Punjab

StateCommission

A/11/1

M/s Vodafone Essar South Ltd. - Complainant(s)

Versus

Usha Soni - Opp.Party(s)

Vishal Gupta

19 Feb 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                                               PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                       First Appeal No.01 of 2011

 

                                                          Date of Institution: 03.01.2011  

                                                          Date of Decision : 19.02.2015

 

1.       Vodafone Essar South Limited, Head Office C-131, Industrial Area,      Phase 8, Mohali, Punjab through its Authorized Signatory

2.       Vikram Bains, Nodal Officer, Vodafone, Essar South Limited, Head      Office, C-131, Industrial Area, Phase 8, Mohali, Punjab.

3.       Sudipta Kumar, General Appellate Authority, Vodafone Essar South     Limited, Head Office C-131, Industrial Area, Phase-8, Mohali,       Punjab

 

                                                          …..Appellants/Opposite parties.

         

                                      Versus

 

          Usha Soni, House No.141, Guru Nank Pura Civil Lines, Backside        Kailash Cinema, Ludhiana.

 

                                                          ….Respondent/Complainant.

 

         

First Appeal against order dated 15.11.2010 passed by the District Consumer Disputes Redressal Forum, Ludhiana.

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

Present:-

 

          For the appellants            :         Sh.Vishal Gupta, Advocate

          For the respondent :         Ms.CA Ranjana Soni, Authorized

                                                          Rep

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                            

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The appellants (the OPs in the complaint) have directed this appeal against the respondent in this appeal (the complainant in the complaint) against the order dated 15.11.2010 of the District Forum Ludhiana, accepting the complaint of the complainant. The instant  appeal has been preferred against the same by the appellants.

2.      The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that complainant has been using mobile phone no. 9888033035, vide consumer code no. 3.814.00.00.100021, Vodafone Essar South Limited against regular payment of bills. That OPs issued a bill dated 06.01.2010 and 06.02.2010 including excess bill of Rs. 2697.80 on account of downloading. The complainant approached the OPs in this regard for waiver of this amount, but to no effect. It was rather intimated to complainant by OPs that waiver would be credited in the next bill of the complainant. The complainant made a payment of Rs.2450/-, vide cheque No.698810 dated 06.01.2010. Without any waiver, the OP suspended the services of the above-referred mobile along with two other mobile numbers of the complainant bearing no. 9888200619 and 9988393003  with effect from 02.04.2010, which were not subject matter in dispute. The complainant moved Ops on 02.04.2010 regarding excessive charges on account of downloading, which would require to be waived. The demand of Rs.1688/- raised by the OPs is unjustified from complainant. The complainant also sent a notice to the OPs with regard to illegal demand of Rs.1688/- on 30.03.2010, but to no effect despite reply dated 06.04.2010 of OPs. On 18.06.2010 one official of the OPs approached him and demanded Rs.462.17 through telephonic conversation. The complainant accepted the demand to close the matter and he has filed the complaint against OPs accordingly.

3.      Upon notice, OPs filed written reply and contested the complaint of the complainant, raising preliminary objections that complainant has failed to disclose the cause of action of any deficiency in service. That the jurisdiction of the District Forum is excluded in General Manager Telecom  Vs. M. Krishnan & Anr  and special remedy U/s 7-B of Indian Telegraph Act has been provided in this regard. On merits, complaint was contested, it was averred in reply by the OPs that the complainant failed to pay three bills amounting of Rs.664.3, Rs.444.01 and Rs.1244.57 for the period of 06.03.2010, 6.04.2010 and 06.02.2010 due to non-payment of charges and other two numbers running in the name  of the complainant i.e 98882-00619 and 99883-93003 were suspended. The amount of Rs.112.17 was due from the complainant. The downloading charges to the tune of Rs.1980/- in the month of January and Rs.693/- in the month of February. 50% of the downloading charges were waived off on three occasions and hence OPs prayed for dismissal of the complaint.

4.      The complainant tendered in evidence affidavit of complainant Usha Soni Ex.CW-1/A, copies of bills Ex.C-1 to Ex.C-7, receipt of payment Ex.C-8, copies of legal notice Ex.C-9 to Ex.C-11,  registered A.D Ex.C-12, copy of e-mail Ex.C-13. As against it, the opposite parties tendered in evidence affidavit of Ashutosh  cKalia, Manager (Legal) Vodafone Essar South Ltd. Ex.RW-1/A, copies of documents Ex.R-1 and Ex.R-2.  On conclusion of evidence and arguments, the District Forum, Ludhiana accepted the complaint of the complainant directing the OPs to restore the services of three mobile connections of the complainant and directed the OPs to waive off the downloading charges of January and February 2010 with the direction that if amount of downloading was released, it would be adjusted in the account of the complainant. The District Forum also awarded amount of Rs.2,000/- as costs of litigation to the complainant. Dissatisfied with the order of the District Forum, the instant appeal has been preferred by the OPs now appellants.

5.       We have heard Ld.Counsel for the parties and have also examined the record of the case. The first point arising for adjudication in this case is as to whether complaint of the District Forum is barred in view of Section 7-B of Indian Telegraph Act in this case. The reliance of the appellant is on the judgment of the Apex Court in General Manager Telecom Vs. M.Krishnan & Anr, 2009(8) SCC 481. The matter has been elaborately discussed by the District Forum in its order and District Forum rightly came to the conclusion that Consumer Forum is competent to entertain this complaint. Now matter has been finally settled even by Hon'ble National Commission in Revision Petition No.1228 of 2013 titled as “Bharti Hexacom Limited Vs. Komal Prakash & Anr.”, decided on 02.05.2014, wherein it has been held by the Hon’ble National Commission in its order that M. Krishnan’s judgment by the Apex Court  has clarified that the said decision involved a dispute between the department of Telecommunication, which was the Telegraph Authority under the Indian Telegraph Act, as a service provider prior to the hiving off of telecom services into a separate company, viz., Bharat Sanchar Nigam Limited (BSNL). The Hon’ble National Commission further observed in this order that as the powers of a “Telegraphy Authority” are not vested in the private telecom service providers, as is the case here, and also in the BSNL, hence section 7-B of the Telegraph Act will have no application and, therefore, Consumer Foras, as  constituted under the Act, are competent to entertain the dispute between the individual consumer and telecom service providers. Hon’ble National Commission based its order on the letter dated 24.01.2014 of Govt. of India, Ministry of Communication and IT, while responding to the communication received from the Secretary, Department of Consumer Affairs, Govt. of West Bengal on 07.10.2013, in relation to the Hon’ble Supreme Court’s  judgment in M. Krishnan’s case (supra). On the basis of law laid down by the Hon’ble National Commission in “Bharti Hexacom Limited Vs. Komal Prakash & Anr.’s case (supra) by holding that the ratio of law of  M. Krishnan's case by the Apex Court is not attracted and hence, the Consumer Forum is competent to entertain and dispose such like consumer complaints on merits and hence it is maintainable.

6.       Now, touching the merits of the case, the District Forum returned the findings, directing the OPs to waive off the amount of downloading charges. It is submitted that the OPs waived off 50% of downloading charges of three connections without waiving off  the complete charges. There was no facility on the mobile connections of the complainant for the month of January and February 2010. Consequently, the facility of the mobile connection was not available to the complainant in January and February 2010. Ex.C-7 referred in this case, vide which debit of 1244.57 on 2.6.2010, 444.01 on 03.06.2010, 66.43  on 04.06.2010 have been reflected, as due sum  of Rs.112.17 from the complainant. The downloading charges to the tune of Rs.1980/- in the month of January and Rs.693/- in the month of February 2010. The OPs waived off downloading charges of three connections, which were credited in the account of the complainant on 22.04.2010, total waiver was of Rs.2352/- to the complainant. The District Forum, thus, discussed it on the record that, if downloading charges of Rs.1980 and 693, total Rs.2673/- were recoverable from the complainant, then waiver of Rs.500/- would have been to the extent of Rs.1336.50 paise being 50%, whereas, it was given of Rs.2354/- only  in excess of 50%, as submitted by the OPs. The bills Ex.C-2 dated 6.3.10, Ex.C-3 dated 6.4.2010, Ex.C-4 dated 9.4.2010, Ex.C-5 dated 9.5.2010, Ex.C-6 dated 6.4.2010 qua mobiles connections are on the record. Ops have not brought any bill of the mobile connections establishing any such waiver. The OPs suo moto credited certain amount being 50% of downloading charges on 22.04.2010, whereas, it claimed certain amount after Ex.C-11 forcing the complainant to issue notice to the OPs Ex.C-12 is on the record. We find that OPs suspended the services of three mobile connections of the complainant on 02.04.2010. Resultantly, we are in agreement with the order of the District Forum that OPs were deficient in rendering proper services to the complainant by rebating 50% of downloading charges instead of complete waiver thereof. The order of the District Forum when tested on the touch-stone of the evidence, it is found to be sustainable.

7.       As a result of our above discussion, we find no merit in the appeal and same is hereby dismissed.

8.      The appellant had deposited an amount of Rs.1000/- at the time of filing the appeal. This amount with interest, if any, accrued thereon be refunded by the registry to the respondent/complainant by way of crossed cheque/demand draft after 45 days from the date of receipt of copy of this order. Remaining amount as per order of the District Forum shall be paid by the appellant/OPs to the respondent/complainant with 45 days from receipt of copy of this order.

9.       Arguments in this appeal were heard on 16.02.2015 and the order was reserved. Now the order be communicated to the parties.

10      The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                          MEMBER

 

February 19  2015.                                                                  

(ravi)