BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BAGALKOT.

C.C.No.23/2018

Date of filing: 01/02/2018

Date of disposal: 06/07/2019

P R E S E N T :-

- V/S –

JUDGEMENT

By Smt. Sharada. K. President.

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “OP”) directed to pay Rs.5,50,000/- towards harassment, mental agony, lost of clients and other miscellaneous charges  suffered by the complainant in way of compensation with interest @ 18% p.a. till to the realization and pay Rs.10,000/- towards cost of the litigation.

2.      The facts of the case in brief are that;

          The case of the complainant is that, the complainant is the professional Adv. using OP post paid Sim No.9880356599 since last 12 years and he is long standing customer and lot of service consumed by paying huge currency amount to the OP and further about 4 months back, the complainant got converted his post paid sim to prepaid sim and got FRC recharge offer and thereafter complainant several times currency recharged by paying money at Mudhol and Bagalkot Airtel Stores, but they were not successfully recharged and further the complainant has intimated to OP Customer Care Service several times and lodged complaint regarding the same, but OP telling that mistake will be rectified within next 72 hours.    

          It is further contended that, it was happen since last 3 months, but on 14.12.2017, the earlier package was over and the complainant by paying Rs.448/- again recharge, thereafter complainant has not been getting any net service and outgoing calls from last 6 days. Then the Complainant has complained the same fact to the Customer Care under Complained No.31412735385 dtd: 14.12.2017 the transactions are as under;

Despite repeated requests, mistaken was not rectified by the OP and further complainant told that, he is a busy Advocate having wide clients need cell phone contact and net service for court data and further he had give said number to his daughter’s college and sons school expecting mail messages and replies, due to this difficulties he has not spoken and not contact with anybody and lost more clients and lost Rs.3,00,000/- during that period and due to non-contact, these attitude and acts of the OP clearly shows that, there is deficiency in service towards complainant and further the complainant has suffered lots of inconvenience and damage about Rs.2,00,000/-, hence due to barring outgoing calls of his Sim Card, the Complainant was unable to contact his clients and relatives. Therefore, the Complainant after issuance of notice filed this case and prayed for proper compensation and costs.

3.     After issue of notice to the OP, the OP has appeared through his counsel and filed written version are as under;  

          The OP is contended that, the complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limine and the present dispute raised by the Complainant that, the complaint is not maintainable before this Hon’ble Forum in view of the Judgement rendered by the Hon’ble Supreme Court of India in Civil Appeal No.7687/2004 dated: 01.09.2009. In the case of General Manager, Telecom V/s. M. Krishnan and another reported in 2009 AIR SCW 5631 as per this decision, the dispute raised by the Complainant is between the subscriber and Telecom Service Provider and the remedy available is U/s 7-B of the Indian Telegraphic Act which provides adjudication of the dispute under the provision of Arbitration Act, on this count itself, the present complaint is liable to be dismissed at the threshold. Further, relying on the said judgement, the various State Commissions have also disposed-off the complaints holding that, any dispute concerning any telegraph line, appliances or apparatus shall be determined by the Arbitrators.    

It is further contended that, the complainant has sought for rectification of some alleged defect which he said to have underwent while recharging his pre-paid mobile account and the currency recharged by him were not used to successfully done in his pre-paid account and further without conceding any of the mistake on the part of the OP upon receipt of the query made by the complainant, the grievance of complainant is met with and his number is recharged with Rs.50/- and is also informed about the resolution of his grievance to the complainant, telephonically on 26.12.2017. Inspite of the filling of this complaint, there was no grievance sought to be redressed by the OP. The other allegations in the Complaint are hereby denied and further the OP did not deem it necessary to send any reply to the legal notice of the complainant and there is no willful default or negligence on the part of the OP. Hence OP prayed to dismiss the Complaint with costs.

4.      In support of the claim in the complaint, the complainant has filed his affidavit and produced 3 documents, which are as under;

5.      On the other hand OP has filed his affidavit and not produced any documents to the above said complaint.   

Now, on the basis of these facts, the following points that would arise for our consideration:

1. Whether the complainant has proved that, there is deficiency of service on the part of the OP for not rectifying mistake towards recharge amount?
2. What Order?

6.      Our findings on the above points are as fallows;

1. Point No.1 In the partly affirmative.    
2. As per final Order.

                      R E A S O N S

7.  POINT NO.1:- We have perused the pleadings of both parties, evidence and documents placed on record and also arguments advanced by the complainant, it is evident that, the complainant has using the OP post paid Sim No.9880356599 since last 12 years and he is long standing customer to the OP and further about 4 months back, the complainant got converted his post paid sim to prepaid sim and got FRC recharge offer and thereafter complainant several times currency recharged by paying money at Mudhol and Bagalkot Airtel Stores, but they were not successfully recharged and the same has been intimated to OP Customer Care Service and lodged complaint regarding the same, but OP telling that mistake will be rectified within next 72 hours and further the earlier package was over on 14.12.2017.
So, again the complainant by paying Rs.448/- recharged on the said sim, but he has not been getting any net service and outgoing calls from last 6 days. Then the Complainant has complained the same fact to the Customer Care under Complained No.31412735385 on dtd: 14.12.2017 and also issued legal notice on dtd: 19.12.2017 and requested to rectified the mistake, in order to prove the said contention, the complainant has filed affidavit evidence and produced copy of the legal notice. It is evident that, the complainant has paying Rs.448/- towards recharge of outgoing calls and net service, but he has not getting any net service and outgoing calls from last 6 days and OP went on telling that, mistake will be rectified within next 72 hours, but he has not rectified the same after 72 hours to the complainant, these attitude and acts of the OP it clearly shows that, there is deficiency in service on the part of the OP. Therefore, the contention of the complainant pleaded in complaint is acceptable and believable.

On the other hand, the OP has contended that, the complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limine and further contended that, the complainant has sought for rectification of some alleged defect which he said to have underwent while recharging his pre-paid mobile account and the currency recharged by him were not used to successfully done in his pre-paid account and without conceding any of the mistake on the part of the OP upon receipt of the query made by the complainant, the grievance of complainant is met with and his number is recharged with Rs.50/- and is also informed about the resolution of his grievance to the complainant, telephonically on 26.12.2017 and other allegations in the Complaint are hereby denied and further the OP did not deem it necessary to send any reply to the legal notice of the complainant and there is no deficiency or negligence on the part of the OP. In order to prove the said contention the OP has not produced any cogent and material document to show that, the OP has given due and proper services to the complainant within the stipulated time and further the OP one or the other reason dragging and alleging untenable contention is amounts to deficiency of service on the part of OP. Therefore, the contention of the OP is not acceptable and it has no merit at all and further OP contended in the written that, the Hon’ble Supreme Court of India in Civil Appeal No.7687/2004 dated: 01.09.2009 General Manager, Telecom V/s. M. Krishnan and another reported in 2009 AIR SCW 5631. The above said reported decisions are not applicable to the instance case, because the facts of the case are different. 

           Therefore, in our consider view that, after converted the sim post paid to prepaid the complainant has paying Rs.448/- towards recharge of outgoing calls and net service, but complainant has not getting any net service and outgoing calls 6 days, despite of recharge, the OP has not provide proper service to the complainant and he went on telling that, mistake will be rectified within next 72 hours,
but not rectified the same after 72 hours, hence the attitude of the OP shows that, the OP has not rectified the same within stipulated time. Under such circumstances, the said acts of the OP is negligent and deficiency in service on the part of the OP.

In view of the above observation we are of the opinion that, the complainant has entitled to compensation of Rs.5,000/- towards mental agony, damages and Rs.2,000/- towards litigation expenses. Hence, we answer to the above point No 1 in partly affirmative. Accordingly, we proceed to pass the following;

//ORDER//

The complaint is allowed in part.

The OP is directed to pay Rs.5,000/- towards  compensation for mental agony, damages and pay Rs.2,000/- towards costs of the proceedings.

The OP is granted one month time for compliance of this order, failing to which the OP is liable to pay interest @ 8 % p.a. to the entire amount i.e. Rs.7,000/- to the complainant from the date of this order till its realization. 

Send the copies of this order to the parties free of cost.

            (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this 06^th day of July, 2019).