5

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM HOSHIARPUR.


C.C.No, 353/4.12.2007

Decided on : 12.03.2009

Joga Singh aged 63 years son of Daulat Singh resident of village Chagran Tehsil and District Hoshiarpur.



Complainant


vs.


1.

M/s Tata Indicom,Tata Teleservices Limited, Jeevan Bharti Tower, 10th floor, 124, Connaught Circus, New Delhi,110001 through its chairman/ Managing Director.
2.

Nagina Telecom, Kotwali Bazar Hoshiarpur through its proprietor/ Incharge.

Opposite parties

Complaint u/s 12 of the Consumer Protection Act, 1986.



Quorum: Sh.P.D.Goel,President,

Sh.A.S.Jauhar,Member.


Present; Sh Sucha Singh, counsel for the complainant.

Sh Brij Thakur, counsel for the OPs.


PER P.D.GOEL,PRESIDENT


1.

The complainant namely Joga Singh has filed the present complaint under section 12 of the Consumer Protection Act,1986 (as amended upto date) “hereinafter referred as the Act.”. In short,the facts of the case are that the complainant purchased Tata Indicom Telephone from OP No.2-Nagina Telecom on payment of Rs.3300/-.That the OPs allotted telephone number 92176-26850 with life time incoming free call facility.
2.

It is the allegation of the complainant that on 12.8.2007, he was surprised to know that the incoming call facility to the said telephone has been stopped by the OPs. The complainant contacted the OPs through customer care centre but of no avail. The complainant also made a request to the OPs to restore the incoming call facility but of no consequences, hence this complaint.
3.

OPs filed the joint reply. Preliminary objections vis-a-vis suppression of material facts and that complainant is not a consumer were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant is te holder of prepaid connection and as per terms of connection, he was required to maintain talk time in order to make and receive the calls. That as per record of the company, the complainant had subscribed to normal plan and not to life time plan, which requires minimum balance in the account. The disputed connection was issued to one Amrik Singh son of Gurdayal Singh r/o VPO Kot Fatuhi District Hoshiarpur and not to the complainant. It is further replied that the sale of connection was made by OP No.2-Nagina Telecom under the normal prepaid plan and not of life time plan. The timeline of 15 days is allowed to recharge the connection after exhausting complete talk time. The complainant did not recharge the connection even in the grace period of 15 days, as such, the system automatically barred the incoming and outgoing calls.
4.

In order to prove the case, the complainant tendered in evidence affidavits Ex.C-1/A, C-1/B, affidavit of Surinderpal Singh Ex.C2/C, copy of receipt dated 26.9.2006 Mark-A, copy of notice dated 23.10.2007 Ex.C2/D, postal receipts Ex.C2/E, C2/F and AD Ex.CX and closed the evidence.
5.

In rebuttal, the opposite parties tendered in evidence affidavits of Sh Amit Gupta, Manager,Legal Ex.R-1, Ex.R-2, application form Ex.R-3 , ration card Ex.R-4 and card detail history of disputed connection Ex.R-5 and closed the evidence.
6.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
7.

The main question which calls for determination from this Forum is whether the complainant namely Joga Singh is a consumer of the OPs. The answer to this is in the negative. Section 2(1)(d) of the Consumer Protection Act defines “consumer” which is reproduced for the purpose of convenience :

“consumer” means any person who -

(i) buys any goods for a consideration which has been paid or

promised or partly paid and partly promised,or under any

system of deferred payment and includes any user of such

goods other than the person who buys such goods for

consideration paid or promised or partly paid or partly

promised, or under any system of deferred payment when

such use is made with the approval of such person, but does

not include a person who obtains such goods for resale or for any commercial purpose; or


2.

(hires or avails of ) any services for a consideration which

has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial

purpose;

xx xxx xxx “


8.

The opposite parties have raised the preliminary objection that the complainant is not a consumer of the disputed telephone connection No. 92176-26850, as the said telephone connection was allotted to one Amrik Singh S/o Gurdayal Singh r/o VPO: Kot Fatuhi, Distt. Hoshiarpur. The opposite parties have produced on record Customer Application Form – Ex. R-3 and its close scrutiny makes it clear that the telephone No. 9217626850 has been allotted by the opposite parties to Amrik Singh S/o Gurdyal Singh, VPO: Kot Fatuhi, Distt. Hoshiarpur. The said plea raised by the opposite parties is supported by the affidavits of Amit Gupta, Manager Legal, m/s. Tata Teleservices Ltd. qua Ex. R-1 and Ex. R-2. It will be relevant to state here that said Amrik Singh son of Gurdial Singh resident of V&PO: Kot Fatuhi, Distt. Hoshiarpur appeared as Court Witness on 24.2.2009. He has stated that the original of Ex. R-3 bears his signatures at Points “A” and “B” alongwith his photograph.
9.

The complainant has produced on record the retail invoice of Rs. 3,300/- - Mark-A and its close scrutiny makes it clear that it was not issued in favour of the complainant, and it is only a cash memo. Since Mark-A is only a cash memo, therefore the complainant cannot draw any advantage from the receipt – Mark-A as it is not issued in his name. Confronted with this type of situation, it can legitimately the held that the complainant has failed to prove himself to be a consumer of the opposite parties as the telephone No. 9217626850 was allotted to Amrik Singh S/o Gurdyal Singh and not to the complainant. The complainant has neither hired/availed any services nor purchased any goods from the opposite parties. .
10.

Now, it is established on record that the complainant has failed to prove himself to be a “consumer”, as such, neither the complainant has any locus-standi to file the present complaint nor the complaint is maintainable. Since, the complainant has failed to prove himself to be a “consumer” as defined under the Act, therefore, it will be a vain attempt to go in further details of the matter on merits.
11.

As a result of the above discussion, it is held that this complaint is liable to fail, as such the same is ordered to be dismissed. However, no order as to costs. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

Announced.

12.03.2009


(Sh. A.S.Jauhar) ( P.D.GOEL)

MEMBER PRESIDENT