THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 25th day of January, 2023.
Filed on : 22.03.2021
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Sholy.P.R, B.A.L,LLB (Member)
In
CC/No.76/2021
between
Complainant:- Opposite parties:-
Sri.Shan.A.S 1. The Chief Executive Officer
Anjuparambil Airtel Payments Bank Ltd
Kalavoor.P.O 1st Floor, Tower-B, Plot No. 16
Alappuzha-688522 Udyog Vihar Industrial Area
(Party in person) Phase-4, Gurugram 122001
2. The Chief Executive Officer
BSNL, Bharath Sanchar Bhavan
Harish Chandra Mathur Lane
Janpath, New Delhi -110 001
(Adv. K.B. Sindhu)
3. Gouresh Kotian
Chief Compliance officer
Airtel Payments Bank Ltd
Gurugram-122001
(Adv M/s Menon and Pai for Ops 1 &3)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
1. Material averments briefly stated are as follows:-
Complainant is having a prepaid mobile connection from BSNL having No.7034463855. It was ported from Airtel on 01.02.2020 and the SIM is active from 05.02.2020. On 26.10.2020 complainant tried to recharge the phone through his airtel payment bank account number 9249755562 but it failed. However Rs.50/- and Rs.30/- were debited from his account. Onenquiry with the consumer care number of airtel payment bank it was informed that the transaction is success and requested to contact BSNL. On contacted it was informed from BSNL that all recharges done on 26.10.2020 are failure. Complainant sent a complaint to airtel payment bank customer care to refund the same. Though he received a SMS on 02.11.2020 stating that the complaint is redressed amount was not refunded. Though complainant contacted the airtel payment bank through their customer care number there was no positive response.
2. On 26.10.2020 complainant tried to recharge the SIM through net banking of Federal Bank. Though the amount was debited the amount was not credited in the account in the recharge account. The amount was refunded on 29.10.2020. Due to covid 19 pandemic and on account of containment zone complainant was unable to utilize the mobile phone. Hence the complaint is filed for giving a direction to refund the amount and claiming an amount of Rs.5 lakhs as compensation.
3. 1st opposite party filed a version mainly contenting as follows:-
The averments made against this opposite party in the complaint are false, frivolous and vexatious. This complaint is filed without any cause of action and it is an abuse of process of this Commission.
4. Complainant has not only concealed the material facts but also misrepresented material facts. Complainant has failed to establish any deficiency on the part of the opposite party. Complainant has not approached this commission with clean hands.
5. Opposite party in this complaint is the chief executive officer and there are no specific allegations against chief executive officer. He is also not personally liablein the present complaint. On 26.10.2020 complainant recharged his mobile bearing number 9249755562 via his Bhim UPI amounting to Rs.50 and Rs.30/- from the opposite party.As per the records maintained by this opposite party both transactions were successful at their end. On 02.11.2020 complainant lodged a complaint and informed that the transactions as initiated by him were wrong. Since the disputed recharge transactions were successful complainant is not entitled to any amount. The allegation that when complainant contacted BSNL they informed him that the recharges done on 26.10.2020 were all failures is without any evidence. There was only one complaint placed by the complainant before this opposite party. The present complaint is liable to be dismissed since there is no cause of action against this opposite party.
2nd opposite party remained exparte.
6. 3rd opposite party filed a version mainly contenting as follows:-
The complainant has suppressed material facts in the complaint and approached this Commission with unclean hands. It is filed on an experimental basis and there is no act amounting to deficiency in service or unfair trade practice.
7. Opposite party is an official of 1st opposite party and no separate prayers are sought against this opposite party. There is no cause of action ever occurred against this opposite party and hence the present complaint is an abuse of process. The complaint is filed only to harass and humiliate this opposite party.
8. On 26.10.2020 complainant recharged his mobile bearing number 9249755562 via his bhim UPI amounting Rs.50/- and Rs.30/- from the 1st opposite party and as per the records both transactions were successful. Complainant made a complaint on 02.11.2020 and he was informed that both recharges were successful and he was advised to contact the concerned operator since the transactions were successful. Complainant is not entitled for any refund. The averment that BSNL informed complainant that the recharges done on 26.10.2020 were all failures is without any evidence. There is no cause of action for filing the complaint. There is no deficiency of service and unfair trade practice on the part of this opposite party and hence the complaint may be dismissed with cost.
9. On the above pleadings following points were raised for consideration:-
- Whether there is any deficiency of service from the part of opposite parties as alleged?
- Whether the complainant is entitled to realise an amount of Rs.80/- (Rs.50/- + Rs.30/-) from the opposite parties as prayed for ?
- Whether the complainant is entitled to realise an amount of Rs.5,00,000/- as compensation from the opposite parties as prayed for?
- Reliefs and costs?
10. Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A3 from the side of the complainant and the oral evidence of RW1 and Ext.B1 to B3 from the side of the opposite parties.
11. Point No.1 to 3
PW1 is the complainant. He filed an affidavit in tune with the complaint and marked Ext.A1 to A3.
12. RW1 is the authorized representative of the opposite parties 1 and 3. He filed an affidavit in tune with the version and marked Ext.B1 to B3.
13. PW1 , the complainant is having a mobile prepaid connection as No. 7034463855 issued by the BSNL. On 26/10/2020 he recharged the mobile connection for Rs. 50/- and Rs.30/- through Airtel payments bank. However the amount was not credited in the BSNL account thought the amount was debited in his account. According to PW1 in the records it is shown as the transaction as failure. Though he contacted Airtel Payments Bank several times, the complaint was not redressed and hence the complaint is filed claiming an amount of Rs. 80/- along with compensation of Rs. 5 lakhs. Opposite party No.1 and additional 3rd opposite party filed separate versions admitting the transaction and contenting that as per their records the transaction was success and so they are not liable to pay any amount to the complainant. Though BSNL was made as 2nd opposite party they remained exparte for the best reason known to them. Complainant got examined as PW1 and marked Ext.A1 to A3. The authorized representative of opposite parties 1 and 3 got examined as Rw1 and marked Ext.B1, B2 series and B3. Relying upon the oral evidence coupled with documents marked the complainant who was appearing as party in person pointed out that though the amount was debited from his account it was not credited in his BSNL account and so there was deficiency of service from the part of opposite parties and hence they are liable to compensate. Per contra the learned counsel appearing for the opposite party 1and 3 pointed out that as per Ext.B3 the transactions was successful and so they are not liable to pay any amount to the complainant and he is also not entitled for compensation since there was no deficiency of service.
14. Admittedly PW1 is having a mobile connection as number 7034463855 issued by the BSNL. The transaction in question is dtd. 26/10/2020. Ext.A1 is the transaction history which shows that on 26/10/2020 an amount of Rs. 50/- and Rs. 30/- was deducted from his account as charges for BSNL prepaid recharge. Ext.A2 is the reply issued by BSNL on 6/12/2022 to PW1. From Ext.A2 it is revealed that as per the records on 26/10/2020 there was no transactions in the portal. So it can be seen that though as per Ext.A1 on 26/10/2020 an amount of Rs. 50/- and Rs. 30/- was debited from the account of the complainant it was not credited in his BSNL account. The contention of RW1 is that as per Ext.B3 document the status is shown as success and so the amount was credited in the mobile account number. But as discussed earlier as per Ext.A2 document which is seen issued by the BSNL there was no transaction on 26/10/2020. During cross examination RW1 admitted that except Ext.B3 no other document is available to show that the amount was credited in the BSNL account. RW1 admitted that the transaction was done through an intermediary known as M/s Oxygen Ltd. No document is produced to prove that Oxygen Ltd had transferred the amount to BSNL. It is true that in Ext.B3 it is shown that the transaction is success. But it is not known why it was not credited in the BSNL account of Pw1.
15. According to PW1 the incident occurred on 26/10/2020 where there was spread of Covid-19 pandemic and so he could not use the mobile phone since there was no sufficient balance. Hence it was contented that due to deficiency of service he had to suffer a lot and so he is entitled for compensation. From the evidence on record it is seen that though Rs. 50/- and Rs. 30/- was debited from the account of Pw1, it was not credited in the account of PW1. Hence opposite parties 1 and 2 are liable to return the amount of Rs. 50/- and Rs.30/-. As pointed out by PW1 since he could not use the mobile phone since there was no sufficient balance he is entitled for compensation and considering the entire aspects in this case, we allow an amount of Rs. 1000/- as compensation. These points are found accordingly.
16. Point No.4:-
In the result complaint is allowed in part.
a) Complainant is allowed to realise an amount of Rs. 80/- (Rs.50 +30) along with interest @ of 9% per annum from 26/10/2020 till realization from opposite parties 1 and 3.
b) Complainant is allowed to realize an amount of Rs. 1000/- as compensation from the opposite parties 1 and 3.
c) Complainant is allowed to realize an amount of Rs.1000/- as cost from the opposite parties 1 and 3.
d. Complaint against 2nd opposite party is dismissed.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 25th day of January, 2023.
Sd/-Sri.S.SanthoshKumar(President)
Sd/-Smt.Sholy.P.R (Member)
Appendix:-Evidence of the complainant:-
PW1 - Shan.A.S(Complainant)
Ext.A1 - Transaction History
Ext.A2 - Reply notice dtd. 6/12/2022
Ext.A3(S.O) - Circular
Evidence of the opposite parties:-
RW1 - Sarath.B.S(opposite party)
Ext.B1 - Letter of Authority
Ext.B2 series - Account Statement
Ext.B3 - Email communications
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Comp.by:
