DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

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Sh. Amarjit Singh son of Late Sh. Gulab Singh, resident of House No. 3034, Sector 19, Chandigarh.

                                                 ---Complainant.

V E R S U S

[1]   M/s Tata Indicom, SCO No. 232-234, Sector 34-C, Chandigarh.

[2]   M/s Tata Tele Services Limited, C-125, Phase-VIII, Industrial Focal Point, Mohali.

[3]   M/s Tata Teleservices Limited, Jeevan Bharti Tower-I, 10^th Floor, 124 Cannaught Circus, New Delhi.

---- Opposite Parties

BEFORE:          SH. LAKHMAN SHARMA               PRESIDENT

MRS.MADHU MUTNEJA             MEMBER

                    SH.JASWINDER SINGH SIDHU          MEMBER

Argued By:  Sh. Jagtar Kureel, Advocate for the Complainant.

                                Sh. Rajesh Sood, Advocate for Opposite Parties.

PER JASWINDER SINGH SIDHU, MEMBER

1]           Complainant has filed the present complaint against the Opposite Parties, on the ground that the Complainant is a bonafide consumer of the Opposite Parties as he was already using its landline telephone bearing no. 0172-6573034 at his residence. The Opposite Parties introduced a scheme through which they were giving a free mobile sim card to the persons already having their landline connections. An agent of the Opposite Parties visited the residence of the Complainant and allured him to opt for the sim card facility. The Complainant having agreed to the promise made by the agent opted for the same. The Complainant completed all the formalities and also paid Rs.100/- for the issuance of the sim card. On being inquired about the money the agent of the Opposite Parties claimed the same to be a security deposit, which was refundable if the sim card is returned to the company. Having promised to delivery the sim card within a weeks’ time the agent of the Opposite Parties left.

              The Complainant waited for a long period but neither the agent nor the Opposite Parties made any connect with the Complainant. Aggrieved of the act of the agent as well as the Opposite Parties Complainant immediately reported the matter with the customer care & demanded the same to be looked into at the earliest. Though the official of the company promised to get in touch with the Complainant at the earliest but nothing happened thereafter. The Complainant again made a representation to the customer care of the Opposite Parties who promised to do the needful soon. On having contacted the Opposite Party for the third time the customer care executive disclosed that the company is regularly issuing bills to the Complainant and an amount of Rs.700/- is due towards him.

              The Complainant visited the office of Opposite Party No.1 and met one Ms. Sunita Malik and explained the whole matter about the non delivery of the sim card to the Complainant. Ms. Sunita Malik having admitted the fact claimed that it was due to the ignorance but assured that the Complainant will not face this problem again. The said official of the Opposite Parties also checked the details of calls made from the Sim card in question, which clearly showed that not even a single call was ever made from the sim card. The Complainant was advised to deposit the amount which was generated due to some mistake and assured that the same would be adjusted against his landline account. The issuance of sim card is promised within 24 hrs thereafter. The Complainant claims that in the month of March, 2011 and April, 2011, another bills of Rs.650/- and Rs.715/- respectively were raised. The Complainant on both these occasions again took the matter with the Opposite Party No.1 and once again met Ms. Sunita Malik who asked the Complainant to pay this amount too. The copies of the bills are  Annexure P-1 and P-2.

              Aggrieved of this repeated act of the Opposite Parties Complainant issued a notice dated 12.4.2011 the postal receipt as well as acknowledgment of the same are attached at Annexure P-3 to P-5. The Complainant has also mentioned that the judgment titled General Manager Telecom Vs. M. Krishanan & Anr., 2009(4) RCR Civil 8 is not applicable in the present case as the grievance of the Complainant is not covered under Section 7-B of the Indian Telegraph Act. 

              The Complainant has also disclosed in para 15 of his complaint that earlier Complaint was filed before the DCDRF-I, U.T. Chandigarh but due to some technical errors in the complaint, the Complainant opted to withdraw the same. Copy of the order of the Hon’ble Forum dated 10.5.11 is at Annexure P-6.

              The complainant claims that having tortured him for about six months and having admitted their fault the opposite parties waived off Rs.1261/- outstanding against the Complainant but still failed to issue any sim card till date for which Rs.100/- was received as a security amount by the agent.  Complainant claims that this episode had caused him great mental agony and harassment and at the same time he was forced to deposit Rs.1300/- illegally raised against the Complainant. Thus alleging a gross deficiency in service and unfair trade practice on the part of the Opposite Parties in not issuing the sim card after having charged Rs.100/- and raising a bill of Rs.1300/- that too when the Complainant has not availed any service for the same prays for the following relief: -        

[a] Refund of Rs.100/- charged against security, refund of Rs.1300/- deposited by the Complainant against the bill of unissued sim card.

[b] Rs.1,00,000/- on account of harassment, mental & physical agony and compensation.

[c] Rs.25,000/- as cost of litigation along with interest @18% per annum.  

2]           Opposite Parties have filed their reply/version contesting the claim of the Complainant and has taken preliminary objections to the effect that the present complaint does not deserve any merit as the same squarely falls in the ratio of the judgment of the Hon’ble Supreme Court in the matter titled General Manager Telecom Vs. M. Krishanan & Anr., Civil Appeal No. 7687 of 2004, decided on September 1, 2009, wherein it is held that all services relating to telephone are subject to telegraph rules. As a special remedy is already provided in Section 7-B of the Indian Telegraph Act, the remedy under Consumer Protection Act, 1986 is by implication barred.

              The Opposite Parties have also mentioned that the Complainant has intentionally not disclosed material facts with regard to the dispute as it was required that the Complainant himself was to collect the sim card from their office at sector 34 Chandigarh. As the number assigned to the Complainant was activated and an effort was made by the executive of the company to deliver the sim card at the residence of the Complainant but as nobody was available consequently the card remained with the executive of the company.  Due to the activation of the connection the regular bills were raised in the name of the Complainant, which is due to the automatic billing system and no human fault is attributed to the same. It is further mentioned that when a notice was received at their end, an immediate effort was made and all the amounts were adjusted in the account of the Complainant along with Rs.100/- collected against security as well as an extra amount of Rs.500/- were waived off as a good will gesture towards the Complainant. The said connection was immediately suspended and thereafter permanently disconnected. Thus, having done the needful at the very first step of having been informed the Opposite Parties prays no deficiency in service on its part as well as no unfair trade practice against the Complainant.

              On merits, Opposite Parties have filed their para wise reply to all the averments of the present complaint denying the contents of para 1 to 5, to the extent of the same being part of official record however in reply to para 6 it is made clear that when the executive of the company visited the Complainant’s place to deliver the sim card in the month of November, 2010, the same could not be delivered as none was available at the house of the Complainant. The executive of the company left a message with a person at Complainant’s residence asking him to collect the sim card from the company office at Sector 34, Chandigarh. The Complainant never turned up for collection but however as the sim card was already activated; the fixed charges started accruing against the new connection. All this while the activated sim card remained with the executive.  The Opposite Parties have denied the visits of the Complainant at customer care help line as he has failed to mention the Complaint no. through which he had registered his grievance.

              Answers to para no. 8 to 10 are denied for want of knowledge.  In reply to para no. 11 of the complaint, it is admitted that fixed month charges plus applicable taxes for Del NO. 9216573034 were reflected in the bills since 9.11.2010 the date when the sim card was activated. The Opposite Parties claimed surprise to the allegations of the Complainant not having noticed such charges for a period of three months whereas it is claimed that the Complainant voluntarily paid the bills on his own account, as and when they were raised.

              The Opposite Parties further claims that the amount deposited against the different bills were not against the said sim card in dispute but as well as the landline connection which already existed at the premises of the Complainant. The bifurcation of the said accounts is given in detail wherein it is shown that an amount of Rs.164.36P attributed to add on connection bearing no. 9216573034 in all the bills that the Complainant has claimed to have paid off.

              The Opposite Parties admits to the fact that on the receipt of letter dated 12.4.2011 from the daughter/ representative of the Complainant the answering Opposite Parties had suspended the service of Del. No. 9216573034 and had credited back a sum of Rs.664/- charged against the said account. These adjustments are reflected in the bill annexed A-3. The Opposite Parties claims to have responded to the notice sent on behalf of the Complainant by writing two letters dated 28.4.2011, and 25.3.2011 which are at annexure A-1 and A-2 respectively. The Opposite Parties claims that at no point of time they had admitted to any fault or guilt on their part but all the corrective actions were undertaken by the answering Opposite Parties at the earliest. The Opposite Parties claim that as the said issue stands resolved before the filing of the present complaint, the complaint perhaps finds this to be a golden opportunity by raking this issue once again.

              The Opposite Parties have further stated that the Complainant is alleged to have wasted the precious time of the Forum as well as tried to harass the Opposite Parties by entering into litigation on a dead issue. Finally, the Opposite Parties pray for the dismissal of the present complaint on the above mentioned facts. 

3]           Parties led their respective evidences.

4]           Having gone through the entire complaint, version of the Opposite Parties, the evidence of the parties and with the able assistance of the ld. Counsel for the parties, we have come to the following conclusions.

5]           It is important to take note of the notice served by the daughter of the Complainant to the Opposite Parties No. 2 & 3 which is annexed at Annexure P-3 wherein the issue on which this entire complaint is based is raised for the 1^st time with the Opposite Parties. In response to the said notice which is dated 12.4.2011 the Opposite Parties claims to have replied through its two commutations dated 28.4.2011 and 23.5.2011 (Annexure A-1 & A-2) through which the entire issue is dealt in its totality and the Complainant is given the benefit of Rs.500/- over and above the money paid by the Complainant in excess of his landline bill which was approximately to the tune of Rs.664/-.  Even Rs.100/- received on account of issuance of a sim card too was adjusted. We feel that the Opposite Parties had actually acted within days of having been sounded about the fault of generation of bills for which the services were still not existing, so we feel the grievance of the Complainant were very much addressed and nothing more was left to be done by the Opposite Parties.

6]           It is also important to take notice of the fact that the Complainant had also filed a complaint prior to this, which was listed before the DCDRF-1 U.T. Chandigarh and was withdrawn by the Complainant on his own free will. A copy of the order of the dismissal of the complaint is dated 10.5.2011 and the Consumer Complaint is numbered as 235 of 2011.  A copy of the same is annexed at Annexure P-6. We have gone through the order of the Hon’ble Forum and it is evident that while withdrawing the present complaint the Complainant did not exercise his option to file the same afresh after making the necessary corrections, as claimed in para 15 of his complaint. In these circumstances, the present complaint is barred by the principle of estoppel under Rule 10 CPC. Hence, we do not find any merit to go on this issue any further and dismiss the present complaint on these two scores alone. The parties are left to bear their own costs.  

7]           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

17^th February, 2012.                                                                   

Sd/-

 (LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER