Order-28.

Date-15/12/2015.

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that OP1 is a registered company and is associated with Tele Communication Service under the brand TATA DOCOMO whereas OP2 is authorized Channel Partner of OP1 and it deals with providing Tele Net Work connection to the intending consumer of OP1.

          On 17-03-2012 complainant got a telephone from Tata Tele Services and was requested to purchase Tata Docomo 3G Photon Connection but complainant initially refused to avail the services but on earnest request and after long persuasion the complainant agreed to avail the service of Tata Docomo and it was stated by Mr. Sumit Sekhri, employee of Tata Tele Services that total purchase amount for Tata Docomo 3G Photon connection would be Rs.2,000/- but if the complainant agree to have the same on that particular date, he has to pay only Rs.1,800/- instead of Rs.2,000/- Mr. Sekhri further told that the new connection would be rented  at the rate ofRs.500/- per month with ultimate download facility and on the particular date Mr. Sekhri sent one representative namely Mr. Pranesh Khan to collect the money from the complainant and to hand over new 3G connection (Tata Photon Max) being No.9230094852 to the complainant and after receiving Rs.1,800/- Mr. Khan issued a money receipt to the complainant.

          Thereafter on 18/19-03-2012 complainant received a welcome message through SMS in his mobile from Tata Docomo and also got a welcome call from the said Tata Docomo wherefrom he came to know that he has been provided a Plan of “New Photon Max 1.5. GB  at the rate of750 Plan monthly rental and complainant became surprised to know that the 3G connection plan given to the complainant was not the same as offered by Mr. Sumit Sekhri over phone.  So, complainant immediately contacted Mr. Sekhri over phone and told him what he heard from Tata Docomo Services regarding monthly Plan and requested him to confirm whether the plan of Rs.500/- per month with unlimited download usage as offered by him over phone has been provided or not and Mr. Sekhri assured him to activate the Promised Plan but he did not turn up till 20-03-2012.   Thereafter, complainant sent a mail to Mr. Sekhri and Tata Docomo on 20-03-2012 and requested them to comply with whatever they told at the time of availing the service.

          On 21-03-2012 Mr. Sekhri replied to that mail stating that on the next day they would meet with the complainant to resolve the issue, but no one from the OP1 and/or OP2 bothered to come to talk with the complainant and thereafter on 30-03-2012 complainant further sent a mail to Mr. Sekhri and Tata Docomo Care stating that if they do not confirm in writing the plan accepted by him is Rs.500/- with unlimited download usage as promised on 17-03-2012, the complainant would be compelled to take legal action but Mr. Sekhri replied to that mail on 31-03-2012 and stated that he is on leave for a weak and he would meet the complainant on next Monday but he did not come/talk to the complainant and finding no other alternative or response complainant on 14-04-2012 sent an email to Nodal Office of Tata Docomo, Kolkata and requested them to refund the money which he paid on 17-03-2012.  Thereafter, on 16-04-2012 complainant got a mail from Nodal Office wherein it was stated that the request/query has been forwarded to the Customer Care Department and they would respond on priority and on 16-04-2012 the Customer Care Department sent mail to the complainant asking to provide complete details of the concerned dealerand it was stated in that mail that the service connection is barred from 05-04-2012 due to high usage and the complainant was asked to pay interim payment of Rs.745/- to enjoy uninterrupted service.  But complainant on that date replied to that mail narrating the whole facts and attached the money receipt and other relevant papers and requested them to refund Rs.1,800/-.

          After four months complainant suddenly received a notice dated 09-08-2012 sent by Advocate Arun Goswami on behalf of OP1 wherein it has been alleged that the complainant is defaulted in making payment of Rs.3,111/ calculated upto 09-08-2012 and the complainant was asked to pay the same within 7 days otherwise the OP1 shall be constrained to file legal proceeding including criminal complaint against the complainant.

          Few days after mail on 23-08-2012 wherein it was stated that service request no.305824243 for Photon No.9230094852 is resolved.  After receiving the said notice and mail complainant awaited for a month for getting back his money or for any reply from OP1 but getting no response the complainant replied to that said notice dated 09-08-2012 through his Advocate stating the facts on 12-10-2012 inter alia stating the facts in details and requested to ask his client to refund Rs.1,800/- to the complainant and said reply was delivered on 13-10-2012 but no reply came either from the recipient or by the OP1.  Thereafter, complainant met with the OPs and they assured to do the needful but they did nothing and getting no response complainant submitted a letter to the Service Manager, Nodal Office, Kolkata requesting to take necessary step to refund the money but they are silent and practically OP unlawfully demanded Rs.3,111/- from the complainant and when the service has been barred from 05-04-2012 so in the above circumstances, complainant for the negligent, deficient manner of service and for unfair trade practice filed this complaint praying for redressal.

          On the other hand, OP initially challenged the maintainability of the complaint by filing a petition on 07-06-2014 and that was disposed of on 08-08-2014 and that petition for challenging the maintainability was rejected.  Thereafter, OP filed written statement and in the said written statement OP has submitted that OP or their any agent never assured the complainant that total purchase amount for Tata Docomo 3G Photon connection would be Rs.2,000/- and if complainant wants to purchase any particular date in that case payment would be Rs.1,800/- and at the same time rent of the connection Rs.500/- per month would never stated and no such document was produced by the complainant in this complaint.

          As a matter of fact the complainant signed tariff opting plan of “New Photon Max” which was/is a scheme on monthly rental of Rs.750/- per month with 1.5 GB free usage and there is or was no such scheme and story of offering him and subscribing scheme of monthly rental of Rs.500 s nothing but imaginary. 

          Fact remains the connection was deactivated with effect from 09-08-2012 for non-payment of dues and all other allegations are denied and practically OP has submitted that the entire allegation is false and fabricated.

Decision with Reasons

On proper evaluation of the complaint, written version and also considering the application form filed by the Pantha Milan Kundu for connection of Photon Max as filed by the OP it is clear that complainant filed application for a Photon Max and as per usage based plan it is found that there is no scheme for monthly payment of Rs.500/- against free unlimited usage of the same but complainant prayed for scheme for monthly rental Rs.750/- free usage 1.5 GB per month, additional usage rate from 1.5 G.B to 5 G.B.  at the rate of50 p/MB, additional usage rate beyond 5 GB free unlimited at 2\32 Kbps and that form was duly signed by the complainant and complainant submitted his PAN Card and that copy of the PAN Card along with original application including all document was submitted by the OPs wherefrom it is found that complainant has never adopted any plan for Rs.500/- which is unknown to the OP and after considering the application form including Tariff Enrolment Form it is clear that Pantha Milan Kundu made declaration and he filed application for giving connection in respect of Photon Max 1.5 GB  at the rate ofRs.750/- cover plan not for Rs.500/- per month and in fact, there is no such plan when that is the fact then it is clear that complainant’s entire allegation is that he purchased the plan of Rs.500 per month with unlimited download usage and in support of that complainant has failed to produce any document before this Forum and in reality there is no such Plan and as per complainant no such application was submitted to the OPs.  It is clear that complainant opted for the Photon Max 1.5 GB  at the rate ofRs.750/- cover plan.  So, under any circumstances, complainant cannot go beyond the contract when complainant purchased it knowing fully well about the plan and signed the application form duly filled in and thereafter complainant cannot deny that fact by any means whatsoever.  In view of the above facts and circumstances, we are convinced to hold that complainant has miserably failed to prove that OP sold any plan of Rs.500/- per month with unlimited download usage to the complainant.

But it is fact as it is admitted by the OP that the said connection was deactivated with effect from 09-08-2012 and we have come to learn that line has been allotted to some other person when that is the fact then up to 09-08-2012 OP is entitled to get back the outstanding dues but after that no charge can be assessed over the same and calculation as made by the OP after 09-08-2012 is completely uncalled for, at best OP can claim the usage charge up to 09-08-2012 not after that but without adopting the simple procedure OP charged penalty, damages etc. over the same but it is completely uncalled for, illegal and under any circumstances, OP cannot charge any interest etc. when that is deactivated with effect from 09-08-2012 and that line was allotted to some other person which is admitted by the OP.  In the above circumstances, OP can issue a bill for the period up to 09-08-2012 and over that outstanding amount no penalty or damages or etc. can be charged by the OP and OP shall have to send a bill to the complainant and when the entire connection has been allotted to some other person and from 09-08-2012 the line shall be treated as a cancelled and complainant’s liability is fixed to pay the amount which has been assessed up to 09-08-2012 and to that effect complainant shall have to pay the amount.

In the result, the case succeeds in part.

Hence,

Ordered

That the case be and the same is allowed in part on contest against the OPs with a cost of Rs.2,000/-.

          OP shall have to send a bill in respect of the dues up to 09-08-2012 without charging any further penalty, damages etc. over the said amount and if it is sent to the complainant he shall have to pay it treating the entire outstanding as finally settled.

          If OP does not send any bill within one month from the date of this order in that case complainant shall not have to pay any amount even if it is found due and in that case complainant shall be released from any payment of outstanding dues upto 09-08-2012.

Even if it is found that OP is reluctant to comply the order in that case penal action u/s.25 read with Section 27 of the C.P. Act shall be started against them for which further penalty and fine shall be imposed.