Date of filing: 27-3-2017 Date of Order :3-1-2018
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
KADAPA, Y.S.R DISTRICT
PRESENT SRI V.C. GUNNAIAH, B.Com., M.L., PRESIDENT
SMT. K. SIREESHA, B.L., LADY MEMBER
WEDNESDAY THE 3rd DAY OF JANUARY, 2018
CONSUMER COMPLAINT No. 19 / 2017
Bheeram Sreedhar Reddy Charitable Trust,
Rep. by its Trustee,
B. Srikanth Reddy, S/o B. Subba Reddy,
Age 31 years, R/a D.No./45/197-1, Balaji Nagar,
Kadapa City, Y.S.R. District. ….Complainant.
Vs.
- Reliance Mobile Store, Vayuputra Communications,
Rep. by its Manager, Room No.3,
Church Rooms, Opp: Zilla Parishad,
Airport Road, Kadapa-516 003.
- Reliance Communications Ltd., Rep. by its Managing Director,
Business head Quarters, 3rd Floor, BHQ,
DAKC Koparkhairane,
Navi Mumbai, Mumbai-400 709. ….. Opposite parties.
This complaint coming for final hearing on 28-12-2017 in the presence of Sri G. Trivikram Singh, Advocate for Complainant and Opposite Party no.1 called absent and set exparte on 22-8-2017 and Sri D. Rajasekhar Reddy, Advocate for Opposite party no.2, and upon perusing the material papers on record, the Forum made the following:-
O R D E R
(Per Sri V.C. Gunnaiah, President),
1. The complainant filed this complaint under section 12 of Consumer Protection Act, 1986 (for short herein after called as C.P. Act) to direct the opposite parties to pay Rs.4,00,000/- towards compensation for loosing new admissions by the complainants school, to pay Rs.50,000/- as compensation for physical strain and mental agony, Rs.15,000/- towards costs of six land lines (instruments CDMA), to pay Rs.5,000/- towards costs of the complaint.
2. The averments of the complaint in brevity are as follows; The complainant is a trust and with service moto the same has been running one international school under the name and style “SREEDHAR REDDY INTERNATIONAL SCHOOL” at Khajipet in Y.S.R. Kadapa District. The second O.P. is doing business in telecommunications where as O.P.no.1 is an authorized mobile store of the 2nd O.P. During the month of January, 2016 at the advice of opposite parties sales person the complainant purchased CDMA connections i.e., numbers 9394366771 to 9394366779 (in total eight sims). The complainant was also informed that CDMA net work is better than GSM net work and it will be migrated to 4G CDMA net work. For function of their above connections the complainant also purchased six Reliance CDMA land lines by paying Rs.15,000/- in total from O.P.no.1. The complainant has been paying bills without any default, though there is a weak net work and assurance given by the Opposite parties that the land line will work properly even with 4 G upgrade. But there was net work dropping problem. The complainant made several complaints to the opposite parties but they failed to register the same. During the month of May, 2016 when the complainant tried to migrate to 4G, he was told by the customer care that land line will not work. When the complainant questioned about it. O.P. said that they will call back after few days but failed. They also denied to take complaint and were giving evasive replies. The customer care department of O.P.s is non-responsive. Finally the CDMA connections of the complainant were disabled except one connection. During the month of May, 2016 opposite parties changed the CDMA system to 4G GSM causing debar of all service connections of i.e, 9394366771 to 9394366779 of the complainant in September, 2016, the complainant handed over the 8 sim cards to the opposite party no.1 as they are of no use but O.P.no.1 failed to acknowledge the same. Further the complainant communicated handing over of the sim cards through Email Dt. 16-9-2016 to the customer of opposite parties.
3)The selling of CDMA sims and land lines to the complainant and debarring the service connections without intimation causing much inconvenience, clearly proves gross negligence on the part of opposite parties. The complainant is running educational institutions and it has distributed telephone numbers, taken from the opposite parties among the general public for advertisement. Due to sudden debar of service connections, the complainant sustained heavy loss as he lost admissions schedule during the month of May, 2016. The land lines sold to the complainant became no use. Thus the complainant faced many problems due to vague answers, disconnecting the calls denial to take complaints about net work issue or reimbursement of Rs.15,000/- collected for land lines etc., The complainant paid more than Rs.50,000/- towards bills though there was poor connections in December, 2016. The opposite parties have registered his complaint. as complaint no.101004, but they failed to solve the problem, thus there is deficiency in service on the part of opposite parties and are liable to pay compensation as claimed above. Therefore the complaint for the above reliefs.
4) O.P. no.1 had remained exparte.
5) O.P.no.2 filed written version denying the allegations made in the complaint and called upon the complaint to prove all of them. It is further averred that the complainant is not a consumer as defined under Section 2 of Consumer protection act, and there is no consumer dispute as the complaint in his own admission in para 2 of the complaint stated that the complainant is a business man using telephone for all his business purposes and for all international calls and transactions and the same clearly shows that the said telephone connections were using for the business activity. Hence the same is for commercial purpose and excludes the complainant from the ambit of the definition of Consumer”. Therefore the complaint is not maintainable before this Forum. This forum has also no jurisdiction to entertain the consumer dispute, as there is special remedy available in Section 7 B Indian Telegraph Act.
The customer application form filled up by Customer at the time of obtaining land line connection and as per the terms of the said CAFs this opposite party is entitled to disconnect the services in whole or in part at any time without notice and migration from CDMA to GS technology as per clause 2 of the said CAFs. Hence, the complaint is liable to be dismissed with costs.
6) No oral evidence has been let in by the parties but on behalf of the complainant his affidavit is filed and got marked as Ex. A1 to Ex.A5, and on behalf of the opposite party no.2 his affidavit filed and got marked Ex.B1 to Ex.B3 and closed their side evidence.
7)Both parties not filed written arguments.
Heard arguments on both sides and perused material on record.
The points that arises for determination are ;
i) Whether the complainant is not maintainable as pleaded by O.P.no.2?
ii) Whether is there is any deficiency in service on the part of the
opposite parties as pleaded by complainant ?
iii) Whether the complainant is entitled for the reliefs as sought for against
opposite parties ?
iiii) To what relief ?
8) Point No.1 :- Learned counsel for O.P.no.2 contended that the complaint is not maintainable as the complainant is not a consumer as defined Section 2 (d) of Consumer Protection Act, as he obtained telephone connections for business purposes and the complainant admitted the same in para 2 of the complaint. Since the complainant is using the telephone connections for business activity to generate profit, therefore the complaint is not maintainable in this forum and complaint is liable to be dismissed.
9)The learned counsel for complainant contended that though the complainant is running school and obtained 8 sim cards and six land lines but still the same is not for business organization and complaint is maintainable in this forum.
10) After going through the material placed on record we find foce in the contention of learned counsel for O.P.no.2 to hold that complainant is not a consumer as per section 2 (d) of consumer protection Act and complaint is not maintainable.
11) In para 2 of the complaint , it is stated by the complainant that he is running educational institutions and distributed telephone numbers taken from the opposite parties among the general public for advertisement. It is further averred due to sudden debar of service connections, the complainant sustained heavy losses as he lost admissions which were scheduled during the month of May, 2016.
12) Admittedly, the complainant in this case obtained 8 mobile connections of CDMA of nos. from numbers 9394366771 to 9394366779 (in total eight sims) and six reliance CDMA land lines. The purchasing of 8 mobile sim connections for mobile phones and 8 land lines clearly goes to show that the complainant intended to avail telephone services from opposite party for business purpose and O.P.s also offered the services with that intention only. Even as per admission of complainant in his pleadings he used the telephone service for advertisement for running educational institution and get admissions in the school but due to debar service connections the complainant sustained heavy loss as he lost admissions in may, 2016. This clearly goes to show that as per section 2 (d) (ii) of C.P. Act, 1986 excludes a person who avails a service for commercial purpose from the definition of consumer. In the present case, it is clear that the subject telephone services were availed by the complainant for business purpose and business activity only. Hence it can be said that the relation between the complainant and Opposite parties is commercial in nature to generate profit. Therefore in our considered view since the complainant availed the services from opposite parties for commercial purpose to generate profits out of the business, the complainant is not a consumer and the complaint before this Forum is not maintainable accordingly this point is answered in favour of O.P.no.2.
13) Point No.2 and 3:- It is contended on behalf of the complainant that complainant is a trust with service moto and since the sudden debar of telephone services by O.P. the complainant sustained heavy loss of admissions, thus there is deficiency in service on the part of Opposite parties and the same proved by complainant by filing Exhibits A1 to Ex.A5. hence, complainant is entitled for the reliefs claimed against opposite parties.
14) Per contra learned counsel for opposite parties contended that as per Customer application form terms and conditions clause (6) the opposite party no.2 is entitled to disconnect the service without notice and O.P. intimated to the complainant that they are closing CDMA net work service by 31-5-2016 and get 4G sim from any nearest Reliance Mobile Store and also informed that the CDMA net work services will not be operated after 31-5-2016.
15) In this case as seen from customer application form that migration from CDMA to GSM was owing to technology changes. The complainant in his complaint also stated that he came to know the reliance is coming up 4G upgrade in place of CDMA. If such is the case the complainant is intimated about the closing CDMA net work service and requested the complainant to get 4G sim and CDMA will not work after 31-5-2016. Still the complainant had not taken any steps to obtain 4G sim as requested by O.Ps. Hence, the CDMA services have not functioned to the phones of complainant which were obtained by him for his commercial purpose. Further a perusal of Ex.A1 to A5 do not in any way discloses any deficiency in service on the part of Opposite parties as pleaded by complainant. Hence, we hold there is no deficiency of service on the part of opposite parties and O.Ps are not liable to pay any amount to the complainant as claimed and complainant is not entitled for any reliefs from the O.Ps as claimed. Accordingly point 2 and 3 answered against to the complainant.
16) In the result, the complaint is dismissed, but in the circumstances without costs.
Dictated to the Typist, transcribed by him, corrected and pronounced by us in the open forum, this the 3rd day of January, 2018.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses examined
For complainant : NIL For opposite party : Nil
Exhibits marked on behalf of the Complainant :-
Ex: A1:- P/c of tax invoice bearing No.51, Dt. 8-2-2016 issued by the 1st
opposite party in favour of the complainant forRs.15,000/-.
Ex: A2:- Original receipt bearing No.235, dT.17-6-2016 issued by the 1st opposite
party in favour of the complainant forRs.6,730/-.
Ex: A3:- Copy of e-mail Dt.27-5-2016 sent by the complainant to the customer
care of opposite parties.
Ex: A4:- Copy of E-mail Dt.16-9-2016 sent by the complainant to the
customer care of opposite parties.
Ex: A5:- Copy of complaint History Dt.19-12-2016.
Exhibits marked on behalf of the Opposite parties: -
Ex:B1:- Aadhaar card of B. Sreekanth Reddy.
Ex:B2:- Customer application of B. Sreekanth Reddy.
Ex:B3:- Letter Dt. 30-1-2016 to 2nd opposite party from complaint.
MEMBER PRESIDENT
Copy to
- Sri G. Trivikram Singh, Advocate, Kadapa.
- Reliance Mobile Store, Vayuputra Communications, Rep. by its Manager,
Room No.3, Church Rooms,
Opposite to Zilla Parishad,
Airport Road, Kadapa-516 003.
3) Sri D. Raja sekhar Reddy, Advocate, Kadapa.
& & &
P. R.
