RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No.1195 of 2007

Idea Mobile Communications Ltd., A company

Incorporated under the Companies Act, 1956 having

Its Registered Office at A-30, Mohan Cooperative

Industrial Estate, Mathura Road, New Delhi-110044

.                                                                        ...Appellant.

Versus

1- Sudhir Yadav s/o Shri B.S. Yadav, aged

    about 50 years, R/o 1/33, Avas Vikas Colony,

    Civil Line, Tehsil, Sadar, District, Rampur (U.P.)

2- Escotel Mobile Communications Ltd.,

    Civil Line, Tehsil Sadar, District, Rampur (U.P.)

    through In-charge.                                ….Respondents.

Present:-

1- Hon’ble Sri Vijai Varma, Presiding Member.

2- Hon’ble Sri Sanjai Kumar, Member.

Shri S.P. Pandey for the appellant.

Ms. Neelam Yadav for the respondent.

Date 3.11.2017   

JUDGMENT

(Delivered by Sri Vijai Varma,  Member)

This appeal has been filed against the judgment and order dated 7.5.2007, passed by the District Forum, Rampur in complaint case no.299 of 1998. 

The facts leading to this appeal, in short, are that the respondent/complainant had filed a complaint case in the District Forum, Rampur on the ground that on 9.11.1996, when he was sitting in his house then the authorized dealer of Escotel Mobile Communications came to him and asked him to take mobile connection to be provided by the Escotel Mobile Communications land hence, he paid the registration amount of Rs.2,100.00 to the dealer through

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cheque but despite contacting many a times the connections was not provided hence, the complainant asked the dealer and the personnel of Escotel Mobile Communications to refund the amount but they did not do anything, hence the complaint was filed for refund as well as compensation etc. The OP Idea Mobile Communications Ltd. who had stepped into the shoes of Escotel Mobile Communication after purchasing it, filed their WS submitting therein that they did not appoint any authorized dealer in Rampur nor any amount was received by them from the complainant. The complainant has also not provided any receipt or evidence for depositing the amount. Besides, no complaint was made to them on the basis of alleged deposit of amount by the complainant. Since, the complainant has not paid them anything hence, there is no question of deficiency in service on the part of the OPs. Hence, the complaint deserves to be dismissed. After hearing the parties, the ld. Forum has passed the impugned order on 7.5.2005 as under:-

"With severe castigation of OP -1, against it, complaint is partly allowed with cost Rs.2,000.00 and direction to it that within one month today, to complainant it shall pay damages of Rs.50,000.00 & refund Rs.2,100.00 alongwith 12% per annum interest from 9.11.1996 till payment, fiasco in which, shall swell the rate of interest to 18% per annum."

Feeling aggrieved with the impugned order that the appellant/OP has filed this appeal mainly on the grounds that the complainant was not a consumer as he had not

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subscribed to the mobile connection and that there was no consumer dispute as defined under section 2(e) of the Consumer Protection Act, 1986. The complainant had not filed any evidence to prove that the alleged amount of Rs.2,100.00 was ever deposited in the name of the Company Escotel Mobiles Communications. The appellant has no concerned with the Escotel Mobile Center i.e. the Firm or person to whom the cheque in question is said to have been issued by the complainant. The complainant had not made the alleged authorized representative of the appellant/Company, to whom he is said to have given the cheque of Rs.2,100.00 for the mobile connection, as a party. The complainant has not provided any receipt or subscription form of the then Escotel Mobile Communications Ltd. wherein it was specifically provided that the cheque had to be issued in the name of Escotel Mobile Communications Ltd. and not in any other name. The Escotel Mobile Communications can not be saddled with the responsibility or liability of Escotel Mobile Center with which they had no concerned. Ld. Forum has passed the impugned order on assumptions and presumptions and on wrong facts of the case, therefore, the impugned order deserves to the set aside.

Heard counsel for the parties and perused the entire records.

In this case, it is to be seen as to whether the appellant/OP were paid Rs. 2,100.00  by the respondent/complainant for providing him the mobile connection etc. but they did not do so hence, they committed deficiency in service or not.

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          In this case, the complainant had allegedly paid Rs.2,100.0 to the appellant/OP (previously known as Escotel Mobile Communications, now taken over by the appellant idea Mobiles Communications Ltd.). It is argued by the ld. counsel for the appellant that no amount was paid to them and the amount allegedly paid to them was infact paid to the Escotel Mobile Center and not to the then Escotel Mobile Communications. On the other hand, it is argued by the ld. counsel for the respondent that the authorized dealer of Escotel Mobile Communications had taken Rs.2,100.00 from the complainant for providing the mobile connection but did not do so. In support of his argument, a copy of the statement from the bank concerned has been filed to show that the amount of Rs.2,100.00, through cheque was paid to Escotel Mobile Center. Now on the basis of the aforesaid documents, it is argued that this was the payment made to the authorized dealer to the appellant/OP, the then Escotel Mobile Communications but here it is argued by the ld. counsel for the appellant that this payment was made to the Escotel Mobile Center and not to the Escotel Mobile Communications, which has got no concerned with the appellant or the then Escotel Mobile Communications. Since the payment was made to the Escotel Mobile Center therefore, it is clear that the cheque was also issued in the name of Escotel Mobile Center hence, it can not be said to be a payment made to the Escotel Mobile Communications. The onus of proving the payment made to Escotel Mobile Center was infact a payment made to

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the Escotel Mobile Communications lies on the respondent/ complainant and this becomes all the more important in view of the clear cut assertion of the appellant, the then Escotel Mobile Communications that they had neither appointed any dealer in Rampur nor Escotel Mobile Center had anything to do with them but the respondent/complainant has not been able to discharge this onus that the payment made to the Escotel Mobile Center was infact the payment to the Escotel Mobile Communications. It is interesting to note that Escotel Mobile Center has not been made a party nor the authorized dealer, person to whom the cheque was issued was made a party.

          Under the circumstances of the case, a payment made to the Escotel Mobile Center can not be deemed to be a payment made to the Escotel Mobile Communications. It is also not clear from any other records provided by the complainant that the payment made even to the Escotel Mobile Center was infact for the purpose of getting a mobile connection of the Escotel Mobile Communications such as the form and subscription agreement etc. or any receipt that the payment was with regard to the mobile connection of Escotel Mobile Communications. It is true that the complainant had made payment of Rs.2,100.00 to the Escotel Mobile Center but it is only the Escotel Mobile Center or the person to whom the cheque was issued could have clarified the issue as to whether the payment was for the purpose of getting a mobile connection of the Escotel

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Mobile Communications but Escotel Mobile Center has not been made a party, therefore, the fact that the payment was for the purpose of mobile connection could not be conclusively proved. Therefore, we find substance in the arguments advanced by the ld. counsel for the appellant that there was no consideration paid to the appellant/OP hence, the complainant has had no cause of action against the appellant/OP. Therefore, the appellant/OP could not be held guilty of deficiency in service. Hence, the conclusion drawn in this regard by the Forum below is incorrect and therefore, can not be sustained. The impugned order deserves to be set aside and the appeal allowed.              

ORDER

          The appeal is allowed. The judgment and order dated 7.5.2007, passed by the District Forum, Rampur in complaint case no.299 of 1998 is set aside and the complaint is dismissed.

No order as to costs. Certified copy of the judgment be provided to the parties in accordance with rules.

         (Vijai Varma)                         (Sanjai Kumar)

    Presiding Member                             Member

Jafri PA-II

Court No.3