State Consumer Disputes Redressal Commission
Shri Damodar Balkrishna Barve, vs . Shri Vikas Kamat, on 1 September, 2009
THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA Present: Smt. Sandra Vaz e Correia Presiding Member Smt. Caroline Collasso Member Appeal No.63/2008 Shri Damodar Balkrishna Barve, s/o late Shri Balkrishna Barve, major in age, businessman, r/o House No.22, Surla Dignem Wada, Near Central Tyre Factory, Dignem, Surla, Bicholim Goa. Appellant (Original Complainant) v/s 1. Shri Vikas Kamat, Major in age, businessman, Near Market, Sankhali, Goa. (Original Opposite Party No.1) 2. Reliance Infocom Ltd., Pune, 411042. Respondents (Original Opposite Party No.2) For the Appellant Shri S. Tari, Advocate And Mr. Manguesh present at the time of order. None present for the Respondents. Dated:01-09-2009 ORDER
[Per Smt. Caroline Collasso, Member]
1. This appeal challenges Judgment and Order dated 15-10-2008 passed by the District Forum North Goa at Porvorim, in complaint No.87/2006.
2. The appellant is the original Complainant and the Respondents are the original Opposite parties and will be described as arraigned before the District Forum for matter of convenience.
3. The case of the Complainant in brief is that he is a subscriber of telephone connection of Reliance Infocom on 02-09-2005 from the Opposite Party no.1 and the telephone instrument is produced by Opposite Party no.2 and marketed through Opposite Party no.1. The cost of the connection and the telephone instrument was Rs.1800/- which was paid by Complainant through a cheque issued in the name of the Opposite Party no.2.
4. The Complainant states that after four days from putting into operation i.e. on 06-09-2005, the said telephone instrument stopped working.
The Complainant immediately informed Opposite Party no.1 and service station of Opposite Party no.2 regarding the failure of the instrument and non receipt of telephonic calls, but they failed and neglected to do anything and the telephone instrument was in non working condition till the filing of complaint before District Forum. It is further the case of the Complainant that during the time when the telephone was not functioning, his wife got a paralysis attack and due to non-functioning of the telephone, he was unable to call for emergency treatment/ambulance and thus the treatment given to his wife was delayed.
If such treatment was given on time, his wife could have recovered completely. The Complainant states that the Respondents continued in issuing bills every month, even though the telephone instrument stopped functioning. The Complainant states that his wife is now bed-ridden and he and his family suffered tension, torture and harassment because of the adamant and negligent behaviour of the Respondents. The Complainant states that the Opposite Parties ought to have repaired the telephone instrument when the Complainant had given a complaint of its non-functioning to the Opposite Party No.1. A legal notice was sent to the Opposite Parties on 17-02-2006 which was received by them. However, no reply to the same was filed by them. The Complainant states that the Opposite Parties had not provided adequate service and thus he filed a complaint before the District Forum, praying therein for a supply of new instrument, waiving of the entire bills issued by the Opposite Parties to the Complainant and also a sum of Rs.3,00,000/- for the present and future treatment of the wife of the Complainant, Rs.10,000/- towards cost of the present petition and Rs.50,000/- for mental tension and torture caused by the Opposite Parties for no fault of the Complainant. The Complainant annexed the various receipts and telephone bills in support of his case.
5. The Opposite Parties in a joint reply, at the outset submitted that the complaint is prolix and contains false information which is contrary to facts and was not legal and bonafide and not in accordance with the provisions of law.
They submitted that the complaint has been filed with an intention to harass the Opposite Party and to extract money from them in the guise of compensation by making false and baseless claims devoid of any substance or merit. Opposite Party further stated that it is a leading Telecom Service Provider Company in Maharashtra and Goa and the Company advertises its product and services by giving a general offer to the public at large to become customers of the Company. The terms and conditions of such offer are clearly printed in the Customer Application Form (CAF). Those intending to becoming customers have to enter into a contract with the Company after going through the terms and conditions mentioned in the CAF. The Complainant had applied to the Opposite Party Company requesting to be made a subscriber and as such, the relationship between the Complainant and the Opposite Party was contractual in nature and was solely and principally based on the terms and conditions agreed to by the parties. The Opposite Party thus claimed that the Consumer Forum had no jurisdiction to entertain the present complaint, since the same stands ousted by the express agreement between the parties. The Opposite Parties also submitted that the Complainant had voluntarily agreed to submit all disputes to the Courts at Mumbai and were legally precluded by the specific agreement between the parties from filing disputes in the Court at any place except Mumbai.
6. On the factual matrix, the Opposite Party agreed that the Complainant had applied for a Reliance Landline connection by submitting CAF Form and paid an amount of Rs.1,800/-. The Opposite Party stated that they were a Telecom Service Provider Company and not the manufacturer of telephone instruments, though for offering services to the customers, it provides the instruments manufactured by other manufacturers. The Opposite Party denied any deficiency in service due to non working of the Complainants telephone and stated that in the month of September05, the Complainant was using the services provided by the Opposite Party, which was clearly evident from the fact of bills generated for the services provided by the Opposite Party. Opposite Party further submitted that if the instrument was out of order, no bill would have been generated for the usage by the Complainant. Opposite Party stated that as per terms and conditions of the CAF Form, service to the Complainant was suspended by them from 09-11-2005 due to non payment of bills raised by the Opposite Party. Opposite Party further stated that Complainant enjoyed his rights, but neglected to perform his liability by not paying his outstanding bill amount which he was legally liable to pay. Opposite Party submitted that the Complainant did not produce any proof on record to show that he had performed his part of the contract by paying his outstanding dues and the Complainant be put to strict proof thereof. Opposite Party further stated that from the bills and documents filed by the Complainant, the wife of the Complainant got a paralysis attack in the month of December05, while the Opposite Party had already suspended connection of the Complainant from 09-11-2005 for non payment of bills and hence question of deficiency of service due to non working of telephone, did not arise. The Opposite Party thus states that the Complainant has not approached the Consumer fora with clean hands. The Opposite Party also submitted that the Complainant has a BSNL landline bearing No.2353314 and hence his allegation that he could not contact the emergency unit/ambulance on time, was fraudulent and fabricated and attempt to mislead the District Forum by suppressing material facts. Opposite Party finally stated that there was no substance in the complaint and the same deserves to be dismissed with costs and the Complainant be directed to return the instrument of the Opposite Party.
7. Affidavit in evidence as well as written arguments were filed by both the parties. On hearing oral arguments, the District Forum vide it order dated 15-10-2008 was of the opinion that the Complainant has approached the District Forum with unclean hands; that the main grievance of the Complainant that he could not get his wife to hospital in time due to non-functioning of his Reliance phone, was incorrect as he had not disclosed that he had a BSNL landline phone at home; besides, there was no connection between the sickness of the wife of the Complainant and the functioning of the phone provided by the Opposite Party.
The District Forum thus dismissed the complaint.
8. Aggrieved by the order of the District Forum, the present appeal is entered, challenging the same inter alia on the following grounds:
That the impugned order was perverse, illegal, bad in law and against the evidence on record; that the order was based on assumptions and was non-speaking; that the District Forum had failed to appreciate that the Opposite Party had provided faulty service to the Complainant and failed and neglected to correct the same; that the District Forum failed to appreciate that during the relevant time his wife had a paralysis attack and that due to non-function of the telephone, he could not provide immediate emergency service for contacting a doctor; that the District forum failed to consider that the Respondents continued in issuing bills every month even though the telephone instrument and connection was not functioning; that the District Forum failed to appreciate that because of the adamant and irresponsible behaviour of the Respondents, the Complainant and his family members suffered tension and harassment; that the District Forum did not take cognizance of the material facts on record which resulted in total miscarriage of justice.
9. The Complainant thus prayed that the impugned order dated 15-10-2008 of the District Forum, North Goa, be set aside and the Opposite Parties be directed to pay the compensation as claimed by him in his complaint.
10. We have perused the file of the District Forum, documents annexed and the Memorandum of Appeal. At the outset, we clarify that the objection of the Opposite Party for the jurisdiction of the District Forum to entertain the complaint, cannot be sustained. The jurisdiction as mentioned in the fine print of the terms and conditions cannot be ousted by that given by the Consumer Protection Act, which permits the complaint to be filed at a place where the instrument was purchased and where the cause of action arose.
11. On facts, it is the consistent case of the Complainant that within four days of having subscribed to the telephone of Reliance Infocom, the instrument stopped working and he was not getting the assured service.
Complainant has stated that he did inform the Opposite Party regarding the non functioning of the instrument and non receipt of the telephone calls. In reply to this allegation, the Opposite Party has merely denied that the telephone was not working by attempting to extricate themselves of any liability on the ground that they are not manufacturers of the telephone instrument and merely provide instruments manufactured by other manufacturers. On the allegation of the Complainant that he received bills despite not having any service and non-functioning of the telephone, the Opposite Party only contended that the fact of the bills generated for the services provided by the Opponent, shows that Complainant was using the services.
They further contended that if the instrument was not working, no bill would have been generated for the usage by the by the Complainant.
12. We are not in agreement with this vague reasoning of the Opposite Party. We note that the Complainant obviously purchased the telephone for his use and easy connectivity by paying an amount of Rs.1,800/-. The Opposite Party reply that the phone instruments are not manufactured by them is no answer that can absolve them of the responsibility of a non working phone. It is the Opposite Partys who have chosen the manufacturer and to distribute the phone instrument as part of the connectivity package. We hold that it is clearly their duty to give the consumer a working phone. On the aspect of Complainants allegation of receipt of telephone bills despite non working of the phone, if indeed any calls were made by the Complainant, the complete data/record of such calls would be with the Opposite Party.
Besides, the blank denial of non-functioning of the telephone instrument, the Opposite Party has shied away from placing the best evidence, which would have been only in their possession, for the District Forum to come to a conclusion of whether the phone was working or not, in a fair and impartial manner.
Why would the Complainant spend an amount of Rs.1,800/- to obtain such phone service from the Opposite Party if he was not interested in the service? Complainant has not wavered from his consistent submission that within four days of getting its subscription, the phone stopped working and went out of order. The Opposite Party has contended that they disconnected the facility for non payment of bills by the Complainant. Why should the Complainant pay any amount when the phone was not working? The Opposite Parties have not heeded to his intimation of non working of the phone neither cared to reply to the legal notice.
13. On the contention of the Complainant, that due to non functioning of the telephone, he could not avail of emergency services for treatment of his wife and thus the Opposite Party were liable to pay an amount of Rs.3,00,000/- for present and future treatment, is not well founded. The Complainant in his complaint has stated that when this telephone instrument was not working, he used to telephonically inform the Opposite Party about the same.
So it was obviously not impossible for him to make calls for help from home. Further, the Complainant has not denied that he had a BSNL landline phone and only seeks to argue that he may have hundred of other alternate arrangements and his having a land line phone does not mean that the Opposite Parties are absolved in not providing proper services to him. The fact of the landline phone was pointed out by the Opposite Party and only to explain that the Complainant had alternate options for calling for medical help for his mother. We agree that his owning a telephone landline does not absolve the Opposite Party in their responsibility to give the Complainant a working mobile phone with proper connectivity, however, the argument of inability to seek urgent medical attention for his mother for non functioning of cell phone is stretching the argument a bit to far. We see no link between the aggravation of illness of Complainants mother which could be attributed to the non function of the cell phone provided by the Opposite Party.
14. However, on the aspect of the non-functioning of the phone and the raising of telephone bills, the onus is definitely on the Opposite Party to provide a proper functioning instrument and proper connectivity/service for such telephone. As observed earlier, merely stating that the telephone instruments are not manufactured by them, cannot absolve them of that responsibility.
ORDER
15. In the light of the above, the Appeal is partly allowed and the Opposite Party No.2 (Reliance Infocom Ltd.) is directed to supply a new instrument with proper connectivity to the Complainant, on the Complainant returning the old one to the Opposite Party No.2, Company. The Opposite Party No.2 is also directed to waive off the bills issued by them to the Complainant for the months of September and October 2005. Order is to be complied within a period of 30 days . No further costs.
Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member