State Consumer Disputes Redressal Commission
G.M. B.S.N.L. & Anr. vs Colonel K. Rajender Singh. on 22 May, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 133/2016
Date of Presentation: 07.05.2016
Order Reserved On : 03.04.2017
Date of Order : 22.05.2017
......
1. General Manager Bharat Sanchar Nigam Limited BSNL
GMTD Block No.35 SDA Complex Kasumpti Shimla.
2. AOTR (Mobile) GMTD Block No.35 SDA Complex
Kasumpti Shimla.
...... Appellants/Opposite Parties
Versus
Colonel K. Rajinder Singh son of Shri Satyapal Singh resident of
Bellmont House Lower Jakhoo Shimla H.P.
......Respondent /Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
For Appellants : Mr. Swaran Sharma Advocate.
For Respondent : Mr. Gaurav Sharma Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :- Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 1 Whether reporters of the local papers may be allowed to see the order? Yes. General Manager B.S.N.L & Anr. Versus Colonel K. Rajinder Singh (F.A. No.133/2016) 23.02.2016 passed by Learned District Forum Shimla in consumer complaint No.03/2011 title Colonel K. Rajinder Singh Versus General Manager BSNL & Anr. Brief facts of Case:
2. Complainant filed consumer complaint against the opposite parties pleaded therein that complainant possesses a mobile connection of BSNL under H.P. Government Plan. It is pleaded that Mobile number allotted to complainant was 94180-37740. It is pleaded that it was informed to complainant by customer care executive present in the office of opposite party that all the outgoing calls falling under the C.U.G. (Closed Users Group) would be free and roaming charges in Northern India would also be free upto 5000 seconds monthly. It is pleaded that it was also informed that unlimited G.P.R.S services at the rate of Rs.150/- would also be free. It is pleaded that credit limit of the connection of complainant was fixed at Rs.1000/-(One thousand). It is further pleaded that opposite parties submitted the bill of Rs.16886/-(Sixteen thousand eight hundred eighty six). It is further pleaded that complainant approached the opposite parties then opposite parties told the complainant that due to software upgrade the company was facing problem and same will be rectified in the subsequent bill. It is further pleaded that opposite parties submitted excessive bill to the tune of Rs.30967/-(Thirty thousand nine hundred sixty seven). It is 2 General Manager B.S.N.L & Anr. Versus Colonel K. Rajinder Singh (F.A. No.133/2016) pleaded that opposite parties committed unfair trade practice and also committed deficiency in service. Complainant sought relief to the tune of Rs.35000/-(Thirty five thousand). In addition complainant also sought relief of Rs.20000/-(Twenty thousand) for his harassment and in addition complainant sought relief of Rs.15000/-(Fifteen thousand) for mental agony. In addition complainant also sought relief of Rs.10000/-(Ten thousand) as litigation charges.
3. Per contra version filed on behalf of opposite parties pleaded therein that complainant has no cause of action and locus standi to file the consumer complaint. It is pleaded that complainant did not come to the court with clean hands and suppressed the material facts from the court. It is further pleaded that complainant had used G.P.R.S outside LSA which is chargeable as per the revised tariff plan. It is pleaded that complainant used the facility and bill was submitted to the complainant as per actual usage. It is pleaded that complainant is estopped to file the present complaint due to his acts, deeds, conduct and acquiescence. It is pleaded that complaint of complainant is barred under the provisions of Indian Telegraph Act which provide Arbitration Clause. Prayer for dismissal of complaint sought.
4. Learned District Forum ordered opposite parties not to recover an amount of Rs.14970/-(Fourteen thousand 3 General Manager B.S.N.L & Anr. Versus Colonel K. Rajinder Singh (F.A. No.133/2016) nine hundred seventy) mentioned in bill on account of GPRS usage charges. In addition learned District Forum ordered opposite party to pay a sum of Rs.5000/-(Five thousand) to complainant as litigation charges within 45 days from the receipt of order. Feeling aggrieved against order passed by Learned District Forum opposite parties filed present appeal before State Commission.
5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
6. Following points arises for determination in present appeal.
1. Whether learned District Forum committed material procedural irregularity by way of treating pleadings of parties i.e. complaint and version filed by the parties as evidence of the parties under section 13(4) of Consumer Protection Act 1986 for adjudication of consumer disputes.
2. Final order.
Findings upon point No.1 with reasons:
7. After perusal of complaint and after perusal of version learned District Forum came to the conclusion that opposite party has disputed the allegations contained in the complaint. Learned District Forum decided to obtain the 4 General Manager B.S.N.L & Anr. Versus Colonel K. Rajinder Singh (F.A. No.133/2016) evidence of the parties under section 13(4) of Consumer Protection Act 1986. Learned District Forum directed the parties to adduce evidence for adjudication of consumer dispute. It is proved on record that on dated 12.03.2014 learned Advocate Shri Gaurav Sharma who appeared on behalf of complainant stated before learned District Forum that his complaint be treated as evidence of complainant. It is also proved on record that on dated 06.06.2015 learned Advocate namely Shri Subhash Verma who appeared on behalf of opposite parties stated before learned District Forum that version filed by opposite parties be treated as evidence of opposite parties.
8. It is held that complaint and versions filed by the parties are pleadings of the parties and could not be treated as evidence under section 13 (4) of Consumer Protection Act 1986 for adjudication of consumer disputes inter se parties. It is held that pleadings of parties and evidence of parties are entirely two different concepts under law.
9. Complaint is defined under section 2(c) of Consumer Protection Act 1986 as allegation in writing made by complainant. It is held that complaint is allegation in writing made by complainant and could not be treated as evidence of complainant under section 13(4) of Consumer Protection Act 1986.
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General Manager B.S.N.L & Anr. Versus Colonel K. Rajinder Singh (F.A. No.133/2016)
10. It is held that evidence can be adduced by the parties strictly as per section 13(4) of Consumer Protection Act 1986 for deciding consumer disputes. Section 13(4) of Consumer Protection Act 1986 is quoted in toto:-
(4) For the purposes of this section, the District Forum shall have the same powers as are vested in a civil court under Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:--
(i) Summoning and enforcing the attendance of any defendant or witness and examining the witness on oath.
(ii) Discovery and production of any document or other material object producible as evidence.
(iii) Reception of evidence on affidavits.
(iv) Requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source.
(v) Issuing of any commission for the examination of any witness.
(vi) Any other matter which may be prescribed.
11. It is held that learned District Forum has committed material procedural irregularity by way of treating complaint and version of parties as evidence of the parties under section 13(4) of Consumer Protection Act 1986 for adjudicating consumer disputes of parties. It is held that it is not expedient in the ends of justice to dispose of appeal on merits unless material procedural irregularity is not rectified. Point No.1 is answered accordingly.
Point No.2: Final Order
12. In view of findings upon point No.1 above appeal is 6 General Manager B.S.N.L & Anr. Versus Colonel K. Rajinder Singh (F.A. No.133/2016) allowed and order of learned District Forum Shimla dated 23.02.2016 announced in consumer complaint No.03/2011 title Colonel K. Rajinder Singh Versus General Manager BSNL & Anr. is set aside. Statement of learned Advocate appeared on behalf of complainant Shri Gaurav Sharma dated 12.03.2014 and statement of learned Advocate appeared on behalf of opposite parties Shri Subhash Verma dated 06.06.2015 will form part and parcel of order. Complaint is remanded back to learned District Forum Shimla with order to receive the evidence of parties relating to controversial facts strictly as per section 13(4)(iii) of Consumer Protection Act 1986 by way of affidavits. After receiving the evidence of the parties by way of affidavits learned District Forum will decide the complaint afresh strictly in accordance with law as per proved facts. Learned District Forum will dispose of complaint expeditiously within two months after receipt of file. Parties are directed to appear before learned District Forum Shimla on 05.06.2017. Observations will not effect the merits of the case in any manner. Parties are left to bear their own litigation costs in State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per 7 General Manager B.S.N.L & Anr. Versus Colonel K. Rajinder Singh (F.A. No.133/2016) rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 22.05.2017.
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