FIRST ADDITIONAL BENCH
First Appeal No.1771 of 2010.
Date of Institution: 11.10.2010.
Date of Decision: 31.10.2014.
…..Appellant/Opposite Party No.2.
Versus
….Respondent/Complainant.
….Respondent/Opposite party no.1
First Appeal against order dated 11.08.2010 passed by the District Consumer Disputes Redressal Forum, Mansa.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Harcharan Singh Guram, Member.
Present:-
For the appellant : Sh. Sanjiv Pabbi, Advocate.
For the respondents: Sh. Madan Sandhu, Advocate.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The appellant (opposite party no.2 in the complaint) has filed this appeal against impugned order dated 11.08.2010 passed by the District Consumer Disputes Redressal Forum, Mansa (in short, “the District
Forum”), accepting the complaint of the respondent no.1 of this appeal (complainant in the complaint) and awarding compensation, as detailed therein.
2. The brief facts of the complaint are that Sh. Veer Singh, complainant filed the complaint u/s 12 of the Consumer Protection Act, 1986 (in short, “the Act”) against the opposite parties, on the allegations that he obtained the mobile no.98721-86950 with Sim No.8991021207103869085. He deposited Rs.512/- with opposite party no.1 at 4.15 p.a. on 07.01.2010 and again deposited Rs.3078/- with the opposite party at 4.17 p.m. The complainant paid the entire amount for the above-referred connection to opposite party no.1 and, thus, became its consumer. Opposite party no.1 in connivance with opposite party no.2 closed the service of the mobile of the complainant and the above-referred deposited amount was withdrawn from the account of the mobile. The complainant approached opposite party no.1, to restart the service of his mobile by stating that he has deposited the entire amount, but he has not given any heed, nor his mobile service was started. The complainant has, accordingly, prayed that the opposite parties be directed to pay Rs.70,000/-as compensation to him and Rs.10,000/- as litigation expenses, besides refunding Rs.3603/- to him.
3. Upon notice, opposite party no.2 appeared and filed written reply, taking preliminary objections that the mobile connection has been running in the name of Vijay Kumar since May 3, 2008. The complainant has not obtained any mobile connection and, as such, he is not consumer of opposite party no.2. The complainant is not salesman of opposite party no.2. On merits, the complaint was resisted by opposite party no.2 and it expressed its ignorance regarding depositing of above amount. It took the plea that after re-charging the mobile, the recharged amount cannot be withdrawn. Opposite party no.2, thus, prayed for dismissal of the complaint.
4. Opposite party no.1 was set exparte before the District Forum, vide order dated 17.06.2010.
5. The complainant tendered in evidence affidavit of Subhash Chander Ex.C-1, his own affidavits Ex.C-3 & 5 along with documents Ex.C-2 to Ex.C6. As against it, the opposite party tendered enrolment form Ex.OP1 and copy of voter card Ex.OP2 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainant against opposite party no.2, directing it to credit Rs.3603/- in the account of the complainant and to pay Rs.25,000/- as compensation for mental harassment besides Rs.5,000/- as litigation expenses. Complaint against opposite party no.1 was dismissed. Aggrieved by the impugned order, the opposite party no.2 has come up in this appeal.
6. We have heard learned counsel for the parties have also examined the record of the case.
7. The evidence on record has been perused by us, with the able assistance of the counsel for the parties. Ex.C-1 is affidavit of Subhash Chander to the effect that he was appointed as rural distributor of Patiala in April, 2008. He deposited the ATC form of the complainant before the FSO, Airtel Gurdeep Singh, Meerpur together with identity card of complainant Veer Singh. Airtel Company issued mobile no.98721-86950 with Sim No. to the complainant in April, 2008. Ex.C-5 is the affidavit of the complainant on record. Ex.C-6 is to the effect that the amount of Rs.3603/- was deposited at 4.27 p.m. Ex.C-6 has further proved the transfer of value of Rs.3078/- to the account of the complainant at 4.17 p.m. on 07.01.2010. It has also proved the balance at 4.27 p.m. as Rs.3603/- on 07.01.2010. The opposite parties tendered the Airtel prepaid enrolment form of Vijay Kumar Ex.OP-1 on record. Ex.OP-2 is the voter card of Vijay Kumar on record.
8. On careful appraisal of above referred evidence on record, we proceed to adjudicate the appeal in this case. The arguments raised by the appellant before this Bench is that the Airtel prepaid enrolment form Ex.OP-1 was issued on the basis of identity card of election commission in favour of Vijay Kumar, vide Ex.OP-2. The complainant has not placed any enrolment form, which could establish that mobile number was allotted to Veer Singh, complainant. The connection cannot be issued without proper verification and identification of the subscriber and without verification of the allotment of mobile connection. It is against the terms and conditions of the Telecom Regulatory Authority of India. The complaint is barred u/s 7-B of Indian Telegraph Act also.
9. We have carefully examined the contentions raised before us of the appellant. Section 7-B of the Telegraph Act is attracted, where the opposite party is Govt. or Govt. institution. It would not be applicable in the case of private telecom companies, in the opinion of this Commission. The Hon'ble National Commission has also so held in case "Bharti Hexacom Ltd. Vs. Komal Prakash & Anr.", Revision Petition No.1228 of 2013, decided on 02.05.2014. The complainant has been using the above mobile connection, although it is recorded in the name of Vijay Kumar. The complainant is beneficiary thereof and has deposited the amount with the opposite parties. The amount stood disappeared from his credit and hence, it cannot be said that the complainant would not be a consumer, as he is beneficiary of the services provided by the opposite parties. There is no affidavit placed on record by the opposite party of Vijay Kumar to the effect that he did not permit the complainant to use the above mobile connection. Consequently, we conclude it to be a case of deficiency in service on the part of the opposite party no.2 to the complainant. The District Forum rightly came to the conclusion that opposite party no.2 is bound to credit the amount Rs.3,603/- in the account of the complainant. It also awarded Rs.25,000/- as compensation to the complainant for mental harassment and Rs.5,000/- as litigation expenses. The Consumer Protection Act, 19856 is specifically enacted to protect the interest of the consumers. We do not find any ground to interfere with the order of the District Forum under appeal in this case and same is hereby affirmed.
10. In view of our above discussion, the appeal is meritless and the same is hereby dismissed.
11. The appellant had deposited the amount of Rs.16,805/- with this Commission at the time of filing the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants. Remaining amount as per order of the District Forum shall be paid by the appellant to the complainant within 45 days of receipt of copy of the order.
12. Arguments in this appeal were heard on 27.10.2014 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR)
PRESIDING JUDICIAL MEMBER
(HARCHARAN SINGH GURAM)
MEMBER
October 31, 2014.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.First Appeal No.1771 of 2010.
Date of Institution: 11.10.2010.
Date of Decision: 31.10.2014.
M/s Bharti Airtel Limited
Circle Office, Rajiv Gandhi Technological Park, I.T. Park, Chandigarh, through its Authorised Signatory.…..Appellant/Opposite Party No.2.
Versus
1. Veer Singh
S/o Ram Dayala Singh, Ward No.6, Peer Khana Basti, Sardulgarh, District Mansa.….Respondent/Complainant.
2. Gurdeep Singh
Meerpur Salesman, Airtel Sub Office, near Bus Stand, Mansa-Sirsa Road, Sardulgarh, through its Prop./partner.….Respondent/Opposite party no.1
First Appeal against order dated 11.08.2010 passed by the District Consumer Disputes Redressal Forum, Mansa.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Harcharan Singh Guram, Member.
Present:-
For the appellant : Sh. Sanjiv Pabbi, Advocate.
For the respondents: Sh. Madan Sandhu, Advocate.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellant (opposite party no.2 in the complaint) has filed this appeal against impugned order dated 11.08.2010 passed by the District Consumer Disputes Redressal Forum, Mansa (in short, “the District
Forum”), accepting the complaint of the respondent no.1 of this appeal (complainant in the complaint) and awarding compensation, as detailed therein.
2. The brief facts of the complaint are that Sh. Veer Singh, complainant filed the complaint u/s 12 of the Consumer Protection Act, 1986 (in short, “the Act”) against the opposite parties, on the allegations that he obtained the mobile no.98721-86950 with Sim No.8991021207103869085. He deposited Rs.512/- with opposite party no.1 at 4.15 p.a. on 07.01.2010 and again deposited Rs.3078/- with the opposite party at 4.17 p.m. The complainant paid the entire amount for the above-referred connection to opposite party no.1 and, thus, became its consumer. Opposite party no.1 in connivance with opposite party no.2 closed the service of the mobile of the complainant and the above-referred deposited amount was withdrawn from the account of the mobile. The complainant approached opposite party no.1, to restart the service of his mobile by stating that he has deposited the entire amount, but he has not given any heed, nor his mobile service was started. The complainant has, accordingly, prayed that the opposite parties be directed to pay Rs.70,000/-as compensation to him and Rs.10,000/- as litigation expenses, besides refunding Rs.3603/- to him.
3. Upon notice, opposite party no.2 appeared and filed written reply, taking preliminary objections that the mobile connection has been running in the name of Vijay Kumar since May 3, 2008. The complainant has not obtained any mobile connection and, as such, he is not consumer of opposite party no.2. The complainant is not salesman of opposite party no.2. On merits, the complaint was resisted by opposite party no.2 and it expressed its ignorance regarding depositing of above amount. It took the plea that after re-charging the mobile, the recharged amount cannot be withdrawn. Opposite party no.2, thus, prayed for dismissal of the complaint.
4. Opposite party no.1 was set exparte before the District Forum, vide order dated 17.06.2010.
5. The complainant tendered in evidence affidavit of Subhash Chander Ex.C-1, his own affidavits Ex.C-3 & 5 along with documents Ex.C-2 to Ex.C6. As against it, the opposite party tendered enrolment form Ex.OP1 and copy of voter card Ex.OP2 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainant against opposite party no.2, directing it to credit Rs.3603/- in the account of the complainant and to pay Rs.25,000/- as compensation for mental harassment besides Rs.5,000/- as litigation expenses. Complaint against opposite party no.1 was dismissed. Aggrieved by the impugned order, the opposite party no.2 has come up in this appeal.
6. We have heard learned counsel for the parties have also examined the record of the case.
7. The evidence on record has been perused by us, with the able assistance of the counsel for the parties. Ex.C-1 is affidavit of Subhash Chander to the effect that he was appointed as rural distributor of Patiala in April, 2008. He deposited the ATC form of the complainant before the FSO, Airtel Gurdeep Singh, Meerpur together with identity card of complainant Veer Singh. Airtel Company issued mobile no.98721-86950 with Sim No. to the complainant in April, 2008. Ex.C-5 is the affidavit of the complainant on record. Ex.C-6 is to the effect that the amount of Rs.3603/- was deposited at 4.27 p.m. Ex.C-6 has further proved the transfer of value of Rs.3078/- to the account of the complainant at 4.17 p.m. on 07.01.2010. It has also proved the balance at 4.27 p.m. as Rs.3603/- on 07.01.2010. The opposite parties tendered the Airtel prepaid enrolment form of Vijay Kumar Ex.OP-1 on record. Ex.OP-2 is the voter card of Vijay Kumar on record.
8. On careful appraisal of above referred evidence on record, we proceed to adjudicate the appeal in this case. The arguments raised by the appellant before this Bench is that the Airtel prepaid enrolment form Ex.OP-1 was issued on the basis of identity card of election commission in favour of Vijay Kumar, vide Ex.OP-2. The complainant has not placed any enrolment form, which could establish that mobile number was allotted to Veer Singh, complainant. The connection cannot be issued without proper verification and identification of the subscriber and without verification of the allotment of mobile connection. It is against the terms and conditions of the Telecom Regulatory Authority of India. The complaint is barred u/s 7-B of Indian Telegraph Act also.
9. We have carefully examined the contentions raised before us of the appellant. Section 7-B of the Telegraph Act is attracted, where the opposite party is Govt. or Govt. institution. It would not be applicable in the case of private telecom companies, in the opinion of this Commission. The Hon'ble National Commission has also so held in case "Bharti Hexacom Ltd. Vs. Komal Prakash & Anr.", Revision Petition No.1228 of 2013, decided on 02.05.2014. The complainant has been using the above mobile connection, although it is recorded in the name of Vijay Kumar. The complainant is beneficiary thereof and has deposited the amount with the opposite parties. The amount stood disappeared from his credit and hence, it cannot be said that the complainant would not be a consumer, as he is beneficiary of the services provided by the opposite parties. There is no affidavit placed on record by the opposite party of Vijay Kumar to the effect that he did not permit the complainant to use the above mobile connection. Consequently, we conclude it to be a case of deficiency in service on the part of the opposite party no.2 to the complainant. The District Forum rightly came to the conclusion that opposite party no.2 is bound to credit the amount Rs.3,603/- in the account of the complainant. It also awarded Rs.25,000/- as compensation to the complainant for mental harassment and Rs.5,000/- as litigation expenses. The Consumer Protection Act, 19856 is specifically enacted to protect the interest of the consumers. We do not find any ground to interfere with the order of the District Forum under appeal in this case and same is hereby affirmed.
10. In view of our above discussion, the appeal is meritless and the same is hereby dismissed.
11. The appellant had deposited the amount of Rs.16,805/- with this Commission at the time of filing the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants. Remaining amount as per order of the District Forum shall be paid by the appellant to the complainant within 45 days of receipt of copy of the order.
12. Arguments in this appeal were heard on 27.10.2014 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR)
PRESIDING JUDICIAL MEMBER
(HARCHARAN SINGH GURAM)
MEMBER
October 31, 2014.
COMMENTS