Date of filing: 26.03.2012
Date of disposal:28.04.2014
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.
PRESENT: - Sri S.Niranjan Babu, B.A., B.L., President (FAC)
Smt. M.Sreelatha, B.A.,B.L., Lady Member
Monday, the 28th day of April, 2014
C.C.No10/2012
Between:
Smt. D.Sailaja W/o C.C.Sainath,
Proprietor of M/s Sri Vinayaka Enterprises,
Plot No.7, D.No.5-2-1,
Near Industrial Estate,
Bellary Road,
Ananthapuramu. … Complainant
Vs
1. Reliance Communications Infrastructure Limited,
Rep. by its General Manager,
#580, Central Park, 3rd Floor,
Tilak Road, Opp: Municipal Office,
Tirupathi.
2. K.K.Tele Links,
#15/570, Pallavi Towers,
Subhash Road,
Ananthapuramu. … Opposite parties
This case coming on this day for final hearing before us in the presence of Sri T.Raja Ram, Advocate for the complainant and Sri P.Sreekanth Advocate for the 1st Opposite Party and the 2nd Opposite Party call absent and set exparte and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:
O R D E R
Smt. M.Sreelatha, Lady Member: - This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the opposite party to pay a sum of Rs.2,00,000/- towards loss of her business, mental agony, communication expenses and cost of the complaint and grant such other relief or reliefs.
2. The brief facts of the complaint are that: The complainant is permanent resident of Ananthapuramu and she is running an industry under name and style of M/s Sri Vinayaka Enterprises at Bellary Road, Ananthapurmu for business purpose, she approached the opposite party i.e., Reliance Communications Infrastructure Limited, represented by K.K.Tele Links and the complainant obtained three cell connections for her business purpose with Nos. 9390897689,9390885222 & 9390820140 on 29.10.2008 and the same was used by the complainant for her business transactions. The opposite party also received an amount of Rs.990/- for three connections on 29.10.2008 the same day the complainant used to pay the usage charges regularly the complainant also taken another connection on 09.05.2009 with No.9391658255 with request to club the present connection with reference to the above three cell numbers as a group calls. The complainant filed a petition for amendment the complaint and the same allowed by this Forum on 13.06.2013 its order in I.A.No.62/2013 wherein the complainant on that she is the educated unemployee she coming out her livelihood by establishing an industry and she also undergone training under Rural Employment Generation Programme through Khadi and village industries commission, Hyderabad in the year 2007 and she also financial assistance from the Karnataka Bank Limited. The complainant submitted that the additional cell connection No.9391658255 was not clubbed with the previous group calls three in number, though the complainant has given written requisition on 28.12.2010 and the same was not done inspite of serious persuasions and correspondence with the local distributors as well as Reliance Communications Infrastructures Limited, Tirupathi. Further as there is no response from the opposite party, the complainant requested to convert all the phone calls into pre-paid category on 24.10.2011 as per the oral instructions from the opposite party the complainant has not utilized the services of outgoing facility also for a period of 5 days, the complainant also paid an amount of Rs.2,690/- towards total pending bills on 24.10.2011 vide bill No.3771 and receipt was also issued to that effect, inspite of it opposite party did not convert the same as requested by the complainant immediately. The complainant also preferred a complaint and the same was also registered with the company and allotted I.D.No.250C79992 dt.29.10.2011 and receipt also issued to the complainant for registration of the said complaint vide receipt No.B65733. The opposite party has not converted above connections into pre-paid category and after long time i.e., after lapse of 35 days on 29.11.2011 the same was affected after only three connections excluding the additional connection bearing NO.9390897689 and there is no reason for doing so. In fact it is business concern even the opposite party is also well aware about the importance of group calls in the day to day business transactions, the opposite party without any intimation, reason or cause the connection of complainant bearing No.9390897689 was disconnected and the said above number is very popular and circulated to many of the customers in business dealings. The complainant also submitted that the opposite party sent a bill under rental category for which the complainant never asked and the same was done by the opposite party with its own decision when the same was questioned by the complainant the company representatives informed that the clear of the bills then only the connection will be activated and converted into pre-paid category. The complainant paid entire amount for convert the same for all these without any lapse or any other mistake, the complainant has suffered lot of mental agony and suffered loss in business transactions and that the complainant not utilized the cell connections for 5 days, later the opposite party disconnected the same without any intimation for all these the complainant has sustained huge loss in her business and suffered lot of mental agony due to negligence and carelessness act of the opposite party. The complainant also served a notice to the opposite party bring the notice but there was no reply. Hence the complainant is entitled a claim of Rs.2,00,000/- as prayed for.
3. 1st opposite party filed counter denied all the allegations in the complaint, the 1st opposite party prayed this Forum to take preliminary objection as to the maintainability of the complaint on the ground that the complainant does not fit the description of the consumer as envisaged in the Consumer Protection Act, 1986 in as much as the complaint in her first para of the complaint, the complainant stating that she is running an industry in the name and style of M/s Sri Vinayaka Enterprises at Bellary Road, Ananthapuramu and for her business purpose she had taken four telephone connections from the opposite parties. It is submitted that the by her own admission it has cleared that the said telephone connections are using for the business activity which for commercial purpose ipso facto excludes the complainant from the ambit of the definition of Consumer. It is submitted that section 2 (d) (II) excludes a person who avails a service for any commercial purpose from the definition of a Consumer. The Act is restricted to ordinary consumers purchasing goods or hiring of services for their own consumption or for use in small ventures which they may embarked upon in order to make a living as distinct from the activity carried on for profit. In the present case it is clear that the subject telephone services are availed by the complainant for business purpose and that the said service offered by the opposite party is to be used as a means and a part of her business activity and the said service was used in an activity which was directly intended to generate profit and hence in commercial nature. Accordingly the opposite parties prayed this Forum to dimes the complaint on the preliminary ground of this objection. The opposite parties also has taken that this Forum has no territorial jurisdiction to entertain this complaint as there is a special remedy provided in section 7-B of the Indian Telegraph Act with regard to any dispute concerning any line, appliance or apparatus arises between the parties or whose benefit the line, appliance or apparatus is or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination be referred to an arbitrator. It is submitted that the Hon’ble Supreme Court of India by an order dt.01.09.2009 in Civil Appeal No.7687/2004 also held that as there is a special remedy provided in section 7 –B of the Indian Telegraph Act regarding the disputes, then the remedy under the Consumer Protection Act is by implication barred. It is submitted that the complainant is not a consumer as per section 2 (d) of Consumer Protection Act, 1986 as the complainant herself stated that she is doing business. Stating the averments in the complaint shows that the case of the complainant is bereft of Prima facie case which is the vital ingredient for the grant of any relief. It is significant to note that the complainant, except leveling unsubstantiated allegations, have not filed even a shared of competent evidence in support thereof, and not even a single document is filed by the complainant to show that there is a deficiency in service on the party of the opposite parties and there is no cause of action has accrued to the complainant. Without prejudice to what is stated herein. With reference to the averments made in the complaint the opposite parties submitted that the complainant is a resident of Anantapur town and running an industry under the name and style M/s Sri Vinayaka Enterprises at Bellary Road, Anantapur and for her business purpose, she has taken three cell connections from the 2nd opposite party as group calls on 29.10.2008 by paying a sum of Rs.990/- for which the opposite parties also passed a receipt No.906. The opposite parties denied that the opposite parties promised that another connection bearing NO.9390658255 dt.09.05.2009 is also club it to the group calls. The opposite parties denied that the complainant made several requested and personal approach of the complainant requesting to club the forth connection into group calls then the complainant has issued written requisition on 28.12.2010 is denied. The opposite parties also denied the connection No.9391658255 is a new connection and is nothing to do with the clubbing with the other three connections. The averments in the complaint that the complainant requested the opposite parties to convert all connections to pre-paid category as per the oral instruction the complainant has not utilized the services of outgoing facility for a period of five days and she also paid a sum of Rs.2690/- towards total pending bill amount on 24.10.2011 vide bill NO.3771, inspite of it the opposite parties did not convert the same. It is false the opposite parties submitted that the complainant paid an amount of Rs.2,690/- said to have paid by the complainant is towards the usage pending telephone charges. The opposite party also denied the allegation that the complainant preferred a complaint and the same was registered with the company and allotted I.D.No.250C79992 dt.29.10.2011 and receipt also issued to the complainant for registration of the said complaint vide receipt No.B65733, when things are going like that, without any reason or cause the company has not converted into pre-paid category and after long time i.e., lapse of 35 days i.e., on 29.11.2011 the same was affected for only 3 No.9390897689, there is no reason for doing so is false and incorrect. It is submitted that the complainant approached the opposite parties requesting the opposite parties to convert all the four calls into pre-paid and the same was done so far. The opposite parties has received the request and informed the complaint that after completion of due formalities the connections with converted as per the request of the complainant. It is submitted that for such migration process, the opposite parties has to check and verify the details of the customers and their identifications and in such process can be started only after furnishing all the necessary requirements by the customers. The opposite party also submitted that they informed the complainant that for such migration process from postpaid to prepaid customers has to clear the arrears of bills. The opposite parties submitted that the telephone connections are converted into prepaid service after complying the above requirements by the complainant as such there is negligence on the part of the complainant and she was sustained any loss in her business or does not suffered any mental agony. The opposite parties also submitted that there is no deficiency of service on the part of the opposite parties and the complainant made a delay in complying the requirements for conversion of the service from postpaid to prepaid connection and blaming the opposite parties that they have disconnected the telephone for no reason is not a ground for obtaining any relief from the Hon’ble Forum. It is submitted that the claim for the allegations that the complainant has suffered lot of mental agony on account of the opposite parties is hereby denied. Hence, there is no deficiency of service on the part of the opposite parties, the compliant is liable to be dismissed with costs.
4. The 2nd opposite party called absent and set exparte.
5. Basing on the above pleadings the points that arise for consideration are:-
- Whether this Forum has got territorial jurisdiction to entertain the complaint
- Whether the complainant comes under the definition of Consumer as per section 2 (d) of Consumer Protection Act?
ii) To what relief?
6. In order to prove the case of the complainant, the evidence on affidavit of the complainant has been filed and marked Exs.A1 to A15. The 1st opposite party not filed evidence on affidavit and no documents marked on behalf of 1st opposite party.
7. Heard both sides.
8. POINT NO.1:- The counsel for the complainant argued that the present complaint is filed by the complainant as there is deficiency of service on the part of the opposite parties as the complainant taken three connections from the opposite parties on 29.10.2008 and the above three connections are group calls and she also taken another connection on 09.05.2009 and requested to club the same into group calls when the opposite parties failed to do so after a long process made by the complainant then the complainant requested the opposite parties to convert all four connections into prepaid connections on 24.10.2011 for this also the opposite party has not responded. Immediately and they have taken more than 30 days to convert the connections from postpaid to prepaid and the complainant also contended that, the opposite parties without any prior notice or intimation disconnected the connection bearing No.9390897689. The counsel argued that mere having of arbitration clause the complainant does not bar her right to approach Forum and the 2nd opposite party residing within the jurisdiction of Hon’ble Forum. Hence this Forum having jurisdiction to entertain the complaint under section 7(b) of Telegraph Act does not bar the complainant to file complaint before this Forum.
9. The opposite party contended that when there is a special act for dispute of Telecom or telegraph, the dispute must be referred to arbitrator as per section 7 (b) of Telegraph act. The opposite party also filed an appeal order of Hon’ble Supreme Court of India in the civil appeal No.7687/2004 wherein the higher authority dispute the above bill that when the observation and by that if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person whose benefit the line, appliance or apparatus is or has been provided, the dispute shall be determined by arbitration. Hence, High Court was not correct in its approach it is well settled that special law over rights the general law.
10. The Consumer Protection Act, specially made for the consumers by the parliament. As per section 3 of Consumer Protection Act mere having of arbitration clause this Forum has no jurisdiction is not tenable. Section 3 clearly mentioned that it is an special act made for the welfare of the Consumer Protection Act pas per 1992 (2) C.P.R. Page No.476 in the above case also the opposite party appealed that when the remedy is available under section 7 (b) of TRAI Act, barred jurisdiction of Consumer Forum. In the above case it was held that the existence of remedy by way of arbitration under section 7 (b) TRAI Act did not barred jurisdiction of Consumer Forum. It did not procured on aggrieved Consumer from seeking redress before the Consumer Forum which as a special statue enacted by parliament for specific purpose providing a speedy, cheap and efficacious prior. The counsel for the opposite party argued that if there is special act for arbitration the complainant has to prefer his complaint before arbitrator. We are not taken into consideration the arguments advanced by the opposite party that this Forum was no jurisdiction to entertain the complainant because section (3) of Consumer Protection Act, clearly provides remedy under the Consumer Protection Act. Hence we are of the opinion that this Forum has got territorial jurisdiction to entertain the complaint. Hence this point is answered accordingly in favour of the complainant and against the opposite party.
11.POINT NO.2:- The counsel for the opposite party contended that the complainant herself admitted in the complaint that the complainant is running business under name and style M/s Sri Vinakaya Enterprises of Anantapur. The complainant has taken three connections is also for business purpose. The counsel gave kind attention of this Forum to read over the counter filed by the opposite party that under section 2 (d) (II) of Consumer Protection Act, exclude a person who avails a service for any commercial purpose from the definition of a Consumer. The opposite party also mentioned that the service offered by the opposite party is to be used has means and a part of her business activity. It is apparent that the service was used in any activity which was directly intended to generate profit and hence in commercial nature. For this short ground the complaint is liable to be dismissed by taking in to as preliminary objection.
12. The counsel for complainant denied the arguments advanced by the opposite party, the complainant argued that the complainant is doing business for his livelihood she is an educated un-employee and her husband is also educated un-employee. The complainant has taken training to run to her business in the year 2007 and she also taken loan from the Karnataka Bank to run the manufacturing of paper cups unit. To prove the same the complainant has filed Ex.A6 to A15. In those documents it shows that the complainant has taken training from Khadi and Village Industries Commission Hyderabad in the year 2007 and other documents i.e., Ex.A6 & A8 shows that she obtain loan from Karnataka Bank to run his business. The counsel for the complainant also argued that generally the banks will provide loan who are educated and un-employed and for their livelihood by offering subsidy or discount. In the present case also the bank given loan to the complainant on subsidy basis. The opposite party argued that she is running business for commercial purpose, the opposite party has not filed any document to show that she is providing employment to others and she is having more capacity to give employment to others. The counsel for the opposite party argued it has not filed any document to show that the business is running by the complainant is for commercial purpose. We are of the opinion that only mentioning in the complaint that the complainant has obtain connections for business purpose and the opposite parties are disconnected the connections due to it she suffered loss in business is not final because in general sense even in the petty shop keepers also used to say they are doing business so only mentioning in the complaint that she is doing business is not means to commercial purpose. The complainant subsequently filed a petition for amendment of complaint and she mentioned in neat copy of the complaint that she is doing business for her livelihood except this business neither herself nor her husband is having any other business for profit. As per section 2(1) (d) it can be seen from the above provision that a person who hires are avails of any service for any commercial purpose cannot be included in the definition of a consumer as envisaged under Consumer Protection Act commercial purpose does not include use by a person of cause bought and used by him and service availed by him exclusively for the purpose of earning his livelihood by means of self-employment the definition is clear that any person avail service for commercial purpose then he is not come under the definition of Consumer. In the present case the complainant proved that she is doing business for her livelihood and she comes under the definition of consumer as per section 2 (1) (d) of Consumer Protection Act. Hence this point is answered accordingly in favour of the complainant and against the opposite parties.
13.POINT No.3:- The complainant has taken three mobile connections postpaid group calls bearing Nos. 9390897689,9390885222 & 9390820140 on 29.10.2008 for an amount of Rs.990/- under Ex.A1 as a group calls. The counsel for the complainant argued that on 09.05.2009 the complainant has taken another connection bearing No.9391658255 and requested to club the same into group calls. The opposite party has not clubbed the forth connection in to group calls then on 28.12.2010 the complainant has given written requisition to club the forth connection into group calls, there is no response from the opposite parties. Then the complainant requested to convert all calls into prepaid on 24.10.2011. Then the opposite party orally requested the complainant for not using the service for 5 days and the complainant not used outgoing calls for 5 days then the complainant cleared all dues by paying a sum of Rs.2,690/- on 24.10.2011. Even then there is no response from the opposite parties she made a complaint and the same was registered with the company and allotted I.D.No.25-C799992 when the things are going like that the opposite party has convert into prepaid category for a long lapse of 35 days i.e., on 29.11.2011 only three connections were converted into prepaid. Another connection was not converted into prepaid. The another connection bearing NO.9390897689 was totally disconnected for this there is no prior notice or intimation, the disconnection was done without any reasonable cause. Hence, the complainant suffered a loss of Rs.2,00,000/- then the complainant has got issued legal notice on 20.01.2012 requesting the opposite parties to convert 9390897689 connection in to prepaid category and pay a sum of Rs.2,00,000/- for deficiency of service but the requested made by the complainant is not taken into consideration nor gave any reply. Hence, this complaint.
14. The counsel for the opposite party argued that the complainant asked for clubbing of all the connections into prepaid from postpaid. The counsel argued that the complainant has not filed any document to show that there is deficiency of service on the part of the opposite parties and the complainant was not filed any document to show that she requested the opposite parties about the clubbing forth connection into group calls. In order to request made by the complainant. The opposite parties converted postpaid connections in to prepaid connections. When the complainant approached this opposite party, this opposite party clearly informed to the complainant that after completion of due formalities the connections will be converted and for that there is some migration process. The opposite party has to check and verify the details of the customers and other identification and such process can be started only after furnishing all necessary requirements by the customers. The opposite party also argued that they have informed the complainant about the same migration process from postpaid to prepaid and the complainant has to clear the arrears of bills the complainant herself default in payment of the arrears and submitting of all the requirements which are necessary from conversation of service from postpaid to prepaid. The opposite party also submitted that the question of group calls does not arise in the prepaid connection it only available in the postpaid connections only. Admittedly the complainant mentioned in the complaint that three connections were converted in to prepaid. Hence, there is no deficiency of service on the part of the opposite parties and the opposite parties are not liable to pay any amount as claimed in the complaint.
15. After entire documents and arguments advanced by the both counsels there is no dispute with regard to taking of three connection on 29.10.2008 and forth connection on 09.05.2009 from the opposite party. When we go through the contents of the complaint in first para of the complaint the complainant requested to club the forth connection i.e., 9391658255 into group calls. The complainant has not filed any document or evidence to show that the opposite parties are promised to club the forth connection into group calls, and the very next para of the complaint i.e., para No.2 the complainant stated that she requested in written on 28.12.2010 to the opposite parties to club the forth connection into group calls. It shows that the forth connection is taken by the complainant in the year 2009 whereas the written requisition made on 29.12.2010 i.e., more than a year, for this also the complainant not filed any document that she made request in written. Very next line in para No.2 of the complaint the complainant stated when persuasions and correspondence were failed then she requested the opposite party to convert all calls into prepaid and she made a request on 24.10.2011. It shows that she made request to club forth connection into group calls in the year 2010, and in the year 2011 i.e., after lapse of one year the complainant requested to convert all connections into prepaid for this also she has not filed any document, she simply stated in the complaint that she made request and persuasions, she kept all these two years silent. Move over under Ex.A4 i.e., legal notice issued on 20.01.2012 the legal notice issued only after converting the connections from postpaid category to prepaid. The legal notice was issued after request was fulfilled by the opposite parties. The complainant mentioned in para No.3 of the complaint that the additional connection bearing No.9390897689 was disconnected, for this the complainant has not filed any document to show that when this connection was disconnected the complainant simply stated without any notice the opposite parties are disconnected. Moreover the connection which was disconnected as alleged the additional connection this was the connection which was taken by the complainant at the first instance, this is not the additional connection as alleged in the complaint because in the para No.1 mentioned it as it was first connection. The opposite party contended that for converting the postpaid connection into prepaid they have to follow some procedure and they have to collect the details of the customers and their identification for such process. Then only they will start all the migration process, after furnishing the necessary requirements the complainant failed to comply the requirements. Hence there is delay from converting postpaid to prepaid, for this there is no denial from the complainant. The complainant simply asked a sum of Rs.2,00,000/- she sustained huge loss in the business under what circumstances she incurred loss there is no explanation in the complaint. The complaint is very vague, in one side the complainant stated that the forth connection was disconnected without any prior intimation on the other hand the complainant not utilized the cell connection for 5 days and more over the complainant alleged that the opposite parties are not clubbed the forth connection into group calls there is no clarity in the complaint and the complainant failed to establish that there is deficiency of service on the part of the opposite parties. The complainant it is not clear in asking the relief the complaint is very vague in pleadings. The complainant failed to establish her case simply she is asking Rs.2,00,000/- by saying that the attitude of the opposite parties are not proper and the connection was disconnected un-authorisedly and she suffered a mental agony entire complaint clearly shows that there is no negligence on the part of the opposite parties. The complainant has not filed any document in support of her case except legal notice and the connections taken by the complainant from the opposite parties. The opposite parties contended that the connection bearing No.9390897689 was disconnected as the complainant not paid the arrears for that connection. The complainant has no filed any document that she paid entire arrears except stating that she paid a sum of Rs.2690/- on 24.10.2011 for this also the complainant not filed any document under which head the amount was received by the opposite parties and the same was mentioned in their counter that amount may be received towards the usage pending telephone charges. Hence we are of the opinion that the complainant failed to prove her case that there is deficiency of service on the part of the opposite parties and the opposite parties discharged their services at their best efforts and there is no negligence on the part of the opposite parties in doing service to the complainant. Hence this point is answered accordingly in favour of the opposite party and against the complainant.
16. In the result, the compliant is dismissed without costs.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 28th day of April, 2014.
Sd/- Sd/-
LADY MEMBER PRESIDENT(FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT: ON BEHALF OF THE OPPOISITE PARTIES
-NIL - - NIL
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
ExA1. Original bill No.906 dt.29.10.2008 for Rs.990/- issued by the 2nd opposite party
in favour the complainant.
Ex.A2 Original bill No.945 dt.01.11.2008 for Rs.4,700/- issued by the 2nd opposite party
in favour the complainant.
Ex.A3 Original bill No.1700 dt.09.05.2009 for Rs.1350/- issued by the 2nd opposite
party in favour the complainant.
Ex.A4 Office copy of legal notice dt.20.01.20112 got issued by the complainant to the
1st opposite party.
Ex.A5 Served postal acknowledgement signed by the 1st opposite party.
Ex.A6 Letter dt.17.07.2006 sent by Assistant Director A.P.Khadi and Village
Industries Board, Anantapur to the Karnataka Bank, Anantapur.
Ex.A7 Application form cum receipt for claiming margin money dt.23.11.2006
submitted by the complainant to the A.P.Khadi Village Industries Board,
Hyderabad.
Ex.A8 Photo copy of stamen of account dt.27.11.2006 relating to the complainant
issued by the Karntaka Bank.
Ex.A9 Letter dt.20.03.2007 issued by A.P.Khadi and Village Industries Board,
Hyderabad to the Karnataka Bank Limited, Anantapur.
Ex.A10Proceedings of A.P.Khadi and Village Industries Board, Hyderabad
dt.30.12.2006.
Ex.A11Letter dt.08.07.2009 submitted by the complainant A.P.Khadi and Village
Industries Board, Anantapur.
Ex.A12Proceedings of A.P.Khadi and Village Industries Board, Hyderabad
dt.28.07.2009.
Ex.A13Photo copy of letter dt.25.07.2007 issued by Karnataka Bank Limited,
Anantapur to complainant.
Ex.A14Photo copy of letter dt.20.08.2007 issued by A.P.Khadi and Village Industries
Commission, Hyderabad.
Ex.A15Original certificate issued by the A.P.Khadi and Village Industries Commission,
Hyderabad in favour of the complainant.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES 1& 2
NIL
Sd/- Sd/-
LADY MEMBER PRESIDENT(FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPU
