PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of September 2011
Filed on : 09/10/2009
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No.536/2009
Between
Rohit C.J., : Complainant
Chulliparambil house, (By Adv. P.K. Santhamma,
RSAC Road, Vyttila, Anandabazar, Kochi-18)
Cochin-19, rep. by his father
and Power of Attorney
Holder Shri. C.K. Jagadeesan.
And
Reliance Communications, : Opposite party
Kalladayil plaza, Near Vyttila temple, (By Adv. George Cherian
Vyttila, Cochin-19. Karippaparamibl, Karippa-
Parambil Associates,
GB-48, Panampilly Nagar,
Kochi-682 036)
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
On 31-08-2009 the complainant availed Reliance Broadband internet connection by purchasing a USB modem from the opposite party for Rs. 3,500/-. The monthly tariff was fixed to be Rs. 850/- for usage of internet connection. The complainant was entitled to a free monthly down load of 13GB (10GB during night + 3GB during day time). The connection was activated on 31-08-2009 itself. Surprisingly on 03-09-2009 the complainant was informed by the opposite party that an amount of Rs. 5,550/- should be deposited to immediately. The opposite party did not reply to the complainant’s message asking for explanation, thereafter they disconnected the service. On 09-09-2009 the opposite party issued a bill asking him to pay Rs. 171/- which includes the charges for the days of disconnection. The complainant is entitled to get refund of the price of the modem together with compensation of Rs. 50,000/- towards the inconveniences and sufferings caused to him. He is also entitled to get a ‘no dues’ certificate for the opposite party. This complaint hence.
2. Version of the opposite party
In view of the decision of the Hon’ble Supreme Court of India in Civil Appeal No. 7687 of 2004 in the case of General Manager, Telecom Vs. M. Krishnan and another dated 01-09-2009 this consumer complaint is prima facie not maintainable. The complainant purchased USB modem bearing no 93493 29777 for an amount of Rs. 3,500/- and monthly fixed tariff of 850/-. The 3rd page of the bill clearly indicates the period for charges levied. It is evident that the allegation of demand of Rs. 5,550/- is false while going through the bill dated 09/08/2009. The disconnection of the service is done only because of non-payment of usage charges and committed monthly charges and the disconnection is done only after 09/09/2009 due to non payment of Rs. 959.71 There is no negligence or deficiency in service on the part of opposite parties. Complainant is not entitled for any compensation from the opposite parties. The opposite party requests to dismiss the complaint.
3. The complainant was examined as PW1 and Exts. A1 to A7 were marked on his side. Witness for the opposite party was examined as DW1. Heard the counsel for the parties.
4. The points that arose for consideration are
i. Whether the complaint is maintainable?
ii. Whether the complainant is entitled to get refund of the price of the modem?
iii. Whether the complainant is entitled to get a ‘no dues’ certificate from the opposite party?
iv. Whether the opposite party is liable to pay compensation of Rs. 50,000/- to the complainant?
5. Point No. i. :- The counsel for the opposite party took a contention that in view of the decision of the Hon'ble Apex Court in General Manager, Telecom Vs. M. Krishnan & Anr, this Forum has no jurisdiction to entertain this complaint. The learned counsel for the complainant submitted that admittedly the service availed by the complainant and rendered by the opposite party is internet facility. According to him, as per the Telecom Regulatory Authority of India Act 1997, this Forum has ample jurisdiction to entertain this complaint arising out of deficiency in rendering interest service. Telecommunication service is defined in Section 2 (k) of the above Act which reads as follows :
“telecommunication service means service of any description (including electronic mail, voice mail, date service, audio tex services, video tex services, radio paging and cellular mobile telephone services) which is made available to users by means of any transmission or reception of signs signals writing images and sounds or intelligence of any nature, by wire radio, visual or other electromagnetic means but shall not include broadcasting services.”
Section 14 B and C of the Act reads as under :
“the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Disputes Redressal Commission established under Section 9 of the Consumer Protection Act 1986.”
The Hon'ble Supreme Court in General Manager Telecom case, held as follows :
“In our opinion when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred. Section 7-B of the Telegraph Act reads as under :-
Section S.7B Arbitration of Disputes :-
(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this Section.”
In the instant case, since the dispute is with regard to internet facility alone the above decision of the Hon'ble Supreme Court has no application in this case. Obviously, the learned counsel seems to have misread the decision of the Hon'ble Supreme Court with no reason otherwise stated. So, there is nothing in law to say that this Forum does not have jurisdiction in this matter.
6. Point Nos. ii&iii. The following issues are not disputed by the parties.
i. On 31-07-2009 the complainant purchased a modem of the opposite party at a price of Rs. 3,500/- evident by ext. A1 retain invoice.
ii. As per the plan the complainant is liable to pay Rs. 851/- per month.
iii. The complainant was entitled to free usage of 13 GB
7. At the threshold the complainant contended that on 03-09-2009 he was directed to deposit a sum of Rs. 5,550/-. However the opposite party categorically denied the same in their version as well as during evidence. So the same does not hold water. According to the complainant the opposite party disconnected the service on
03-08-2009. But the opposite party maintains that they have disconnected the connection only on 09-09-2009
8. Admittedly the opposite party has not produced the usage of the internet facility by the complainant from 03-08-2009 to 09-09-2009 in this Forum. Without such evidence we can’t allow a prayer of the opposite party that has not been substantiated by them. In that case the averment of the complainant is more sustainable than not. The issuance of bills amounts to deficiency in service on the part of the opposite party subsequently. Ext. A5 bill dated 09-08-2009 goes to show that the complainant was called upon to pay a sum of Rs. 170.56 for the bill period from 31-07-2009 to 08-08-2009, that is even after the disconnection on 03-08-2009. Ext. A6 bill dated ;09-08-2009 for Rs. 789.15 as well would show that it was issued for the bill period from 09-08-2009 to 08-09-2009 indisputably that too after the disconnection of the service.
9. It is pertinent to note that the opposite party has disconnected the service without issuing notice to the complainant. Deficiency of service circumstantiated. In the above circumstances the opposite party is liable to issue a ‘no dues’ certificate to the complainant for reasons stated above and also to refund the price of the modem to the complainant.
10. Point No. iv. Since the primary grievance of the complainant has been met squarely rule of law does not allow or call for compensation.
11. In the result, we partly allow this complaint and direct that
i. the opposite party shall refund Rs. 3,500/- to the complainant with interest @ 12% p.a. from the date of complaint till payment. In that event the complainant shall return the modem to the opposite party simultaneously.
ii. The opposite party shall issue a ‘no due’ certificate to the complainant.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 30th day of September 2011.
