Per Mr B A Shaikh, Hon’ble Presiding Member
1. This appeal is filed by the original opposite party (for short O.P.) No.1 against the order dtd.01.03.2006 passed by District Consumer Forum, Bhandara in consumer complaint No. 26/2005, by which, the complaint has been partly allowed. The Forum in the impugned order directed O.P.No.1 to carry forward in his mobile cell phone, his balance amount and to restore his mobile cell phone connection within one month without charging any fees and to pay him compensation of Rs.1,000/- and cost of Rs.500/- within one month from the date of that order.
2. The case of the complainant as set out in his complaint in brief is as under.
The complainant obtained SIM card of Idea Cellular Company (O.P.No.1) from its dealer – O.P.No.2 with a facility of recharge. The complainant used that SIM card bearing phone connection No.9850310261 by means of his mobile cell phone. The complainant recharged the SIM card for Rs.324/- on 09.04.2004, then for Rs.108/- on 08.05.2004, then again for Rs.324/- on 27.05.2004. The previous balance in his mobile SIM card account was Rs.600/-. But, O.P. / appellant did not carry forward the same after recharge of the SIM card. The complainant made a complaint to that effect to O.P. No.2, which said that 15 days time is given by O.P.No.1 for recharging the SIM card and balance amount will be automatically carried forward with new recharge amount. However, O.P.No.1 on request declined to carry forward the balance amount with recharged SIM card of the complainant. It is against the user’s guide of O.P.No.1. As per the rule of O.P.No.1, when the complainant recharged his SIM card within 15 days without grace period of 90 days, it was necessary to carry forward balance of Rs.600/-. The complainant, vide notice dtd. 16.07.2004 served to the O.P.No.1, requested to carry forward the balance amount of Rs.600/-. But O.P.No.1 did not comply with that notice. Therefore, the complainant filed consumer complaint with request that direction be given to O.P.No.1 to pay him Rs.600/- with interest @ 20% p.a. from 16.05.2004 till its realisation by him and also to pay him cost of Rs.1,000/- with compensation of Rs.5,000/- for physical & mental harassment.
3. The O.P.No.1 appeared before the Forum and filed reply and thereby resisted the complaint. It raised preliminary objection about non-maintainability of the complaint before the Forum. It submitted that for voucher of Rs.324/-, talk-time available was of Rs.175/- only with validity of 30 days and for voucher of Rs.108/-, talk-time available was of Rs.60/- only with validity of 7 days only. The entire procedure of recharging SIM card is automatic and fully computerised and there is no chance that if there is any balance the same is not carried forward. The complainant has not got himself acquainted with the facts and the scheme of the O.P. No.1 and filed false complaint. It is denied that there is previous balance of Rs.600/- and that it was not carried forward to new recharged amount. The complainant during last three months purchased vouchers for Rs.324/- against which the complainant received talk-time of Rs.175/- only, which he wholly consumed and therefore, there was no question of carrying forward any amount. Therefore, O.P.No.1 had requested that the complaint may be dismissed.
4. The O.P.No.2 did not appear before the Forum though served with the notice. Therefore, the Forum proceeded exparte against O.P.No.2.
5. The Forum below after hearing both parties and considering evidence brought on record, passed the impugned order and thereby partly allowed the complaint. The Forum below observed in the impugned order in brief that the complaint is maintainable and that the complainant has not denied the case of the O.P. that for voucher of Rs.324/-, talk-time was given of Rs.175/- and for voucher of Rs.108/-, talk-time was given of Rs.60/-. The Forum further observed that the complainant has not specified as to how much amount was used by him out of talk-time available on his mobile cell phone and exactly what amount was in balance and on which particular date what amount was in balance. The Forum further observed that the complainant has not specified as to on which date Rs.600/- were found balance in his SIM card account. The Forum accepted the defence of the O.P. No.1 that as the work of O.P.No.1 is performed automatically through computer, there is no reason of not showing balance amount in the account of the complainant, if there is any such balance amount. Thus, according to the Forum, the complainant has not proved that Rs.600/- were in balance. The Forum, therefore, rejected the prayer of the complainant of giving direction to the O.P. to pay him Rs.600/- with interest.
6. However, the Forum found that the O.P. No.1 did not reply the notice of the complainant did not produce document before it as per application dtd.20.10.2005 made by the complainant for their production and therefore this constitutes deficiency in service on the part of O.P.No.1. Therefore, O.P.No.1 is liable to pay compensation of Rs.1,000/- and cost of Rs.500/- to the complainant. The Forum therefore, directed the OP.No.1 under the impugned order to pay said compensation of Rs.1,000/- and cost of Rs.500/-to the complainant.
7. The Forum also found that O.P.No.2 has not rendered deficient service to the complainant and therefore, the complaint as against O.P.No.2 came to be dismissed.
8. Feeling aggrieved by that order, this appeal is filed by O.P. No.1. We have heard the learned advocates of O.P.No.1 / appellant and complainant / respondent No.1. Respondent No.2 has been already deleted as per request of the appellant’s advocate.
9. The learned advocate of the appellant mainly argued that though the Forum rightly held that the complainant has not proved any such amount of Rs.600/- was balance in his account, the Forum erred in holding that the O.P.No.1 rendered deficient service by not giving reply to the notice of the complainant and not by producing document. According to the learned advocate of the appellant, there is no question of rendering service in the form of giving of reply to the notice of respondent and producing documents before the Forum. Hence, he submitted that the reasons given by the Forum for awarding compensation and cost are totally perverse and unjustified. Therefore, the impugned order may be set aside and complaint may be dismissed.
10. On the other hand, the complainant / respondent No.1 supported the impugned order and submitted that as the appellant failed to produce the documents before Forum and did not give reply of the notice; the Forum has rightly awarded compensation and cost. He further submitted that O.P.No.1 / appellant utilised phone connection No.9850310261 by allotting the same to other user and this also constitutes deficiency in service on the part of O.P.No.1 / appellant. He, therefore, requested that the appeal may be dismissed.
11. It is seen that the complainant has not filed any appeal against the impugned order against any rejection of direction sought by him to O.P.No.1 to pay him Rs.600/- with interest. The Forum has rightly observed in the impugned order that there is no evidence to show that there was balance of Rs.600/- on a particular date, which was not carried forward by the O.P. / appellant. The case of the complainant is also found to be very vague as he has not specified as to on which particular date there was balance of Rs.600/- and talk-time of how much amount was used by him. In our view, when it is not proved that O.P.No.1 rendered deficient service by not carrying forward any such balance amount of Rs.600/-, the complaint ought to have been dismissed.
12. There is no allegation in the consumer complaint that due to not giving of reply or non-production of the documents, O.P. No.1 rendered deficient service. In our view, act of O.P.no.1 in not giving reply to notice of complainant / respondent No.1 & its not producing document before the Forum, does not constitute deficiency in service on the part of O.P.No.1. The Forum had not also directed the O.P. No.1 to produce any such document and hence there is no question of drawing adverse inference against O.P.No.1.
Thus, we hold that the Forum erred in holding that the O.P.No.1 rendered deficient service to the complainant by not giving reply to the notice of the complainant and by not producing documents on record.
13. Moreover, the Forum also erred in holding that O.P.No.1 rendered deficient service to the complainant by disconnecting the mobile phone connection. It is also not the case of the complainant that though he had recharged the SIM card so as to avoid disconnection. It is also not the case of the complainant that there was sufficient balance in his account at the time of disconnection. The O.P. No.1 disconnected his cell phone connection and allotted to some other person. The complainant also did not ask any relief to direct the O.P. No.1 to add any such balance in his account and to restore his mobile phone connection of the complainant. Thus, in the absence of any evidence or in the absence of any such prayer the Forum erred in directing the O.P.No.1 to carry forward the balance amount in the SIM card account of complainant / respondent No.1 and to restore the mobile phone connection of the complainant.
- Hence, we hold that the impugned order is illegal and it needs to be set aside.
ORDER
i. The appeal is allowed.
ii. The impugned order is set aside and complaint stands dismissed.
iii. No order as to costs in this appeal.
iv. Copy of the order be furnished to both parties free of cost.
