Date of filing : 24-04-2009 Date of order : 12-05-2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD C.C. 105/2009 Dated this, the 12th day of May 2010 PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SHYMALADEVI : MEMBER Mohammad.A, S/o.Andu Beary, R/at Alathady House, } Complainant Kudalmerkala.Po, Kasaragod Taluk, Paivalike Village. (Adv.B.Ramakrishna Bhat, Kasaragod) 1. The Manager, Relience Communications, } Opposite parties Ambani Group, Kasaragod. 2. Santhos Paul, Manager, Relience Hallow, Relience Communications, KVR Tower, Kannur (Adv.Prasanna Narayanan, Kannur) O R D E R SRI.K.T.SIDHIQ, PRESIDENT Complaint in brief is as follows: The complainant had obtained a telephone connection Reliance Hallow and his telephone No. is 320781. The complainant used to pay it’s bills regularly. But in October 2007 1st opposite party came to the house of complainant and unlawfully removed the telephone apparatus without prior intimation. The persons who came to the house of complainant also collected Rs.3000/- for replacing the existing telephone apparatus. They also collected Rs.682/- that is due to the prior bill. Though the wife of complainant told that she is not in a position to pay the amount in the absence of her husband, then they threatened and forcibly entered into the house and removed the telephone apparatus and collected a sum of Rs.3682/- from her. Thereafter complainant met opposite party No.1 and told him to reinstate the connection and to repay the amount which was collected unlawfully from his wife. He also sent a letter on 17-10-07 to the manager of opposite party at Kasaragod. But there was no reply. Subsequently complainant went to Kannur office several times to get his grievance redressed. But his efforts became futile. Hence complaint for the reinstallation of his telephone connection and the refund of Rs.3682/- with interest and compensation of Rs.50,000/-. 2. Opposite party filed version. According to opposite party the complaint is not maintainable since complainant had filed a complaint for the same relief earlier and the second complaint would not lie for the same cause of action. On merits the contentions of the opposite parties are that they had not gone to complainant’s house and had not removed the phone or taken any money from the inmates of the house and they had not received any letter from complainant. The allegations contained in the petition attract penal offence and not deficiency in service. The alleged incident took place in the absence of complainant and hence the identity of the persons concerned is put to strict proof. The discrepancies in the prior complaint and the present one shows that the allegations are concocted. Hence the complaint is liable to be dismissed with cost. 3. In the part of complainant one witness is examined as PW1. Exts A1 to A6 marked. No oral evidence is adduced by opposite parties. Exts B1 & B2 marked on the side of opposite parties. 4. The points to be decided in this complaint are: 1) Whether the complaint is maintainable? 2) Whether there is any deficiency in service on the part of opposite parties? 3) Relief and costs? 5. Point No.1 : The contentions of the opposite parties are that complainant had earlier filed a complaint as CC 103/2008 with respect to the same cause of action and it was dismissed for default. Therefore according to learned counsel for opposite parties Sri. Prasanna Narayanan as per order IX rule 9(1) of code of Civil Procedure when a complaint is dismissed for non-appearance of complainant, he shall be precluded from filing fresh complaint. Hence the present complaint is not maintainable. The contention of counsel for opposite parties is not sustainable. It is a settled position of law that there is no bar for a complainant/consumer to file a fresh complaint on the same cause of action if the earlier complaint is not decided on merits. In this regard the Hon’ble Supreme Court of India in the case of New India Assurance Company Ltd V. R. Srinivasan reported in 2000(3)SCC 242 has held that order IX rule 9 of the CPC has not been specifically made applicable to the proceedings under the Consumer Protection Act and therefore the bar and prohibition with regard to the maintainability of the second complaint as provided under Order IX rule 9 of the Code of Civil Procedure would not apply.6. In view of the above judgment Point No.1 is found against the opposite parties and we hold that a second complaint would lie on the same cause of action unless the first complaint is decided on merits.7. Points 2 & 3 The case of the complainant is that the opposite parties forcefully take away the telephone apparatus while he was away from home. It is also his case that they collected Rs.682/- towards the balance due to the prior bills and Rs.3000/- for replacing the existing telephone apparatus with a new one. But they did not replace it inspite of his repeated approaches. Hence he submitted a complaint dated 17-10-07 before opposite party No.1. Ext.A6 is the copy of the said complaint. In the said complaint the complainant states that an employee of opposite party collected Rs.682/- towards the arrears of the bill without issuing a receipt and the telephone set is taken away from his house assuring that he would bring a new phone set. But the said complaint is silent about the payment of Rs.3000/-. Had it been collected as alleged in the complaint then it would have find a place in the said complaint dated 17-10-2007. Further in Ext.A6 it is stated that the incident is happened one and half months back from the date of complaint. If so it would have happened in August 2007. But in the complaint the month of incident is shown as October 2007. All these would got to show that the complaint is prepared much after a deep thought by adding color to the incident. However, the opposite parties did not deny the collection of Rs.682/- and the taking away of the telephone instrument.8. Now the cardinal questions to be considered are why did opposite parties employees take away the telephone instrument after collecting the entire dues pending to them. Did they have any authority to do so without recoursing to legal means? Is there any agreement between the subscriber of telephone and the opposite parties that gives authority or power to take away the telephone instrument? The opposite parties are quite silent on these aspects. Therefore it can be concluded that the act of the opposite parties are highly preposterous, immoderate and it violates all the cannons of trade practice. Therefore it is the legitimate right of the complainant to see that the opposite parties are penalized for such an action. 9. Therefore these points are found infavour of the complainant and the opposite parties are liable to compensate the complainant for the loss hardships and mental agony caused to him. Hence the complaint is allowed and the opposite parties are directed to restore the telephone connection of the complainant. In case of inability restore the connection with same number then a new connection shall be provided. The opposite parties are also directed to pay 2000/- rupees as compensation and 2000/- rupees as cost of these proceedings. Time for compliance is limited to one month from the date of receipt of copy of order. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Exts. A1. Receipt A2. Receipt A3. Bill A4. Bill A5. Bill A6.17-10-07 copy of letter. B1. Photocopy of notice B2.Photocopy of complaint. PW1.Mariyamma Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Pj/ Forwarded by Order SENIOR SUPERINTENDENT
| | HONORABLE P.P.Shymaladevi, Member | HONORABLE K.T.Sidhiq, PRESIDENT | HONORABLE P.Ramadevi, Member | | 
