Delhi

East Delhi

CC/940/2012

AKBAR AHMED - Complainant(s)

Versus

VODAFONE - Opp.Party(s)

20 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No. 940/2012

 

	AKBAR AHMED R/O N-69, SOUTH AVENUE, SAINIK FARM, NEW DELHI – 110062	….Complainant
Versus
	VODAFONE MOBILE SERVICE LTD. THROUGH ITS DIRECOR/MANAGER, C-48, OKHLA INDUSTRIAL AREA, PHASE-II, NEW DELHI -110020	……OP

 

 

Date of Institution	:	09.11.2012
Judgment Reserved on	:	23.02.2023
Judgment Passed on	:	25.03.2023

 

               

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

 

 

Order By: Shri S.S. Malhotra (President)

 

 

 

JUDGEMENT

1. By this order the Commission shall dispose off the complaint of the Complainant w.r.t. deficiency in disconnecting the Mobile Number of the Complainant and also w.r.t. raising bill on the higher side. 
2. The brief facts as stated by the Complainant in the complaint are that Complainant is a senior citizen and is quite a reputed person being ex-Member of Parliament and having lot of business activities in India and abroad.  It is further submitted that he was user of Mobile connection number 9811298786, which he was using for the purpose of his clients, customers, foreign clients, children and also for day to day activities of his own but the OP unnecessarily raised a bill of Rs.11900.16 on 24.03.2012 under the massive charges while the Complainant was in surprised as to why such a huge bill has been sent and he was charged 3406 Local SMS @ Rs.1/-, 2778 SMS National @  Rs.1.50/- and 226 International SMS @ Rs.5/- which is not feasible as so many number of messages, within a frequency of one second cannot be send and it is further submitted that all these messages were sent within the period of 10 hours and 30 minutes which is wholly impracticable.  It is further submitted that even as per the TRAI Regulations, there is a limited number of SMS which could be sent for prepaid mobile numbers to the extent of 100 and for postpaid mobile numbers to the extent of 3000.  It is further submitted that when the Complainant approached the OP for the correction of the Bill which was raised illegally and unjustifiably, than instead of correcting the same, the OP  threatened to disconnect the same for non-payment and not only this, as and when he used to receive the call or make a call, pre-auto generated tape was heard thereby threatening the Complainant that the number would be disconnected if the arrears of the bill are not paid and ultimately they agreed that if Rs.11900.16/- would be paid by the Complainant they would not disconnect his number.  It is further submitted that even after accepting Rs.11900.16/- from the Complainant the OP deliberately and in order to cause loss to the reputation of complainant disconnected the aforesaid mobile number once on 22.08.2012 and again on 13.09.2012 and further auto generated tape was also set on the aforesaid connection which was causing great humiliation and discomfort to the Complainant which amounts to harassment to the Complainant. Not only this the OP used to disconnect the mobile connection and then restore on its own sweet will and as such the Complainant had filed a Civil Suit being Suit No.129/2012 before the Ld. Civil Judge where the OP was restrained from disconnecting the aforesaid connection and as far as the present matter is concerned, the same has been filed only on account of deficiency in service by the OP and it is prayed that OP be directed to to pay Rs.10,00,000/- along with interest @ 18% p.a. as compensation, To declare the Bill dated 24.03.2012 pertaining to the Mobile connection number 9811298786 as null and void and also direct the OP to pay litigation expenses of Rs.55,000/-. 
3. The OP has filed Written Statement taking preliminary objection that complaint is barred by law as a Civil Suit being Suit No.129/2012 has already been filed by the Complainant on the same subject matter wherein the ex-parte order dated 12.04.2012 has also been passed thereby directing the OP not to disconnect phone number 9811298786 of the plaintiff and therefore the Complaint in this Forum is not maintainable and even otherwise the same is barred by the provision of Order 2 Rule 2 CPC which states that the Suit has to include the whole claim and in case a plaintiff omits to sue in respect or intentionally relinquishes any portion of his claim he shall not file any such suit afterwards in respect of the portion so omitted or so relinquished as stated in Order 2 Rule 2 CPC and once the Complainant has already filed the Civil Suit, he has no cause of action to file this complaint and the same is barred under Order 2 Rule 2 of CPC and an Application under Order 7 Rule 11 CPC has also been filed by the OP in this regard.  It is further submitted that complaint was barred by provision of Section 7(b) of the Indian Telegraph Act 1885 which has barred the jurisdiction of other Foras and it is mentioned that all the matters would be decided by the Arbitrator. 
4. As far as merits are concerned, it is submitted that the Complainant desired for a postpaid Cellular connection of the OP and for that he procured the standard application form which contains terms and conditions and after going through the same the OP granted the Complainant a Cellular number i.e. 9811298786 and he was using the same nationally as well as internationally on his mobile set.  The bill has been rightly raised on 24.03.2012 for an amount of Rs.11900.16/- and the details has been provided to the Complainant already and infact Complainant had sent all the messages which stand recorded in the Sim Card.  It is further submitted that Holi Festival was on or about 08.03.2012 in that year and Complainant to avoid peak day SMS charges might have been forwarding Holi Greetings in advance.  It is further submitted that the notification of the TRAI which is being relied upon by the Complainant was brought in to check the rampant misuse for sending unsolicited commercial messages in violation of the regulation of TRAI but were not at all to put any restriction on any genuine communication and therefore it cannot be argued that Complainant had sent more SMS than the restricted number as notified by TRAI.  In the facts and circumstances, it is submitted that before succeeding in the complaint the Complainant has to prove the damages should have occurred in view of such deficiency or there is some nexus between, the non-making payment, playing the automated tape as alleged.  In view of the above, it is submitted that complaint of the Complainant be dismissed. 
5. Complainant has filed replication in which he has not disputed the facts w.r.t. filing the Civil Suit in the Court of Ld. Civil Judge but it is denied that complaint is not maintainable in view of Order 2 Rule 2 CPC and it is submitted that the claim before this Forum is altogether different which is w.r.t. claiming compensation whereas claim before the Civil Court is only w.r.t. the payment of the bill amount. Rest of the facts of the Written Statement are denied and contents of the preliminary objection are reiterated. 
6. Complainant has filed his own evidence and OP has filed evidence of Shri B. Arutsivn, Manager Legal of the OP.   
7. The Commission has heard the arguments and perused the record.
8.   Before coming to the merits of the case one fact has to be observed i.e. with respect to jurisdiction of the complaint.  The Complainant is a resident of South Avenue, Sainik Farm, New Delhi and the address of the OP is stated to be Okhla Industrial Area, New Delhi.  Neither the cause of action has been stated to have arisen within the territorial jurisdiction of this Commission nor any of the party resides within the territorial jurisdiction of this Commission.
9. Before adverting to the merits, as to whether there was any deficiency w.r.t. services assured to be given by the OP to the Complainant or w.r.t. the fact that the Bill against the Mobile Number of the Complainant has been excessively done, first issue w.r.t. jurisdiction has to be entertained which is germane to the proceedings as if this Commission does not have the jurisdiction, it cannot touch the merits of the case. 
10. Section 34 of Consumer Protection Act, 2019, which reads as under:

 

Subject to the other provisions of this Act, the District Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration does not exceed one crore rupees:

 

Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit.

 

(2) A complaint shall be instituted in a District Commission within the local limits of whose jurisdiction-

 

(a) the opposite parry or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain, or

 

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, provided that in such case the permission of the District Commission is given; or

 

(c) the cause of action, wholly or in part, arises, or

 

(d) the complainant resides or personally works for gain.

 

(3) The District Commission shall ordinarily function in the district headquarters and may perform its functions at such other place in the district, as the State Government may, in consultation with the State Commission, notify in the Official Gazette from time to time. 

 

11.    The Complainant is a resident of South Avenue, Sainik Farm, New Delhi and the address of the OP is stated to be Okhla Industrial Area, New Delhi.  Neither the cause of action has been stated to have arisen within the territorial jurisdiction of this Commission nor any of the party resides within the territorial jurisdiction of this Commission.
12. Accordingly, this Commission is of the opinion that this Commission does not have any territorial jurisdiction to entertain the present complaint, complaint is therefore ordered to be returned to the Complainant.  All the Misc. Application pending if any are also dismissed and interim Order if any is vacated. 

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room

Announced on 25.03.2023.