Saturday, June 19, 2010

DF: Violation of Talk-time Offer

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT PUDUCHERRY

Consumer Complaint No.61/2007

Dated this the 22nd day of October, 2008.

Vidjearangame S/o Elumalai, aged about 30 years, residing at No.64, MOH Street, Kurinji Nagar, Puducherry-4.

Complainant

v.

1. M/s Bharathi Cellular Limited, rep. by its Managing Director, having office at Qutab Ambience, H5/12, Mehrauli Road, New Delhi – 110 030.

2. The Proprietor, Bonjour Bonheur, having office at Mahathma Gandhi Road, Puducherry-1.

3. The Proprietor, Valli STD Booth, College Road, Lawspet, Puducherry-8.

Opposite Parties

BEFORE:

THIRU A. ASOKAN, B.A., B.L.,

PRESIDENT.

TMT. T. SELLIAMMAL,

MEMBER.

TMT. K.K. RITHA,

MEMBER.

FOR THE COMPLAINANT: Mr. K. Ravikumar, advocate.

FOR THE OPPOSITE PARTY: Mr. S. Venkatapathy, Advocate, for 3rd op. 1st and 2nd opposite parties set ex parte.

O R D E R

(By Tmt. K.K. Ritha, Member.)

This is a complaint u/s 12 of the Consumer Protection Act, 1986 (hereinafter called the “Act”) praying to direct the opposite parties to extend freshly the validity period to 120 days as per the offer dated 02.06.2007 and as per the condition of the Budget Plus Plan, to refund Rs.40/- collected unauthorizedly with interest @ 18% p.a., to pay Rs.1,80,000/- as compensation for mental torture and agony due to negligent act of the opposite parties and for costs of Rs.10,000/-.

2. The case of the complainant is briefly as follows:

The complainant submits that the first opposite party is the mobile telephone service provider at New Delhi, the second opposite party is the local branch office and the third opposite party is the selling agent. The complainant opted for the Budget Plus Plan provided by the first opposite party, since the plan had given double validity for the validity period on each recharge. On 13.09.2006 the complainant purchased an Airtel mobile connection starter pack from the third opposite party for Rs.149/- under Budget Plus Plan under which every time the complainant recharges, the validity period doubles. The complainant further states that the recharge is made through easy recharge facility, by which the complainant has to pay the sum to be recharged to any selling agent of the first opposite party, that is third opposite party, who in turn sends an intimation to the first opposite party and the recharge is made and the complainant receives an intimation to that effect in the form of an SMS, which takes about two hours from the time of the payment till the confirmation message is received. On 02.06.2007 the complainant received an SMS from the first opposite party intimating about the offer valid for one day on 02.06.2007 alone that for a recharge of Rs.200/- there would be a double validity of 60 days and talk-time of Rs.46/-.

The complainant states that since he was already under the Budget Plus Plan, the complainant was to get double benefit from the offer with regard to the validity period. Further, he had a balance talk-time of more than Rs.35/-. According to him, since he was under the Budget Plus Plan, on recharge of Rs.200/-, he would get a talk-time of Rs.46/- and a validity period of 120 days. To avail the offer on 02.06.2007, he recharged for Rs.200/- with the third opposite party and got a confirmation SMS that “recharge successful”. He was surprised to find that the validity of his connection was only 30 days and not 60 days as per the offer dated 02.06.2007. The validity ought to have been double, i.e. 120 days as per the Budget Plus Plan. Then on 04.06.2007 the complainant registered a complaint with the second opposite party. To his surprise, the first opposite party had activated “missed call alert” and “Ringtone club” without his request. The balance talk-time was Rs.35/- before the recharge on 02.06.2007 and on 05.06.2007 it was minus Rs.15/-. The complainant then called the customer care and complained about the same for which the executive had informed that there was a mistake in activating the missed call alert for the second time and that a sum of Rs.10/- charged for the activation would be refunded. After giving several complaints on 08.06.2007, the first opposite party refunded Rs.75/- to the account of the complainant. The acts of the first and second opposite parties in not extending the double validity period under Budget Plus Plan towards the recharge, deducting money for the services not utilized and all the illegal claims made and finally refunding Rs.75/- amount to deficiency in service. Hence, the complainant approached this Forum for redressal.

3. The second and third opposite parties were called absent and set ex parte. The reply version of the first opposite party is as follows:

The first opposite party submits that the complainant is not a consumer under the Act. The first opposite party admits that the complainant joined as a mobile phone subscriber under the “Budget Plus Plan”. As per the terms and conditions of the said plan, whenever the subscriber recharges the mobile number, he is eligible for double validity period. The number under the scheme needs to be recharged within the grace time provided, failing which the said number will be automatically barred and permanently deactivated. The first opposite party’s franchisee, the second opposite party herein, explained the terms and conditions of the said plan to the complainant and after understanding the plan, he purchased the mobile number from the opposite party company.

The first opposite party states that the complainant had recharged his mobile number with its vendor third opposite party on 02.06.2007 for a sum of Rs.200/- through easy recharge. There is no transaction with the opposite party to prove that the complainant had recharged his mobile number on 02.06.2007 for a sum of Rs.200/-. The first opposite party also denies about the false messages to the complainant for the unused services and activated “missed call alert” and “ringtone club”. Also whenever a complaint is received by the customer care centre of the opposite party the said complaint is registered and the complaint is treated as closed only when the same is resolved amicably. If there is any negligence on its part, the complainant would have discontinued the services, whereas he continued to enjoy the facility provided to him. Also there is no cause of action for the complainant to file this complaint. On these grounds the opposite party prays to dismiss the complaint.

4. Exs.C1 & C2 were marked on the side of the complainant, whereas no oral or documentary evidence was adduced on the side of the opposite parties.

5. The points for determination are as follows:

1) Whether the complainant is a consumer or not?

2) Whether there is any deficiency in service on the part of the opposite parties?

3) To what relief the parties are entitled?

6. POINT No.1:

In Para-4 of the reply version the first opposite party has taken the plea that the complainant is not a consumer as per the Act and in Para-19 the plea that there is no cause of action were taken. By Ex.C1 the complainant availed ‘Budget Plus Plan’ for Rs.200/- and by Ex.C2 bought budget prepaid pack for Rs.149/-. In Para-8 of the first opposite party’s written version it was admitted by them that “the second opposite party is one of the franchisees of the first opposite party in that particular zone”, i.e. in Pondicherry and in Para-10 it was revealed that “the complainant had recharged his mobile with the first opposite party company through its vendor, i.e. the third opposite party, on 02.06.2007 for a sum of Rs.200/- through easy recharge.”

7. From the statement made by the first opposite party in the written version, it is obvious that the opposite parties 2 & 3 are the franchisees of the first opposite party and these franchisees are functioning at Pondicherry. As per Sec.2(1)(d)(ii) of the Act, ‘consumer’ is defined as below:

Sec.2(1)(d): ‘Consumer’ means any person who –

(i) . . . . . .

(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 promised, or under any system of deferred payments, 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.”

Hence, the complainant is a consumer and since the branch office of the first opposite party is existing in Pondicherry, i.e. opposite parties 2 & 3, the complainant is at liberty to file the complaint before this Forum.

8. POINT No.2:

The complaint filed Ex.C1 dated 09.06.2007 in respect of receipt for budget plan towards recharge with 120 days’ validity and Ex.C2 is budget prepaid pack for Rs.149/-. The complainant was under the Budget Plus Plan on recharge of Rs.200/- and that he would get a talk-time of Rs.46/- and validity of 120 days. According to the complainant’s statement he received a confirmation SMS stating ‘recharge successful’, ‘talk-time Rs.46.51 MRP.Rs.200’. He was surprised to find that the validity of his connection was only thirty days and not sixty days as per the offer dated 02.06.2007. The complainant has stated in the complaint that the validity ought to have been double, i.e. 120 days, as per the Budget Plus Plan. Thereafter the complainant complained to the customer care and several SMS at different intervals were received by him, which were refuted by the first opposite party that it is false to state that the first opposite party had activated “missed call alert” and “ringtone club” without the consent of the complainant. Also no SMS was received by the complainant as missed call from his own number.

9. The complainant filed proof affidavit, but the first opposite party had not cross-examined him to prove his case. The opposite parties 2 & 3 were set ex parte and the first opposite party filed the counter and remained a non-participant. According to the complainant Rs.75/- was refunded to him by the first opposite party, which was not denied by the first opposite party in his reply version. Also, the first opposite party has not come forward to establish all the denials made in the reply version. In the absence of any material or oral evidence from the first opposite party, the facts put forth by the complainant are to be taken as true. From the complaint and written version of the complainant, it is beyond doubt that the complainant had undergone sufferings and mental agony by the act of the opposite parties. The relief of extension of validity period and refund of Rs.40/- cannot be sustained at this point of time and the complainant is entitled only for compensation due to the lapse, which amounts to deficiency in service, on the part of the opposite parties.

The point is answered in favour of the complainant.

10. POINT No.3:

Since Point No.2 is answered in favour of the complainant, this point is also answered in favour of the complainant.

11. In the result, the complaint is partly allowed to the effect that:

i) The complaint is dismissed as regards the relief of extension of validity period and refund of Rs.40/-;

ii) The opposite parties shall pay to the complainant a sum of Rs.6,000/- (Rupees six thousand only) towards compensation for mental agony caused due to deficiency in service and unfair trade practice;

iii) The opposite parties shall pay to the complainant a sum of Rs.2,000/- (Rupees two thousand only) as costs.

Dated at Pondicherry on this the 22nd day of October, 2008.

(A. ASOKAN)

PRESIDENT

(T. SELLIAMMAL)

MEMBER

(K.K.RITHA)

MEMBER

COMPLAINANT’S WITNESS:

CW1 – Vidjearangame (complainant)

OPPOSITE PARTY’S WITNESS: NIL

COMPLAINANT’S EXHIBITS:

Ex.C1 – 04.06.2007 – Acknowledgement of complaint by 2nd opposite party.

Ex.C2 – Budget prepaid pack brochure.

OPPOSITE PARTY’S EXHIBITS: NIL

(A. ASOKAN)

PRESIDENT

(T. SELLIAMMAL)

MEMBER

(K.K. RITHA)

MEMBER

Courtesy_

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