Complainant through Lrd. Adv. K. P. Pramod
Opponent through Lrd. Adv. Nikam
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Per : Mr. V. P. Utpat, President Place : PUNE
// J U D G M E N T //
(13/12/2013)
This complaint is filed by the consumer against the telephone company for deficiency in service under section 12 of the Consumer Protection Act, 1986.
1] The complainant is a subscriber of the opponent company. He has obtained telephone connection in his name since Sept. 2004. The opponent is providing mobile service to the complainant. The complainant had paid charges for service provided by the opponent regularly from Sept.2004 to Aug.2007. The complainant had been at Thailand for 7 days i.e. 12/5/2007 to 18/5/2007. He obtained service of opponent during the stay of international roaming. He had received messages on 19/5/2007, 20/5/2007 & 21/5/2007 as regards bills for Rs. 15,007.83/-, 16,062.84/- and 26,615.04/- respectively. Since 22/5/2007, the outgoing calls on the mobile of complainant were stopped. Hence, he called call center of the opponent. Thereafter out going calls were restarted from 24/5/2007. Again on 27/5/2007 out going calls of the complainant were deactivated. The complainant contacted the office of the opponent and there was discussion with the representative of the opponent. Again from 28/5/2007 the outgoing calls were started. But again those were deactivated from 1/6/2007. These grievances were to the representative of the opponent. They had intimated to pay interim payment of Rs. 10,000/-. Accordingly the complainant paid an amount of Rs. 10,000/- on 1/6/2007 to the opponent. Then the opponent had issued bill of Rs. 31,596.50 on 2/7/2007. Thus the opponent has issued exaggerated bills. Due to deactivation, the complainant had sustained mental and physical harassment as well as monetary loss of Rs. 1,20,000/-. The complainant has claimed an amount of Rs. 1,20,000/- along with interest @ 12% p.a. for deficiency, an amount of Rs. 50,000/- for mental and physical agony and an amount of Rs. 3,000/- for cost of the litigation.
2] The opponent resisted the claim by filing written version, in which it has denied the contents of the complaint. It is the case of the opponent that the complainant has manipulated some messages to gain advantage in the present complaint. Out going calls of the complainant were deactivated, as he has failed to pay the huge bill amount. He was requested to pay the bills. Despite oral undertaking, the complainant failed to pay the bill amount. Hence, the outgoing calls of the complainant were deactivated. Opponent has admitted that the complainant had deposited an amount of Rs. 10,000/- and promised to pay the balance amount. However, he had miserably failed to pay the balance amount. While depositing the amount he had not deposited the said amount under protest. Sufficient time and opportunity was given to the complainant. The complainant wanted to use the telephone services without paying bills. The complainant has blindly demanded an amount of Rs. 1,20,000/- along with interest and an amount of Rs. 50,000/- for harassment. The opponent has also contended that this Forum has no jurisdiction to entertain the complaint. The opponent has prayed for dismissal of the complaint.
3] After considering pleadings of both the parties and scrutinizing the voluminous documentary evidence, which is produced before this Forum and hearing the arguments of both the counsels, the following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1. | Whether this Forum has jurisdiction to entertain the present complaint? | In the negative. |
2. | Whether opponent has caused deficiency in service? | Does not survive. |
3. | What order? | Complaint is returned to the complainant. |
REASONS :-
4] It reveals from the record that the predecessor of this Forum has rejected the application filed by the opponent as regards the jurisdiction. In the said application, the opponent has claimed that this Forum has no jurisdiction in the light of various Rulings, which were based upon section 7(b) of the Indian Telegraph Act, 1885. The opponent has filed second application for deciding the said issue. But that can not be entertained. Besides this pleading, the opponent has also claimed that as the complainant has admitted terms and the conditions of the agreement while accepting connection, which are printed behind the customer application form. It reveals from clause 9 sub clause (i) that, the validity, construction and performance of terms and conditions here in shall be governed by and interpreted in accordance with the laws of India and the Company and Subscriber agree to submit to the exclusive jurisdiction of the Mumbai Courts. The complainant has made three opponents in the present proceeding. First, The Manager, Reliance Webstore Pvt. Ltd., which is situated at F.C. Road, Pune. Second Mr. Anil Kumar, The Zone Manager, Pune Cluster, Reliance Communications Ltd., Seven Loves Chowk, Pune and third the Managing Director, Reliance Communications Ltd., Navi Mumbai – 400 710. In view of section 11 of the Consumer Protection Act, 1986, the complaint can be instituted in the District Forum within the local limits of the jurisdiction, where the opponent carries the business or having branch office. It is significant to note that the opponent carries its business at Pune as well as in Mumbai. As the complainant is claiming that he is a subscriber of the opponent, it should be presumed that he has submitted subscription form and agreed the conditions, which are referred in the said form. Even though, the complainant has made parties to Pune office, as per the agreed terms and conditions, he himself agreed for the jurisdiction of Mumbai Courts. In such circumstances, this Forum held that as the complainant himself has waived the jurisdiction of other courts than Mumbai, then he should file his complaint in the Mumbai courts. In that context the reliance can be placed upon the judgment of Hon’ble Supreme Court in Civil Appeal No.5086 of 2013 between M/s.
Swastik Gases P. Ltd. vs. Indian Oil Corp. Ltd., decided on 03/07/2013 It has been observed in this ruling, after discussing various judgments of apex Court that, the parties can agreed upon the place of jurisdiction. The latin maxim expressio unius est exclusio alterius was referred in the said judgment. Further it has been observed that,
“This legal maxim means that expression of one is the
exclusion of another. By making a provision that the
agreement is subject to the jurisdiction of the Courts
at Kolkatta, the parties have impliedly excluded the
jurisdiction of other courts. Where the contract specifies
the jurisdiction of the courts at a particular place and such
courts have jurisdiction to deal with the matter, we think
that an inference may be drawn that parties intended to
exclude all other courts. A clause like this is not hit by
section 23 of the Contract Act at all. Such clause is neither
forbidden by law nor it is against the public policy. It does
not offend section 28 of the Contract Act in any manner. ”
Even though the complainant has produced voluminous documents as regards the bills, which were received by him, that documentary evidence can not be accepted, unless there is thorough investigation, as to whether the bill claimed by the opponent is in fact excess or otherwise. For that purpose the thorough investigation is necessary. The evidence of both the parties should have been recorded. The complainant himself has claimed compensation of Rs. 1,20,000/-, but he has not explained, as to how he is entitled for the same. Once it has been observed that this Forum has no jurisdiction to entertain the present complaint, then no findings on merit can be given. In the result, I answer the points accordingly and pass the following order.
** ORDER**
1. The complaint is returned to the complainant
within 6 weeks from the date of order.
2. In the peculiar circumstances, there is no order
as to the cost.
3. Copies of this order be furnished to the parties
free of cost.
Place – Pune
Date- 13/12/2013
