West Bengal

Paschim Midnapore

CC/162/2012

Sri Debendra Dandapat - Complainant(s)

Versus

The Branch Manager, Vodafone Store, Midnapore Office - Opp.Party(s)

21 Feb 2014

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

 Complaint case No.162/2012                                                        Date of disposal: 21/02/2014                               

 BEFORE : THE HON’BLE PRESIDENT :  Mr. Sujit Kumar Das.

                                                      MEMBER :  xxxxxxxxxxxxx

                                                      MEMBER :  Mr. Kapot Chattopadhyay.

    For the Complainant/Petitioner/Plaintiff : Mr. A. Karmakar, Advocate.

    For the Defendant/O.P.S.                           : Mr. B. Chatterjee & Mr. S. D. Banerjee, Advocate.

          

Sri Debendra Dandapat, S/o-Subal Dandapat, Vill-Balipota, P.O.-Jagul, P.S.-Kotwali, Dist-Paschim Medinipur… …………Complainant.

                                                              Vs.

1. The Branch Manager, Vodafone Store, Midnapore Office, Jack Paul Building, Nannur Chawk, P.O.-Midnapore, P.S.-Kotwali, Dist-Paschim Medinipur
2.  The Manager, Vodafone South Limited, 08, Major Arterial Road, New Town, Rajarhat, Block-AF, DLF IT Park, 15^th Floor, Kolkata-700156.…………Ops.

 

                       Case of the complainant Sri Debendra Dandapat, in short, is that he is a regular consumer of the Op-Vodafone Company under prepaid “SIM CARD” by means of recharging its connection within the jurisdiction of this Forum.  The complainant runs a business and for communication purpose he uses the said Sim service through mobile connection No.9732959222.  On 13/08/12, the complainant accepted the OFFER by recharging Rs.97/- (Ninety seven) only in terms of the SMS made to him on 12/08/12 by the Op Company which runs as 1300 mins @ Rs.97/-, 1000mins local calls, 300 mins on other network  call korun puro 30 din matro Rs.97/- recharge e, shudhu apnar jonno.  Upon acceptance of the said offer, the complainant got confirmation through a massage on the same day i.e. 13/08/12 from the Op running as from Vodafone, you have been credited 1000 local vocafone mins and 300 local other mins valid for 30 days.  But the complainant did not avail of the offer for such misguiding confirmation made by the Op.  The complainant went to their office on 10/09/12 and received their reply that offer valid for only 1 day and if this offer you achieve in the minimum balance of this connection should be Rs.10/- and thereby the Op restricted the service-facility in the offer.  Further it is alleged by the complainant that prior to 10/09/12, he approached to the Op but they did not care of it.  Ultimately,

Contd………………P/2

 

                                                                                                        - ( 2 ) -

the complainant could not get proper scope for availing of the offer. Rather he sustained unlawful monitory loss due to deficiency of the service by adopting unfair method of deceptive practice with a view to promote their business for unlawful gain.  Thus, the complainant becomes a victim of unfair Trade Practice. With this allegation, the complainant comes before us and claims for compensation to the amount of  Rs.60,000/- (Sixty thousand) only and litigation cost of Rs.10,000/- (Ten thousand) only.

                   The Op-Vodafone contested the case by filing written objection and a separate application dated 18/03/13 wherein they have challenged that the petition of complaint is not maintainable in law for want of cause of action and proper pleadings.  In addition, this Forum has no jurisdiction to entertain the same.  Rather the complaint should be dismissed with direction to approach the arbitration or seek alternative remedy under the provisions of Indian Telegraph Act, 1885, Indian Wireless Telegraphy Act, 1993 and Telecom regulatory Authority of India Act, 1997.  It is further contended that the complainant is not a consumer because his Mobile connection was for commercial purpose.  It is denied the allegation on validity for one day or deficiency of service or unfair trade practice. 

                    Upon the case of both parties, the following issues are framed for the purpose of effective decision in the matter.

Issues:-

1. Whether the case is not maintainable in its present form?
2. Whether the case suffers from want of jurisdiction?
3. If the complainant has any cause of action for filing this case?
4. Whether the complainant is entitled to get relief as prayed for?
5. What other relief or reliefs the complainant is entitled to?

Decision with reasons

Issue Nos.1 to 5 :-

            All the issues are taken up together for discussion as those are interlinked each other for the purpose of arriving at a correct decision in the case.

             Ld. Advocate for the complainant made his argument that it is a clear case that the Op offered a benefit at Rs.97/- (Ninety seven) only with validity of 30 days in giving total 1300 mins.  But in place of 30 days, the Op closed the benefit by minimizing the validity of only one day which is clearly harassing and misguiding with false representation by adopting unfair method in such offer to him.  Thus, the complainant has sufficient cause of action for raising the prayer against the Op-Company.  Secondly, the complainant is a bona fide customer under the Consumer Protection Act and his grievance is to be considered by the said law.  So, the Forum has statutory jurisdiction

Contd………………P/3

 

                                                                                                        - ( 3 ) -

to maintain the case.  Thirdly, the offer at Rs.97/- (Ninety seven) only was scheduled for validity of 30 days according to the SMS made by the Op-Company in the mobile phone of the complainant as on 12/08/12 and  the said offer was received on the following day i.e. 13/08/12 confirming the offer accepted by the complainant.  In this connection, there is no denial by the Op-Company. Thus, ld. Advocate, in conclusion of his argument, claimed that this is a fit case wherein the Forum can safely pass the order of compensation and litigation cost as prayed for by the complainant.

                   Ld. Advocate for the Op-Company, on the other hand, very categorically pointed out that there is no place in this case where Consumer Protection Act is applicable, but the Telegraphic Act will follow.  Thus, the Forum is barred to entertain this complaint under the Consumer Protection Act.  Moreover, the relief prayed for has not properly been justified and properly pleaded by the complainant in his petition of complaint.  There was delay on the part of complainant, nor has any valid reason been assigned as to why the petition of complaint has been preferred at a very long delay from the date of alleged cause of action. Moreover, there is no evidence to show that the complaint suffered loss in any manner due to alleged service given by the Op.

                    As to the point of deficiency of service, this Forum has no jurisdiction and on that issue Ld. Advocate has referred to the information appearing in a letter dated 30/10/13 issued by the department of telecommunication, Kolkata in the matter of similar dispute between Arun Kumar Roy and M/s Bharti Airtel. In that case Arbitrator was appointed.

                    Ld. Advocate elaborately argued that in the light of Section 7B Indian Telegraph act, Hon’ble State Consumer Dispute Redressal Commission, West Bengal was pleased to have accepted the reason that the said act provides for arbitration of any dispute concerning any telegraph line appliance or apparatus between the telegraphic authority and the person for whose benefit the line appliance or apparatus has been provided.  Under the said provision Hon’ble State Commission came to the conclusion in giving direction to the complainant such complainant to have the dispute resolved through arbitration.  Ld. Advocate for the Op further pointed out the decision of Hon’ble Supreme Court in the case of Telecom Vs. M Krishnan and others in Civil Appeal No.7687/04 that any dispute regarding telecom line and appliance etc. between Telecom Authority and individual person should be determined by arbitration in the light of provisions of Section 7B of the Indian Telegraph Act.  In this context, Ld. Advocate suggested that the complainant has no scope to come before the Forum under the CP Act and thereby the claimed for dismissal of this petition of complaint.

                  We have carefully considered the case of both parties and their respective argument as a whole and it has come to us that there is decision of Hon’ble Supreme Court that Any dispute

Contd………………P/4

 

                                                                                                      - ( 4 ) -

between Telegraph Authority and individual person aggrieved shall be determined by means of arbitration. Alternatively it is also settled decision that The dispute regarding telegraph line appliance or apparatus between the parties shall come within the purview of arbitration proceeding.  But here in this case an offer of a particular facility and advantage made through SMS massage by the Op which has unfortunately not been materialized or availed of due to certain restrictive terms and conditions not before hand announced to the consumer at the first instance of such offer regarding the admissibility of the benefit and advantage that the complainant must have maintained minimum balance of Rs.10/- in his mobile.  From the massage it has come to us very clear that the said offer was aimed at only for this complainant which leads us to believe that the admissibility of this offer  stands differing from consumer to consumer while it per se exposes apparently no initial terms and conditions restricting the benefit to be enjoyed by him. To the incident of offer and acceptance, it is evident that the present dispute is based on the contractual relation explicitly constituted between the complainant and the Op.  Any dispute out of this relation is, in no way, governed by the stipulated subjective feature as in the Indian Telegraph Act.  This is not a case attracting telegraph line appliance or apparatus etc. as the Op endeavours to convince us.  There is no material evidence is forthcoming from the end of the Op showing that they are the statutory authority of the Central Government giving license to adopt such scheme to this consumer in order to promote their business. So, the decision reported in Telecom vs. M. Krishnan as argued by the Ld. Advocate for the Op does not attract this dispute.  We can easily come to the conclusion that the allegation arising out of the said offer and acceptance has a complete deprivation of the facility caused by the Op by means of adopting unfair method of deceptive practice in misleading representation through the SMS concerning offer to the complainant and presumably towards the mobile usurer in open market. Alluring the consumer by such deceptive practice without prior notification in the same SMS regarding the condition precedent necessarily curving the proposed facility with imposition of unwarranted terms and conditions like balance of Rs.10/- in the mobile which as a whole, encourages us to accept that there is explicit ground for cause of action in the present case brought against the Op.

                   Lastly, on the point of jurisdiction it is incumbent upon the Forum to determine whether the complainant is merited for securing the legal benefit of the Consumer Protection Act.  Since the case relates to the allegation governed by the said Act, the matter should lie to the Forum unless it’s jurisdiction has been taken away or barred otherwise expressly or by necessary implication under any other law, namely, Telegraphic Act etc. as proposed by the Ld. Advocate arguing for the Op herein this case.  It is abundantly clear that the rights and remedies provided by this Act are in

Contd………………P/5

 

- ( 5 ) -

addition to the existing ones.  The National Commission observed; Section 3 of the Consumer Protection Act lays down that the provisions of the said Act are in addition to, and not in derogation of, the provisions of any other law for the time being in force.  The Consumer Protection Act gives the consumer an additional remedy besides those which may be available under other existing laws.  Of course, the remedies are available to the consumers alone.  These rights and remedies cannot be blocked or denied.  Thus, we are rather inclined to hold that in the larger light of section 3, the remaining provisions of the Act provide additional rights, remedies, forums and executing processes for the consumer disputes. Irrespective of the arbitration clause.

                   Under the facts and circumstances as discussed hereinabove the complaint made by Sri Debendra Dandapat has raised the allegation which proves unfair trade practice adopted by the Op in order to promote their business for unlawful gain.  Thus, it is held and decided that the complainant has successfully proved his case for seeking relief as prayed for.

                   Thus, all the issues are disposed of in favour of the complainant.

                   As a result, the complainant should be allowed.

                   Hence

                              It is ordered

                                                  that the case  be and the same is allowed on contest without cost.

                   The Complainant do get a compensation of Rs.50,000/- (Fifty thousand) only and litigation cost of Rs.5,000/- (Five thousand) only payable by the Op-Company within thirty days failing which the complainant will be at liberty to proceed the case in accordance with the law in this behalf.              

 Dic. & Corrected by me.  

        

         President                                             Member                                                President

                                                                                                                              District Forum

                                                                                                                         Paschim Medinipur.