Judgment : Dt.18.8.201
Mrs.Balaka Chatterjee, Member.
This petition of complaint is filed under Section 12 of C.P.Act by Sri Jatindra Kumar Das alleging deficiency in service on the part of the opposite parties – (1) Sistema Shyam Tele Services Ltd., (2) Mr. Joy Banerjee, (3) “MICROTECH” Sales Executive Tapas Pramanik and (4) Chairman, Telecom Consumer Complaints Monitoring System.
Case of the Complainant, in brief, is that the Complainant purchased one device of post paid MTS internet connection (No.9143001861) from the opposite party No.3, which was installed at the residence of the Complainant having address as mentioned in the Cause List in July, 2015. The Complainant has alleged that since installation, he did not get signal as well as service in respect of the said connection and, accordingly, intimated the same to the opposite parties by his authorized representative namely, Sri Balaram Swarnokar and thereafter, over MTS help line No.18002081955 but to no effect. The Complainant has further stated that subsequently he sent a notice dt.08.10.2015 to the OPs asking them to refund of security amount paid by the Complainant to the OP service provider since he was no longer interested to continue the consumer relationship with the OPs. The Complainant further sent a notice dt.17.03.2016 requesting the OPs to note that in the event of failure of reply from the end of the OP the Complainant would be compelled to approach to the appropriate forum and the OPs received the same but failed to take the required steps. The Complainant h as further alleged that the OP service provider on receiving complaint made by him threatened him of facing dire consequences instead of taking any remedial measure and the same amounts to be deficiency in service on the part of the opposite parties. Accordingly, the Complainant has prayed for a direction upon the opposite parties to pay a sum of Rs.1,100/- only with interest plus damages Rs.3,00,000/- and Rs.500/- per day from 15.7.2015 as cost of expenses till realization of the amount and for any other relief or reliefs.
The OP Nos.1 & 4 have contested the case.
The OP No.1 by filing written version stated, inter alia, that the OP No.2 had resigned from the services of OP No.1 and as such, his name may be deleted from the cause title of the instant case. The OP No.1 denied all the allegations made by the Complainant paragraph-wise. It is stated by the Complainant that in the 1st month from the date of installation of the net service the Complainant had utilized data to the tune of 7 Giga bytes (GB) and it is evident therefrom that he had been receiving excellent network signal. It is specifically stated by the OP No.1 inspite of utilising such huge amount of data the Complainant failed to pay the chargeable amount and when the OP No.1 tried to make contact with him over telephone they always found the same as ‘switched off’. It is stated in the written version that the instant OP got in touch with the Complainant and requested him to clear the dues by making payment which he had denied and which lead to withdrawal of the said service by the OP No.1. It is also stated by the OP No.1 that the Complainant has already approached the TRAI with the same grievance. Accordingly, OP No.1 prayed for dismissal of the instant case against OP No.1 with cost.
The OP No.4 – TRAI has contested the case and filed written version disputing all the material allegation stating inter alia that the Complainant is not a consumer under the OP No.4 and, moreover, Sec. 27 of TRAI Act, 1997, provides that no civil court shall have jurisdiction in respect of any matter to which the TRAI is empowered. The OP No.4 has relied upon the decisions of SCDRC Union Territory Chandigarh in (1) appeal No.37 of 2008 (TRAI vs Devender Rohela and Anr Teleservices Ltd.) passed on 6th May, 2009 and (2) appeal No.491 of 2009 (TRAI vs Ms Anuradha and Ors.).
The Complainant and the OP No.1 adduced evidence followed by cross examination in the form of questionnaire and reply thereto.
Points for determination
- Whether the Complainant is a Consumer under OPs.
- Whether the OPs have deficiency in providing service.
- Whether the Complainant is entitled to the relief as prayed for.
Point No.1 – The Complainant availed service provided by the OP No.1 by making payment and thus has become Consumer under the OPs. The OP No.4 being the Telecom Regulatory Authority of India is the necessary party to the instant case since the instant dispute has arisen out of such service which is regulated by the OP No.4.
Point No.1 is decided accordingly.
Point No.2 – Admittedly, the OP service provider installed device facilitating MTS net service to the Complainant in July, 2015. The Complainant, however, has alleged that due to non-availability of proper signal he could not utilize the said service at all. On the other hand, the OP service provider (OP No.1) has stated that the Complainant for first month consumed data for seven G.B. The Complainant has annexed two Photostat copies of letter dated 8.10.2015 and . In letter dt. 17.7.2016 it was referred one letter dt.23.10.2015 received by the Complainant from the OP No.1 wherefrom it is evident that at least one reply was received by the Complainant against one letter which implies that at least the letter dt.8.10.2015 was served upon the OP No.1.
The OP No.1, though, stated in written version that the Complainant consumed 7 G.B. data and supportive document for record was annexed as annexure ‘A’ but fact remains that the OP No.1 did not annex any such document at all.
The Complainant by swearing affidavit has stated that he could not avail the said net service since installation and, on the other hand, the OP No.1 denied the allegations by swearing affidavit stating that the Complainant consumed 7 G.B. data in a month but failed to produce any supportive document to that effect. In fact, this case is being contested on the basis of oath versus oath. Further, keeping in mind that the intention of legislation of the C.P.Act, 1986 was better protection of the interest of consumer, we observe that nothing has been found contrary to the claim of the Complainant as to non-recurring signal as well as non-utilisation of the internet service.
Further, the OP No.1 has stated that the Complainant had already filed a case under provision of TRAI but again the OP No.1 failed to furnish any document in support of that statement. Therefore, those averment made by the OP No.1 are not taken into consideration.
The OP No.4 has stated that the instant case is not maintainable since section 27 expressly barred jurisdiction of Civil Courts in respect of the matters which are under TRAI to determine. The Consumer Redressal Agencies are not Civil Courts but quasi judicial bodies. Section 3 of the C.P.Act runs as “The provision of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”, and, therefore, it is evident that there is no bar to entertain the case in its present form.
In the light of discussion as made hereinabove we are of opinion that without being proved contrary the allegation made by the Complainant in respect of deficiency in ‘service’ by not providing signal for net has been established.
Point No.2 is decided accordingly.
Point No.3
The Complainant has prayed for refund of Rs.1,100/- as to the charge paid by the Complainant to the OP service provider and it is established that due to non-availability of signal the Complainant could not utilize data through internet. Such finding led us to allow the prayer for refund of Rs.1,100/-.
The Complainant has prayed for huge amount of compensation but did not state the quantum of loss suffered by him. Hence, the prayer is not allowed.
Further, considering the state of affairs we are inclined to allow Rs.1,000/- as to costs of litigation.
Point No.3 is decided accordingly.
In the result, the complaint succeeds.
Hence,
ordered
That CC/50/2017 is allowed in part on contest against the O.P. No.1 with cost and dismissed on contest against OP no. 4 and dismissed ex-parte against OP Nos.2 & 3.
The OP No.1 is directed to refund Rs.1,100/- to the Complainant within 15 days from the date of this order. The OP No.1 is further directed to pay Rs.1,000/- as to costs of litigation within aforesaid period failing which the said amount shall carry interest @ 10%p.a. for the default period.
