BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 274/2004 Filed on 05.07.2004

Dated : 28.02.2011

Complainant:

N. Unnikrishnan, S/o N. Narayanan Elayathu, Chief Engineer, Executiveship Management Pvt. Ltd., residing at E-11, Arundale, Maruthoorkadavu, Thiruvananthapuram-2.

(By adv. G.T. Pradeep)

Opposite parties :

1. Reliance Industries Ltd., represented by the General Manager, Reliance Industries Ltd., 3^rd Floor, Maker Chambers, IV, 222, Nariman Point, Mumbai-400 021.

    

   (By adv. Padmini. N)

    

2. The Regional Manager/Manager, Reliance Web World, Skyline Melody, Vazhuthacaud, Thiruvananthapuram.

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 02.03.2005, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been taken as heard on 31.12.2010, the Forum on 28.02.2011 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant had taken mobile phone connection from the 2^nd opposite party on 23.04.2003 by paying Rs. 24,000/-, that while taking the connection opposite parties offered national roaming and many other facilities. Complainant had not received the said facilities offered by the opposite parties, that on many times complainant contacted the 2^nd opposite party for the facilities. Thereafter it came to the knowledge of the complainant through media that opposite parties had not even got the necessary permission or license from Government to introduce the facilities offered by opposite parties to the complainant, that opposite parties consciously, intentionally and with malicious motive offered the aforesaid facilities which were non-existent at the time of offering the facilities. The said action of the opposite parties amounts to unfair trade practice and deficiency in service, that finally complainant surrendered the phone on 26.08.2003 and demanded the amount of Rs. 24,000/- he paid for the connection. Opposite parties sought a short time for refund. The complainant sent demand notice through his counsel on 24.03.2004 demanding the said amount with interest and costs. Opposite parties had not cared to return the money, even though the notice was duly received by the opposite parties. Hence this complaint to direct opposite parties to refund Rs. 24,000/- with interest from 26.08.2003 and to pay compensation and costs.

Opposite parties entered appearance and filed version contending interalia that the complaint itself is not maintainable either in law or on facts. The allegation in para 2 of the complaint are not fully correct, that admittedly complainant had taken a mobile phone connection on 23.04.2003 , that national roaming etc. are given only those who subscribe for it, that opposite parties had more than 35000 customers at that time and hence the allegation that permission or license has not been obtained from the government is absolutely untruth. It is true that complainant had surrendered the connection on 26.08.2003 and refund if any is possible only after deduction of charges incurred. Complainant misbehaved with the employees and threatened them with dire consequences. Opposite parties are not duty bound to refund any amount as the complainant had violated the terms and conditions of the agreement, that complainant is not entitled to any compensation. Hence opposite parties prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether the complainant is entitled for refund of connection amount?

2. Whether there is deficiency in service on the part of opposite parties?

3. Whether the complainant is entitled to compensation?

In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 & P2. In rebuttal, opposite parties have filed proof affidavit. Opposite party has not filed any documents.

Points (i) to (iii):- Admittedly, complainant had taken a mobile phone connection from the opposite parties on 23.04.2003 by paying Rs. 24,000/- by way of cheque No. 026461 dated 23.04.2003 drawn on HSBC. It has been the case of the complainant that while taking the said connection, opposite parties offered national roaming and many other facilities. It has also been the case of the complainant that though complainant was offered the aforesaid facilities by opposite parties, he had not received the same nor had opposite party got the necessary permission or licence from the Government to introduce the aforesaid facilities at the time of offering facility to the complainant. Admittedly, complainant had surrendered the phone on 26.08.2003 to opposite parties. Opposite parties resisted the complaint by submitting that they never offered any such facilities which they could not provide. Ext. P1 is the copy of receipt cum acknowledgement issued by the opposite party. A perusal of Ext. P1 would reveal that opposite party had received Rs. 24,000/- vide cheque dated 23.04.2003. As per Ext. P1 the deposit amount is Rs. 3,000/-. Ext. P2 is the copy of the advocate notice dated 24.03.2004 addressed to opposite parties by the complainant demanding the amounts with interest and costs. Though opposite parties raised objection to marking the Ext. P2, nowhere in the version opposite party denies specifically about the receipt of Ext. P2 notice. Absence of specific denial would mean that the said notice was duly received by the opposite parties. There is no point in dispute regarding the date of connection (23.04.2003) and the date of surrender of the phone (26.08.2003), thereby admittedly connection was in existence for four months. Opposite party has no case that there was any charge due from the complainant, nor has opposite party a case that they had issued any bill to be realized from the complainant nor had opposite party issued any notice to complainant asking him to pay any amount. From these it would appear that if had complainant used the phone he would have served the relevant bill. In the absence of any bill issued by opposite parties in regard to any charge due from the complainant we presume that complainant would not have used the phone, though he was having the phone connection. In his cross examination by opposite party, complainant has deposed that though opposite party had offered roaming facility and STD, he could not get such facility. Opposite party has been cross examined by the complainant. In his cross examination by complainant opposite party has deposed that opposite party had given the service demanded by the customer. Opposite party had admitted in cross examination that customer's demand would be there in his application form. Though opposite party has agreed to produce the said application form before this Forum, opposite party has not furnished it. When asked whether there was agreement with the complainant, opposite party deposed application itself was the agreement. When asked which condition of the said agreement had the complainant violated, opposite party said complainant had not given the service charge. On being asked whether the notice as to non-payment of service charge was sent to him, opposite party said notice was sent. Opposite party further said that he could produce the record before this Forum to that effect. It is pertinent to note that opposite party has not furnished any document to show which service had complainant demanded and the notice as to the non-payment of service charge sent to complainant. The onus is on the part of the opposite party to show that complainant had not remitted service charge even after issuance of notice to him. Further the burden is on the part of the opposite party to show that they had given offered service with cogent and clinching evidence. Though opposite party had agreed to furnish the relevant documents, nothing was furnished before us. Even after surrender of the phone, no attempt was made by opposite party to redress the grievance of the customer. In view of the above, we find there is deficiency in service on the part of the opposite party. Taking overall situation, we deem that we are left with no other way than to direct opposite party to refund the amount as per Ext. P1 with interest thereon.

In the result, complaint is allowed. Opposite party shall refund a sum of Rs. 24,000/- vide Ext. P1 with interest at the rate of 9% from the date of the complaint (05.07.2004). Parties are left to bear and suffer their costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 28^th day of February 2011.

Sd/-

G. SIVAPRASAD : PRESIDENT

Sd/-

BEENAKUMARI. A : MEMBER

Sd/-

S.K. SREELA : MEMBER

jb

O.P. No. 274/2004

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - N. Unnikrishnan

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of receipt cum acknowledgement

P2 - Copy of advocate notice dated 24.03.2004

III OPPOSITE PARTY'S WITNESS :

DW1 - Raja Raja Varma.

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

Sd/-

PRESIDENT