PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service and unfair trade practice against the Opposite Party as the Opposite Party illegally and unlawfully disconnected the telephone services of the Complainant, though the Complainant was regularly paying bills of the Opposite Party.
2) The facts of this compliant as stated by the Complainant are that the Complainant is a partnership firm and Opposite Party is providing telecommunication services to its customers. The Complainant is the customer of the Opposite Party. Opposite Party has provided Telephone No.56331368 to the Complainant under Tariff Plan – MH-WL C599 (Basic) having account No.500083221 since Aug/Sep.,2001. Complainant was paying all the charges regularly to the Opposite Party in respect of the above telephone connection as per the bills issued by the Opposite Party. However, in the month of Dec., 2004, all of a sudden, the outgoing calls were disconnected by the Opposite Party. On enquiring it was informed by the Opposite Party that the Complainant had not paid a bill amount of Rs.1,106/- for the month of Aug/Sep/2004. Therefore, the Complainant put on record that the Opposite Party had illegally and unlawfully disconnected the outgoing calls of the Complainant vide its letter dtd.15/12/04. It was shown to the representative of the Opposite Party that a cheque of Rs.1,106/- was cleared and Complainant’s bank account was debited for the same. The Complainant requested the Opposite Party to restore the outgoing calls facility immediately. Again a letter dtd.18/12/04 was sent to the Opposite Party confirming the above facts. Reminders were sent to Opposite Party vide letter dtd.21/12/04, 31/12/04 and 25/01/05 and Opposite Party was requested to restore the outgoing calls facility but in vain.
3) Then the Complainant received Opposite Party’s bill dtd.16/02/05 for a period 15/01/05 to 14/02/05 wherein the Opposite Party showed outstanding balance amount of Rs.1,106/-. Again on 15/03/05 the Opposite Party disconnected the outgoing calls which were restored for temporary period (Here the Complainant did not mention as to when the disconnected facility was restored).
4) The Complainant has further asserted that due to the deficiency in service, the Complainant suffered mental agony and loss in the business. It’s reputation was affected and hence, the Complainant has claimed damages of Rs.75,000/-.
5) Thereafter, the Opposite Party charged Rs.100/- for restoration of the telephone service which was illegally discontinued (Here also the Complainant is silent about the time when the Opposite Party charged this amount of Rs.100/-).
In the last week of June, 2005, the Opposite Party again stopped the telephone service of the Complainant. By its letter dtd.21/06/05, the Complainant requested the Opposite Party to reconnect the telephone service but to no purpose.
6) Finally the Complainant has prayed for the compensation of Rs.1,25,000/- towards mental agony and Rs.10,000/- towards the cost of the complaint. The Complainant has also prayed that the Opposite Party be directed to restore the telephone line.
7) The Complainant has attached the xerox copies of the following documents in support of his complaint –
Letter dtd.15/12/04 to Opposite Party, Statement of account, Letter dtd.18/12/04, Letter dtd.21/12/04, Letter dtd.31/12/04, Letter dtd.25/01/05, Letter dtd.16/03/05, Letter dtd.21/06/05, Letter dtd.25/06/05.
8) The complaint was admitted and a notice was served on the Opposite Party. The Opposite Party appeared through its Ld.Advocate and filed its written statement wherein it is specifically stated that the Complainant in its complaint vide para no.11, has alleged that the Opposite Party is carrying on business in the jurisdiction of this Forum, but actually the Opposite Party’s office is at Worli which is situated in the jurisdiction of Central Mumbai District Consumer Dispute Redressal Forum and as such, this Forum does not have the territorial jurisdiction to entertain this complaint.
9) It is further submitted by the Opposite Party that as per the contention of the Complainant only the Complainant is a partnership firm carrying on commercial activity. As per para 6 of the complaint, the Complainant has suffered losses in its business and its reputation is affected on account of alleged deficiency in service on the part of Opposite Party. From this averment it is clear that the Complainant is a commercial establishment and has engaged services of the Opposite Party for commercial purpose. Therefore, in view of the definition of the term ‘consumer’ as per Sec.(2(1)(d)(ii) of the Consumer Protection Act, the Complainant is not a Consumer and the complaint deserves to be dismissed on this count alone.
10) The Opposite Party has further submitted that the claim of Rs.1,35,000/- (including cost), is exaggerated, without any basis and without any justification, whatsoever. The claim of Rs.1,35,000/- is not based on the recognized principles of law governing quantification.
11) It is further added by the Opposite Party that due to inadvertence and bonafide mistake, the Opposite Party could not reply to the complaints of the Complainant. The Opposite Party has alleged that the Complainant has not made entire payment towards the monthly bills issued by the Opposite Party. It is stated by the Opposite Party that as per the bill for the month of June, 2005, dtd.15/06/05 the total outstanding amount was of Rs.2,392/-, but the Complainant had paid only Rs.1,286/- and not paid Rs.1,106/-. Again the Opposite Party states that the bill amount of June, 2005 was only Rs.942.87. This seems to be not correct. Even the Opposite Party has not submitted the bills in this respect. Therefore, these contentions of Opposite Party are not correct statement. Again the Opposite Party has stated that the Complainant has paid only Rs.743/- out of total outgoing of Rs.2,049/-. In absence of any document in this respect the submission of the Opposite Party is in the air only and not acceptable.
12) The Opposite Party has admitted that the Complainant is a subscriber to telephone No.331368 under tariff MH-WL (599) plan account No.500083221, but the Complainant has not made entire payment towards the bill issued by it. It was also admitted by the Opposite Party that due to lack of communications between their account department and billing department, the bill of Dec. 2004, but the mistake was rectified. However, the Opposite Party has failed to give the details of this mistake.
13) Finally the Opposite Party has submitted that the complaint deserves to be dismissed with cost.
14) In this case this Forum has already passed an interim relief on 09/09/05 in favour of the Complainant vide Roznama dtd.09/09/05 directing the Opposite Party to restore the telephone connection immediately.
15) The complainant has also filed affidavit of evidence in which the facts mentioned in the complaint are reiterated and the points raised in written statement are denied by the Complainant. The Opposite Party has filed an affidavit of evidence in support of its written version. The Complainant remained absent at the time of oral argument. We heard the Ld.Advocate for the Opposite Party and perused all the documents filed by both the parties and our findings are as follows.
16) The Complainant is a partnership firm dealing in the business and availed the telephone services of the Opposite Party since August, 2001. The services were availed of at the business place of the Complainant situated in the jurisdiction of this Forum. The consumer dispute arose in December, 2004 when the Opposite Party allegedly disconnected the telephone connection of the Complainant.
17) From the averments of the Complainant in its complaint it is seen that the Complainant is a partnership firm and not an individual. The Complainant is engaged in business activities/commercial activities. The services of the Opposite Party are availed of for the commercial purpose. The amendment in the Consumer Protection Act, Sec.2(1)(d)(ii) came in force since 15/03/2003, wherein the person who avails the services for commercial purpose is excluded from the term Consumer as defined in Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986. Therefore, in our candid view the Complainant M/s. Kanchanlal Vadilal & Company is not a Consumer within the meaning of term consumer defined u/s.2(1)(d)(ii) of the Consumer Protection Act, 1986 and hence, this Forum does not have the jurisdiction to entertain this complaint, and hence, we pass the order as follows -
O R D E R
i.Complaint No.147/2005 is hereby dismissed as the Complainant in this complaint is not a consumer as per
Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.
ii.There is no order as to cost.
iii. Certified copies of this order be furnished to the parties free of cost.
