone bearing No.08099990890, is not existing in the name of the complainant and it was already allotted to another person by name Gangadhar Rao Kommana, since August 2016. The first relief sought for by the complainant cannot be granted. Accordingly this point is answered.

12.  Point No.(ii):- In view of our discussion in detail under point No.1, we are of the opinion that since the complainant has failed to prove that the mobile No. 08099990890 is in his name on the date of filing the complaint, as the said phone was already allotted to another person by name Gangadhar Rao Kommana, in the month of August 2016, after cancelling the said mobile number from the name of the complainant, as he was in due of payment to a sum of Rs.2,149-80, is appears to be proper. That apart, the complainant had an intention either to cancel the said mobile number or to convert the same into prepaid, the cancellation was already effected in the month of August 2016 itself for non-payment of bills due. Therefore, under the above circumstances, we are of the opinion that the complainant is not entitled for the damages as claimed. Accordingly, this point is answered.

13. Point No.(iii):- In view of our discussion on points 1 and 2, we are of the opinion that the complainant has failed to establish the deficiency in service on the part of the opposite parties, and that the complainant is entitled for the reliefs sought for, and therefore, complaint is liable to dismissed.

In the result, complaint is dismissed. No costs.

            Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 24^th day of August, 2017.

 

      Sd/-                                                                                                                       Sd/-                             

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

 

 

witnesses examined on behalf of complainant/s.

 

PW-1: Badri Jaya Kumar (Chief/Evidence affidavit filed).

 

witnesses examined on behalf of opposite party/s.

 

RW-1: Abraham Lincoln (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Internet generated copy of bill raised in the name of complainant for his mobile No.080999 90890. (Photo copy). Dt: 22.05.2016.
	Extract copy of SMS (Photo copy) received by the complainant from the opposite party from 24.01.2016 to 09.05.2016.
	Office copy of Legal Notice Dt: 16.05.2016 along with postal receipt.
	Returned registered postal cover. Dt: 20.05.2016.
	Office copy of Legal Notice Dt: 16.05.2016 along with DTDC Courier receipt in original. Dt: 25.05.2016.
	True copy of Delivery Run Sheet of DTDC Courier Service, Tirupati.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Internet generated copy of bill for the amount of Rs. 84.86 paisa raised in the name of complainant for his mobile No.080999 90890. (Photo copy). DT: 11.08.2016.
	Internet generated copy of bill for the amount of Rs. 560.28 paisa raised in the name of complainant for his mobile No.080999 90890. (Photo copy). Dt: 11.09.2016.
	Internet generated copy of bill for the amount of Rs. 643.89 paisa raised in the name of complainant for his mobile No.080999 90890. (Photo copy). Dt: 11.10.2016.
	Internet generated copy of bill for the amount of Rs. 412.62 paisa raised in the name of complainant for his mobile No.080999 90890. (Photo copy). Dt: 11.11.2016.
	Internet generated copy of bill for the amount of Rs. 290.38 paisa raised in the name of complainant for his mobile No.080999 90890. (Photo copy). Dt: 11.12.2016.

 

 

 

                                                                                                                                    Sd/-   

                                                                                                                                President

 

                                    // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

           Dist. Consumer Forum-II, Tirupati.

 

         

Copies to:-     1.  The complainant.

                        2.  The opposite parties.