DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No:811 of 2010] Date of Institution :21.12.2010 Date of Decision :03.05.2011 Lt. Col. (Retd.) Vipin Bakshi resident of House No.1618, Sector 7-C, Chandigarh. ---Complainant. V E R S U S The Branch Manager, Idea Cellular Ltd., C-105, Industrial Area, Phase-7, Mohali (Punjab) – 160055. ---Opposite Party. BEFORE: SHRI LAKSHMAN SHARMA PRESIDENT SHRI ASHOK RAJ BHANDARI MEMBER SMT. MADHU MUTNEJA MEMBER Argued By:Lt. Col. (Retd) Vipin Bakshi, complainant in person. Sh. Vishal Gupta, Advocate for the OP. PER LAKSHMAN SHARMA, PRESIDENT Lt. Col. (Retd.) Vipin Bakshi has filed the present complaint under Section 12 of Consumer Protection Act, 1986 (hereinafter to be referred as the Act) praying therein that the OP be directed: - (i) To pay a sum of Rs.2,270/- deducted @Rs.30/- Per Month for devotional songs unauthorisedly. (ii) To pay an amount of Rs.10,000/- as compensation for mental agony and harassment due to deficiency in service. (iii) To pay litigation expenses, the Court deem fit. 2. In brief, the case of the complainant is that he was being charged Rs.30/- per month for devotional songs service on his mobile No.9814479807 provided by the OP. As per the complainant, this facility of devotional songs was never subscribed by him at any stage. In this connection, he sent an e-mail dated 19.10.2010 to the OPs for not subscribing the said devotional songs service but to no avail. Despite his request, the complainant was again charged a sum of Rs.30/- for the said facility, upon which, he immediately rang up their customer care service followed by an e-mail. The complainant received an S.M.S (Short Message Service) on his mobile that the devotional songs service would be renewed on his mobile number on 15.11.2010 and in case, he intended to de-activate the service, he would have to send a message “DT DCT” to the OP, which was immediately done by him on the same day. This also did not bring any result and finally, the complainant sent a notice (Annexure ‘B’) to the OP on 20.11.2010 through registered post (Annexure ‘C’). According to the complainant, non deactivation of the devotional songs service by the OP despite his repeated requests amounts to deficiency in service. In these circumstances of the case, the complainant has filed the present complaint praying for the reliefs mentioned above. 3. In their joint written statement, the OPs have taken a specific preliminary objection as regards the maintainability of the present complaint in view of the judgement of Hon’ble Supreme Court of India in the case titled as General Manager, Telecom Vs. M. Krishanan and Anr., III (2009) CPJ 71 (SC). 4. On merits, it is pleaded that the service of devotional songs was activated from the ends of the complainant himself. As per the records of OPs, no request/email dated 19.10.2010 for deactivation was ever received from the side of the complainant. It is further pleaded that the complainant was sent a message on his phone number on his subscribing the devotional songs service. As regards the averment of renewal of services (devotional pack) on 15.11.2010, it is asserted that the number 155223 is a toll free number for the deactivation of all the premium services activated and message for the same was sent at the time of activation/renewal service. As per the OP, the complainant has not got the services deactivated so far, for which he is required to send a deactivation message, and as such, the same are still continuing on his number. OP has also denied the receipt of any legal notice from the complainant. According to OP, there is no deficiency on its part in rendering service to the complainant. So, the complaint deserves dismissal. 5. We have heard the complainant in person as well as the learned counsel for the OP and have gone through the record carefully. 6. The learned counsel for the OP has taken an objection as regards the maintainability of the complaint qua the OP in view of the law laid down by the Hon’ble Supreme Court in the case General Manager, Telecom Vs. M. Krishnan & Anr. (Supra) wherein it has been held as under: - “In our opinion, when there is a special remedy provided in Section 7-B of Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred.” 7. Similar view has been taken by the Hon’ble National Commission in the case titled as Prakash Verma Vs. Idea Cellular Ltd & Another, Revision Petition No.1703 decided on 21.5.2010 and the Hon’ble State Commission in Appeal bearing FA No.602 of 2009 titled Vikrant Saini Vs. Reliance Anil Dhiru Bhai Ambani Group decided on 1.3.2011, in the light of the ratio of the law laid down by the Hon’ble Apex Court in the case of General Manager, Telecom Vs. M. Krishnan & Anr. (Supra). The Hon’ble Punjab State Commission has also in the case Punjab Khapatkar Sangh (Retd.) Vs. Spice Communication Ltd., 2011 CTJ 574 (CP) (State Consumer Disputes Redressal Commission), observed as under: - “….The controversy that the judgment General Manager, Telecom V. M. Krishnan (supra) is applicable to the landline telephones and not to other cellular phones, also comes to an end and the law, now stands settled that the District Consumer Forum or the State Commission has no jurisdiction to entertain any complaint qua the mobile cellular telephones also.” 8. In our view, the ratio of cases cited above, is not applicable to the facts and circumstances of this case. In the present case, the case of the complainant is not that he has been charged excessively or the bill for use of mobile phone is in any way wrong. The case of the complainant is that he had not asked for providing devotional songs service but the said add on service has been imposed upon him without his consent and further he has been charged for that. It is also the case of the complainant that the said service has not been withdrawn by the OP despite his request/email dated 19.10.2010. In these circumstances, it is a case of deficiency in service of providing a service unnecessarily and which was not asked for by the complainant and also charging for the same from him. In fact, it also amounts to unfair trade practice on the part of OP. 9. In these circumstances, there is deficiency in service on the part of the OP and the complaint deserves to be allowed. So, the complaint is allowed and the OP is directed to discontinue the additional devotional songs service and refund a sum of Rs.2,270/- to the complainant, which were deducted by the OP for providing the said service without the consent of the complainant. In addition to this, OP is also directed to pay an amount of Rs.2,000/- as compensation for harassment and mental agony as well as litigation expenses. 10. This order be complied with by the OP within 30 days from the date of receipt of its certified copy, failing which OP shall be liable to pay Rs.4,270/- i.e. [Rs.2,270 + Rs.2,000] along with interest @18% per annum from the date of filing the present complaint i.e.21.12.2010 till the date of actual payment. 11. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced. 3rd May 2011. Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (ASHOK RAJ BHANDARI) MEMBER Sd/- (MADHU MUTNEJA) MEMBER Ad/-
| | MR. A.R BHANDARI, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MRS. MADHU MUTNEJA, MEMBER | | 
