State Consumer Disputes Redressal Commission
Matrix Cellular (International) ... vs Veena Goyal on 19 April, 2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Appeal Case
No.
:
109 of 2012
Date of Institution
:
03.04.2012
Date of Decision
:
19.04.2012
Matrix Cellular
(International) Services Pvt. Limited, Plot No. 45, Apex Motors, 1st Floor,
Industrial Area, Phase-II, Chandigarh
through its Authorized Representative.
Appellant
V E R S U S
1. Veena Goyal w/o Sh. Rajesh Goyal, R/o
#2632, Sector 22-C, Chandigarh.
2. Amandeep
Kaur Dhaliwal, D/o Sh. Mohinder Singh Dhaliwal, Dhaliwal Patti, Near Badi Sath, V.P.O. Talliwal.
3. ABN Amro Bank, now the Royal Bank of Scotland,
B-148, Sector 10,
Noida 201301.
....Respondents.
Appeal U/s 15 of Consumer Protection
Act, 1986
BEFORE: JUSTICE
SHAM SUNDER, PRESIDENT.
MRS. NEENA SANDHU,
MEMBER.
Present: Sh.Sunil Dixit, Advocate for the appellant.
PER JUSTICE SHAM SUNDER, PRESIDENT This appeal is directed against the order dated 11.11.2011, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which it accepted the complaint and directed Opposite Party No.1(now appellant) in the following manner ;
Admittedly, the present complaint was filed on 22.2.2010 and the disputed amount has been credited in the account of the complainant in the month of June. Thus it is held that the grouse of the complainant has been satisfied after the filing of the complaint. Therefore, we are of the opinion that the complainant is entitled for compensation for mental agony and harassment and also for litigation costs, which are assessed to be Rs.7500/- and Rs.2500/- respectively, to be paid by OP No.1. However, it is made clear that no deficiency has been found qua OPs No.2 and 3, so the complaint against them is ordered to be dismissed.
This order be complied with by OP No.1 within one month from the date of receipt of its certified copy, failing which OP No.1 shall be liable to pay total amount of Rs.7500/- along with penal interest @ 12% p.a. from date of filing of the complaint till its realization besides Rs.2500/- as litigation costs.
2. The Complainant, who is a Director of M/s Navigators Overseas Solutions Pvt. Ltd., was approached by Amandeep Kaur Dhaliwal Opposite Party No.3(now respondent No.2) in August, 2010, for getting student Visa for Canada.
On successfully getting the Visa, Opposite Party No.3 requested the complainant to get an international SIM card issued, for which, she was advised to contact Opposite Party No.1(now appellant). On 25.8.2010, Opposite Party No.1, got filled one Customer Agreement Form from Opposite Party No.3, wherein the duration of the SIM card was mentioned to be from 01/09/2010 to 05/09/2010. The date of issuance of the SIM card was mentioned to be 25/08/2010. Opposite Party No.3 did not have any credit card, so on the persuasion of Opposite Party No.1, the Complainant gave her credit card number, on the assurance, that the SIM would be deactivated in five days. It was stated that the complainant received a bill dated 08/09/2010 for the period from 01/09/2010 to 05/09/2010 amounting to Rs.16,515.93P. It was further stated that an amount of Rs.16515.93P was deducted, from her credit card account. The said fact was immediately brought to the notice of the parents of Opposite Party No.3, upon which, they paid the amount to the complainant. It was further stated that to the surprise of the complainant, she received another bill dated 06/10/2010, for the period from 06/09/2010 to 23/09/2010, amounting to Rs.92,598.34P. She, immediately, approached Opposite Party No.1, which revealed that the SIM was to be deactivated on 05.09.2010. The detail showed the usage of mobile phone from 05/09/2010 to 23/09/2010. It was further stated that on 22/10/2010, the complainant received a message on her telephone from Opposite Party No.2(now respondent No.3) that an amount of Rs.10,000/- was paid to Opposite Party No.1, upon which, she told Opposite Party No. 2, to block the Card. It was further stated that despite this, Opposite Party No.2 further credited an amount of Rs.25,000/- with Opposite Party No.1 and debited the account of the complainant, to this extent. . Thereafter, the complainant kept on sending e-mails to Opposite Parties No. No. 1 and 2, but no response regarding the alleged loss suffered by her, was ever received. It was further stated that not only this, the complainant also wrote to the parents of Opposite Party No.3, to clear the payment of the phone used by their daughter, but no tangible result could ensue. It was further stated that a lot of mental agony and physical harassment was caused to the complainant due to the aforesaid acts of the Opposite Parties. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, she filed a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), claiming various reliefs.
3. Opposite Party No.1, in its written version, pleaded that the complainant was not a consumer qua it, and, as such, the consumer complaint was not maintainable. It was further pleaded that its business was to provide cards of foreign network, in India, so that the people, who visit foreign land, could get phone facility at applicable local rates. It was admitted that the SIM card was hired by Opposite Party No.3. It was stated that the complainant had voluntarily given her credit card details and undertaking for payment for any usage made by Opposite Party No.3. It was further stated that since Opposite Party No.3 had utilized the SIM card even after the expected date of return of the same, the complainant was legally liable to pay the amount for the usage of the same.
It was further stated that the bills were generated for the actual usage and the SIM card was deactivated within three days of expected return date of the same. It was denied that Opposite Party No.1 was deficient, in rendering service, or indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. Opposite Party No.2, it its written version, pleaded that the complainant had provided the details of her credit card, for the purpose of debit of the amount of the usage/bill of the SIM Card, issued in favour of Opposite Party No.3. It was stated that the complainant having given her consent for the same, could not be permitted to back out. It was further stated that an inter se understanding between the complainant and Opposite Party No.3, was not binding on Opposite Party No.1, or Opposite Party No.2. It was further stated that Opposite Party No.2, was duty bound to make payment of the demand raised, against the credit card, on account of the instructions of the Complainant, subject to the maximum credit limit. It was further stated that the Complainant did not issue instructions, for the blocking of the credit card, or for cancellation of instructions, given by her. It was denied that Opposite Party No.2, was deficient, in rendering service, or indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. Opposite Party No.3, in her written version, admitted that she had paid Rs.1.50 lacs to the Complainant for getting student Visa. The deal was entirely between the Complainant and Opposite Parties No.1 & 2. It was further admitted that Rs.16,515.93P were paid by her, to the Complainant, so that relations between the parties may not turn sour. It was stated that negotiation regarding the phone was entirely between the Complainant and Opposite Parties No.1 and 2. It was further stated that it was decided that the validity of the phone connection shall be for a period of 15 days. It was further stated that after 15 days, the responsibility was of the Complainant to surrender the connection. It was denied that there was any deficiency, in rendering service, on the part of Opposite Party No.3, or she indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. The parties led evidence, in support of their case.
7. After hearing the Counsel for the parties, and, on going through the evidence and record, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellant/ Opposite Party No.1
9. Alongwith the appeal, an application for condonation of delay of 103 days, in filing the same(appeal) was moved. It was stated, in the application, that the impugned order dated 11.11.2011, passed by the District Forum, in Consumer Complaint No.776/2010 was erroneous. It was further stated that since the matter was referred to the Head Office of the appellant Company, at New Delhi, and, as such, it took time in processing the case for filing an appeal. It was further stated that the delay was neither intentional, nor deliberate, but on account of the reasons, referred to above. Accordingly, a prayer was made for condonation of delay.
10..
We have heard the Counsel for the applicant/appellant, and have gone through the evidence, and record of the case, carefully.
11. The first question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 103 days, in filing the appeal under Section 15 of the Act. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab & Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels ( India): 93 (2001) DLT 558, Court held Delhi High as under ;
No doubt the words sufficient cause should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all sufficient cause is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.
12. In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under;
There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.
13. Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/appellant has been able to establish that it was, on account of the circumstances, beyond its control, that it could not file the appeal, in time. The appeal could be filed within 30 days, from the date of receipt of a copy of the order. The ground taken up by the applicant/appellant, in the application, for condonation of delay, is that the appellant had shifted its office from Chandigarh and the certified copy of the order could not be delivered at its address. Further, the Head Office of the appellant is in New Delhi and it took time in sending the copy of the order passed by the District Forum and in getting instructions for filing the appeal and, in that process, delay of 103 days occurred. The delay of 103 days, which is beyond 3 times, more than the normal period of filing an appeal U/s 15 of the Act, was on account of the complete inaction and lack of bonafides, attributable to the applicant/appellant. The cause, set up by the applicant/appellant, in the application, for condonation of delay, could not be said to be such, as was beyond its control, which prevented it from filing the appeal in time. The delay, in filing the appeal was, thus, intentional and deliberate. The applicant/appellant, therefore, failed to prove any sufficient cause, in filing the appeal, after such a long delay of 103 days . Since, no sufficient cause is constituted, from the averments , contained in the application, the delay of 103 days, cannot be condoned. The application is, thus, liable to be dismissed.
14. In the main appeal, the Counsel for the appellant, submitted that, the complainant was not a consumer qua the appellant as it (appellant) did not provide any service to the complainant/respondent No.1. He further submitted that the agreement for issuance of the SIM card, was executed between the appellant, and respondent No.2(Opposite Party No.3). He further submitted that if there was any inter-se connection, between the complainant and respondent No.2(Opposite Party No.3), the appellant was not concerned with the same. The submission of the Counsel for the appellant, does not appear to be correct. Admittedly, the SIM card was issued in favour of Opposite Party No.3(now respondent no.2) by the appellant(Opposite Party No.1). The complainant authorized Opposite Party No.3 to use her credit card for the payment of amount of the charges, for the period, for which, the SIM card was issued. The arrangement was approved by the appellant. It was, on account of this reason, that the amount was debited to the credit card account of the complainant for the usage of SIM card. Section 2(1)(d)(ii) of the Consumer Protection Act,1986 reads as under ;
Consumer" means any person whohires 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 purposes;
15. The plain reading of the afore-extracted provisions of Section 2(1)(d)(ii) goes to show that the consumer includes any beneficiary of such services other than the person who hires or avails of the service 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. In the instant case, services of Opposite Party No.1(appellant) for the usages of the SIM card for a limited period, and for payment of the charges of the same through credit card of the complainant, by Opposite Party No.3(now respondent No.2) were availed of with the approval of Opposite Party No.1 and the complainant. Though the services were hired by Opposite Party No.3 (now respondent No.2) from the appellant(Opposite Party No.1), yet those were with the approval of the complainant, for consideration, which was to be paid by the complainant, for the usages of the SIM card, for a limited period, through Opposite Party No.2, which was issued by Opposite Party No.1. Under these circumstances, the case of the complainant, is duly covered under Section 2(1)(d)(ii) of the Act. It is, therefore, held that the complainant was consumer qua Opposite Party No.1(appellant). It, therefore, could not be said that the consumer complaint, at the instance of the complainant, against Opposite Party No.1, was not maintainable. The submission of the Counsel for the appellant, being devoid of merit, must fail , and the same is rejected.
16. The complaint was filed on 21.12.2010, whereas, the amount of Rs.25,000/- and Rs.10,000/- which was charged by Opposite Party No.1 for the usages of the SIM card by Opposite Party No.3 beyond 5.9.2010, upto which date the SIM card was valid, through the credit card of the complainant, was paid/adjusted before that date. It is evident from annexure R3Account Ledger of the account of the appellant that on 5.9.2010 a sum of Rs.35,000/- was debited to its account, being charge back 5239 5040 0360 6483 which was the number of the SIM card. It is further evident from annexure C16 that Opposite Party No.2, the bank sent cheque No.651697 in the sum of Rs.34566.43 after deducting the necessary banking charges, to Mrs.Veena Goyal, complainant. The District Forum was, thus, right in coming to the conclusion, that the amount of Rs.35,000/- which was debited, to the account of the complainant, for the usage of the SIM card beyond 5.9.2010, was credited to her account, before the filing of the complaint, though it in para No.14 of the impugned order, wrongly recorded the date of filing the complaint, as 22.2.2010, instead of 21.12.2010.
17. The District Forum, after taking into consideration the totality of facts and circumstances of the case was right, in coming to the conclusion, that the complainant underwent a lot of mental agony and physical harassment, on account of debiting her account through credit card for payment of the amount for the usage of the SIM card beyond the period of 5.9.2010 by Opposite Party No.3, upto which date it was valid. Opposite Party No.1 could not claim any charges with regard to the usage of the SIM card beyond 5.9.2010 by Opposite Party No.3, from the complainant, upto which date the consent had been given by her (complainant). Keeping in view the mental agony and harassment caused to the complainant, on account of this reason, the District Forum was right, in awarding compensation in the sum of Rs.7500/- to her. The compensation awarded by the District Forum, to the complainant could not be said to be, in any way, unreasonable, unfair or excessive. On the other hand, it could be said to be reasonable, fair and adequate.
18. No other point, was urged, by the Counsel for the appellant.
19 The order of the District Forum, being based on the correct appreciation of evidence, and law, on the point ,does not suffer from any illegality or perversity, warranting the interference of this Commission.
20. For the reasons recorded above, the application for condonation of delay is dismissed. Consequently, this appeal is dismissed, being barred by time, as also on merits, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
21. Certified Copies of this order be sent to the parties, free of charge.
22. The file be consigned to the Record Room, after completion Pronounced.
Sd/-
April 19, 2012 [JUSTICE SHAM SUNDER] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER *Js STATE COMMISSION (Appeal No.109 of 2012) Present: Sh.Sunil Dixit, Advocate for the appellant.
Dated the 19th day of April, 2012 ORDER Vide our detailed order of the even date, recorded separately, the appeal has been dismissed, being barred by time, as also on merits, at the preliminary stage, with no order as to costs.
(Neena Sandhu) (Justice Sham Sunder ) Member President