<br /> By Sri. K. VIJAYAKUMARAN, PRESIDENT,<br /> <br /> <br /> O.P 196 of 2005 is a Complaint seeking realization of the acquisition amount and compensation.<br /> <br /> The avernments in the Complainant can be briefly summarized as follows:<br /> <br /> The Complainant is a subscriber of the Opposite party with mobile telephone number 9387303904. At the time of availing connection the opposite party collected Rs.5,000/- from him towards deposit. The opposite parties collected 12 post-dated cheques also each for Rs.1,800/- drawn on the Central bank, Anchalummood Branch. The <br /> Complainant was very prompt and punctual in payment of bills till 01.11.2004. He was informed by the opposite party that he was selected to be a part of Best Customer Rewards Programme. The Complainant through SMS was informed by the opposite party to exchange black& white handset with colour handset. The Complainant availed the offer. At the time of exchange, a sum of Rs.1,401/- was collected from the Complainant towards these deposits. The Complainant was made to believe at the time of exchange of handset that there is no additional financial obligation for colour handset. But to the surprise of Complainant the telephone connection was deactivated during the 1st week of January, 2005 without giving any notice or information. On enquiry, the opp.parties explained that the Complainant has to pay towards plan changes every month at the rate of Rs.600/- which is against the promise made by the opposite parties at the time of exchange of handset. This makes exorbitant, financial obligations on the part of Complainant. Therefore, the Complainant does not want to continue the mobile connection .On 29.03.2005 the Complainant issued an Advocate Notice seeking return of Rs.6,401/- and post dated cheques but so far the opposite party has not returned the deposit amount and cheques. Hence the Complainant.<br /> <br /> The opposite party filed a joint version contenting, interalia, that the complaint is not maintainable either in law or on facts and it is liable to be dismissed inliminea. The avernments in para 1 and 2 are admitted. The avenments in para 4 are not fully correct. It is true that the Complainant has informed through SMS to exchange the black & white handset with a colour hand set and the complainant availed the offer and exchanged the black & white handset with a colour handset. It is also admitted that the opposite party collected Rs.1,401/- for changing colour hand set, which is not a deposit. As per the Scheme the Complainant had to pay Rs.300/- against hand set cost for 36 months. These 36 months is calculated from the date of purchase of black & white hand set. The Complainant has availed the facility but did not make payment in time. As per the terms and conditions as on March 2005 a sum of Rs. 8,927.12 is due from the Complainant, which the Complainant is liable to pay. The avernments in para 5 is not fully correct. On the non-payment of bill the opposite parties after intimating and giving SMS deactivated the phone. The opposite parties never insisted the Complainant for making payment of Rs.600/- per month. There is no error in the bill or in the statement. The avernments in para 6 are not fully correct. There is no untimely withdrawal of the outgoing calls from the Complainant’s mobile connection. The outgoing calls were barred because of the Complainant not paid the bill amount. The connection was barred due to the sole fault of the Complainant himself. Now the Complainant is trying to take advantage upon his own fault. On receiving the legal notice the opposite parties explained the real facts to the Complainant. But knowing the real facts also the Complainant is not willing to pay the telephone bill. There is no deficiency in service on the part of opposite parties. There are no loss of earning or inconvenience to the Complainant. There is no bonafiedes for filing this complaint. <br /> <br /> <br /> The Opposite party prays to dismiss the complaint.<br /> <br /> The points that would arise for consideration are:<br /> <br /> 1. Whether the Complainant is entitled to get deposit amounts Rs.6,401/-<br /> 2. Whether the Complainant is entitled to get any damages<br /> 3. Relief’s and cost <br /> <br /> Point (1)<br /> <br /> The case of Complainant is that the opposite parties have issued exhibit P4 for an exorbitant amount and when he sought for clarification the opposite parties without giving proper clarification deactivated his mobile connection. It is his further case that his offer to the surrender the handset was also not accepted by the opposite parties.<br /> <br /> According to the opposite parties the Complainant was a pioneer customer originally but subsequently he turned out to be a defeater and so the connection was deactivated. It is an admitted fact that the Complainant who was having a black and white handset changed the same for a colour handset on paying Rs.1,401/-. The case of the Complainant is that at the time of changing the handset, he was made to believe that there was no other payment and only because of that he has changed the handset. The case of the opposite parties is that the handset of the Complainant was changed under a scheme and as per the terms of the scheme on initial payment of Rs. 1,401/- has to be made and there after the balance price of the colour handset was to be paid in 36 monthly installments at the rate of Rs. 300/- which is to be paid from the date of taking the black and white connection. When asked about the scheme in Cross –Examination Pw1 has given an evasive answer and said that he do not know about the scheme. It cannot be believe that Pw1 believed that a colour handset would be available in 2003 on payment of a meagre some of Rs.1,401/- Pw1 who said that he was made to believe by opposite parties that there will not be any further payments did not make any attempt to produce of the Scheme from which an adverse inference has to the drawn. The definite case of the opposite party is that the excess amount alleged by Pw1 in exhibit P4 is the balance price of the colour handset defaulted by the Complainant and we feel that there is nothing to disbelieve Dw1. <br /> <br /> Another contention of the Complainant is that the opposite parties asked him to pay a sum of Rs.600/- per month. This contention is also not supported by any material. Exhibit P1 to P4 produced by Complainant does not show any thing about Rs.600/- to be paid monthly. In none of the above bills such an amount is seen charged. Dw1 has said that the monthly deduction is Rs.300/- which is towards the cost of the colour handset. It is to be pointed out that the colour handset was changed in the year December 2003 and the Complainant had no grievance, till January 2005. The whole controversy has arisen with Exhibits P4 wherein arrears of price of the colour handset is also included. It is after the non-payment of this bill at first the outgoing calls and there after the incoming calls were cut and the phone deactivated. Deactivation of a telephone for nonpayment of telephone charge cannot be said to be a deficiency in service. The complainant in cross –examination has stated that he does not want to retain the telephone connection. We feel that there is no harm in allowing the requisite. According to the Complainant the amount he paid Rs.5,000/- as initial deposit as per exhibit P1 and Rs.1,401/- subsequently for colour hand set. The opposite parties case is that out of Rs.5,000/- collected as per Exhibit P1 deposit is only Rs.2,000/- Exhibit P1 also shows that out of Rs.5,000/-deposit is only Rs.2,000/-. There fore the Complainant may be permitted to surrender the colour hand set and receive Rs.3,401/- Rs.2,000/- + Rs.1,401/- collected from him as deposit. As pointed out earlier there is no deficiency in service as alleged. Points found accordingly. <br /> <br /> In the result the Complainant is allowed in part. The opposite parties are directed to receive back the colour handset from the Complainant and pay back the deposit amount Rs.3,401/-. The parties are directed to suffer their costs.<br /> <br /> The order is to be complied with within one month. <br /> <br /> <br /> <br /> Dated this the 9th day of September 2008<br /> <br /> <br /> INDEX<br /> <br /> List of witness for the complainant<br /> PW1 : Sakthi Das<br /> Ext. P1: Receipt for Rs.5,000/- dated 28.02.2003<br /> Ext. P2: Letter dated 01.11.2004<br /> Ext. P3: bill dated 01.12.2004<br /> Ext. P4: bill dated 01.01.2005<br /> Ext. P5: Bill dated 01.10.2004<br /> Ext. P6: Letter issued to the Complainant to the opp.party dated 12.01.2005.<br /> Ext P7: Advocate notice<br /> Ext P8 : Acknowledgement Card<br /> <br />