Escotel Mobile Communications Limited and Another Vs. Rajesh Sethi and Another - Court Judgment

Excerpt:
consumer protection act, 1986 - section 2(1)(g) - comparative citation: 2007 (2) cpj 207mrs. devinderjit dhatt, member: 1. by this order of ours, two appeals bearing nos. 2177 and 2178 of 2001 (r.b.t. nos. 59 and 60 of 2007) received by transfer from haryana state commission under the orders of honble national consumer disputes redressal commission, new delhi are being decided as both are directed against order dated 11.4.2001. the contextual facts in brief are as under : as per averments the respondent/complainant subscribed to the mobile service of the appellants/ops after going through the advertisements given by the appellants/ops in media (printed as well as electronic). the complainant has also averred that promises/assurances were made by the ops and specifically the op no. 3/appellant no. 3 regarding the excellent service together with the assurance that from 1.8.1999, the linkage within the state of hayana shall be on the basis of local charges and no std charges nor the dialling code shall be required from the said date i.e. 1.8.1999. the complainant has also averred that it was stated by appellant no. 3 in addition to aforesaid promises, that calls from one mobile to another would become free. in a backdrop of these promises/assurances the complainant decided to subscribe and made a payment of rs. 4,415 to the ops. the respondents/complainants alleged that aforesaid promises proved false as neither the incoming calls w.e.f. 1.8.1999 were free nor the calls made from mobile to mobile as was promised in the advertisements floated by the appellants. he has further alleged that whenever he took the matter with the respondent no. 3 and he was assured that the aforesaid promises would be fulfilled within short period thereafter. the grievance of the complainant is that in spite of having failed to fulfil their commitments of the services to be provided as stated above, he started receiving the bills towards the rental of charges. the case of the complainant is that the aforesaid facility was availed by him to facilitate the receipt of incoming calls during odd hours but the service did not prove beneficial to him. the complainant has stated that he would not have subscribed to their service had he any doubt regarding the genuineness of the claim made by the ops. it has been submitted that he requested the ops/appellants to suspend his number till such time the aforesaid free incoming call and free mobile to mobile service were started. however the needful was not done and the complainant was subjected to inconvenience and monetary losses. the grievances of the complainant is that wrong and incorrect bill sent to him were received under protest. the complainant is also aggrieved against the unfair trade practice adopted by the appellant company the same being against the financial interest of consumers as other companies are giving better services on comparatively lesser rates as no security amount is being asked and low call rates are being charged from the customers. the complainant has alleged that the arbitrary and monopolistic practices have resulted in financial losses and agony and ops are guilty of deficiency in service. a prayer for direction to refund the amount of rs. 4,415 with interest @ 18% p.a, a sum of rs. 10,000 towards damages, rs. 25,000 towards exemplary damages and the costs of litigation in addition to above reliefs have been made. 2. in the written statement filed on behalf of op nos. 1 to 3 , the preliminary objection taken is that complaint is false, frivolous, vexatious and deserves to be dismissed under section 26 of consumer protection act, 1986. the allegations of deficiency in service have been denied and it is stated that no cause of action has arisen against the ops. on the grievance of the complainant regarding non-provision of free incoming calls, it is stated that vide its interim order dated 27.10.1999 the delhi high court stayed the operation of free incoming calls and the legislation of trai (telecom regulatory authority of india) dated 17.1.2000 was quashed. thus, the complaint is baseless. it is further stated that as per clause 2.13 of terms and conditions of subscriber agreement duly signed by the complainant and also has given an undertaking wherein it is clearly stated that the scheme, if any, opted by him may be withdrawn or extended by escotel at its discretion and the subscriber will not have any claim against it. the locus standi of the complainant has been questioned but it is stated that no specific instance having suffered any financial loss has been given due to which he is not entitled to any relief whatsoever, on any ground. 3. in reply on merits, it is stated that the free incoming call schemes were published by them in the leading newspapers on 30.9.99, 1.10.99, 4.10.99 and 8.10.99 mentioning clearly therein that incoming free facility would be free to prospective customer. it was further mentioned that the same was subject to implementation of trai regulations, copy of advertisement has been brought on record vide annexure d-1. the appellants have vehemently pleaded that on a pil filed by m/s. telecom watchdog, the trai regulations were challenged and the operation of the same was stayed vide its order dated 17.1.2000 and above regulations of the trai were quashed. the public notice dated 6.11.99 wherein the general public was informed regarding the aforesaid order of delhi high court and it was also declared that the customers whose phones were activated under the scheme as on 9th november, 1999, would get the benefit of free incoming calls till 30.11.99. the ops have stated that since it was restrained by delhi high court, the free incoming services could not be provided. the ops have denied the allegation of the complainant that he was informed regarding linkage with state of haryana on local call charges basis. it is denied that std facility or dialling code would not be required as were allegedly assured by the ops at the time of giving the connection. in fact it is stated that the respondent/complainant was informed that std charges would not be levied for towns falling under sdca (short distance charging area) towns where the ops are providing the services but the same was not applicable for the rest of the towns, as per dot time bands. the ops have denied having making false, frivolous or fraudulent assurances and it has been stated that the allegations have been levelled with a view to cause harassment and injury to the reputation of the ops as the same have not been substantiated with any evidence, and are purely defamatory. the allegations of the complainant for having suffered any mental or physical harassment have been denied. the allegations of not keeping with the assurances/promises have been denied and it is stated that since no unfair trade practice as has been indulged in by the ops, there cannot be any mental sufferance or inconvenience as alleged. it is reiterated that the facilities as stated by the complainant could not be granted due to the order of the delhi high court as stated above. no deficiency can be alleged on the part of ops and the complaint is liable to be dismissed with costs. 4. the district forum accepted the complaints and directed the ops to refund the security amount of rs. 4,415 at the saving interest rate from the date of deposit till realization. rs. 4,000 towards mental tension and physical harassment, etc. were granted. 5. aggrieved against the order of the district forum, the present appeal has been filed by the ops no. 1 and 2 pleading inter alia that the impugned order is patently erroneous, illegal and biased as the said order have been passed without taking into consideration the evidence adduced by all the parties. the appellant has contended that the order of the district forum directing the appellants to refund the security amount of rs. 4,415 is totally illegal as deficiency as alleged by the complainant could not be proved and no cause of action has arisen to the complainant on the ground that free incoming calls by the appellant company could not be provided in view of interim order of delhi high court which had stayed the operation of the free incoming calls and on 17.1.2000 regulations issued by trai were quashed. hence there was no cause of action in the hands of complainant against the appellant. further the appellant has stated that the incoming calls were to be treated free from 1.11.1999 throughout india including the state of haryana. as per details of the scheme of aforesaid the caller to the cellular phone was to be charged. the conditions are binding on everybody including the complainant who has given an undertaking by signing the subscriber agreement at the time of allotment of connection. the relevant clauses, which stipulate as under are binding on both the parties. “1.5 charges include deposits, rentals (annual/quarterly/monthly) fee, rates, charges by escotel for providing the services within the ceiling prescribed by dot, government of india. 2.13 it is understood by the subscriber that the scheme if any, opted by him may be withdrawn or extended by escotel at its discretion and that he have not any claim in such an eventuality. 3.1 the subscriber shall pay on demand to escotel the subscription charges, call charges and other charges payable for services rendered, including for value added services, as notified and communicated to the subscriber by escotel from time-to-time.” the appellant has contended that the aforesaid conditions clearly demonstrate that subscriber is liable to pay call charges, subscription charges and other charges payable according to the services rendered and also the appellant has right to change the tariff terms at its own discretion but the customers will be notified of the changes, from time-to-time. however, all these charges levied for the various services were to be within the guidelines prescribed by dot government of india and are binding on all the customers including the variations made in accordance therewith. the order of the district forum has been assailed on the ground that it took a totally erroneous view that linkage with the state of haryana would be on the basis of local call charges and std charges or dialling code would not be required to be paid, since the usage charges are within the ambit of dot. the complainant was informed that std charges would not be levied for the towns falling under short distance charging area but those will be applicable for the rest of the towns and std charges would be as per dot time bands. the order of the district forum has also been challenged wherein that ops were directed to refund the security amount of rs. 4,415 though this amount was only rs. 2,000 and in the instant case the complainant has not cleared his dues and this amount is recoverable from him. the order of the district forum has also been challenged on the ground wherein it took the view that the appellant has adopted an unfair trade practice and has been guilty of deficiency in service, though there was no arbitrary decision taken by the appellant and it was in accordance with the guidelines of the competent authorities from time-to-time. it is reiterated that the agreement entered into between the appellant company and the complainant and is binding on both. the complaint was not even maintainable and irreparable injury would be caused if the order of the district forum is not stayed and set aside. a prayer has been made to stay the operation and set aside the impugned order. 6. adverting to the merit of appeals—a perusal of pleadings of parties, evidence brought on file and the grounds of appeal—we are of the considered opinion that the contention of appellants has merit that the district forum has not appreciated the facts of the case rightly as it accepted the complaints and gave relief to the consumers but the order cannot be sustained as it is based on surmises and conjectures. the moot point to be determined is whether the subscriber agreement form which is binding on both the parties does have any such clauses on the basis of which relief granted to the complainants, could be sustained. we have perused this document carefully and there is no such mention of any free incoming calls to be given as claimed by the complainants. in fact it is evident from the pleadings of the complaint that the complainants have build up their complaints around the advertisements floated by the appellants in which the incoming calls were promised to be provided free of costs w.e.f. 1.8.1999. however, since the complainants signed the agreement with the appellants which were finally concluded on 24.7.1999, the date they subscribed to the services of the appellants, there is no such written agreement/terms and conditions vide which the free calls were to be provided as per version of complainant. having not produced anything on record to substantiate their averments, the district forum assumed certain facts and accepted the version of complainants on the assumption that the complainants were to be provided the facilities as promised in the advertisements floated by the appellant company. it is a common knowledge that the advertisements are addressed to public at large. the subscriber agreement form is a specific document which binds the parties signing it and no relief can be claimed by the complainants beyond it on the basis of any advertisements promising to give some facilities/services from a future date. in the instant case complainants have signed a specific agreement in writing which rather would be binding on both the parties w.e.f. the day the agreement was concluded. hence, the district forum was completely in error in accepting the version of complainants and that too on the basis of alleged oral promises and media advertisements. we are of the considered opinion that further in the face of the defence raised by the ops in the written statement that in view of order of honble high court of delhi in c.w.p. no. 6483 of 1999 wherein it was held by honble high court, that the subscribers would be bound by the variation made in the terms and conditions and same would be notified to the subscribers, the order of the district forum cannot be sustained. also the district forum in the impugned order noted, that complainant being a busy advocate could not place the receipt for the payment but still the district forum ordered for refund of charges as stated by him, though not supported through any evidence. the whole approach of the district forum has rather been arbitrary and cannot be sustained after careful perusal of the record. we find merit in the contention of appellants that the respondents/complainants were charged in accordance with the agreed terms and rules and regulations which were framed by the department of telecommunications. in fact there is no material on the file to substantiate the version of the complainants/respondents that the appellants have violated which terms and conditions of agreement/payment against which they are aggrieved. the cases has been filed by both the respondents/complainants without furnishing any evidence to substantiate their averments and no document has been placed on record. both the respondents/complainants are practising advocates and had entered into the agreement with full knowledge of its contents and have signed the undertaking to abide the terms and conditions including those pertaining to charges to be levied. however, their grievance raised in the complaints is that they subscribed to the services of appellants as it was to give some free call facilities which admittedly was to start after they have taken the connection. they cannot be allowed to allege deficiencies in service and unfair trade practice on the ground that the terms and conditions promised to be offered by the appellants from a future date pertaining to charges to be levied, would have been more beneficial to them. the district forum has gone arbitrary in granting the relief and we hold that this order is patently erroneous and deserves to be set aside in toto. the appeals have merit and are allowed. the order of the district forum is set aside and both the appeals are accepted and consequently both the complaints are dismissed. 7. copies of this order be sent to the parties, free of charge.