BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.361 of 2015
Date of institution: 21.07.2015
Date of Decision: 27.05.2016
Suresh Kumar Yadav son of Ram Kumar, resident of House No.1700, Sector 4, Panchkula 134109 Haryana.
……..Complainant
Versus
Vodafone Essar South Limited, Plot No.C-131, Eltop, Industrial Area, Phase-VIII, Mohali 160071 Punjab (through its Senior Manager/Authorised Attorney).
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Shri Amrinder Singh Sidhu, Presiding Member
Mrs. R.K. Aulakh, Member.
Present: Shri Rajshekhar, counsel for the complainant.
Ms. Parminder Kaur, counsel for the O.P.
(Amrinder Singh Sidhu, Presiding Member)
ORDER
The complainant has filed the present complaint against the Opposite Party (for short ‘the O.P.’) alleging deficiency in service as well as committing unfair trade practice which not only caused him agony and harassment but also damaged his reputation and caused financial loss to him. The complainant states that he is a Senior Citizen and he has retired as Joint Director Legal in Excise & Taxation Department of the Govt. of Haryana. He is Member of Bar Council of Hon’ble Punjab & Haryana High Court as well as Hon’ble Supreme Court of India. The OP is dealing in providing cellular services in and around Chandigarh. He states that the O.P. vide its letter dated 12.03.2010 confirmed his subscription and provided him Mobile No.9888108299; Relationship No.120430201 and Talk Plan: VF Talk 125 IScc Plan. The O.P. further offered to provide to complainant the service of receiving payment of monthly bills of usage charges at aforesaid telephony service through electronic clearance system (E.C.S.) for which complainant has authorised the O.P. by giving standing instructions to automatically debit the monthly usage bill through E.C.S. directly from the complainant’s saving bank account No.00000010847754144 maintained with State Bank of India, Main Branch, Sector 17-C, Chandigarh. The O.P. regularly received the payment through this mode since 01.09.2010 till 05.07.2013. The O.P. without conveying any reason or written information to the subscriber –complainant, and without surrendering and cancelling in writing their authorization for receiving payment of usage bills through automatic E.C.S. as usual from aforesaid bank account gave the complainant numerous calls about non receipt of payment of bill of August, 2013 which caused agony and harassment to him. Complainant, being harassed due to receipt of numerous calls, contacted the Nodal Officer of O.P. through e-mail dated 18.10.2013 and lodged his grievance regarding inability of the O.P. in collecting bills through E.C.S. facility and also protested against arbitrary blocking of his phone by the O.P. and further asked reason for the O.P.’s inability in collecting bills from his bank through E.C.S.. The complainant alleged that despite many e-mails, the O.P. neither provided any reason for non recovery of payment by E.C.S. mode nor unblocked his mobile number. The complainant further alleged that the irresponsible and harassing behavior of the O.P. Company did not stop here as they kept on harassing him on his mobile connection on the pretext of non-payment of bills though complainant has deposited and cleared all dues till that date. The O.P. through their e-mail dated 05.11.2013 admitted that they have received payment of Rs.3,835/- on 31.10.2013. The O.P. instead of truthfully telling the reason for their failure to receive payment of bills as usual from aforesaid bank account through E.C.S. and also instead of failure of the O.P. to provide the complainant a mode of making payment of bills as promised by the O.P. disconnected the telephony service to complainant and issued a legal notice dated 22.10.2013 to him from the office of Sh.N.S. Kathpal, Advocate, thereby intimidating the complainant by threatening to initiate civil and criminal proceedings and further threatening to blacklist complainant’s name with other companies and provide information to Bureau of India Ltd. (CIBIL). The complainant sent a written reply on 31.10.2013 to legal notice dated 22.10.2013 highlighting gross arbitrary manner of the O.P., thereby indulging in unfair trade practice and committing gross negligence of service thereby providing deficiency in service which resulted in agony, harassment, damage in reputation and caused financial loss to him. Further complainant was shocked and harassed due to arbitrary behavior of the O.P. as the O.P. lodged a criminal complaint in the ld. Court of Ms. Shifa, HCS, JMIC and Judge, Lok Adalat, Chandigarh alleging non-payment of dues amounting to Rs.4,335/- against the complainant in respect of usage of Mobile No.9888108299 as on 21.11.2013. The complainant was further shocked to receive summons dated 01.11.2013 from the ld. Court of Ms. Shifa, HCS, JMIC and Judge, Lok Adalat, Chandigarh directing complainant to appear in the court on 02.11.2013 for amicable settlement of recovery of outstanding Rs.4,335/- against the usage of Mobile No.9888108299 which never stood against the complainant. The O.P. send a usage bill No.12889801 for the bill period 21.10.2013 to 20.11.2013 bill dated 21.11.2013 of amount of Rs.743.93 due date 09.12.2013 was sent by the O.P. to the complainant and complainant deposited the due amount through internet using SBI debit card.
Lastly complainant alleged negligence on the part of the O.P. in the installation of non compatible software due to which payment of the bills through E.C.S. mode could not be made; non responsive and irresponsible behavior of the O.P. in not giving any reasons for why they could not receive payment of their bills through E.C.S. despite repeated requests; highly arbitrary act of frequently blocking telephony service to the mobile connection without submitting correct facts and concealing the real reasons for not receiving payment of bills of Mobile Connection No.9888108229; threatening the complainant to blacklist his name by provide his name to CIBIL; further by instituting false complaint against complainant for claiming a non-existing due to Rs.4,335/-. All these clearly demonstrate negligence and deficiency in service on the part of the O.P. and commission of unfair trade practice which caused him agony, harassment, damage to reputation and financial losses for which he claimed compensation and costs of Rs.8,25,000/-, despite any other relief which this Forum deems fit and proper.
2. After the service of notice, the O.P. appeared and filed written reply taking preliminary objections that this complaint is liable to be dismissed on the ground that the complainant has failed to disclose the cause of action regarding deficiency of service, latest judgment of Hon’ble Supreme Court in case titled as General Manager Telecom Versus M. Krishna and Others, complainant entered into an agreement while submitting the Customer Application Form (CAF) with the O.P. and had agreed that in respect of any matter arising out of the agreement the courts at Delhi shall have jurisdiction. Thus, this Hon’ble Forum lacks the territorial jurisdiction; complainant is availing the telecom services provided by the O.P. for carrying out professional services (commercial purpose); complainant had failed to clear the outstanding dues within the time limit as provided in the invoices generated and sent to him; mis-joinder and non joinder of necessary parties; complaint is not maintainable in the present form; complainant has no locus standi to file the present complaint. On merits, the O.P. denied all the allegations made against it by the complainant and lastly prayed for dismissal of complaint.
3. Evidence of the complainant consists of his affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-15.
4. Evidence of the O.P. consists of affidavit of Ashutosh Kalia, it Dy. General Manager (Legal) Ex.OP-1/1 and copy of application form Ex.OP-1.
5. We have heard the arguments and gone through the file.
6. As the complainant availed services from the O.P. for consideration so he is consumer of the O.P. The complainant has alleged deficiency in service and commitment of unfair trade practice by the O.P. which caused him agony, harassment and damage of loss to his reputation on the following grounds:
i) O.P., without conveying any reason or written intimation to the subscriber – complainant and without surrendering and cancelling in writing their authorization for receiving payment of usage bills through automatic E.C.S. as usual from aforesaid bank account and O.P. made numerous calls about non receipt of payment of bill for August, 2013.
ii) non disclosure to the complainant about the reason regarding inability of the O.P. in collecting bills through E.C.S. facility.
iii) Arbitrary blocking his mobile number by the O.P.
iv) Served him legal notice dated 22.l10.2013 threatening to initiate civil and criminal proceeding and further threatening to blacklist his name with other companies and provide information to a Credit Information Company like Credit Information Bureau of India Ltd. (CIBIL).
v) Further O.P. lodged a criminal complaint in the ld. Court of Ms. Shifa, HCS, JMIC and Judge, Lok Adalat, Chandigarh alleging non payment of dues amounting to Rs.4,335/- in respect of usage of Mobile No.9888108299 as on 21.11.2013.
7. The O.P. has taken preliminary objection that complainant has failed to disclose his cause of action regarding deficiency of service. The objection of O.P. is without any substance as complainant has specifically alleged that O.P. without any prior intimation/ information and without assigning any reason to him about their inability in collecting the bills through E.C.S. mode blocked his mobile No.9888108299. Further O.P.’s objection that as per the latest judgment of the Hon’ble Supreme Court titled as General Manager Telecom Vs. M. Krishnan and Ors. held that when there is specific remedy provided in Sector 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills then remedy under Consumer Protection Act, 1986 is by implication barred. This objection of the O.P. is also without any substance because the Department of Telecommunications vide its letter No.07-32/2009-PHP(Pt.) dated 19th October, 2009 has specifically clarified that neither the private party (such as opposite party) is a public service provider nor falls within the definition of Telegraph Authority. Further only Central Govt. can appoint Arbitrator under Section 7-B of Indian Telegraph Act. In view of the above mentioned clarification it can safely be concluded that Consumer Disputes Redressal Agencies have jurisdiction to hear and adjudicate upon the matter. Further O.P. took objection that as per agreement the courts of Delhi shall have jurisdiction. There is no merit in this objection as it is settled law the parties cannot choose the jurisdiction of Forum or court as held by Hon’ble Maharashtra State Consumer Commission, Mumbai (Circuit Bench at Aurangabad) in Sigma Motors Vs. Bhaginath Kachru Gande and others, in F.A. No.117 to 155/2011 dated 20.08.2015. In the present case this Forum has territorial jurisdiction as per Section 11 of the Consumer Protection Act, 1986 (as amended upto date). Further O.P. took objection that the complainant is carrying out professional services which comes under the ambit of commercial services. This objection is also not sustainable because if an Advocate is using a mobile number/SIM for his personal use as well as professional use cannot be termed as ‘commercial purpose’ because advocate is self employed person who carries of his profession for earning his livelihood unless he has created a big corp. or have other business. So in the present case, it cannot be termed as ‘commercial use’. Fifth objection of O.P. is very materialistic and carries weight. O.P. has stated that complainant has failed to clear the outstanding dues within the time limit but miserably failed to clear the outstanding dues which resulted into suspension of the services of the complainant. Here O.P. says that O.P. has legally and rightly blocked the SIM/Mobile number of the complainant as he has failed to pay his outstanding dues. Now the question arises whether the O.P. has rightly blocked the SIM No./Mobile number of the complainant or not. It is an admitted fact that complainant has not paid outstanding due on the date of blocking his SIM No./Mobile No. by the O.P. but complainant’s grievance is that O.P. gave him numerous calls and blocked his mobile No./SIM No. without disclosing him reason of O.P.’s inability to collect the bill amount through E.C.S. mode from his saving bank account of SBI. Further no written notice/intimation to the complainant regarding this is given to the complainant. Therefore, the complainant though know that his payment is due yet he want to know the reason of O.P.’s inability to collect the bill amount through E.C.S. mode from his saving bank account of SBI as authorised by him and as O.P. was collecting payment previously. The complainant has every right to know reason and as per Consumer Protection Act, 1986 even right to be educated on the subject. Therefore, O.P. are bound to disclose/state/intimate the complainant about the reasons of their inability in collecting the bill amount through E.C.S. mode from his bank account of SBI as authorised by him. Further without disclosing reasons/intimation or written notice such as numerous calls and block of SIM No./Mobile No. amounts to deficiency in service. Though O.P. is time and again stating that several calls are made to complainant for due payment yet O.P. never stated that reasons/intimation were ever given/made/disclosed to the complainant regarding their inability to collect the due amount through E.C.S. mode.
8. It is an admitted fact that O.P. has made numerous calls to the complainant and blocked his mobile number temporarily without written notice to him and without informing him reason for regarding O.P.’s inability in collecting bills through E.C.S. facility. The complainant has authorised O.P. to receive payment through mode of E.C.S. and O.P. has been receiving the payment through E.C.S. mode since 01.09.2010 till 05.07.2013. Now O.P. neither given any reason/explanation to the subscriber/complainant about their inability in collecting bill through E.C.S. facility nor served any written notice to him prior to blocking of his mobile number. There is no fault of the complainant when he authorised O.P. to collect the bill through E.C.S. mode from his account in SBI. O.P. contention that his call centre has made calls for payment amounts to notice is without any substance because they are calling the complainant to make payment without disclosing the reason/explanation of their inability in collecting the bill through E.C.S. mode. O.P. cannot penalize the complainant without giving him prior notice stating the legal and valid reasons about O.P.’s inability in collecting the amount of payment from complainant’s saving bank account of S.B.I. through E.C.S. mode as authorised by the complainant for blocking the mobile number/SIM card.
9. The O.P. would have been justified if it has blocked the SIM No./Mobile No. of complainant after disclosing him reasons of their inability to collect the due amount by E.C.S. mode as collected by them earlier. The complainant has legally authorised O.P. to collect the dues through E.C.S. mode and never withdrawal his authorization. So complainant has no fault and matter could be solved by giving him intimation/reasons about their inability to collect due through E.C.S. mode. Further O.P. submitted that complaint is liable to be dismissed on the ground of mis-joinder and non joinder of necessary parties. This submission is without any merit as complainant has no grievance qua the bank so he need not implead it as party. Complainant has placed on record the necessary document as Exb.C-6 to prove the payment received by O.P. through E.C.S. mode earlier from the complainant’s saving bank account of S.B.I.
10. The O.P. time and again submitted that the complainant’s SIM No./Mobile No. is blocked due to non-payment of bills but never submitted that the O.P. has disclosed reasons or intimated or given written notice stating reason for their inability to collect the payment dues through E.C.S. mode from his bank account of SBI as authorised by the consumer and as earlier collected by the O.P.. As per Consumer Protection Rights complainant is entitled not only to know reasons/intimation but also to be educated as per Section 6 (f) of the Consumer Protection Act, 1986 (as amended upto date) upon the subject matter in issue. So O.P. failed to discharge its duty which amounts to deficiency in service.
11. In view of the above mentioned discussion, the consumer is entitled to a lump sum compensation and costs of Rs.25,000/- for harassment, agony etc. and litigation expenses. Vodafone Essar South Limited, Plot No.C-131, Eltop, Industrial Area, Phase-VIII, Mohali 160071 Punjab (through its Senior Manager/Authorised Attorney) is directed to pay above mentioned amount within 30 days from the date of receipt of a certified copy of this order failing which the O.P. will be liable to pay and the complainant will be entitled to get 12% interest upon it till the date of its actual realization. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
May 27 2016.
(Amrinder Singh Sidhu)
Presiding Member
(Mrs. R.K. Aulakh)
Member
