BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.190/2018

DATED ON THIS THE 20^th June, 2019

      Present:   1) Sri. C.V.Maragoor

B.Com., L.L.M., - PRESIDENT 

                     2) Sri. Devakumar.M.C.           

                                        B.E., LLB., PGDCLP   - MEMBER

Sri C.V.MARAGOOR,

President

1.          This complaint is filed by Sri V.R.Raghunathan aged 66 years resident of Mysuru with a prayer to direct the opposite parties the Floor Manager, M/s Vodafone Store, Mysuru and Mrs. Bhagyashri, the Nodal Officer, Vodafone South, Bangalore to return the banker’s return memo for the alleged bounced cheque No.251 dated 08.03.2018 for Rs.352/- drawn in favour of M/s Vodafone on Kotak Mahindra Bank, Saraswathipuram Branch, Mysuru and for cost and appropriate compensation for the mental agony and ordeals undergone to be paid by the opposite parties.
2.           The complainant holding and operating mobile No.9448005865 for their personal use migrated from BSNL to Vodafone and they have provided mobile SIMs to their spouse and second son.  The first opposite party has obtained the complainant’s bank mandate for direct debiting of the monthly bills for all the three post-paid connections from his S.B. Account No.04250010001228 with M/s Kotak Mahindra Bank, Mysuru.  Suddenly on 01.03.2018 the complainant had received SMS from M/s Vodafone Service Centre informing that their direct debit service through bank account for mobile No.9448005865 has ended and for extension of service visit nearest Vodafone store and submit fresh mandate form. On receipt of message, the complainant has approached the opposite party No.1 on 08.03.2018 for giving fresh mandate of their bank account towards monthly bills for all the three mobiles, but the front staff of opposite party No.1 was not ready to pass receipt for cash payment.  Lastly, opposite party No.1 instead of receiving cheque asked the complainant to drop the cheque in a box kept outside the store.  Accordingly, the complainant has dropped cheque in the box kept outside the store.  On 10.03.2018 the complainant came to now that it is 14 digits bank account number is not matching with their system requirement of 12 digits and to get the same rectified.  The complainant informed the opposite party that he could not change the bank 14 digits account number.  Later on the complainant has paid Rs.352/- by using Canara Bank debit card. Then system was reflecting no dues. 
3.           It is further case of complainant that the opposite party No.1 informed him that the cheque was returned for insufficient funds in his account, but in fact the complainant had sufficient funds in his account maintained with M/s Kotak Mahindra Bank.  After making E-mail correspondence with the opposite party no.2 came to know that the cheque was returned back for mismatch in figure and words.  The opposite parties have refused to hand over the banker’s return memo endorsement for return of the cheque. Thus, the opposite parties have played unfair trade practice and their acts amounts to deficiency in service.  Hence, this complaint.
4.            The opposite parties resisted the complaint by filing written version contending that the dispute raised by the complaint is not maintainable in view of the judgement rendered by Hon’ble Supreme Court in the matter between General Manager, Telecom V/s M.Krishnan and another reported in 2009 (AIR) SCW 5631 followed by Hon’ble National Commission in the order dated 18.07.2012 passed in Revision Petition No.398/2011 ZiyauddinAlvi V/s Bharti Airtel Ltd.,  The dispute between the subscriber and telecom service provider, the remedy available for the complainant is under Section 7B of the Indian Telegraphic Act, 1885 which provides for adjudication of such dispute by reference to arbitration.
5.            It is the contention of opposite parties that the complainant by suppressing the material facts to harass the opposite parties, without there being any valid reason filed this false complaint.  The opposite parties admitted that the complainant is their subscriber with respect to three mobile connections which are post-paid connections and the complainant had opted for payment of mobile bills through ECS system or direct debiting for said mobile numbers.  Since 28.02.2018 the complainant’s direct debit service was coming to end hence, he was informed by sending SMS on 02.01.2018 that direct debit service is going expire on 28.02.2018 requesting him to visit the nearest Vodafone store and submit a fresh mandate form for extension of the service.  The complainant did not approach the opposite parties, as such direct debit service got expired on 28.02.2018.  Hence, the SMS was sent on 01.03.2018.  The opposite parties have denied the rest of the allegations made in the complaint.  On the amongst other grounds, the opposite parties pray to dismiss the complaint.
6.          In order to prove their respective allegations, the complainant filed their affidavit in lieu of evidence and produced supporting documents.  On behalf of opposite parties one H.R.Gurudutt, S/o Ramakrishnamurthy, Authorised signatory filed affidavit evidence.
7.          The complainant submitted written arguments in addition to their oral arguments advanced by them and on perusal of the materials points that would arise for determination are as under:-   

1. Whether the opposite parties prove that the complaint is not maintainable before this Forum?
2. Whether the complainant proves that the act of opposite parties amounts to deficiency in service and unfair trade practice and thereby he suffered mental agony?
3. Is complainant entitled to the reliefs sought for?
4. What order?

8.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the affirmative;

Point Nos.2 and 3:- Does not arise for consideration;

Point No.4 :- As per final order for the below

:: R E A S O N S ::

9.         Point Nos.1 to 4:- The complainant submitted that though the mandate was not expired the opposite parties in order to cause mental harassment to them for filing earlier CC No.1209/2016 against them they have unnecessarily sent message and thereafter refused to receive the cheque, pass issue receipt for cash payment and informed orally that cheque issued by him was bounced for insufficient funds in their account.  The complainant and opposite parties in their affidavits have reiterated the averments of the complaint and version. 
10.         The opposite parties contention is that the complaint filed by the complainant is not maintainable before this Forum in view of the provisions of Indian Telegraphic Act, 1885.  The opposite parties have relied upon the case of General Manager, Telecom V/s M.Krishnan and another III (2009) CPJ 71 wherein the Hon’ble Supreme Court under Section 7B of Telegraphic Act 1885 and rules 413, 443 of Telegraph Rules held as under

“Telephone Dispute – non-payment of bill – jurisdiction of Consumer Forums/Courts barred – special remedy provided under Section 7B of Indian Telegraph Act – in present case telephone connection disconnected for non-payment of bill –reconnection directed by Consumer Forum – compensation with interest awarded – jurisdiction of Consumer Forum challenged – petition dismissed by High Court – Civil appeal filed – remedy under Consumer Protection Act, barred by implication – orders of Consumer Forum and High Court set aside”

11.       In the above decision, the Apex court held that in case of telephone dispute between subscriber and service provider that shall be referred to the arbitration and the Consumer Forums have no power to decide the dispute.  In the case on hand, the complainant has made allegations against the opposite parties with regard to service to be provided by service provider - opposite party for connection with their three mobiles. This shows that dispute existed between the complainant –subscriber and the service provider - opposite party Nos.1 and 2. In view of the decision rendered by Hon’ble Supreme Court this Forum is not having jurisdiction to award compensation to the complainant in connection with the service to be provided by opposite parties.  Therefore, the complaint is not maintainable before this Forum.  In the result, we proceed to pass the  following:-

:: O R D E R ::

1. The complaint filed by Sri V.R.Raghunathan is dismissed as not maintainable.   
2. In the circumstances of the case parties shall bear their own costs.
3. Furnish the copy of the order to the complainant and opposite parties at free of cost.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 20^th June, 2019)