DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 30^th day of June 2011

Present : Smt. Preetha G Nair, Member

: Smt.Bhanumathi.A.K. Member Date of filing: 25/03/2010

(C.C.No.43/2010)

Ayub,

S/o.T.A.Abdul Rahiman,

City Cable Vision,

City Plaza, R.S.Road,

Ottapalam Taluk, Palakkad - Complainant

(By Adv.K.A.A.Sadath)

V/s

1. The Regional Officer,

Idea Mobile Communications Ltd.

Regional Office, 4^th Floor,

Mercy Estate,

Ravipuram, MG Road,

Kochi – 682 015.

(By Adv.G.Jayachandran)

2. The Proprietor,

M/s.Imperial Communications,

City Plaza, R.S.Road,

Near Head Post Office,

Ottapalam, Palakkad

(By Adv.G.Jayachandran) - Opposite parties

O R D E R

By Smt.BHANUMATHI.A.K. MEMBER

Complainant is running a cable television network at Ottapalam and he and his family depending on the income deriving from it. The complainant had taken a post paid mobile phone connection with mobile No.9847963880 from the 1^st opposite party through the 2^nd opposite party for the smooth functioning of the said cable television network. The complainant is using the said mobile phone connection as the one and only customer care number of the said cable television network. All the enquiries and grievances of the customers of the complainant were reported to the complainant through the above mobile phone connection. On 01/4/2009 the complainant made a request before the opposite party for availing roaming services in the above said mobile phone connection as on 03/4/2009 he had been Bombay. The complainant was informed by the 1^st opposite party that they have registered the request made by the complainant and the inter state roaming service will be activated within and not beyond 24 hours. The complainant sought the roaming services solely for the purpose of maintaining constant care and attention in the cable television network during the absence of the complainant. On the arrival at Bombay the complainant understood that the opposite party failed and neglected to render inter state roaming service in the above said mobile phone connection in time. The efforts made by the complainant to contact the opposite parties were in vain. The complainant contacted the customer care wing of the 1^st opposite party through mobile number viz 12345 and 9847012345 and the office of the 2^nd opposite party. But both the opposite parties caused fault, neglected in rendering the service properly to the complainant in time. According to the complainant the act of opposite parties is a clear deficiency of service on their part. Due to the act of opposite parties in rendering roaming facilities, the complainant caused monitory loss as 77 customers stopped the service of the complainant. The complainant is getting a gross amount of Rs.125/ and a net profit of Rs.70/- per month from a connection while computing the said loss for the proposed period of 10 years minimum loss will be Rs.6,46,800/- in total. Thereafter the complainant sent a lawyer notice to the 1^st opposite party but they are not replied or no steps were taken to redress the grievances of the complainant. So the complainant is seeking an order directing the opposite parties to pay an amount of Rs.11,46,800/- towards compensation for the monetary loss and mental agony suffered by the complainant.

The opposite parties filed version with the following contentions.

According to opposite parties the complaint is not maintainable before the Forum as per section 7B of the India Telegraph Act 1885.

Opposite parties admits that the complainant had activated post paid connection with the No.9847963880 on 8^th January 2007. But opposite parties have not received any written request much less an oral request from the complainant. Opposite parties submit that all IDEA customers have National roaming facility automatically activated in the SIM. There is no need of a request to activate the said function. The allegation that the complainant did not receive the roaming facilities cannot be accepted as the complainant have made call from his number on 3^rd and 4^th April 2009 while roaming in Mumbai. The service was deactivated on 4^th April due to the default made by the complainant in making payments for the bills for the month of February 2009 and March 2009. Even after receipt of the bills for the months of Feb 2009 and Mach 2009 the bills were not paid for these 2 months which resulted in barring on 4^th April 2009. Then customer was informed about the dues but did not care to clear the dues. The number was reactivated after clearing the bills on 6^th April by customer. It is not correct to say that he makes payment regular without delay.

There is no deficiency of service on the part of opposite parties and compliant may be dismissed.

Both parties filed their respective affidavits. Ext.A1 to Ext.A5 marked on the side of the complainant and Ext.B1 to Ext.B3 marked on the side of the opposite parties. Complainant and opposite party cross examined. Both parties not heard even though several chances were given.

Issues to be considered are

1. Whether this Forum has jurisdiction to entertain this complaint ?

2. Whether there is any deficiency of service on the part of opposite parties ?

3. If so, what is the relief and cost ?

Issue 1

According to the Section 7B of the Indian Telegraph Act reveals that the disputes relating to telegraph line appliance or apparatus and too with the telegraph authority are referable to Arbitration.

The Telegraph authority has been defined under Section 3(6) of the Indian Telegraph Act which is reproduce as under.

Section.6 – Telegraph authority means the Director General of Posts and Telegraphs and includes any officer empowered by him to perform all or any of the functions of the telegraph authority under this Act.

Private Telecom Service providers like Opposite parties are licensees and they cannot come under the definition of Telegraph authority. In this case the dispute is not between the telegraph authority and the complainant. It is between the private mobile service providing agencies and the complainant. So it is covered under the provision of the Consumer Protection Act 1986.

Issue No.2 & 3

Complainant is running a cable television work at Ottapalam and he is depending on income deriving from it. The complainant has registered the above said cable television network before the concerned department as a small scale industry. The complainant had taken a post paid mobile phone connection with mobile No.9847963880 from the opposite party. On 01/04/2009 the complainant made a request before the opposite parties for availing roaming facility in the above said mobile phone connection as he would have been Mumbai for some days. The complainant was informed by the opposite parties that they have registered the request and inter state roaming facility will be available within and not beyond 24 hours. But the case of the complainant is that while he was in Mumbai the opposite parties failed to rendering roaming service from 4^th April onwards. Due to this activity the complainant sustained financial loss and mental agony.

Opposite party says that deactivation of roaming facility in the complainant's number was due to non payment of bills by complainant and it is not deficiency in service by opposite party. The service was deactivated on 4^th April 2009 due to the default made by the complainant in making payment for the bills for the month of February 2009 and March 2009. The number was reactivated after clearing the bill on 6^th April by customer. The opposite parties also say that they did not receive any payment before 6^th April 2009. While cross examination the complainant deposited that on 01/04/2009 he made payment for the bills for the months of February 2009 and March 2009. Complainant also deposited that when it is enquired the 1^st opposite party regarding the non availability of roaming facility he was informed that it may happened due to the net complaint.

Ext.B3 document shows that the complainant made payment on 4^th April 2009. From the deposition of the complainant and Ext.B3 document, it can be considered as even though the complainant made payment on 01/4/2009 itself due to the net complaint it is registered only on 4^th April 2009. Even though the payment was made on 4^th April 2009 the roaming facility was activated to the complainant only on 7^th April 2009. Due to the non availability of roaming facility 77 customers of the complainant suffered much and stopped the service of the complainant. But Ext.A2 series are only the application of the customers. It is not evident from Ext.A2 series document that these customers are stopped the service of the complainant.

From the above discussion we are of the view that even after making payment by the complainant opposite parties made delay in rendering roaming service to the complainant. It is deficiency of service on their part.

In the result complaint allowed. Opposite parties are jointly and severally directed to pay an amount of Rs.5,000/- (Rupees Five thousand only) as compensation and Rs.1,000/- as cost of the proceedings.

Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order till realisation.

Pronounced in the open court on this the 30^th day of June 2011.

Sd/-

Smt. Preetha G Nair

Member

Sd/-

Smt. Bhanumathi.A.K.

Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 series – Copy of Lawyer notice issued to 1^st OP dt.18/4/09 alongwith

postal acknowledgment card and receipts.

Ext.A2 series – List of customers submitted by complainant

Ext.A3 – Railway ticket issued to the complainant dt.3/4/09

Ext.A4 - Railway ticket issued to the complainant dt.14/4/09

Ext.A5 – Mobile bill dated 5/5/2009 issued to the complainant by OP.

Cross examination of complainant

PW1 – Ayoob T.A

Cross examination of opposite party

DW1 – Rajkumar.P.Avathail

Exhibits marked on the side of the opposite parties

Ext.B1 – Mobile Bill dated 5/3/09 issued to the complainant by OP

Ext.B2 - Mobile Bill dated 5/4/09 issued to the complainant by OP

Ext.B3 – Customer Account statement of opposite party.

Cost Allowed

Rs.1,000/ allowed as cost of the proceedings.