BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 192 of 2016
Date of Institution : 4.08.2016
Date of Decision : 30.11.2017
Joginder Singh, aged about 46 years son of Shri Mohar Singh, resident of Rania, Tehsil Rania, District Sirsa.
……Complainant.
Versus.
1. Rajiv Ghangi, authorized Incharge/ signatory Reliance Company, Information Technology Park, DLF Building 1st Floor, Chandigarh (as disclosed by respondent no.2.
2. Sachdeva Communication, Jain Market, near Masjid, Sadar Bazar, Sirsa, Tehsil and District Sirsa, through its proprietor namely Parmod Sachdeva.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI R.L. AHUJA, PRESIDENT.
SHRI MOHINDER PAUL RATHEE, MEMBER.
Present: Sh. Inderjeet Singh, Advocate for complainant.
Sh. J.D. Garg, Advocate for opposite party no.1.
Sh. Rishab Goyal, Advocate for opposite party no.2.
ORDER
In brief the case of the complainant is that opposite party no.2 is the authorized dealer of op no.1 company which is the manufacturing company of the machines for running the P.C.Os and in this way, the op no.1 company is running such PCOs throughout India for providing communication facilities to the public by way of use of the PCO. That in the year 2005 the complainant had got installed a Reliance PCO through op no.1. It was a CDMA connection and this PCO was allotted connection No.93542 87467 and since then complainant has been running this PCO but now for the last about two months this PCO has been closed due to some defect in the machinery of this PCO. When the complainant complained to customer care centre of op no.1 in this regard, the complainant was not heard. That now the complainant has come to know that now the old connections of PCO have been converted into GSM connections but the connection of the PCO of the complainant has not been converted into GSM connection despite several demands and requests of the complainant. It is further averred that an amount of Rs.8000/- of the complainant is lying with the op company for recharging of the said PCO connection but the same has not been recharged by the ops. That the complainant several times requested the op for giving him the GSM connection of the abovesaid PCO as per rules of the company for which the complainant is ready to abide by but the ops have totally refused to accede to the request of the complainant about a week back. The complainant is a poor person. This PCO was the only source of income of the complainant and his family and due to closure of the above said PCO, the complainant has become unemployed and jobless which has resulted into serious financial problem for his family. Hence this complaint for a direction to the ops to convert the above said PCO in question into GSM connection at the earliest or in the alternative to refund the amount of Rs.8000/- alongwith interest and also to pay compensation of Rs.20,000/- for unnecessary harassment and to pay litigation expenses.
2. On notice, opposite party no.1 appeared and filed reply taking certain preliminary objections regarding suppression of material facts and that complainant had taken the telephone connection for the purpose of running PCO and thus the complainant does not fall under the definition of a consumer under the Consumer Protection Act; that the company in order to upgrade the services from the existing CDMA to LTE services had discontinued the existing CDMA services and liberalized its spectrum by taking prior approval of DOT. In this regard all the existing subscribers of the company were duly intimated about the discontinuation of the CDMA services and were further requested to get their connections MNP with the option of choosing the GSM network/ services of the company. The said option was also available with the complainant but he has not chosen to accept the said option. That the approval was given by the DOT and the same was also intimated to TRAI vide letter dated 7.4.2016 about the approval and vide subsequent letters about the discontinuation of the CDMA services. Hence the present complaint filed by the complainant after being duly intimated by the ops and thereafter malafidely obtaining the order for the restoration of the services is bad and liable to be set aside; that Hon’ble Supreme Court of India has held in ‘General Manager Telecom Versus M. Krishana & Anr.’ that the Consumer Fora does not have jurisdiction to try and decide the dispute between telecom service provider and its subscriber in view of the well settled law of overriding effect of a special law over a general law. The Hon’ble State Commission Haryana consenting with the Hon’ble Supreme Court order disposed off five matters pending before it with a single detailed order dated 2.7.2010. On merits, the pleas taken in the preliminary objections are reiterated and all the contents of the complaint are denied.
3. Opposite party no.2 appeared and filed written statement taking certain preliminary objections. It is submitted that being an authorized dealer the answering op is providing recharge facility to the complainant and other PCO holders. Now a days as per the change in information technology scheme as well as guidelines received from the higher authorities, the CDMA exchange has been closed and the PCO/ Mobile holders have shifted to GSM exchange. The complainant is one of the PCO holder under CDMA exchange. He was duly informed for a number of times for shifting to GSM exchange through company for availing smooth functioning of the PCO. The complainant did not care for the messages received by him nor accepted the advise of answering op. So the answering op could not provide any recharge facilities from his own as he could only provide which he is getting from the company. The company had already closed the recharge facility belonging to CDMA exchange, technically his PCO could not run without seeking prior permission from the company. With these averments, dismissal of complaint has been prayed for.
4. The complainant produced his affidavit Ex.C1, copy of cash invoice dated 15.10.2001 Ex.C2, copy of demand draft Ex.C3, copy of cash memo Ex.C4, copy of cash memo Ex.C5. On the other hand, ops produced affidavit of Sh. Parmod Kumar Sachdeva Ex.RW1/A and affidavit of Mr. Garry Rana, Authorized Representative Ex.RW2/A.
5. We have heard learned counsel for the parties and have perused the case file carefully. We have also perused the case law of the Hon’ble National Commission in case titled as Bharat Sanchar Nigam Ltd. Vs. Yogesh Chandra Saxena, III (2008) CPJ 205 (NC) cited by learned counsel for complainant wherein the complainant was running PCO and same was disconnected due to non payment of bill and it was held that person if engaged in activity to earn livelihood would not fall under definition of commercial purpose, complainant is entitled to relief, orders of lower Fora upheld.
6. We have also gone through the judgment of our own Hon’ ble Commission relied upon by learned counsel for ops in case titled as Reliance Communication Ltd. Vs. Sunil Kumar & anr. RP No.65 of 2010 decided on 29.9.2010 and also judgment of the Hon’ble National Commission in cases titled as Lokesh Parashar Vs. Idea Cellular ltd. & anr. RP No.3780 of 2011 decided on 20.4.2012 and Prakash Verms Vs. Idea Cellular Ltd. & anr. RP No.1703 of 2010 decided on 21.5.2010.
7. The complainant in order to prove his case has furnished his affidavit Ex.C1 wherein he has reiterated all the contents of his complaint. He has also furnished copies of cash memos Ex.C2 and Ex.C4 and Ex.C5 and copy of cheque Ex.C3. He has claimed that for the last about two months, the PCO has been closed due to some defect in the machinery of the PCO and has claimed that old connections of PCO have been converted into GSM connections but his connection has not been converted into GSM despite several demands and requests made to the ops. His security amount of Rs.8000/- for recharging of the said PCO is lying with the ops and he has been suffering on account of the acts of the ops. He has requested for converstion of PCO into GSM connection or in the alternate an amount of Rs.8000/- alongwith interest be refunded to him on account of the security deposited with the ops.
8. The opposite party no.1 has contested the complaint on the ground that the company in order to upgrade the services from the existing CDMA to LTE services had discontinued the existing CDMA services and liberalized its spectrum by taking prior approval of DOT. In this regard all the existing subscribers of the company were duly intimated about the discontinuation of the CDMA services and were further requested to get their connections MNP with the option of choosing the GSM network/ services of the company. The said option was also available with the complainant but he has not chosen to accept the said option. Similarly, op no.2 has also taken stand that being an authorized dealer the op No.2 is providing recharge facility to the complainant and other PCO holders. Now a days as per the change in information technology scheme as well as guidelines received from the higher authorities, the CDMA exchange has been closed and the PCO/ Mobile holders have shifted to GSM exchange. The complainant is one of the PCO holder under CDMA exchange. He was duly informed for a number of times for shifting to GSM exchange through company for availing smooth functioning of the PCO. The complainant did not care for the messages received by him nor accepted the advise of answering op. The opposite parties have not specifically denied that amount of Rs.8000/- of the complainant is not lying with them and have not refunded the same to the complainant and have retained the same for a long period which could have been refunded by them to the complainant when complainant failed to chose the above said option and therefore, the ops are deficient in service in this regard. In our considered opinion, the complainant is entitled to refund of the amount of Rs.8000/-. Moreover, the complainant in the alternate has also requested for refund of the said amount from the ops.
9. Thus, we allow the present complaint and direct the opposite parties to refund the amount of Rs.8000/- to the complainant within a period of one month from the date of receipt of copy of this order subject to completion of formalities, if any, failing which the complainant will be entitled to interest @9% per annum from the date of order till actual payment. We also direct the ops to pay further amount of Rs.2000/- as composite compensation and litigation expenses to the complainant. Both the ops are jointly and severally liable to comply with this order. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in the open Forum. Member
President
Dated: 30.11.2017. District Consumer Disputes
Redressal Forum, Sirsa.
