The instant Revision Petition under Section 17(1)(b) of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the behest of Opposite Party to impeach the Order No.07 dated 29.05.2018 made by the District Consumer Disputes Redressal Forum, Kolkata, Unit-III (for short, Ld. District Forum) in MA/121/2018 stems from Consumer Complaint No. 125/2018 whereby the application filed by Opposite Party (OP) challenging the maintainability of the proceeding was rejected.
The Opposite Party herein being Complainant lodged the complaint under Section 12 of the Act with prayer for several reliefs – (a) to direct the OP to pay compensation of Rs.4,00,000/- towards mental agony and harassment; (b) to direct the OP to discontinue such unfair trade practices with immediate effect; (c) to pay litigation cost etc.
The facts giving rise to the complaint, in a nutshell, was that the Complainant was the subscriber of Vodafone Post Paid Connection being No.8013259499. On 02.12.2017 the said mobile phone was stolen for which the complainant lodged an FIR for theft for which one case being Sinthi P.S. Case No.135 dated 02.12.2017 under Section 381 IPC was registered and the SIM card was suspended/blocked. In first week of February, 2018 all on a sudden the complainant on her alternative number received a call from the man of OP demanding payment of bills of the aforesaid number for the months of December, 2017 and January, 2018 and when the complainant told the Customer Care Executive of OP, the Customer Care Executive told her that the SIM card was though suspended but it was again revived and the SIM was active. The complainant has submitted that she never requested to issue any duplicate or new SIM card and it was found that the name of one ‘Eastern Hardware Mart’ is appearing under her name without her consent and knowledge. The complainant immediately sent a legal notice on 22.02.2018 to OP but OP wilfully and deliberately neglected to give proper reply. Hence, the complainant approached the Ld. District Forum with prayer for certain reliefs as indicated above.
The Revisionist/OP after entered appearance did not take any pain to file written version in accordance with the spirit of the provisions of Section 13(2)(a) of the Act and the decision of the Three-Judge Bench of Hon’ble Supreme Court reported in 2016 (1) Supreme 319 [New India Assurance Co. Ltd. – Vs. – Hilli Multipurpose Cold Storage Pvt. Ltd.] rather filed an application challenging the maintainability of the proceeding on the ground that the complainant is a subscriber of Vodafone Mobile services Ltd. in Kolkata Telecom Service area which has separate entity and has no connection with Vodafone India Ltd. and prays for dismissal of the complaint.
After hearing both sides, the Ld. District Forum by the impugned order rejected the application with a direction upon the OP to file written version as a last chance on 12.06.2018. To assail the said order, the OP has come up in this Commission with the instant revision petition.
Ms. Ishani Sengupta, Ld. Advocate for the Revisionist has submitted that the Ld. District Forum should not have rejected the application inasmuch as the complainant is a subscriber of Vodafone Mobile Services Ltd. and the services rendered by the said Vodafone Mobile Services Ltd. are not the petitioner.
Supporting the impugned order, the complainant, who appeared in person has contended that the OP should have filed the written version within the stipulated period and as OP has not followed the prescribed procedure and the dictum of Hon’ble Supreme Court, the OP shall be prevented from filing written version. She has also submitted that the question raised by the revisionist/OP is a mixed question of fact and law cannot be adjudicated at this stage.
After giving due consideration to the submission made on behalf of the parties, I think the question as to separate entity of Vodafone Mobile Services Ltd. and Vodafone India Ltd. has to be proved by advancing evidence since it involves mixed question of fact and law. Therefore, OP should have filed written version in accordance with the decision of Three-Judge Bench of Hon’ble Supreme Court in the case of New India Assurance Co. Ltd. (supra).
Considering the above, when I do not find any jurisdictional error or material irregularity in passing the order impugned, the impugned order should not be interfered with.
Despite appearance, the OP has not yet filed written version and as such the complainant should be adequately compensated for the delay already caused in filing written version. In view of the decision dated 10.02.2017 passed by the Hon’ble Apex Court in Civil Appeal No.Nil of 2017 (D No.2365 of 2017) [Reliance General Insurance Co. Ltd. & Anr. – Vs. – M/s. Mampee Timbers & Hardwares Pvt. Ltd. & Anr.], I direct that if the written version on behalf of OP is filed within 31.10.2018, with advance copy to the complainant, the same shall be taken on record, subject to OP paying to the complainant a sum of Rs.30,000/- as cost. The costs shall be paid before the Ld. District Forum.
The parties or their Ld. Advocates are directed to appear before the Ld. District Forum on 31.10.2018 for further proceeding. The OP/revisionist must show receipt as to payment of cost prior to filing written version.
In view of the above, the instant Revision Petition stands disposed of.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-III for information.
