BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOPPAL.<br /> CONSUMER COMPLAINT NO. – 46/2007.<br /> <br /> PRESENT: - 1. Sri. Rachappa.A.Chiniwal, B.Sc., L.L.B. .. President<br /> 2. Sri. S.B. Reddy, B.A., L.L.B. .. Member<br /> 3. Smt.Veda Joshi, B.A. .. Lady Member<br /> <br /> <br /> I. Name of the compalinant: - Sri. M.Bhaddur Khan <br /> S/o: M.Abdulla Khan,<br /> Age: 51 Yrs, Occ: Business,<br /> R/o: Firdous Nagar,<br /> Khansab Chal,<br /> Koppal.<br /> <br /> VERSUS<br /> <br /> II. Name of the Opposite Parties: - 1. The Manager,<br /> (Huchison Essar)<br /> Vodafone South Ltd.,<br /> Prestige Bluchip, Ground Floor,<br /> Block I, No.9, Hosur Road,<br /> Bangalore – 560 029.<br /> 2. Sri Gangadhar,<br /> Prop. Pooja Communication,<br /> Distributors and Teleshop of<br /> Huchison Essor (Vodafone) <br /> South Ltd.,<br /> Shop No.3, Bolloli Complex,<br /> Jawahar Road, <br /> Koppal – 583 231. <br /> <br /> <br /> Counsels:<br /> Complainant: Sri. Z.M.Khan, Advocate, Koppal<br /> Opposite Parties: 1 – Sri. S.D. Kulkarni, Advocate, Hubli.<br /> 2 – Ex-parte.<br /> <br /> <br /> ORDER<br /> <br /> <br /> This is a case filed by the complainant under section 12 of the Consumer Protection Act – 1986 against the opponents to direct them to pay sum of Rs.5.00 Lakh as compensation for his sufferings and business loss due to deficiency of service rendered to him by the opponents in the interest of justice and equity.<br /> <br /> 2. Brief facts of case are that, the complainant is a subscriber and customer of post-paid mobile service (cell No.9886071802) provided by the 1st opponents under Rs.249/- Tariff Plan since from 2005. He used to pay usage charges regularly through the 2nd opponent, who being representative of the 1st opponent at Koppal. The opponents have been sending excess bills for usage charges to the complainant since from April – 2007 by billing as a Rs.399/- Tariff Plan and also billing STD clip charge without his (complainant’s) consent. However the complainant remitted all usage-billed amount to the opponents; thereafter he approached the 2nd opponent and requested him about over billing of Rs.399/- Tariff plan, for which the 2nd opponent did not respond properly. On 27-08-2007 once again he enquired with the 2nd opponent about over billing, for which the opponent No.2 directed him (complainant) to deposit Rs.310/- so that he will write-off excess amount of Rs.284/- for the month of Aug-2007; accordingly the complainant remitted that amount and got changed Tariff plan from 249/- to 349/- as suggested by the opponent No.2. Inspite of that the opponents have barred calls as number barred from his mobile without any notice and go on sending messages demanding balance amount. The complainant has no arrears to be paid to the opponents for usage charge for the month of Aug-2007. However, calls were barred as number barred despite payment of usage charges for the month of Aug-2007 shows minus balance (-259) and ultimately on 05-10-2007 they cancelled SIM registration and activation of the complainant’s cell, resulting which the complainant could not contacted anybody including his business people, which amounts to negligency and deficiency in service on part of the opponents; due to number barred the complainant suffered loss, as such the opponents may be directed to pay compensation and also refund excess amount so received from him in the interest of justice and equity. <br /> <br /> <br /> 3. Upon service of summons the 2nd opponent remained absent, he was placed Ex-parte. The 1st opponent has appeared through counsel and filed written version interlia denying averments made in the complaint as false and frivolous except fact that the complainant was its customer provided with cell number mentioned at Para – 1 of the complaint. The complainant is put to strict proof regarding other allegations made in the complaint. It is false to say that due to call barring the complainant suffered heavy loss and was unable to contact anybody as alleged in the complaint; there was no deficiency on part of the opponents. The complainant has enjoyed service and facility provided to his cell and failed to pay dues for the month of September & October – 2007 to an extent of Rs.1,028/-; a legal notice was issued to the complainant calling upon him to pay said amount, to avoid payment of due amount he has filed this complaint to harass the opponents. <br /> <br /> 4. The claimed amount of Rs.5.00 Lakh as compensation for mental agony is exorbitant and baseless & also without any loss suffered by him; in absence of documentary proof of loss suffered by him no relief can be granted as sought for in the complainant. The 1st opponent company is carrying on business of cellular mobile services to numerous customers for past several years and as a result company has gained good standard reputation of delivering efficient, prompt and cost friendly services to its customers. The complainant with malafide intention to spoil reputation of the company has made false allegations, as such the complaint be dismissed by imposing cost of Rs.10,000/- u/s 26 of the Consumer Protection Act in the interest of justice and equity. <br /> <br /> 5. In order to prove allegations made in the complaint, the complainant Sri. M.Bahudur Khan S/o: M Abdulla Khan has filed his evidence on affidavit; same is treated as PW1 and closed his side. Sri. Pradeep Kumar S/o: Ramalinga Reddy, Collection Executive, R/o: Bellary has filed evidence on affidavit on behalf of the 1st opponent, same is treated as RW1 and closed its side. <br /> <br /> 6. Arguments were heard from both sides, on perusal of oral and documentary evidence including the decision relied upon by learned counsels for the complainant & 1st opponent respectively reported in (i) AIR 2004 SC – 2141 and (ii) SC & National Commission Consumer Law Cases (1996-2005) – 619, following points that arise for our consideration are; <br /> <br /> 1. Whether the complainant proves deficiency in service on part of the opponents for having barred calls from his SIM and finally cancelled SIM registration & activation on 15-10-2007 as alleged in the complaint?<br /> <br /> 2. Whether the complainant is entitled to relief sought for? <br /> <br /> <br /> Our findings to above points are as under;<br /> <br /> 1. Affirmative 2. As per final Order <br /> <br /> REASONS<br /> <br /> Point No. 1 : - <br /> <br /> 7. It is apparent on face of record that the complainant was customer and subscriber for mobile service provided by the 1st opponent. He used to pay usage charges to the 1st opponent through its representative 2nd opponent regularly. The main allegation made in the complaint is that the opponents used to send bills from April-07 onwards by showing excess usage charges without his consent. However he rectified same and converted Tariff plan from 249 to 349 on advice given by the opponent No.2 and inspite of that they used to demand excess consumption charges; in this respect his affidavit evidence is in consonance with allegation made in the complaint and also coupled with 14 documents produced in above said case. The 1st opponent has vaguely denied said allegations made in the complaint and further contended that the complainant is due for the month of September & October – 2007 to an extent of Rs.1,028/-; who failed to pay above said due despite issue of notice on him.<br /> <br /> 8. In our considered view, much weightage will have tobe given to affidavit evidence of the PW1, which is coupled with some of bills issued by the 1st opponent to the complainant. (i) 1st document is a copy of legal notice dated: 08-10-2007 issued to both the opponents, wherein he has specifically contended that there was no valid grounds to bar calls from his mobile cell on 25-9-2007; the opponents have not replied to that legal notice. (ii) 4th document is an usage bill consisting of 2 sheets raised on 05-01-2007 comprising bill period from 05-12-2006 to 04-01-2007, in the said bill previous balance is shown as Rs.572/-, payment of Rs.570/- received on 20-12-2006, current consumption charges is shown as Rs.643/- with due date as 20-01-2007. (iii) 5th document is an usage bill consisting of 2 sheets raised on 05-02-2007 comprising bill period from 05-01-2007 to 04-01-2007, wherein previous balance is shown as Rs.645/- & same was received on 20-01-2007 vide payment column and current consumption charges is shown as Rs.493/- with due date as 20-02-2007. (iv) 6th document is an usage bill consisting of 2 sheets raised on 5-4-2007 comprising bill period from 05-03-2007 to 04-04-2007, wherein previous balance is shown as Rs.732/- contrary to Rs. 493/- as mentioned at document No.5, which was also received from the complainant on 21-03-2007; current charges is shown as Rs.815/- with due date as 20-04-2007. (v) 7th document is another bill consisting of only 1 sheet go to show that current charges of Rs.815/- as mentioned at document No.6 had been received from the complainant with excess Rs.5/- (Rs.820/-) on 19-04-2007. What was the current charges of bill raised on 05-05-2007 comprising period from 05-04-2007 to 04-05-2007 is not known as because the complainant has not filed front-sheet of document No.7, probably he might have lost it or misplaced that sheet. (vi) 8th document is an usage bill consisting of 2 sheets raised on 05-06-2007 comprising bill period from 05-05-2007 to 04-06-2007, wherein previous balance is shown as Rs.684/-, same was received from the complainant on 21-05-2007; current charges is shown as Rs.796/- with due date as 20-06-2007. (vii) 9th document is an usage bill consisting of 2 sheets raised on 05-07-2007 comprising bill period from 05-06-2007 to 04-07-2007, wherein previous balance is Rs.795/- contrary to current charges of Rs.685/- as mentioned at document No.8, which was also received from the complainant on 21-05-2007, current charges is shown as Rs.528/- with due date as 20-07-2007. (viii) 10th document is an usage bill consisting of 2 sheets raised on 05-08-2007 comprising bill period from 05-07-2007 to 04-08-2007, wherein previous balance is shown as Rs.528/-, which was received from the complainant in a sum of Rs.530/- on 25-07-2007; infact the complainant had made 4 days delay in payment of that amount to the 1st opponent as mentioned at document No.9. (ix) 11th document is a receipt issued by the 2nd opponent for having received Rs.310/- from the complainant on 27-08-2007, which has not been reflected in statement of account filed by the opponent No.1 along with written statement and same was not credited to account of the complainant; hence the opponent No.1 is liable to refund this amount of Rs.310/- or to adjust to balance if the complainant is really due to it. (x) 13th document is an usage bill consisting of 2 sheets raised on 05-09-2007 comprising bill period from 05-08-2007 to 04-09-2007, wherein previous balance is shown as Rs.594/-; at payment column it is shown as Rs.1,370/- and at adjustment column it is shown as Rs.250/-. A further perusal of 2nd sheet attached to this document No.13, on 23-08-2007 the 1st opponent received Rs.530/-, on 29-08-2007 received Rs.310, and on 03-09-2007 received Rs.530/-; thus totally he received Rs.1,370/- from the complainant as against previous balance of Rs.594/-; payment side they received a sum of Rs.1,370/- from the complainant, but same has not been accounted towards usage charges vide statement of account, the current consumption charges is shown in this document No.13 as Rs.267/- with due date: 23-09-2007. This 13th document bill has been issued by the 1st opponent to the complainant, where under he received sum of Rs.1,370/- on three different dates referred to above, which has not been accounted properly; a sum of Rs.530/- being received from the complainant on 03-09-2007 has been adjusted to consumption charges, which finds place in statement of account. But similar sum of Rs.530/-, which was received from the complainant on 23-08-2007 does not find place in statement of account. Even for argument sake considered total due from the complainant as could be seen from 13th document works-out at Rs.861/- (previous balance Rs.594/- plus current charges 267/-) as against this the 1st opponent received sum of Rs.1,370/- from the complainant on three different dates referred to above, which are not reflected in their statement of account. (xi) 14th document is an usage bill consisting of 2 sheets raised on 05-10-2007 comprising bill period from 05-09-2007 to 04-10-2007, in which previous balance is shown as Rs.259/- but they have received Rs.300/- from the complainant on 4-10-2007, same is shown at payment side and at adjustment column they have shown Rs.840/-; current charges is shown as Rs.519/- with due date as 23-10-2007. (xii) 15th document is an usage bill consisting of 2 sheets raised on 05-11-2007 comprising bill period from 05-10-2007 to 04-11-2007, wherein previous balance is shown as Rs.800/- as against Rs.519/- as mentioned at document No.14, payment and adjustment columns are shown as –Nil-, means they have not received that usage charges mentioned at document No.14; the current charges is shown as –Nil-, they have claimed monthly charges inclusive of tax at Rs.228/- with due date as 23-11-2007. It means that the complainant was tobe paid that 15th document bill amount on or before 23-11-2007. Thus, on perusal of above said bills go to show that there is some force in evidence of the complainant that the 1st opponent used to send bills showing excess consumption charges, which is contrary to the law. <br /> <br /> 9. On the other hand the 1st opponent got issued legal notice to the complainant through its counsel on 20-11-2007 demanding him to pay Rs.1,028/-, which is contrary to amount mentioned in 15th bill. The counsel for the 1st opponent produced copy of this notice having his signature on it; there is no material to show that the 1st opponent has sent this notice to the complainant. On the other hand the complainant got issued legal notice to both the opponents under Speed Post with acknowledgement due on 08-10-2007 questioning barring of calls from his cell with a request to refund excess amount including compensation claimed in the present complaint; for which the opponents failed to give suitable reply to the complainant and moreover there was no balance tobe recovered from the complainant in respect of usage charges as referred to above; under bill No.13 they have received Rs.1,370/- from the complainant as against previous balance of 594/-. On 28-01-2008 learned counsel for the complainant filed another copy of notice dated: 19-01-2008 received from the 1st opponent demanding same arrears from the complainant without enclosing true statement of account of consumption charges. Said 2nd notice was issued to the complainant during pendency of this case; i.e., at the time of hearing final argument. It is not clear whether the 1st opponent got issued 1st notice to the complainant by sending in ordinary post or registered post; hence no reliance will be given to them. There is some force in contention of the complainant that the opponent No.1 had barred calls from his mobile cell w.e.f. 25-09-2007, at that time there was no consumption arrears due, tobe paid to it, which amounts to deficiency in service on its part. Due to barring of calls the complainant could not contacted his business people and even he has lost one sale agreement transaction as alleged at para-4 of the complaint, which has not been controverted by the 1st opponent and so also there is some force in evidence of the complainant that the 1st opponent cancelled SIM registration and activation of his (complainant’s cell w.e.f. 15-10-2007. Hence we answer point No.1 in favour of the complainant, i.e., in affirmative.<br /> <br /> Point No.2: - <br /> <br /> 9. The complainant has clamed Rs.5.00 Lakh as compensation for mental agony and physical sufferings due to defiant service rendered by the opponents. In our considered view claimed amount is exorbitant and excessive; there is no sufficient material to consider that claim amount of the complainant. Though the complainant is a businessman could not contacted anybody for his business purpose due to barring of calls from his mobile cell. Under such circumstances and also in view of decision reported in IV (2006) CPJ – 67 (NC) in the matter of N.Ravindranath Kamath V/s Spice Communications Ltd., it is just and proper to direct the 1st opponent to pay consolidated sum of Rs.7,500/- as compensation to the complainant for his physical sufferings and mental agony.<br /> <br /> In the result we pass the following; <br /> <br /> ORDER<br /> <br /> The complaint filed by the complainant under Section 12 of Consumer Protection Act – 1986 is partly allowed as follows; <br /> <br /> 1. The 1st opponent is directed to pay the complainant sum of Rs.7,500/- (Rupees seven thousand five hundred) only as compensation for mental agony and his sufferings within 45 days from date of receipt of copy of this order, failing which the complainant is entitled to get interest at 6% per annum on above said sum from the date of complaint till payment of it.<br /> <br /> 2. The 1st opponent is directed to pay the complainant sum of Rs.1,000/- (Rupees one thousand) only towards cost of the proceedings.<br /> <br /> 3. The complaint is dismissed against the 2nd opponent, who being representative of the 1st opponent at Koppal.<br /> <br /> Dictated to the Stenographer, typescript, edited, corrected and then pronounced in the Open Forum on 18-02-2008.<br /> <br /> Sd/ Sd/<br /> Member Lady member President<br />