Present         (1)    Sri Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                     President

                    (2)     Sri Sheo Shankar Prasad Singh,

                              Member

Date of Order :- 08.07.2015

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite parties:-

1. To refund of deposit amount of Rs.4,500.00(Four thousand five hundred only) to the complainant.
2. To pay Rs. 2,500.00 (Two thousand five hundred only) for mental agony and harassment
3. To pay Rs. 2,500.00(Two thousand five hundred only) as compensation for deficiency in service.
4. To pay Rs. 5,000/- (Five thousand) as litigation cost.
5. To pay interest @ 18% p.a on the aforesaid total amount till its final payment.

2. Brief facts of the case which to the filing of complaint are as follows:-

1. The complainant is Assistant Regional Sales Manager (Bihar, Jharkhand & Orissa) of Canara HSBC and OBC Life Insurance and is posted at Patna. The complainant submitted a request letter before the Opposite parties for activation of international roaming facility on his Tata Indicom Connection bearing no. 9204752500. Then the Opposite parties asked the complainant to deposit Rs.4,500.00(Four thousand five hundred only) and on 31.07.09 the aforesaid amount has been deposited before  the Opposite parties by the complainant. The Opposite parties gave assurance to activate the international roaming services by the afternoon of the 1^st August 2009.
2. On the assurance of the Opposite parties, the complainant went abroad with his programme and landed at Hangkong on 3.08.09 but to his dismay and disbelief, the complainant found that his connection was not working and as a result he missed many important calls and precious official matter could not be handled due to latches on the part of the Opposite parties. In addition to above, during his stay in Hongkong, the complainant could not remain in touch with his family causing thereby mental agony and harassment to whole family including the complainant. The basic purpose of his going to Hongkong was also very much defeated.
3.  On  06.08.09 the complainant came back to Patna and inquire with the Opposite parties no.1 about “Why his international roaming facility was not activated even though he deposited the requisite charge for the same well on time. The Opposite party no.1 through his Deputy Manager, Customer Care, Jharkhand replied that the activation of international roaming was done on 06.08.09 as per their record and advised the complainant to be in touch with its Nodal Officer (Opposite party no.4) and made complaint that his grievance is not resolved in stipulated time.  Pursuance of such direction the complainant sent a mail to the Opposite parties and requested him to look into his complaint and take needful step at his own level against the Opposite parties.
4. On 19.08.09 the Opposite party no.4 contacted the complainant through telephonically and the complainant met with him personally on 21.08.09 and committed that he will look into the matter. Then he sincerely apologizes for the deficiency in the service and promised to take strong action against the person who are involved in this matter and also promised to refund the requisite charge to the complainant in two or three days.
5. The Opposite party no.4 despite his assurance did nothing and just slept over the matter. The complainant contacted the Opposite party no.4 several times and telephones as well as met him personally but he did not respond positively. Fed up with the situation the complainant wrote a letter dated 05.09.09 to Hub Manager of the Tata Indicom requesting him to refund the requisite money which was paid for providing international roaming. The very purpose of availing the said service was defeated by the Opposite parties for which requisite payment was already made.
6. The complainant sent mail to the Nodal Officer on 12.10.09 to know what was happening any why complainant was not getting refund of his security deposit. The Opposite party no.4 vide his mail dated 12.10.09 informed the complainant that refund of ILD deposit is in process with the Circle Finance and it will be refunded after fulfilling all the process and it will take another twenty five days for refunding ILD deposit.

3. The Opposite parties in their written statement has submitted the following facts:-

1. The Opposite parties deny and dispute each and every allegations contained in the instant complaint petition save and except what are matter of record.
2. The instant case is bad for mis-joinder and non-joinder of parties. The complainant impleaded the Opposite party no.2 and 3 in this case which is mis-joinder of parties as they have no personal liability in the matter and they are not been personally correspondence by the complainant and therefore their name may kindly be expunged from this proceeding and /or dismiss the complaint on the ground of mis-joinder of parties.
3. The complaint’s case is about refund of deposited amount and the same is not maintainable under the provision of the Consumer Protection Act. Refund of deposited amount is a money claim and only the Civil Court has jurisdiction to try and adjudicate the same. The complaint’s claim is commercial in nature. He obtained the International facility for his business trip which is commercial purpose and thereby service hired was for commercial purpose which is not maintainable and liable to be dismissed with cost.
4. The complainant did not furnish any money receipt to that effect and there is no such evidence submitted by the complainant to show that the Opposite parties gave assurance to activate the international roaming services by the afternoon of the 1^st August, 2009. The Opposite parties denied such contentions of the complainant and claiming to be a false statement. The complainant has further stated that “due to non-activation of his mobile phone he missed many important calls and precious official matter could not be handled”. From such statements of the complainant it is clear that the complainant’s purpose of international roaming services for commercial in nature which is barred as per section 2(1) 9d) (ii) of the Consumer Protection Act 1986 and therefore the complaint is not maintainable before this forum and therefore the complainant is not entitled for any order as compensation which has been claimed in this case by the  petitioner.
5. It is relevant to mention here that the complainant sent email to “Customer Care, Jharkhand” but the complainant due his ill motive did not implead the said Customer Care, Jharkhand as necessary party to the proceedings and therefore this complaint is liable to be dismissed on the ground of non-joinder of necessary parties. The complainant stated that he has emailed to Opposite party no.1 but no such documents submitted by the complainant to show that he has emailed to the Opposite party no.1 to agitate hi grievances. The Opposite party no.1 to 3 submit that they have no way related with the case as the transaction was made between the Opposite party no.4 and the complainant, not a single communication has been made with these Opposite parties and therefore their name is to be expunge from this proceedings. The Opposite party no.1 to 3 further submitted that there was no such communication by Tata Tele Services Ltd. and only the personal communication has been made by the Opposite party no.4 with the complainant and for which the Tata Tele Services Ltd. will not be held liable for the alleged acts if any. The complainant’s main complaint and dispute is about non-refund of deposited amount of Rs.4,500/-(Four thousand five hundred only) which is not maintainable under the provisions of the C.P. Act, 1986. The Opposite party further submits that an amount of Rs.4,500/-(Four thousand five hundred only) which was received as a refundable security deposit for the purpose of activation of International Roaming connection has already been refunded of some illegal gain the petition suppressed such fact and further claimed such refund from this forum (Annexure-A).
6. The Opposite parties further submit that after receiving such refundable security deposit the petitioner has no locus standi to file and instated this complaint case. The petitioner received such amount without any objection and on satisfaction of his demand therefore at this state he cannot claim further refund and compensation from this forum.  

Relevant facts of this case of both sides have been narrated in foregoing paragraphs. However at the cost of repudiation we think it proper to narrate certain fact of both sides in brief in order to record our findings.

With the case of the complainant that the Assistant Sales Business Manager ( Bihar, Jharkhand and Orissa ) of Canara, HSBC and Oriental Bank of Commerce Life Insurance and in posted in Patna. He requested the opposite parties to provide international roaming facilities to him by afternoon of 1^st Aug 2009 and for this complainant paid Rs. 4,500/- to opposite parties on 31^st July 2009. It is further stated that case of the complainant that he went to hongkong on 30^th Aug 2009 but spite of his all efforts the aforesaid roaming facilities on his mobile was not activated by opposite parties resulting in mental agony and harassment to him and his family which has also defeated his purpose of going to hongkong. On return from hongkong to Patna on 6^th Sep 2009 he took up this matter with opposite parties who realise there deficiency and as such tender apology for the aforesaid deficiency to the complainant. ( vide Annexure – 4 )

The aforesaid letter of opposite parties had been marked as annexure – 4. Several papers have been annexed by the complainant. The reference that which have been mentioned in forgoing paragraphs. Facts of both sides have been asserted.

Replying the aforesaid opposite party no. 1 has on behalf of the opposite parties. The written statement have been filed stating then in for rejoinder of the party and also of the complainant to hongkong was commercial trip and hence it is not maintainable in this forum.

We have carefully perused the relevant facts of either sides. It is needless to say that if a citizen of India in the foreign country with the hope activation of his roaming facilities by a mobile company and if such facilities is not activated then the plight of that person can easily imagine because he will not be in touch with his family, friends and other person and this fact may cause mental harassment and may even defeat the purpose of foreign trip.

From bare perusal Annexure – 4 it is crystal clear that opposite parties have realised there mistake of deficiency of service is not activating the aforesaid roaming facilities on mobile of complainant and hence they have rightly tendered apology.

Such apology is base worthy by opposite parties and shows the real intention.

However, Annexure – 4 conclusively proves the deficiency on part of the opposite parties and such cases cannot be ignored by us. On the technical ground roaming facilities may be used by person for being in touch with family member which is a human nature commercial adventure.

A petition dated 19.09.2013 filed on behalf of the opposite party no. 1 is also on the record of this case, in Para – 2 and 3 of which it is stated that the opposite parties has already returned their security deposit vide cheque no. 7902 dated 30.11.2009 of IDBI Bank to the complainant and the said cheque have been en - cashed by the banker on 12.01.2010. this fact is also mentioned in Para – 12 of the written statement filed by opposite parties. In fact and circumstances stated above we find and hold that not providing activation facilities to the complainant on mobile in foreign company i.e. hongkong. The opposite parties have committed deficiency in their service and as such they are liable to pay compensation and litigation to the complainant in accordance with the Consumer Protection Act, 1986.

As the opposite parties have already returned the security deposit of Rs. 4,500/- to the complainant hence we are not passing any orders in this regard. However we direct the opposite parties severally and jointly to pay 30,000/- for mental agony and harassment as well as compensation for deficiency in their service to the complainant within a period of two months from the date of this order failing which the amount will carry an amount @ 9% ( Nine ) per annum till its final payment. We further direct the aforesaid opposite parties to pay Rs. 5,000/- to the complainant as litigation costs within its aforesaid period of two months.

Accordingly, this case stands allowed to the extent indicated above.

Member                                                                                                                                      President,