National Consumer Disputes Redressal
Tata Teleservices Ltd. vs Pankaj Kumar Singh And Ors. on 16 March, 2006
Equivalent citations: II(2006)CPJ109(NC)
ORDER
K.S. Gupta, J. (Presiding Member)
1. This revision petition is preferred against the order dated 3rd November, 2004 passed by the Delhi State Commission in Appeal No. A-791 of 2004 directing the petitioner, Tata Teleservices Ltd. to pay Rs. 5,000 as compensation and Rs. 1,000 as litigation charges for deficiency in service to the complainant Shri Pankaj Kumar Singh. Brief facts of the case are:
2. Respondent/complainant Shri Pankaj Kumar Singh is a Delhi based practising Advocate. He got a Mobile Phone No. 56130490 from the revision petitioner. The petitioner raised a bill for the month of February 2004 for Rs. 1,382.38 payable by 15.3.2004. The respondent deposited a cheque No. 254535 dated 28.2.2004 drawn on UCO Bank for Rs. 1,400. This was wrongly dishonoured with a remark "Insufficient funds" by the Bank on 5.3.2004 and on 9.3.2004 and he received a telephonic message from the petitioner that the said cheque was dishonoured on presentation. The respondent immediately deposited in cash with respondent No. 3, Oval Systems and Communication on 9.3.2004 itself. In spite of depositing Rs. 1,400 in cash with respondent No. 3, the petitioner suspended outgoing facility on his mobile phone. Respondent No. 1 personally met officers of the petitioner and respondent No. 3 and after his meeting outgoing facilities were restored on 10.3.2004.
3. It is the case of complainant that in spite of full payment in cash, outgoing facilities were again suspended on 12.3.2004 till 22.3.2004 (for a period of 10 days). Further it is alleged by the respondent No. 1 that a notice was issued to him on 27.3.2004 under Section 138, Negotiable Instruments Act on the specious ground that issuance of a dishonoured cheque Court takes an offence under Negotiable Instruments Act notwithstanding the cash payment made subsequently. It is contended that the petitioners have behaved in a very rough handed manner and it amounts to deficiency in service.
4. Revision petitioner submitted that respondent No. 1 purchased the telephone instrument under the special finance scheme wherein he made down payment/unfront payment of Rs. 999 and further payments of instalment have to be paid in advance for every next month. For the option of Hottest Privilege Tariff Plan which he chose he was liable to pay a sum of Rs. 1,298 in advance for every next month as per following break up:
(a) Rs. 200 p.m. as monthly rental;
(b) Rs. 799 p.m. as plan fee; and
(c) Rs. 299 p.m. as handset instalment (payable for 24 months).
5. In the agreement signed by respondent No. 1 based on Tata Indicom CDMA Mobile Tariff Plan the Terms and Condition Clauses 4 and 5 which clearly provide as under :
4. The monthly rental and the plan fee of the respective plan will be payable in advance for next month. The customers who have availed of TTSL's services for less than a month will have their rental prorated.
5. The handset instalment of the respective plan will be payable in advance for next month.
Further Clause 9(a)(i) of the agreement clearly provides as under:
9(a)(i) In the case of non-payment of bills by the due date or in case the cheque is dishonoured, TTL reserves the right to suspend any service other than the emergency call service from the subscribers connection. In the case the subscriber pays that outstanding amount within 15 days of the due date or such time frame as prescribed, TTL may revoke the suspension.
6. Respondent No. 1 signed this declaration form in the customer application form and the CDMA Mobile Tariff Plan after reading the terms and conditions of the Tata Indicom CDMA Mobile Tariff Plan. The above Clauses 4,5 and 9(a)(i) of the agreement between the parties show that the charges payable by the subscriber includes two types of components i.e., (a) Fixed component: This is fixed in the agreement itself and it payable in advance for every next month. This includes Handset instalments, Monthly rental and Plan fee for services i.e., an amount of Rs. 1,298. The amount and the time for payment is fixed in the agreement itself and does not require any further intimation and demand to the customer (b) Variable component: These are charges which depend on actual usage which has to be recorded and computed from time to time. These include charges for calls made over and above free calls given to customer against rental and plan fee. As per Clause 7 bill is to be raised for such variable component and period for payment is to be prescribed. The period so prescribed clearly and only relates to variable charges as the period and amount for payment of fixed charges are duly agreed under the agreement and require no further fixing. It is argued by the petitioner that the bill dated 1.2.2004 was raised which reflects the outstanding amount of fixed charges for the period from 1.2.2004 to 29.2.2004 i.e., Rs. 1,298 which were payable in advance i.e. by the last day of January, 2004 but since it had not been paid the total amount reflected was for Rs. 1,382.38.
7. The cheque dated 28.2.2004 for Rs. 1,400 was dishonoured and it was brought to the notice of respondent No. 1 immediately. Once again on 1.3.2004 a further amount of Rs. 1,298 has become over due and since respondent No. 1 did not make advance payment for March by end of February 2004 in accordance with his obligation under Clauses 4 and 5 of the Tariff Plan which amounts to non-payment.
8. As a consequence of the dishonour of the cheque the petitioner in accordance with their right under Clause 9(i)(a) they have suspended the outgoing calls of the mobile connection on 10.3.2004 and the last outgoing call was made by respondent No. 1 on 9.3.2004 at 11.27 p.m. After the respondent paid an amount of Rs. 1,400 in cash on 10.3.2004 the outgoing calls were immediately restored on 10.3.2004 itself and outgoing calls remained barred only for few hours on 10.3.2004. It is further submitted by the learned Counsel for the petitioner that District Forum has failed to take note of these facts of the case and did not consider the relevant clauses of the agreement between the parties. It is further alleged that respondent No. 1 was in default of payment in respect of the fixed charges of Rs. 1,298 p.m. by 31st January for the month of February, 2004 and he had to further pay by the last day of February in the month of March 2004 as per the agreement, which he defaulted. It is clearly agreed in the agreement that no further notice or period was required to be given for these fixed payments.
9. It is further argued regarding the dishonour of cheque by UCO bank on 28.2.2004 that under Clause 9(i)(a) the interpretation of the said clause is that in case the non-payment of bill by due date it should be read that the petitioner has a right to suspend service and also it should be read as or in case the cheque is dishonoured also the petitioner reserves the right to suspend any service. It is argued that the expression "or" used in Clause 9(i)(a) shows that the two categories that "non-payment by due date" and "dishonour of cheque" are two distinct and independent contingencies in which the petitioner can exercise their authority to suspend the telephone services. The expression "or" used between these two categories is disjunctive.
10. It is submitted by the petitioner that they have rightly suspended the telephone facilities under Clause 9(a)(i) under expression of "Or" in case the cheque is dishonored" in the said clause. They have relied on the following judgments:
(a) The Central Bank of India Ltd., Amritsar v. The Hartford Fire Insurance Company Ltd., held that--
Thus where a clause in an insurance policy says "This Insurance may be terminated at any time at the request of the Insured" and "The Insurance may also at any time be terminated at the instance of the company" the words "at any time" an only mean "at any time the party concerned likes". Shortly put the clause says that either party may at its will terminate the policy. No other meaning of the words used is conceivable.
(b) Abdul Gani Mir v. Mst. Sakina Bano and Anr., held that--
the expression "or" must be given its plain and ordinary meaning. It is disjunctive. It indicates that two powers contained in the rule before and after the word "or" were meant to lay down two distinct powers relating to the discretion of the Court and it could adopt either depending upon the peculiar facts of the case.
(c) R.S. Nayak v. A.R. Antulay, held that--
If the words of the Statute are clear and unambiguous, it is the plainest duty of the Court to give effect to the natural meaning of the word used in the provision. The question of construction arises only in the event of an ambiguity or the plain meaning of the words used in the Statute would be self defeating....
11. We heard both the parties at length and perused the record carefully. The judgments referred to by the petitioner relate to expression "or" whether it is under its plain and ordinary meaning and that it is disjunctive is an issue that has been considered. In our considered view, in the present case Clause 9(a)(i) of the agreement provides interpretation on the basis " in case of non-payment of bill by the due date". We have perused the record. In the present case the bill generated 18.2.2004 and on the face of that bill it is written "please pay Rs. 1,382 and payment due date is 15.3.2004 and underneath there is invoice date written is 1.2.2004 and due date is 18.2.2004. The bill has been generated on 18.2.2004 and that itself cannot be the due date and it is obvious on the face if the bill itself which is placed on page 105 that the said bill has to be considered for a due date of 15.3.2004. Learned Counsel for the petitioner's argument is that whether it is paid by due date or not is immaterial. The mere fact that the cheque was dishonoured itself goes against the provision given in Clause 9(a)(i) of the agreement. In the light of this action under Clause 9(a) can be taken for issuing a dishonoured cheque and that the agreement is binding on both the parties.
12. We cannot agree with any of these arguments. The bill which is at page 105 is one of the most confusing documents we have seen and it is very difficult for anyone to understand as to what exactly it conveys. It is clear that there is no transparency and clarity in the billing system followed by the petitioner which has clearly led the complainant to believe that the entire billed amount needs to be paid only by 15th March, 2004. The invoice date is shown on the bill as 1.2.2004. However, the bill has an entry of payment made on 6.2.2004. So obviously the invoice could not have been made on 1.2.2004. At the top of the page, the bill shows that it has been generated on 18.2.2004 but at the bottom the due date is shown as 18.2.2004. If the bill is generated on 18.2.2004 obviously the due date (for payment) cannot be 18.2.2004. Somewhere in the middle of the page, it shows that due date for payment as 15.2.2004.
13. The question then arises is as to what exactly the bill contained and what is it due date for? The bill shows that there are five separate parts. We are not concerned with part 2 and part 4 since the entries are nil. Part 1 shows that the fixed component of Rs. 1,298 for the period 1.2.2004 to 28.2.2004 and other fixed cost of Rs. 200 for the same period, in all total of Rs. 1,498. This is obviously for the month of February 2004. If the payment for this is required to be paid before 31st January, 2004, as argued by the petitioner, we do not see the need to repeat this amount in this bill. Part 3 of the bill shows the actual usage charges (call charges) of Rs. 1,101.89. These call charges relate to 3805 call units made in the moth of January, 2004.
14. The petitioner has not specifically explained as to what exactly is a due date for the payment for these call charges which were made in the month of January, 2004. Part 5 of the bill shows some discount arising out of the "Privilege Plan" taken by the petitioner. Sum total of all these parts comes to Rs. 1,382 which is shown as the amount due to be paid before 15.3.2004. Thus even if the agreement signed shows that the fixed component should be paid before the end of the previous month, as brought out above, there is no transparency and clarity in the billing system followed by the petitioner and their actions have clearly led the complainant to believe that the entire amount shown in the bill needs to be paid by only 15th March, 2004.
15. Any cheque that has been given to the revision petitioner if it is given prior to due date or any amount that has been deposited it is not material to the petitioner whether it is dishonoured or not because, this amount has been paid ahead of services that would be rendered in the next month. When this amount has been realized before due date as per their own bill it is surprising that the petitioners are taking the stand that the agreement provides for fixed and variable components of which respondent is fully aware of and that they signed the agreement accordingly. Revision petitioner is in the business of rendering services of mobile connections and services relating to such activities. He is not in a business of an activity of financial/merchant banking/lending institutions who can take advantage of cheque dishonoured before the due date of payment and further without services being utilized by the other party.
16. We have gone through the orders of the State Commission which clearly held that disconnecting the outgoing facility before the relevant due date for withdrawing such facility is deficiency in service. We affirm the same that even if the payment is not paid or cheque is dishonoured, revision petitioner, i.e., the provider of service of mobile phone is required to wait till the due date before withdrawing such facilities and not take a technical plea that the cheque was dishonoured. In order to rectify such situations consumers are forced to rush to meet the officials of the service providers for rectifying their mistake. Although respondent has shown us that his phone was again disconnected for another 10 days, we are unable to sustain this plea under the same complaint as this was not pleaded earlier in the lower Fora. The Consumer Protection Act, 1986 inter alia seeks to promote and protect the rights of the consumers to be informed about the quantity, quality, potency, purity, standard and price of goods and services, to protect the consumers against unfair trade proctices. This right to proper information is enshrined not only in the Right to Information Act but also in the Consumer Protection Act.
17. In the absence of proper information to the complainant that certain parts of the bill has to be paid even before the due date indicated in the bill, the action of the petitioner in disconnecting the phone on 10th March, 2004, clearly amounts to a deficiency in service.
18. We find there is no merit in the petition and we dismiss the same. There shall be no order as to costs.