Delhi

East Delhi

CC/132/2016

SUSHIL KUMAR - Complainant(s)

Versus

VODAFONE - Opp.Party(s)

08 Mar 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. NO. 132/16

 

Shri Sushil Kumar Mahajan

R/o A-231, Block-A, Surajmal Vihar

Near Karkardooma Court Delhi- 110092

                                                               ….Complainant

Vs.    

VODAFONE MOBILE

C-48, Okhla Ind. Area

Phase-II, New Delhi- 110020

Also at

E-356, Nirman Vihar Delhi- 110092

                                                                                    …Opponent

 

Date of Institution: 18.03.2016

Judgement Reserved on: 08.03.2019

Judgement Passed on: 20.03.2019

 

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Harpreet Kaur Charya (Member)

 

JUDGEMENT

           Jurisdiction of this forum has been invoked by Sh. Sushil Kumar Mahajan, the complainant alleging deficiency in service and unfair trade practice against Vodafone Mobile, OP.

            The facts in brief are that the complainant had been using postpaid Vodafone number 9811551118 for past 10 years and was paying bills regularly. A Bill of Rs. 512/- was received by the complainant in the month of December 2015, and Rs. 1,000/- each were deposited by the complainant on 10.12.2015 and 29.12.2015, thus he had paid in excess Rs.1487.18 to OP and again in the month January 2016 and February 2016 bill of Rs.583/- and Rs.667.02 respectively was raised, where the amount of Rs. 2,000/- already deposited was not adjusted. Despite several visits, the said amount paid by the complainant in the month of December 2015, was not adjusted which resulted in financial loss, mental pain and agony. Hence, the present complaint seeking directions to OP to correct the bill issued to the complainant; Rs.70,000/- as compensation and Rs.15,000/- towards litigation charges.

The complainant has annexed bill dated 24.05.2015, 24.06.2015, 24.07.2015, 24.09.2015, 24.10.2015, 24.11.2015, transaction receipt dated 29.12.2015 for payment of cash Rs.1,000/-, receipt dated 02.03.2016, bill dated 24.01.2016 and  print out of messages with the complaint.

Reply was filed by OP alongwith application under Order VII Rule 11 (D) CPC read with section 7 B of the Indian Telegraph Act, 1885. In the reply, OP has taken several pleas in their defense such as this forum did not have jurisdiction to entertain the present complaint as it was barred by section 7 B of the Indian Telegraph Act,1885. It was submitted that OP had been granted license under section 4 of the Indian Telegraph Act thereby they were governed by the provisions of the said Act and rules notified by the Central Government. It was further submitted that as per section 3 [(1) AA] Telegraph was defined as

‘……. Any appliance instruement, material or apparatus used or capable of use for reception of signs, signals, writing, images, and sounds, or intelligence of any nature by wire, visual or other electromagnetic emissions, radio wave or Hertzian waves, galvanic, electric or magnetic means…….’

Therefore Telegraph included Telephones and mobile phones and as per rule 413 of Telegraph Rules, all the services relating to telephones are subject to the provisions contained under Telegraph Rules and thereby implication  of the definition any dispute in relation to telephone or rising out of the services relating to telephones are subject to the provisions contained the India Telegraph Act. Thus, the Indian Telegraph Act clearly provided for special and efficacious remedy under Section 7 B, which reads as follows:

7 B: Arbitration of disputes:

(1). Except as otherwise expressly provided in this Act, if any dispute concerning any Telegraph line, appliance or apparatus arises between the Telegraph Authority and the person whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall determined by arbitration and shall, for the purpose of such determination, be referred to a arbitrator appointed by the Central Government either specially for the determination of the dispute or generally for the determination of disputes under this section.

(2). The award of the arbitrator appointed under subsection (1) shall be conclusive between the parties to the dispute and shall not be questioned in any court”

            Therefore, the complaint could not be adjudicated by this Forum as it lacked jurisdiction.

            On merit, it was submitted by the OP that as per the averment of the complainant that he had deposited Rs. 2,000/- in advance in two installments of Rs. 1,000/- each on 10.12.2015 and 29.12.2015 respectively, which was duly adjusted in the billing cycle for the month of January and February for bill amount of Rs. 583 and Rs. 667.02 respectively and it was only in the month of July, 2016, the connection of the complainant was deactivated, but the factual matrix was that bill of Rs. 1,095.37, Rs. 1,762.39 and Rs. 1,585.49 was raised for the month of December, January and February respectively, which was duly adjusted in the Vodafone account of the complainant. The OP had acted as per the established norms/ laws, thus, no deficiency in service could be attributed to them. Rest of the contents of the complaints have also been denied.

Copy of the resolution authorizing, Shri Arutsivan B., General Manager Legal has been annexed as Annexure A various judgements have been annexed as Annexure A to Annexure G, bill dated 24.12.2015 as Annexure H, bill dated 24.01.2016 and 24.02.2016  as Annexure I have been filed with their reply.

Rejoinder to the WS of OP was filed by the complainant where he has reiterated the contents of his complaint and denied those of the WS.

Evidence by way of affidavit was filed by the complainant where he has deposed on oath the contents of the complaint.

            Ms. Nidhi Soni, Manager Legal was examined on behalf of OP and she has also reaffirmed the contents of their reply and has got exhibited Board Resolution dated 28.04.2018 authorizing her as Ex.OP1/1, copy of the Bill dated 23.12.2015 as Ex.OP1/2; copies of bill dated 24.01.2016 and 24.02.2016 as Ex.OP1/3 (Colly.)

We have heard the arguments on behalf of Ld. Counsel for Complainant and OP and have perused the material placed on record. Firstly, deciding upon the objection taken by OP that this Forum did not have jurisdiction to adjudicate the present complaint as per Section 7 (B) of Indian Telegraph Act as it was to be decided in arbitration. It has been held by Three Members Bench of Hon’ble National Commission in “Bharti Hexacom Ltd. V/s Komal Prakash” RP no. 1228 of 2013, that power of telegraph authority are now not vested in the private telecom service providers and also in BSNL; so, Section -7B of Telegraph Act have no application and Forums constituted under Consumer Protection Act are competent to entertain disputes between individual telecom consumers and telecom service providers. Thus, this Forum has jurisdiction to entertain the present complaint, therefore, application under Order VII Rule 11 filed by OP, stands dismissed.

Now, deciding on the merits of the present complaint, the complainant have alleged that he had deposited Rs. 1,000 /- on 29.12.2015, in support of which he has placed on record a receipt of the same date and an amount of Rs. 1,000/- was paid on 10.12.2015 for which he has relied on the screen shot of the SMS received. The complainant  is aggrieved by non-adjustment of the above two payments made by him in the subsequent bills raised by OP. If we look at the bill dated 24.12.2015, the amount paid on 10.12.2015 should have been adjusted in the said bill, which has not been done. Further, the payment made on 29.12.2015 should have been adjusted in the bill for the period from 24.12.2015 to 23.01.2016, which again is not reflected rather the said amount paid has been adjusted in billing period from 24.01.2016 to 23.02.2016, which is after a period of one month. Also if we look at bills from 24.12.2015 to 23.02.2016, which have been relied upon by OP, the last three payments still continue to be from August, 2015 to October, 2015 whereas the complainant had made payments on 10.12.2015, 19.12.2015 and 14.02.2016. As evident from bills & SMS, this implies, that OP did not adjust the payments made by the complainant, therefore, we hold OP liable of deficiency in services.

Therefore, in facts and circumstances of the present complaint, we direct OP to pay Rs. 15,000/- as compensation on account of harassment and mental agony and Rs. 7,500/- as litigation expenses.

This order be complied within 30 days from the date of receipt of the order else 22,500/- shall carry interest @9% per annum from the date of order till realization.

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

            File be consigned to Record Room.

 

     

   (DR. P.N. TIWARI)                                                          (HARPREET KAUR CHARYA)

                    Member                                                                           Member    

                                        (SUKHDEV SINGH)

                                            President