BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC. 2 / 2004 MONDAY THE 14TH DAY OF FEBRUARY 2011. Dilip Kumar Mukherjee, S/o. Late K.C. Mukherjee, No.H-11, TNHB (New), Sipcot, Ranipet, Vellore District. … Complainant. - Vs – M/s. Bharti Cellular Limited (Bharti Enterprise,) By its Dealer, Bharti Centre, 1168, Avinashi Road, P.N. Palayam, Coimbatore 641 037. M/s. Mahalakshmi Cell City, By its Proprietor, No.17, M.F. Road, Navalpur, Ranipet, Vellore District. … Opposite parties. . . . . This petition coming on for final hearing before us on 25.1.2011, in the presence of Thiru. S. Varadhan, Advocate for the complainant and Thiru.V. Balu, Advocate for the opposite party-1, and opposite party-2 called absent and set exparte, and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The 1st opposite party is a company incorporated under the Companies Act of 1956 having its registered office at H 5/12 Qutab Ambience Mehrauli Road, New Delhi 110 030, and Circle Office at Coimbatore at the address given above. They are engaged in supply of mobile service to customers and enroll subscribers. The complainant is one of such customers of the opposite parties and was given a mobile phone connection with the No.9894044042, after his entering into an agreement through the 2nd opposite party on payment of deposit amount of Rs.1000/- on 14.8.02, and his cell was activated on 17.8.02. The complainant subsequently when opted for national roaming facility, the opposite parties wanted an additional deposit of Rs.3000/-, which was also paid by the complainant on 24.8.02. In all the opposite parties have a deposit of Rs.4000/- of the complainant with them as security. The complainant was a regular subscriber of the opposite parties and has regularly paid the charges amount on demand from the opposite parties. In the mean time T.N. Silver Rental was charged at Rs.299/- p.m. by the opposite parties even when DOT connection was not available for local Ranipet calls which the opposite parties assured and announced on 27.11.02. In December 2002, without any specific date a circular was received by the complainant from the opposite parties announcing a special package on and from January 2003 along with bill and enrollment details. The complainant opted for “PLAN SUPER TALK’ which the opposite parties announced and for which the opposite parties charged a monthly rent of Rs.675/- and assured that the outgoing air time would be charged at the rate of 60 paise per minute. Inspite of accepting the conditions and the offer by the opposite parties, he received dt. 3.3.03 which reflected the opposite parties having charged for the outgoing air time @ Rs.1.20 per minute instead of 60 paise per minute as assured. He immediately brought the said facts to the notice of the opposite parties and the 2nd opposite party informed that they were waiting for a feed back from the 1st opposite party. However the complainant paid the invoice amount on the distinct understanding that he will be refunded the excess amount collected by the opposite parties. To his utter dismay and shock he received the invoice dt. 3.4.03 and 3.5.03 at the old rate without any response for his complaint from the opposite parties. 2. Therefore on 30.5.03 the complainant sent a letter to the 2nd opposite party to discontinue the service to his cell phone with immediate effect, after stopping to use the service from 29.5.03. He also requested them to rework the invoices as per the plan offered and settle the account from out of the security deposit and refund the balance. Instead of any response the complainant received invoice dt. 3.6.03 and 3.7.03 from the opposite parties, however, it was noticed that the opposite parties have disconnected the service to the cell phone of the complainant without settling the account. The complainant once again sent one more letter to the opposite parties on 20.9.03 asking for full and final settlement of the account. He was served with the notice by the 1st opposite party dt. 19th September 2003 which is highly defamatory, per-se-libel and slanderous. In the said letter the opposite parties had the audacity to demand for the payment of Rs.3,017.34. To the said notice the complainant sent a detailed suitable reply and impressing upon the opposite parties that they have his money by way of deposit which was more than the amount demanded and directing them to send an unconditional apology. Till date he has not received any reply whatsoever. Once again he has been served with another bill dt. 9.10.03. Further their action clearly amounts to deficiency in service” and unfair trade practice” as contemplated by the C.P. Act 1986. Therefore, the opposite parties to be directed to render true and proper account of the amount payable by the complainant working @ 60 paise per minute after January 03 and to deduct the amount calculated as above from out of the sum of Rs.4000/- with them and pay the balance to the complainant with interest @ 24% p.a. on and from 30.5.03 and to pay a sum of Rs.1,00,000/- as and by way of damages for the defamatory notice dt. 19…9.03 and to pay a sum of Rs.1,00,000/- towards mental agony the complainant has suffered due to the deficiency in service and the unfair trade practice adopted by the opposite parties and to pay a sum of Rs.5000./- towards expenses incurred in corresponding with them and issuing reply notice and Rs.5000/- being the cost of this petition. 3. The averments in the counter filed by the 1st opposite party is as follows: The 1st opposite party is having its registered office at New Delhi which is beyond the Jurisdiction of this Hon’ble Forum. Hence the complaint is liable to be dismissed for want of Jurisdiction. The complainant had sought for damages for Notice dt. 19.9.03 which the complainant alleges is defamatory, under the Scheme of the Consumer Act no such cause of action is maintainable. It was not served with documents along with the complaint as mandated under the provisions of the Act and the complaint is liable to be dismissed. At the outset denies all the averments made in the complaint except to the extent specifically admitted here under. 4. The averments made in paragraphs 1,2,3,4 5 & 6 are not admitted and the complainant is put to the strict proof of the same. Since the documents have not been served on the opposite party No.1 till date, the opposite party No.1 is not able to verify the statements made in the aforesaid paras and give its counter. The mobile phone of the complainant was disconnected as the complainant has not paid any amount towards the bills sent. The letter dt. 19.9.03 was only reminder letter which could not be treated by any stretch of imagination as per libel or slanderous. The allegations in para-9 of the complaint as baseless, unscrupulous bad allegations. There is no deficiency in service nor there is any unfair trade practice adopted by its. Therefore prayed this Forum may be pleased to dismiss the above complaint with exemplary cost. 5. The additional counter filed by the 1st opposite party is as follows: The 1st opposite party denies each and every allegations and averments contained in the complaint except for those that are specifically admitted herein. The 1st opposite party provides the service of providing Mobile Telephone to its customers in several circles within India. It is a license under the Indian Telegraph Act and is carrying out an activity of great national importance viz., to increase the teledensity within the counter as provided in the National Telecom Policy. The 1st opposite party denies receipt of any communication from the complainant. At the time of taking the connection itself it is clearly explained to the subscribers that on termination of services, they are required to submit the SIM card along with due payments and unless they do not do so, the connection is not terminated and they are liable to pay the necessary applicable charges until then. The said clause is envisaged in Clauses in the Application Form of the 1st opposite party and all the subscribers are aware of this fact and so also is the complainant. The normal time within which any request for disconnection is complied with is 2 working days from the receipt of such request. The complainant till date has not surrendered the SIM card as per terms and conditions. 6. The complainant’s connection was deactivated only on 9.6.03 after receiving his request for such deactivation, and till the date of deactivation, the customer, i.e. the complainant is bound to pay all the due charges for the said period such as Rentals, calls made, and other plan charges as applicable. The complainant has received bills dt. 3.3.03 (for the period from 3.2.03 to 2.3.03) dt. 3.4.03 (for the period from 3.3.03 to 2.4.03), dt. 3.5.03 (for the period from 3.4.03 to 2.5.03), dt. 3.6.03 ( for the period from 3.5.03 to 2.6.03) and t. 3.7.03 ( for the period from 3.6.03 to 2.7.03) which clearly covers the period till 9.6.03 i.e. the date of deactivation and hence the allegation of the complainant that the 1st opposite party is sending bills even after deactivation is baseless and lacking in evidence. The complainant avers that the primary grievance he has against the 1st opposite party due to which he discontinued the services, was that he was assured that he would be charged outgoing Air time of Rs.0.60p. per minute whereas his bill showed that he was being charged an outgoing Airtime of Rs.1.20 per minute. The above fact has been totally misconceived and misrepresented by the complainant before this Forum to suit his convenience and or the purposes to make out the above case. As per document No.4 filed along with the complaint showing the invoice dt. 3.3.03 it is clearly shown on page-2 of the said document that the outgoing airtime charged is Rs.319.20 based on which the complainant alleges that outgoing airtime has been charged at Rs.1.20 per minute but he has failed to note that the discount of Rs.159.60 given on the same page is towards the said reduction, i.e. outgoing Airtime @ Rs.1.20 per minute + Rs.319.60 less 0.60 p.per minute = Rs.159.60 p. This fact shows that the complainant has been charged an outgoing Airtime of Rs.0.60 per minute only and the entire complaint is misconceived. Even in document No.5 document No.6, which are invoices dt. 3.4.03 and 3.5.03 respectively the same error in calculation has been committed by the complainant, thus proving beyond doubt that there has been no deficiency of service on the part of the 1st opposite party as alleged by the complainant. 7. Since there was a reversal of Sales Tax as per Government Regulations, all the customers from whom Sales Tax at the earlier rate was collected, the amount was recalculated at the prescribed rate and the excess amount so collected was given credit to which is the reason why the statement t. 9.10.03 was sent to the complainant and which the complainant has shown as an invoice sent in his list of documents. A perusal of the said invoice would clearly show that a credit of Rs.76.05 p. has been given to the complainant, thus showing the bonafide of the 1st opposite party in providing genuine services to its subscribers such as the complainant. The complainant also avers that the Notice dt. 19.9.03 is defamatory whereas as stated supra that the SIM card has to be returned, on termination of services and failure to do so makes the complainant liable for the necessary charges and damages payable on the part of the complainant. Infact the notice sent was not a reply as stated by the complainant, but the notice was sent for non-receipt of payment from the complainant for the bills dt. 3.5.03 3.6.03 and 3.7.03 thus causing monetary loss of the 1st opposite party. As on date of deactivation, after giving credit to the payments, security deposit necessary reversals and discounts, the complainant is due a sum of Rs.2,941.29p. to the 1st opposite party towards account. It is clearly established from the above stated facts that there is no deficiency of service on the part of the 1st opposite party, and the complainant has misrepresented the facts before this Forum to mislead and obtain frivolous and vague orders against this Forum, which should be resisted at any cots. Therefore, this Forum may be pleased to dismiss the complaint with heavy costs. 8) Now the points for consideration are: a) Whether there is any deficiency in service, or unfair trade practice on the part of the opposite parties ? b) Whether the complainant is entitled to the reliefs asked for?. 9. Ex.A1 to ExA15 were marked on the side of the complainant and no documents were marked on the side of the opposite parties. Proof affidavit of the complainant and Proof affidavit of the 1st opposite party has been filed. No oral evidence let in by either side. 10. Point No.a) It is admitted facts of the parties that the complainant is one of the customers of the opposite parties and was given a mobile phone connection with the No.9894044042, after his entering into an agreement through the 2nd opposite party on payment of deposit amount of Rs.1000/- on 14.8.02 and his cell was activated on 17.8.02. The complainant subsequently availed the National roaming facility, for which he has paid additional deposit of Rs.3000/- on 24.8.02. 11. The complainant contended that he opted for PLAN SUPER TALK which the opposite parties announced and for which the opposite parties charged a monthly rent of Rs.675/- and assured that the outgoing air time would be charged at the rate of 60 paise per minute. Inspite of accepting the conditions and the offer by the opposite parties, he received bill dt. 3.3.03, the opposite parties having charged for the out going air time @ Rs.1.20 per minute instead of 60 paise per minute as assured. He immediately brought brought the said facts to the notice of the opposite parties. He received the invoice dt. 3.4.03 and 3.5.03 at the old rate without any response for his complaint from the opposite parties. Therefore on 30.5.03 the complainant sent a letter to the 2nd opposite party to discontinue the service to his cell phone with immediate effect. The complainant also requested the opposite parties to rework the invoices as per the plan offered and settle the account from out of the security deposit and refund the balance. But the 1st opposite party sent a letter dt. 19.9.03 to demand for payment of Rs.3,017.34. Hence the attitude of the opposite parties clearly amounts to deficiency in service and unfair trade practice. 12. The 1st opposite party contended that the complainant’s connection was deactivated only on 9.6.03 after receiving his request for such deactivation, and till the date of deactivation, the complainant is bound to pay all the due charges for the said period such as Rentals, calls made and other plan charges as applicable. As per documents No.4 filed along with the complaint showing the invoice dt. 3.3.03, it is clearly shown on page No.2 of the said document that the out going air time charged is Rs.319.20 based on which the complainant alleges that out going air time has been charged at Rs.1.20 per minute but he has failed to note that the discount of Rs.159.60 given on the same page is towards the said reduction i.e. outgoing Airtime @ Rs.1.20 per minute : 319.20 less 0.60 per minute : 159.60 (-) Total . : 159.60 This fact shows that the complainant has been charged an outgoing Airtime of Rs.0.60. per minute only and the entire complaint is misconceived. It is further contended that, even in document No.5, document No.6 which are invoices dt. 3.4.03 and 3.5.03 respectively the same error in calculation has been committed by the complainant. Therefore there is no deficiency in service on the part of the opposite parties as alleged by the complainant. 13. The complainant has received invoice bills Ex.A3, dt. 3.3.03 for the period from 3.2.03 to 2.3.03, Ex.A5, dt. 3.4.03 for the period from 3.3.03 to 3.4.03, Ex.A6, dt. 3.5.03 for the period from 3.4.03 to 2.5.03, Ex.A8,dt. 3.6.03 for the period from 3.5.03 to 2.6.03 and Ex.A9 dt. 3.7.03 for the period from 3.6.03 to 2.7.03 from the opposite parties. From the perusal of invoice bill Ex.A15 dt. 9.10.03 it is seen that after adjustments of Rs.76.05 the amounts due Rs.3,941.29. The contention of the complainant that under PLAN SUPER TALK SCHME he was assured that he would be charged out going air time of Rs.60 paise per minute, whereas his bill showed he was being charged an out going for 1.20 paise per minute. According to the 1st opposite party that the above facts has been totally misconceived and misrepresented by the complainant before this Forum. From the perusal of Ex.A3 series page No.2, invoice bill No.22675121 dt. 3.3.03 for the period from 3.2.03 to 2.3.03 it is mentioned that One time charges : Nil Rental charges : Rs. 823. 00 Usage Airtime : 319.20 PSTN : 481.78. VAS : 32.50 Roaming : 48.87 ------------------------------- Rs. 882.35 Gross Charges : Rs.1705.35 Total Discounts (less) : Rs. 159.60 (-) Late Fee @ 2% (not taxable) : Nil Service Tax @ 5% : Rs. 77.30 ------------------------- Net Current Charges : Rs.1623.05 ------------------------- it is clear that the out going air time charge is Rs.319.20 based on which the complainant stated that out going air time has been charged at 1.20 per minute but he has failed to note that the discount of RS.159.60 given on the same page is towards the said reduction i.e. outgoing Airtime @ Rs.1.20 per minute : Rs. 319.20 less 0.60 per minute : Rs. 159.60 (-) Total . : Rs. 159.60 Similarly the Ex.A5, invoice No. 24485101 dt. 3.4.03, it is mentioned that One time charges Nil Rental Charges Rs.823.00 Usage airtime Rs.207.60 PSTN Rs.225.40 VAS Rs. 41.50 Roaming Rs. 21.09 -------------- Rs. 495.59 Gross Charges Rs.1318.59 Total Discounts Rs. 103.80 (-) Late Fees @ 2% (not texable) Rs. Nil Service Tax @ 5% Rs. 60.74. Net Current charges Rs.1275.53. Ex.A8 invoice NO.60522564 dt. 3.6.03 it is mentioned that One time charges Rs. 46.09 Rental Charges Rs.790.17 Usage airtime Rs.293.78 PSTN Rs.298.38 VAS Rs. 51.50 Roaming Rs. 26.82 -------------- Rs. 670.48 Gross Charges Rs.1506.74 Total Discounts Rs. 12.60 (-) Late Fees @ 2% (not texable) Rs. 100.00 Service Tax @ 5% Rs. 94.46 Net Current charges Rs.1688.60. Hence the above said invoice shows that the complainant has been charged an out going air time of Rs.0.60 per minute only. Therefore the contention of the complainant that he was assured he would be charged at the rate of 60 paise per minute, whereas his bill showed as that he was being charged an out going of Rs.1.20 paise per minute is not acceptable. 14. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 to Ex.A15 we have come to the conclusion that the complainant herein have not clearly proved the deficiency in service or unfair trade practice on the part of the opposite parties herein. Hence we answer this point (a) as against the complainant herein. 15. POINT NO : (b) In view of our findings on point (a), since, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service or unfair trade practice on the part of the opposite parties herein. We have also come to the conclusion that the complainant is not at all entitled to any relief asked for by him, in this complaint. Hence we answer this point (b) also as against the complainant herein. 16. In the result this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 14th day of February 2011. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1- 17.8.02 - X-copy of Receipt for Rs.1000/- Ex.A2- 24.8.02 - X-copy of Receipt for Rs.3000/- Ex.A3 -- - X-copy of bill with plan enrolment details. Ex.A4- 3.4.03 - X-copy of detailed charge statement. Ex.A5- 3.4.03 - x-copy of Bill. Ex.A6- 3.5.03 - X-copy of bill. Ex.A7- 30.5.03 - X-copy of letter by the complainant to disconnect the cell phone To the opposite parties. Ex.A8- 3.6.03 - X-copy of bill. Ex.A9- 3.7.03 - X-copy of bill. Ex.A10- 20.9.03 - X-copy of letter by the complainant demanding for full & final statement. Ex.A11- 19.9.03 -X-copy of notice of the 1st opposite party to the complainant. Ex.A12- 30.9.03 - X-copy of reply sent by the complainant. Ex.A13- -- - Ack. Card. Ex.A14- -- - Ack. Card. Ex.A15- 9.10.03 - X-copy of bill. Opposite parties’ Exhibits: …Nil… MEMBER-I MEMBER-II PRESIDENT.
| | [ Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[ Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | | 
