BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P. No. 46/2002 Filed on 22.01.2002 Dated : 31.12.2009
Complainant: George Mathew, Advocate, T.C No. 27/673, Malloor Road, Vanchiyoor, Trivandrum-35.
Opposite parties:
The Regional Manager, Escotel Mobile Communications Ltd., IV Floor, Mercy Estate, Ravipuram, M.G. Road, Cochin- 682 015. (By adv. B. Vijayakumar)
The Capitel Connections, M.S. P. Buildings, Near Popular Vehicles, Killippalam, Karamana, Thiruvananthapuram. Shylesh. R, Capitel Connections, M.S. P. Buildings, Karamana, Thiruvananthapuram.
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 06.02.2006, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been taken as heard on 30.10.2009, the Forum on 31.12.2009 delivered the following: ORDER SRI. G. SIVAPRASAD: PRESIDENT
The facts leading to the filing of the complaint are that the 3rd opposite party attached to the 2nd opposite party called on the residence of the complaint and induced to join in the category of a scheme in which Rs. 1,000/- is to be paid as security deposit for mobile connection and that the complainant required only prepaid facility. 3rd opposite party promised to effect change of service within 9 business hours failing which Escotel smartfone service would compensate the customer with Rs. 200/-. The 3rd opposite party collected Rs. 1,979/- vide cheque No. 95213 dated 14.09.2001. 3rd opposite party assured the complainant to furnish the brochures, but opposite party did not turn up thereafter despite repeated requests. After 18 days opposite party sent a bill to the complainant for Rs. 529.03. Immediately complainant contacted the 2nd opposite party who told the complainant that the bill amount is inclusive of monthly rent of Rs. 350/-. 2nd opposite party assured that 3rd opposite party would be sent for effecting the required change, but 3rd opposite party did not turn up. Thereafter another bill was served on the complainant on 07.11.2001 for Rs. 1,203.33. Complainant contacted the 2nd opposite party, but no action was taken. On 04.12.2001 also opposite party sent a bill for Rs. 1,957.01 On 07.01.2002 another bill issued for Rs. 2,449.71. Complainant submitted that the mobile phone has become out of order from 25.11.2001. But due to the unwanted connection it cannot be rectified. As a result the complainant deprived of his mobile phone facility indefinitely. Hence this complaint to recover Rs. 1,449/- together with interest from 04.10.2001 till realisation along with compensation.
1st opposite party filed version contending that the complainant was having full knowledge regarding the post paid connection and executed an agreement to that effect. There is no service guarantee for changing the connection without formal request. Immediately after the deposit of the security deposit and activation charges the complainant was allowed the mobile phone No. 98470 69974 and he has used the same. The complainant has very well understood the terms and conditions enunciated in the subscriber agreement form and signed in the same showing its acceptance and that connection availed by him was post-paid. That complainant who is an advocate is well versed with stipulations in the agreement form and the consequences thereof. Opposite party never suppressed any fact as alleged in the complaint. As per invoice dated 04.11.2001 for Rs. 1.203.33 which included the previous balance of Rs. 529.03 was not paid by the complainant. That as per the invoice dated 04.12.2001 an amount of Rs. 1,957.01 was raised against the complainant which included the previous balance of Rs. 1,203.33. Complainant did not make the payment as requested. He was continuously using the mobile number till 07.01.2002 for which invoices were raised against him which amounted to Rs. 2,449.71. The allegation that complainant's mobile phone was defective from 25.11.2001 is a new story motivated by the complainant. Complainant is bound to pay the amount due to the opposite party against the bill raised. Hence opposite party prayed for dismissal of the complaint with compensatory cost to opposite party. The points that arise for consideration are:- Whether the complainant is entitled for refund of Rs. 1,449/- together with interest? Whether there is deficiency in service on the part of opposite parties? Whether the complainant is entitled to get compensation? If so, at what amount?
In support of the claim, the complainant has filed proof affidavit as PW1 and Exts. P1 to P14 were marked. Complainant has been cross examined by opposite parties 1 & 2. In rebuttal, 1st opposite party has filed affidavit as DW1 and Exts. D1 to D3 were marked. DW1 has been cross examined by the complainant.
Points (i) to (iii):- It has been the case of the complainant that on 14.09.2001 the 3rd opposite party along with another person attached to the 2nd opposite party which is the authorised marketing associates of the 1st opposite party, the Escotel Mobile Communication Ltd., approached the complainant and induced him to join in the category of a scheme providing multifarious facilities against the complainant's requirement of pre-paid facility, that he never made any request to opposite parties for post-paid connection or any category of connection whatsoever at any time. It has also been the case of the complainant that the 3rd opposite party collected Rs. 1,979/- from him and the receipt for the same was received along with the Guarantee Note. Submission by the complainant is that 3rd opposite party though assured to furnish the brochures, he did not turn up thereafter despite his repeated requests. Ext. P1 is the copy of the receipt dated 14.09.2001 for Rs. 1,979/- towards activation charges, security deposit and plan enrollment fee, issued by the 1st opposite party to the complainant. Ext. P2 is the copy of Escotel Guarantee Note issued by the opposite party. Ext. P3 is the copy of the bill served on the complainant for Rs. 529.03. When the complainant contacted the 2nd opposite party he came to know that Ext. P3 bill amount is inclusive of monthly rent of Rs. 350/-. Submission by the complainant is that since opposite party suppressed monthly rent from the complainant, he requested the opposite party to change from the present category to pre-paid facility after settling of the Ext. P3 bill amount, that though 2nd opposite party assured that 3rd opposite party would be sent for effecting the required change, the 3rd opposite party did not turn up and thereafter opposite party continued to serve bill on the complainant. Exts. P4 to P5 are copies of bills dated 04.11.2001, 04.12.2001 and 04.01.2002. Along with Exts. P3 to P5 bills itemised call details were attached. In his cross examination, PW1 has deposed that at the time of taking connection he never executed any agreement. Complainant's specific case is that he has opted for a pre-paid facility. When asked the complainant that “prepaid connection-ന് security deposit വാങ്ങാറില്ല എന്ന വിവരം അറിയാമോ ? (Q) അറിയില്ല. Rs. 1,000/- security ആയി കൊടുത്താല് multifarious facilities തരാമെന്ന് 3rd opposite party പറഞ്ഞു. അതു പ്രകാരം, ഈ multifarious facilities-ന്റെ brochure 14.09.2001-ല് വൈകുന്നേരം തന്നെ കൊണ്ടുവരാം എന്നു പറഞ്ഞു. ആയതു ഇതുവരെയും തന്നിട്ടില്ല. In his cross examination, complainant has deposed that he has sought refund amount of Rs. 1,449/- after deducting the Ext. P3 bill amount of Rs. 529.03 from the initial payment. PW1 has also deposed that he never paid bill amounts to opposite party. Ext. P3 bill is for the period from 05.09.2001 to 04.10.2001. Ext. P4 is for the period from 05.10.2001 to 04.11.2001. Ext. P5 is for the period from 05.11.2001 to 04.12.2001. Ext. P6 is for the period from 05.12.2001 to 04.01.2002. On going through the Exts. P3 to P6 it is evident that complainant has used the mobile phone upto 25.11.2001, whereas the complainant's submission is that the mobile phone has become out of order from 25.11.2001. Opposite party resisted the complainant by submitting that against the specific request of the complainant an amount of Rs. 1,979/- was received from the complainant for a post-paid connection for which he executed an agreement dated 14.09.2001 by Ext. D1. A perusal of Ext. D1 reveals that complainant has preferred CLI and itemised bill. The said itemised bills are seen attached with Exts. P3 to P6 bills. When asked the opposite party (DW1), in his cross examination, whether there is any specific request from the complainant for a post paid connection, DW1 has deposed that since an agreement is there it is sure that is a post-paid connection. He further added that it is mentioned in Ext. D1(agreement), and signing the agreement form itself is a request. Complainant never furnished any material to show that complainant has availed a pre-aid connection from the opposite party. It is relevant to note that there is a declaration signed by the complainant in Ext. D1 stating that “If this application is accepted, I agree to be bound by the terms and conditions contained herein or schemes applicable on or as may be in force from time to time............ I undertake to use Escotel SIM as prescribed and pay for all such services as and when used by me. I have verified the availability of Escotel's network in the areas where I wish to use their services and I am satisfied that it meets my requirements I agree to pay for the value added services which I have opted for as per the applicable tariffs and charges. I agree that this agreement is subject to terms and conditions printed overleaf, which have been read and understood by me”. As per Ext. D1 complainant has opted for CLI and itemised bills and accordingly bills are seen issued by the opposite party. Exts. D2 & D3 are detailed statement of Ext. P4 and P5. Ext. P7 (a), (b) & (c) are the copy of the notice dated 24.12.2001 sent by the complainant, postal receipts and acknowledgement card. Ext. P8 is the copy of the bill dated 04.02.2002 for Rs. 2,499.03. Ext. P9 is the copy of bill dated 04.03.2002 for Rs. 2,499.03. Ext. P10 is the visiting card of the 2nd opposite party. Ext. P11 is the reminder for payments dated 02.03.2002 issued by the opposite party to the complainant. Ext. P12 is the letter addressed to the complainant by the 1st opposite party. Ext. P13 is the advocate notice dated 02.05.2002 issued by 1st opposite party to the complainant. In Ext. P13, it is seen stated that the bills raised for services rendered by the 1st opposite party have not been discharged by the complainant on the due date in terms of the clause 3 and related provisions of the subscription agreement, that it is one of the stipulations of the terms and conditions signed by the complainant, that timely payment is the essence of the agreement. It is further stated in Ext. P13 that as on 02.05.2002, a sum of Rs. 1,499.03 is due against bills issued to the complainant, that inspite of repeated reminders, complainant has failed to pay the dues, which is legally enforceable debt. It is further stated in the said notices complainant is bound by terms and conditions signed by him to make the requisite payment on or before due date, that complainant is called upon through the Ext. P13 notices to pay a sum of Rs. 2,539.44 which is due after adjusting the security deposit, along with interest at the rate of 24% per annum computed on full month basis on the said outstanding till date of realisation. Complainant already deposed that he never paid any bill amounts issued so far. Complainant has no case that he never executed Ext. D1 agreement. All bills are seen issued as per the terms and conditions of the agreement. Complainant has failed to establish that he has requested for a pre-paid connection. In view of the above, and in the light of evidence available on the records, we find nothing to attribute deficiency on the part of opposite parties. Complaint has no merits at all which deserves to be dismissed.
In the result complaint is dismissed. Both parties shall bear and suffer their costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31st day of December 2009.
G. SIVAPRASAD, President. BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER
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O.P. No. 46/2002 APPENDIX I COMPLAINANT'S WITNESS : PW1 - George Mathew II COMPLAINANT'S DOCUMENTS : P1 - Photocopy of receipt dated 14.09.2001 P2 - Photocopy of Escotel Service Guarantee Note dated 14.09.2001 P3 - Photocopy of summary statement. P4 - Photocopy of summary statement. P5 - Photocopy of summary statement. P6 - Photocopy of summary statement. P7 - Photocopy of letter, postal receipt and acknowledgement card. P8 - Photocopy of summary statement. P9 - Photocopy of summary statement. P10 - Visiting card of 3rd opposite party. P11 - Letter dated 02.03.2002 sent to the complainant by the 1st opposite party. P12 - Letter dated 12.08.1999 sent to the complainant by the opposite party. P13 - Legal notice dated 02.05.2002 sent by the advocate P. Sanjay. P14 - Letter dated 04.07.2002 sent by the 1st opposite party to complainant
III OPPOSITE PARTY'S WITNESS : DW1 - Harisankar IV OPPOSITE PARTY'S DOCUMENTS : D1 - Photocopy of subscriber agreement form. D2 - Photocopy of invoice dated 04.11.2001. D3 - Photocopy of invoice dated 04.12.2001 PRESIDENT
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