First Appeal No.1322 of 2008,Misc. Appl. No.1853 of 2008,Consumer Complaint No.43 of 2007

3rd December, 2009

Petitioner Counsel: Mr. P. P. TIPNIS
Respondent Counsel: Mr. Ulhas Naik

JUDGMENT

-Mr. P. N. KASHALKAR, Hon'ble Presiding Judicial Member :- Being aggrieved by the judgment and award passed by Central Mumbai District Consumer Forum in consumer complaint No.43/2007 dated 29/08/2008 whereby while allowing the complaint, the Forum below directed the O.P. to restore the connection network of Hutch No.9833179369 of the complainant within 15 days and also directed to pay Rs.5,000/- to the complainant towards mental agony and Rs.2,000/- towards cost with 15 days from the date of receipt of this order, the org. O.P. has filed this appeal.

2. The facts to the extent material may be stated as under :-

3. The complainant who is an Advocate had filed consumer complaint alleging deficiency in service on the part of O.P. According to him he was already a subscriber of hutch network mobile No.9833179369. On 09/01/2007 he subscribed for second separate number. After completion of formalities and on payment of Rs.599/- he was issued a SIM card by the O.P. According to the complainant while purchasing second SIM card he told Hutch Shop at Fort that the needs national roaming services for contacting his mother who was to visit District Karwar in Karnataka State with lifetime free incoming, but at the suggestion of O.P. he opted for "Talk Roam 299plan". He was assured that services of national roaming would be activated within two days after verification was done by the HEL. He was also assured that he would get uninterrupted service of national roaming form Hutch in Karnataka and specifically in Room No.18 of the High Court while in Mumbai. However, it was the case of the complainant that national roaming was not activated as assured. The complainant sought explanation on telephone by contacting toll free number of Hutch Company, but it was all in vain. Then, he made visit to Hutch Shop at Fort, Mumbai time and again and in the last visit he was told that unless he deposited Rs.1,000/-, national roaming services would not be activated. He therefore filed consumer complaint alleging deficiency in service on the part of O.P. His further grievance in the complaint was that he was being charged extra amount of Rs.299/- as monthly rental for period of next bill and he was also charged Rs.152/- as roaming call and Rs.151.35 for incoming roaming charges besides service charges. He did not make the payment of Rs.1,000.12 it being exorbitant and contrary to the assurance given by the Company. The complainant also felt aggrieved by the inflated bill given by the Hutch Company. He approached Manager, Hutch Connections, who replied that call charges Bill supplied to the complainant up-to-date. The complainant set letter dated 07/03/2007 requesting the O.P. to disconnect post-paid subscription or to convert it as pre-paid connection with lifetime free incoming. He also sought details as to 'number of incoming calls received and outgoing calls made from the said Hutch No.9819285668 while in Karnataka and while in Mumbai. But, O.P. did not furnish the details. To him surprise he found that though he was paying the bills regularly for the first mobile, his existing connection was disconnected because of non-payment of bill of second SIM card purchased by him. Thus, he claimed Rs.2 Lakhs for mental torture, harassment, alleging deficiency in service and financial loss.

4. O.P. filed written statement and denied the allegations made by the complainant. According to the O.P. complainant was informed to deposit amount of Rs.1,000/- towards national roaming activation, but complainant did not pay the deposit. Hence, the national roaming facility across the India was not given but incoming facility across the India was activated and for second number Zonal Roaming of Maharashtra, Goa, Gujarat, Rajasthan, Delhi and M.P. was made available. O.P. denied to have issued inflated bill. O.P. pleaded that as per tariff plan selected by complainant bills were being issued in terms of consumption. The complainant had also agreed for advance payment of charges as per clause 4(b) of Agreement Form and he defaulted in paying the dues. Therefore, his Cell No.98199285668 was permanently disconnected and his cell No.9833179369 was disconnected under duplicate tracking. They pleaded that they therefore were not guilty of deficiency in service and prayed for dismissal of complaint.

5. Upon hearing both the counsels and on perusal of the documents and affidavits, Learned District Consumer Forum held that the complainant was right in not making payment of bills. There is no fault on the part of the complainant and O.P. disconnected cell No.9833179369 for non-payment of outstanding bill of Cell No.9819285668. So, there was clearly deficiency in service on the part of the O.P. The Forum below observed that the complainant was ready and willing to pay the legal charges of first cell he was having. The Forum below found not merit in the complaint so far as non-activation of national roaming to his Cell No.9819285668 because complainant had not paid deposit amount as asked by the O.P. The Forum below ultimately found that O.P. was guilty of deficiency in service in charging advance monthly rental in the earlier bill whereby the amount of service tax was increased. It was guilty in deficiency in service in not raising the item-wise bill in respect of Cell No.9819285668 and disconnecting the mobile service of Cell No.9833179369 for non-payment of second Hutch mobile and therefore, Forum below passed the impugned award directing restoration of connection of Network of Hutch No.9833179369 to the complainant within 15 days and also directed to pa Rs.5,000/- for mental agony and Rs.2,000/- towards cost of complaint. Aggrieved thereby O.P. has filed this appeal.

6. We heard Mr. P. P. Tipnis, Advocate for the appellant and respondent-Mr. Ulhas Naik in person.

7. We did find that the appellant was guilty of deficiency in service in sending bill demanding advance payment of next monthly rental charges. Appellant was also guilty of deficiency in not giving item-wise bills to the complainant despite asking. The Hutch Company was also guilty of disconnecting mobile of the complainant for which he had paid up-to-date bill i.e. his first mobile No.9833179369. For non-payment of bill of second mobile connection taken by the complainant, second connection was already discontinued and therefore, disconnecting the first mobile phone of the complainant/respondent herein itself amounted to deficiency in service on the part of the appellant. The appellant was also guilty of asking advance payment of next monthly rental charges which also amounted to unfair trade practice within the meaning of section 2(1)(r) of Consumer Protection Act, 1986. In the circumstances, Forum below was right in allowing the complaint and passing the award for payment of Rs.5,000/- towards mental agony and payment of Rs.2,000/- as cost to the complainant.

8. But, it the course of arguments, Advocate Mr. Tipnis for the appellant vehemently submitted before us that the direction in clause No.1 of the operative part of the order cannot be complied with for the simple reason that the first mobile number was already allotted to another person. This has been clearly mentioned by the appellant in the appeal memo in grounds of appeal in Para (F) at page-9 of appeal memo wherein it has been clearly mentioned that the Learned District Consumer Forum erred in law in not considering the impossibility of implementing the order of restoration of connection/network of mobile No.9833179369 to the respondent since the same number had already been allotted to another subscriber of the appellant more than a year back. It is for this reason, we are of the view that the order of the District Consumer Forum is required to be modified by allowing this appeal partly and we are satisfied that the direction of Learned District Consumer Forum in clause No.1 of the operative part of the order cannot be complied with because of the fact that the said mobile number has already been allotted to another customer about a year back. Therefore, to this extent only we are inclined to allow this appeal partly.

9. We are also inclined to observe before parting with this judgment that the Learned District Consumer Forum erred in law in directing compliance of this order within 15 days. Learned District Consumer Forum in so doing clearly overlooked the provisions contained in Section 15 of Consumer Protection Act, 1986. In as much as within 30 days appeal can be filed against the judgment and award passed by the District Consumer Forum in the State Commission. So when the appeal period is 30 days, curtailing the appeal and directing the appellant to comply its order within 15 days is an order not sustainable in law and therefore, this aspect will have be rectified by passing suitable order. Hence, we pass the following order :-

-: ORDER :-

1. Appeal is partly allowed.

2. Clause No.1 of the operative part of the order passed by the District Consumer Forum is totally deleted and rest of the order though confirmed is directed to be complied with by the appellant within 30 days from the date of receipt of this order.

3. District Consumer Forum is directed specifically that henceforth it shall ask to comply its order within 30 days from the date of receipt of its order in all the cases, it will be deciding henceforth.

4. Parties are left to bear their own costs.

5. Misc. Appl. No.1853/2008, which is for stay stands disposed of.

6. Copies of the order be furnished to the parties free of costs.

Appeal partly allowed.