BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 315/2005 Filed on 07.09.2005

Dated : 16.04.2011

Complainant:

M. Reghunathan, residing in UG-115-A, Ulloor Gardens, Medical College P.O, Thiruvananthapuram.

(By adv. S. Reghu)

Opposite parties :

1. Cluster Head, Reliance Infocom Ltd., Lavanya Building, Hindu Mission Road, Behind SMSM Institute, Thiruvananthapuram.

    

2. The Area Manager, Reliance Infocom Ltd., Skyline Building, Opp: AIR, Vazhuthacaud, Thiruvananthapuram.

(By adv. N. Padmini)

This O.P having been heard on 02.02.2011, the Forum on 16.04.2011 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant availed a scheme DAPO in 09.03.2003 by remitting a cheque worth Rs. 3,000/- to the opposite parties, that on the same day itself complainant handed over 12 post dated cheques worth Rs. 1,800/- to the Cluster Head, that opposite parties allotted the telephone No. 9387803244 to the complainant, that complainant was constrained to apply for the scheme by the publication in the periodicals and as well as the brochure supplied by the opposite parties from their offices, that opposite parties offered a sleak feature rich digital hand set M.R.P Rs. 10,500/- absolutely free, but opposite parties handed over the set to the complainant with No. 'LCRD 2030' worth Rs. 2,499/-, that opposite parties repudiated their offer of granting 400 call/month at 40 paise/minute from the very date of commercial operation, that opposite parties against their agreed norms have charged 4 local calls, at 120 paise/minute from the mobile to land phone and for intra circle calls, charged Rs. 1.90 per minute, that for R World just contrary to the brochure document, opposite parties have started charging from April 2005 and instead of charging Rs. 1.90 per minute for inter circle calls within 50-200 km range they have charged Rs. 3 per minute from November 2004 onwards, that in the calculation of pulse rate opposite parties changed from 15 to 60 seconds by which one call would cost Rs. 1.20 whereas the brochure is very specific that a short call would cost only 10 paise. It is further submitted by the complainant that opposite parties reduced free calls from 400 minutes to less than 300 minutes, that complainant submitted representation to the Web World Express at Medical College on 26.10.2004 for changing the feasibility of the complainant from DAPO to NJ 149, that on the advice from the Web World complainant stopped the payment of cheque on the same day itself. But opposite parties had not acted upon the application and finally it resulted in the disconnection of the facility already enjoyed. It is further submitted by the complainant that the application dated 26.10.2004 was sanctioned only on 01.06.2005, but opposite parties sent bills to the complainant claiming a sum of Rs. 1,800/- for DAPO subscription. Complainant had already paid dues from May 2004 to May 2005 vide 7 post dated cheqes and cash payment of Rs. 1,800/- on 08.04.2005 and Rs. 600/- on 16.05.2005. Further complainant also offered to surrender the hand set, but opposite parties had not accepted it, thereby the complainant had sent legal notice to the opposite parties on 15.07.2005 for which no reply was sent by the opposite parties. Hence this complaint to realise Rs. 20,000/- from the opposite parties towards the loss sustained by the non-conversion of the facility to NJ 149.

Opposite parties filed version contending interalia that complaint itself is not maintainable either in law or on facts, that complaint is very vague and confusing and cannot make out what is the exact grievance of the complainant, that complainant has not stated anywhere as to whom the cheque was addressed, that complainant had made payment of Rs. 3,000/- towards the one time club membership fee which is not refundable, that opposite parties have never accepted any post dated cheques, that what is stated in the brochure is that “first 400 minutes free, for Reliance to Reliance, thereafter Reliance to Reliance is 40 ps per minute and to other as per TRAI Tariff”, that opposite parties had provided colour handset of LG Electronics worth Rs. 10,500/- to its customers who had opted for it under the DAPO Scheme, that opposite parties had not withdrawn any offer from 01.05.2003, that opposite parties had charged the customers in DAPO scheme in the same way as scheduled in the brochure and no fixed charge or monthly rent was collected from the customers. From 01.05.2003 opposite parties started to collect monthly rent of Rs. 400/- and other and hand set charge of Rs. 200/- and call charges were levied separately, that there was no violation from the agreed norms. The averments that free calls were reduced to 300 minutes from 400 minutes is wrong, baseless and against true facts, that if the complainant is referring to post dated cheque of Rs. 1,800/- in favour of Reliance Capital Ltd., then that is encashed by them towards rent, loan of hand set and other charges. The same does not cover call charges. Complainant has hooked up imaginary loss and loss calculated are vague, that complainant had never approached for plan migration. Hence opposite parties prayed for dismissal of the complaint with compensatory costs.

The points that arise for consideration are:-

1. Whether this Forum is competent to take cognizance of mobile phone connection dispute?

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

3. Whether the complainant is entitled to compensation?

In support of the complaint, complainant has filed proof affidavit in lieu of chief examination and has marked Exts. P1 to P10. In rebuttal, opposite parties have filed proof affidavit. Opposite party has not produced any documents.

Points (i) to (iii):- Before we advert to the factual issues of the complaint, an important legal aspect of the matter would crop up for our decision. In this context it would be relevant to mention that the Hon'ble Supreme Court vide its judgement in Civil Appeal No. 7687 of 2004, General Manager, Telecom Vs. M. Krishnan & Another reported in III (2009) CPJ page 71 SC has held that a telephone dispute is not cognizable by the consumer Forum as the provisions of Sec. 7 B of the Indian Telegraph Act would operate as impediment in resolution of telephone disputes. Obviously the question arises as to whether the dispute of a mobile phone is or is not covered by the above quoted apex court judgement. It is to be noted that in the above judgement the Hon'ble Apex Court has not questioned the propriety of provisions of Sec. 3 of the Consumer Protection Act which provides for an additional remedy with a view to facilitate quicker justice. Therefore even if there is a simple provision for reference of the dispute of arbitration, that alone will not oust the jurisdiction of this Forum as Sec. 3 of the Consumer Protection Act specifically provided the additional remedy to customers. Further Hon'ble Supreme Court's judgement has not referred to the disputes pertaining to the mobile phone connection. A careful perusal of the above referred judgement would simply show that only the dispute pertaining to the telephone line (the land line), appliance and apparatus would be covered and wireless service like services rendered by the cell phone companies will not be covered by the provisions of Sec. 7 B of the Indian Telegraph Act. Obviously as we hold the mobile phone disputes are neither covered by the provisions of the Indian Telegraph Act nor by Apex Court judgements, we are of the decisive view that this Forum is competent to take cognizance of the mobile phone connection dispute.

It has been contended by the complainant that opposite party has violated the norms of the brochure by charging 4 local calls at 120 ps per minute from mobile to land phone and Rs. 1.90 per minute for intra circle call charges and by changing the pulse rate from 15 to 60 seconds. It has also been contended by the complainant that opposite parties had reduced free call from 400 minutes to less than 300 minutes. Further it is alleged by the complainant that though he submitted representation to Web World Express at Medical College on 26.10.2004 for changing the feasibility from DAPO to NJ 149 it was sanctioned only on 01.06.2005. The very case of the complainant is that he had stopped the payment of cheque on the basis of the advice from the Web World. It is argued by the complainant that opposite parties have never acted upon the application submitted by him which finally resulted in the disconnection of the facility. It is argued by the complainant that opposite party sanctioned the application only on 01.06.2005 and till that date opposite party sent bills to the complainant claiming a sum of Rs. 1,800/- for DAPO subscription. It is asserted by the complainant that he had already paid dues from May 2004 to May 2005. The complainant's evidence consists of his oral testimony and Exts. P1 to P10. Complainant has been cross examined by the opposite parties. Ext. P1 is the brochure showing various offers issued by opposite parties. Ext. P2 is the receipt for Rs. 3,000/- issued by opposite party in the name of complainant. A perusal of Ext. P2 reveals that opposite party has received Rs. 3,000/- vide cheque dated 09.03.2003 and 12 post dated cheques of Rs. 1,800/- in favour of Reliance Capital Ltd. Ext. P3 is the letter addressed to mobile subscriber by opposite parties showing the comparative call charges applicable from 1^st May 2003. It is further revealed by Ext. P3 that all domestic bills will have a pulse rate of 60 seconds in conformity with TRAI's latest directive and the call rates mentioned in Ext. P3 are applicable with effect from 1^st May 2003. It is further stated in Ext. P3 that the tariff shown there in is subject to TRAI approval. Ext. P4 (a) is the statement dated 01.06.2003 issued to the complainant for Rs. 452.24. Call details are mentioned in Ext. P4(a). Ext. P4(b) is the statement dated 01.09.2003 issued by opposite party to complainant for Rs. 681.70. As per Ext. P4(b) previous dues comes to Rs. 765.42, monthly charges comes to Rs. 400/-, local calls Rs. 37.40, STD calls Rs. 274.90. Total Current charges including service tax would come to Rs. 769.28 out of which plan charges worth Rs. 400/- is seen deducted thereby net amount payable comes to Rs. 681.70. Ext. P4(c) is the statement dated 01.10.2003. As per Ext. P4(c) opposite party had received cheque payment on 03.09.2003 of Rs. 177/- and net amount payable comes to Rs. 602.64. Ext. P4 (d) is the statement dated 01.11.2003 issued by opposite party whereby opposite party had received cheque payment on 15.10.2003 for Rs. 364/- and amount payable comes to Rs. 616.25. Ext. P4(e) is the statement dated 01.12.2003. As per Ext. P4(e) opposite party had received cheque payment on 18.11.2003 for Rs. 239/- and amount payable comes to Rs. 713.18. Call details are stated in Ext. P4(e). Ext. P4 (f) is the statement dated 01.01.2004. As per Ext. P4(f) opposite party had received cheque payment on 19.12.2003 for Rs. 378/- and on 27.12.2003 for Rs. 336/- and the amount payable comes to Rs. 347.63. Ext. P4 (g) is the statement dated 01.02.2004. As per Ext. P4(g) there is no reference regarding cheque payment for previous amount thereby the amount payable seen mentioned at Rs. 1,062.95. Ext. P4(h) is the statement dated 01.03.2004 wherein it is seen stated cheque payment received by opposite party on 21.02.2004 for Rs. 348/- and total amount due comes to Rs. 1,084.02. Ext. P4 (i) is the copy of the statement. As per Ext. P4 (i) total current charge is Rs. 610.73. Ext. P4 (j) is the bill dated 01.04.2005 for Rs. 673.43. A perusal of Ext. P4(j) reveals total amount due comes to Rs. 2,073/-. Ext. P5(a) is the copy of the letter dated 16.08.2003 sent by the complainant under certificate of posting to the Area Manager, Reliance Infocom, Statue. As per Ext. P5(a) complainant has noted major irregularities in the bill especially with regard to pulse rate and unconnected calls charged. According to complainant by Ext. P5(a) opposite party had adopted 60 second instead of 15 seconds as per their offer thereby the bill amount has become considerably higher. As per Ext. P5(a) complainant has requested the opposite parties to make change in the pulse rate and also chronometer activation with immediate effect. Ext. P5(b) is the copy of the letter dated 18.11.2003 sent by complainant to opposite party under certificate of posting. Ext. P5(c) is the copy of the letter dated 10.04.2004 sent by complainant under certificate of posting. Ext. P5(d) is the copy of the letter dated 28.10.2004 sent by complainant to opposite party. Ext. P5(e) is the copy of the letter dated 11.02.2005. Ext. P5(f) is the letter dated 22.04.2005. Ext. P5(g) is the copy of the letter sent under certificate of posting dated 09.06.2005. Ext. P6 is the reply sent by opposite party to complainant stating that the promised pulse rate of 15 seconds was changed to 60 seconds as per Government regulations. Further as per Ext. P6 opposite party had informed the complainant that as regards billing the opposite parties are in the initial stages of operations, thereby there is some delay in updating their database. Further opposite party has offered a credit of Rs. 16.20 for call that has terminated within 10 seconds. Opposite party has requested the complainant to advise them on the receipt number so as to initiate waiver. Ext. P7 is the document providing in a hand set worth Rs. 2,499/- (LG 2030) which is seen from their prepaid offer document. Ext. P8 is the copy of the advocate notice dated 15.07.2005 addressed to opposite parties. Ext. P9 series consist of acknowledgement cards and postal receipts. Ext. P10 series are the newspaper cuttings. Evidently by Ext. P1 a subscriber under DAPO would get various advantages. As per Ext. P1 brochure, 40 paise/min for 400 min is applicable for all local calls, data calls, STD calls. But it is seen in Ext. P4(d) that opposite party had charged Rs. 1.50 for example, for 9 seconds calls made to called number 04842459602, as against 10 ps for short calls upto pulse rate of just 15 seconds. It is evident by Ext. P4 series that not only the call rate has been drastically increased but also the pulse rate has been charged from 15 seconds to 60 seconds. It is seen complained the said irregularities by the complainant by Ext. P5 series letter for which opposite party had sent a reply by Ext. P6 offering a credit of Rs. 16.20 for call that has terminated within 10 seconds, thereby it is seen proved that the irregularities pointed out by the complainant stood accepted by the opposite parties. Further as per Ext. P5(d) complainant had submitted a request to opposite party to change the scheme of DAPO to NJ 149. According to complainant opposite party failed to change the said scheme to NJ 149 until 01.06.2005 and the delay in plan migration has caused loss to the complainant. Further, it has argued by the complainant that though under DAPO opposite party had offered a free handset worth Rs. 10,500/-. Complainant was given a hand set worth Rs. 2,999/- (LG 2030) to the complainant. In his cross examination opposite party has deposed that for plan change, specific format is required to be submitted, but complainant has not mentioned in Ext. P5(g) that he has given the said format. Further opposite party has admitted that complainant was given free hand set of LG 2030 worth Rs. 2,999/- as against the offer of a free hand set worth Rs. 10,500/-. Opposite party has not produced the copy of TRAI tariff to substantiate their contention in the version. Though opposite party had agreed to furnish usage charge details in his cross examination the same was not furnished to corroborate their stand in the version. On going through the complaint and version and evidence available on records, it could be seen that opposite party had acted against the provisions of the offer document. In view of the foregoing discussions we find there is deficiency in service from the side of opposite parties for which complainant is entitled to get compensation which we fix at Rs. 10,000/-.

In the result complaint is partly allowed. Opposite parties shall jointly and severally pay a sum of Rs. 10,000/- to the complainant along with a cost of Rs. 1,000/- within two months from the date of receipt of the order failing which the said amount shall carry interest at the rate of 9%.

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 16^th day of April 2011.

Sd/-

G. SIVAPRASAD : PRESIDENT

Sd/-

BEENAKUMARI. A : MEMBER

Sd/-

S.K. SREELA : MEMBER

jb

C.C. No. 315/2005

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Raghunathan

II COMPLAINANT'S DOCUMENTS :

P1 - Brochure showing various offers issued by opposite parties.

P2 - Receipt for Rs. 3,000/- issued by opposite party in the name of

complainant.

P3 - Letter dated 20.05.2003 addressed to mobile subscriber by

opposite parties

P4(a) - Statement dated 01.06.2003 issued to the complainant for

Rs. 452.24.

P4(b) - Statement dated 01.09.2003 issued by opposite party to

complainant for Rs. 681.70

P4(c) - Statement dated 01.10.2003

P4(d) - Statement dated 01.11.2003 issued by opposite party.

P4(e) - Statement dated 01.12.2003

P4(f) - Statement dated 01.01.2004

P4(g) - Statement dated 01.02.2004

P4(h) - Statement dated 01.03.2004

P4(i) - Copy of the statement dated 01.01.2005

P4(j) - Bill dated 01.04.2005 for Rs. 673.43

P5(a) - Copy of the letter dated 16.08.2003 sent by complainant

P5(b) - Copy of letter dated 18.11.2003 sent by complainant to

opposite party.

P5(c) - Copy of the letter dated 10.04.2004 sent by complainant

P5(d) - Copy of letter dated 28.10.2004 sent by complainant to

opposite party.

P5(e) - Copy of the letter dated 11.02.2005

P5(f) - Copy of the letter dated 22.04.2005

P5(g) - Copy of the letter dated 09.06.2005

P6 - Letter dated 09.10.2003 issued by opposite party.

P7 - Document providing in a handset worth Rs. 2,499/-.

P8 - Copy of the advocate notice dated 15.07.2005 addressed to

opposite parties.

P9 - Acknowledgement cards and postal receipts.

P10 - Newspaper cuttings.

III OPPOSITE PARTY'S WITNESS :

DW1 - Raja Raja Varma

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

Sd/-

PRESIDENT