Delhi

East Delhi

CC/1138/2013

SANDEEP - Complainant(s)

Versus

VODAFONE - Opp.Party(s)

21 Feb 2014

ORDER

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

 

C.C. NO. 1138/13

 

Sh. Sandeep Kumar Saxena

Proprietor of M/s SSP Brand Conversation

Private Limited at

103, Harsha Complex, I^st Floor

Gazipur, Delhi – 110 096                                                             ….Complainant

 

Vs.

 

Vodafone Store

E-13, Local Shopping Complex

Plot No. 3, Choudhary Charan Singh Marg

Gazipur, Delhi – 110 096

 

Vodafone Store

C-48, Okhla Industrial Area

Phase – II, New Delhi                                                                    ….Opponents

 

Date of Institution: 31.12.2013

Judgment Reserved for : 16.05.2016

Judgment Passed on : 24.05.2016

 

 

Order By : Sh. Sukhdev Singh (President)

 

 

JUDGEMENT

 

The complainant Shri Sandeep Kumar Saxena has filed a complaint against M/s Vodafone Store, E-13, Local Shopping Complex, Plot No. 3, Choudhary Charan Singh Marg, Gazipur, Delhi – 110 096 (OP-1) and               M/s Vodafone Store, C-48, Okhla Industrial Area, Phase – II, New Delhi (OP-2) for refund of deposit amount of Rs. 78,000/-, Rs. 4,00,000/- on account of compensation and Rs. 15,000/- as litigation charges. 

2.        The facts in brief are that the complainant have been running a small business at 103, Harsha Complex, I^st Floor, Gazipur, Delhi – 110 096 for his livelihood.  To encourage his business, he was in need of 40 data card SIM of Vodafone.  He made a contact with the customer care of the respondent on 25.12.2013 for data card SIM.  The customer care executive viz. Shri Lalit told the complainant the cost of 40 SIM of Vodafone Rs. 78,000/-.  Mode of payment was cash. 

3.        He was further asked to complete certain formalities.  The complainant completed the formalities and made a call on the customer care of the respondent on 26.12.2013.  He was assured by the customer care executive that the executive will be sent on the very day.  The respondent sent his executive viz. Shri Rajeev at the office of the complainant who checked all the documents.  The executive demanded a sum of Rs. 78,000/- as the cost of the SIM.  The complainant made this payment in cash against receipt No. 24891 of dated 26.12.2013.

4.        He has further stated that when he asked the executive of the respondent to provide him data card of all SIM, he was told that firstly, he will deposit the amount in the company’s account and then he will provide the data card.  The respondent executive assured the complainant that within two hours, he will come at the office of the complainant.  The complainant was shocked when no one turned at the office of the complainant.  He immediately contacted at the customer care of the respondent.  Branch Manager Mr. Rajat Bhatia, Mr. Lalit and Mr. Vivek visited the office of the complainant and checked all SIM and receipt, which was issued by the respondent executive.  They assured the complainant that within three hours either they will refund the amount or activate all the SIM.  However, the respondent did nothing.  When the complainant did not get any satisfactory reply, he made a complaint with PO Gazipur vide DD No. 26A dated 27.12.2013.  However, the complainant did not get any response.  Thus the complainant has stated that respondent have failed to provide any service as was assured to the complainant which was a clear case of deficiency in service on the part of the respondent no. 1.  Hence, the complainant has prayed for refund of money of Rs. 78,000/- along with compensation of Rs. 4,00,000/- and Rs. 15,000/- as cost of litigation.

5.        In the WS, OPs have taken various pleas such as the complaint was not maintainable because the complainant was not a ‘Consumer’ as defined under section 2(d) of the Consumer Protection Act; the complainant has not availed any services of the respondents, but had bought certain products exclusively for re-sale; the Forum was not having jurisdiction in view of Section 7(b) of the Indian Telegraph Act 1885.  The respondents have not received the alleged amount of Rs. 78,000/- from the complainant; the said receipt has not been issued by them.  It has also been stated that respondent have not issued SIM cards to the complainant.  The complainant has been a victim of misrepresentation /fraud.  There was no deficiency in services within the meaning of Section 2(g) or of any defect within the meaning of Section 2(f) of the Consumer Protection Act.  There has been no documentary evidence to substantiate the claims made by the complainant.  Thus, it has been stated that the complaint was liable to be dismissed.

6.        In the Rejoinder, the complainant has controverted the pleas taken in the WS and have re-asserted his case. 

7.        In support of his case, the complainant has filed his evidence by way of affidavit.  He has narrated the facts, which he has stated in his complaint.  In defence, OP has filed evidence by way of affidavit.  The affidavit has been sworn by Shri B. Arutsivan, Senior Manager, Legal with M/s Vodafone Mobile Services Limited.  He has stated that the respondents have not received the alleged amount of Rs. 78,000/- from the complainant.  The receipt of Rs. 78,000/- has not been issued by them.  They have not issued SIM cards to the complainant.  The complainant has been the victim of misrepresentation/ fraud.  He has further deposed that since they have not received any consideration from the complainant, he was not a consumer of the respondent and there was no consumer dispute.  He has further deposed that the question of fraud cannot be adjudicated in summary proceedings under the Consumer Protection Act 1986.  He has further deposed that M/s SSP Brand Conversation Pvt. Ltd. was a company duly registered under the Companies Act of which the complainant was a Director and not proprietor.  He has got exhibited registration of the company as Ex R1/1.

8.        We have heard Ld. Counsel for the parties and have perused the material placed on record.  It has been argued on behalf of the OP that the complaint was not maintainable as the complainant was not a consumer under Section 2(d) of the Consumer Protection Act 1986.  He has further argued that the complaint was barred under Section 7(b) of the Indian Telegraph Act 1885.  He has relied upon a judgment of Apex Court in General Manager Telecom Vs. M. Krishnan, Civil Appeal No. 7687 of 2004, where it has been laid down that where there was a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act was by implication barred.   Not only this, he has further argued that respondent/OP have not received any amount of Rs. 78,000/- nor they have issued any receipt.  It has further been argued that the complainant being a victim of mis-representation/fraud, the consumer court cannot adjudicate the question of fraud in summary proceedings. 

9.        On the other hand, Ld. Counsel for the complainant has argued that the complaint was maintainable as he was a consumer and it does not fall under the Telegraph Act. 

10.      To appreciate the arguments of the Ld. Counsel of the parties, a look has to be made to Section 2(d) of the Consumer Protection Act 1986.  Section 2(d) is extracted hereunder:-

“Consumer” means any person who:

(i)  Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)  hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.”

 

11.      Without going into the arguments of the Ld. Counsel for the parties, a look has to be made to the complaint as well as reply filed.  If the complaint is perused, it is noticed that the complainant has stated that he gave an amount of Rs. 78,000/- against receipt No. 24891 dated 26.12.2013 for purchase of data card SIM.  The receipt of Rs. 78,000/- and its receipt has been disputed by the complainant.  Even they have denied of having issued the SIM cards.  The complainant has made a complaint with PS Gazipur vide DD No. 26A of dated 27.12.2013.  When the respondent/OP have denied the receipt of Rs. 78,000/-; issuing of receipt thereof and supply of SIM cards, the facts become disputed.  When there are disputed facts, the same cannot be decided in a summary manner.  Not only this, the relief claimed by the complainant in his complaint has been for refund of Rs. 78,000/- with interest @ 18%.  Under Section 14 of  the Act, no relief can be granted to the complainant for recovery of Rs. 78,000/- with interest @ 18%.  It may be a case of civil nature and not a case covered under the Consumer Protection Act.

12.      In view of the above, we are of the opinion that the complainant is not a consumer within the definition of Section 2(d) of the Act.  Therefore, his complaint deserves dismissal and stands dismissed.

Copy of the order be supplied to the parties as per rule.

 

(P.N. TIWARI)                                                                                 (SUKHDEV SINGH)

MEMBER                                                                                          PRESIDENT