Instant complaint has been filed under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 against the OPs for their deficiencies in rendering services to the complainant as alleged in the complaint.  Due to the aforesaid deficiencies, as the complainant clarified, the complainant had to sustain immense professional loss including prospective loss of income, loss of dignity, mental pain, trauma and litigation cost.  The complainant, accordingly, has filed the complaint claiming reimbursement for the aforesaid loss together with cost and compensation for an amount of Rs.81,16,371/- only.

          In the instant complaint, the OP no.1 is the company engaged in business of providing telecommunications services to its customers.  The company, having its Head Office at the given address in Mumbai, had two branch offices at the given addresses in Kolkata, being the OP nos. 2 & 4.  OP no.3 in the instant complaint is the CEO of the said Kolkata Branch Offices.  As per the complaint, the respondent nos. 2 & 3 were instrumental in carrying out various services and activities in and outside West Bengal.

          The facts of the case, in a nutshell, are that the complainant, a Project Finance Consultant in the space of banking finance and investment, left for USA for a vacation tour w.e.f. 23.05.2013 to 29.09.2013.  Before his departure, he initiated necessary action for having his mobile phone No.9830066047 activated with international roaming facilities by the OPs hereby so as to enable him to stay in continuous touch with his relatives, clients, agents and associated all of whom used to dwell in Kolkata.

          The complainant left the country making it sure that the said mobile number was duly activated with charges payable at roaming rate of the visiting country.  The roaming facility, as the complainant narrated, could be operated by the complainant till departure from Hongkong by connecting flight for New York.

          The same facility, however, was found inoperative on disembarkment at JFK, International Airport, New York on 23.05.2013.  The matter was immediately brought to the notice of the OP no.1 sending him the e-mail on 24.05.2013.  There being no satisfactory response, a further e-mail was sent on 29.05.2013 informing the OP no.1 all about the problems that the complainant was facing due to non-availability of the desired connectivity in his cell phone.

          The complainant attached with his petitions all annexures in seriatim showing therein his e-mails addressed to OP no.1 ventilating his dissatisfaction towards acute deficiency in rendering services by the OPs towards resolving the problems and harassments that the complainant had been experiencing in pursuit of his vain efforts to activate his mobile phone number 9830066047 even after following between the lines the suggestive emails towards remedy of the problems, in response, from OP No.1.

          The complainant, as alleged, had to go even for purchasing a cell phone of hand sent compatibility as the OP No.1 pointed out that the cell phone that the complainant was using, was lacking in the said compatibility and also apprehended by the OP No.1 that the said cell phone might not work due to its not having the supporting GSM frequency brand.

          Neither of the above suggestions of the OP No.1, however, after being vividly followed, helped resolve the issue till 05.10.2013 when the complainant, on return from his vacation tour, visited the office of the OP No.3 and when it was admitted that the SIM card provided to the complainant by the OPs was not working and needed replacement.  The complainant, however, received back his desired connection only after a new SIM was provided to him from the office of the OP No.3.

          Since the OP had to suffer immensely because of the deficiency of service rendered to him by the OPs herein for long 4 months and since he had to suffer financially and mentally because of the aforesaid deficiency, the complainant, being aggrieved, filed the instant complaint.

          Heard the Ld. Advocates appearing on behalf of both sides.

          The Ld. Advocate appearing on behalf of the complainant submitted that the complainant had flawlessly done everything as a consumer of the OPs, the service providers.

          The roaming facility that the complainant had a dire necessity to stay in touch with his clients, agents, associates and the members of his family was not provided to him by the OPs.

          Citing individually every annexure of his complaint, the Ld. Advocate pointed out how he had intimated the OP No.1 the acute problem that he was facing in a foreign country in absence of the services which the OPs were bound to provide him with.

          The Ld. Advocate’s submission was also revealing about the expenditure, harassment and monetary loss that the complainant had to sustain due to the aforesaid deficiency in service on the part of the OPs.

          As continued, the complainant had to roam about from pillar to post helplessly to follow the suggestions communicated to him, in response, by the OP No.1, sometimes to test his handset compatibility, sometimes for purchasing the compatible handset at a cost not contemplated before leaving the country, of course, without any effective remedy.

          The Ld. Advocate maintained that his entire period of stay abroad was passed without the facility of roaming connectivity.  It is only after his coming back from the vacation tour and visiting the office of the OP No.3 that he came to know that the SIM supplied by the OPs was defective one.

          The Ld. Advocate continued that the entire picture depicted in the complaint reflects only the height of deficiency in service on the part of the OPs herein and accordingly, the complainant was entitled to the cost and compensation claimed in the complaint.

          With the above submission, the Ld. Advocate concluded his pleadings.

          The Ld. Advocate appearing on behalf of the OPs, per contra, submitted that it would reveal on perusal of running Page 26 of the complaint that the complainant incurred a loss of Rs.16,371/- against which he claimed absurdly high cost and compensation which together with the aforesaid actual loss came to Rs.81,16,371/- only.

          The Ld. Advocate referred to the consumer case No.235/2014 wherein Hon’ble National Commission, in respect of a claim of huge compensation, referred to in its observation, the observation of the Hon’ble Supreme Court in Civil Appeal No.9433/2013 [Pesi Dady Shroff – vs. – Boehringer Ingetheim Denmark & Anr.] filed against the judgement and order passed by the Hon’ble National Commission in Complaint No.164 dated 10.07.2013 wherein the Hon’ble Apex Court observed, “leaving the question of law open, as to whether in such a fact situation, provisions of Consumer Protection Act, 1986, are applicable, it is open to the appellant to approach the Civil Court for the simple reason that for the purchase price of Rs.4-5 lakhs in 2003, he has claimed a sum of Rs.73.35 crores.  Such a claim can be adjudicated only after the assessment of evidence, etc, before the Civil Court and, therefore, it is a fit case where, even if the Consumer Protection Act, 1986, is applicable, the appellant must approach the Civil Court for appropriate relief”.

          The Hon’ble National Commission, in the lines of the above observation of the Hon’ble Supreme Court, dismissed the Consumer Case No.235/2014 allowing liberty to the complainant to approach the Civil Court/High Court or Apex Court to get redressal of the complainant’s grievances. 

The Ld. Advocate accordingly prayed for the complaint to be dismissed with liberty to the complainant to approach the appropriate Civil Court.

Referring to the last page of the W.V., the Ld. Advocate continued that the complainant never informed about the type of the band – whether diband or triband – that the appellant was carrying to USA where the dual band phone did not function.

As submitted, the supplied SIM was found damaged.  It was not possible to ascertain whether the SIM was damaged due to misuse of the same by the complainant himself.  Probably, as the Ld. Advocate pointed out, the SIM’s getting damage was the only reason for the complainant’s not getting connectivity even after purchasing the triband cell phone.

The Ld. Advocate referred to the purchase voucher at running page 70 of T – Mobile and submitted that the handset purchased from the said centre did not function even after the same being activated.  It was not understandable, as the Ld. Advocate continued, why the T – Mobile should not be made a party to the instant complaint.

With the above submission, the Ld. Advocate prayed for the complaint to be dismissed.

Perused the papers on record.  There was no doubt that the complainant, as a genuine consumer, performed the part to be played by him carefully and effectively.  The problems that he had to face at a distant abroad with no solution reaching him from the OPs in need were also well appreciated.

The case record itself was explanatory as to how the complainant faced the problem at every stage and how the same was communicated to the OP no.1 through emails on different dates.

The case record was found to be also revealing about the OPs’ responses to the complainant’s e-mails which, on all occasions, proved to be of no good, rather those subjected the complainant to more expenditure, harassment, complicacy and mental agony.  It is only an exposure of the height of deficiency on the part of the OPs that the problem could be sorted out only on return to the country by the complainant when the aspiring connectivity was of no value and when it was identified that the SIM supplied by the OPs was a defective/damaged one.

It was, in view of the above, established that the complainant was entitled to get compensation but, the amount of compensation, however, was difficult to be ascertained in view of the facts that the claim, apparently, was astronomically high where the complaint claimed reimbursement, cost and compensation valued to Rs.81,16,371/- against the actual monetary loss of Rs.16,371/- only.

Considering the profession that the complainant is engaged with, we feel that there may be a professional loss for the complainant because of his being longley detached from his clients, agents and associates.   There are reasons for agony and harassment for the complainant for not being able to be in regular contact with his friends and relatives living in Kolkata. 

We, however, are not inclined to entertain the high amount cost and compensation claimed in the complaint which, prima facie, appears to be disproportionate compared to the actual loss of the complaint.  Taking into consideration the profession that the complainant is engaged with, the professional loss that he may likely to face and also the mental harassment and agony for his being longly detached with his family members, friends, clients, agents and associates, we may consider a compensation of Rs.25,000/- only at the best in addition to the actual loss of Rs.11,000/- only since the purchased telephone, valued at Rs.5,371/-, is still in possession of the complainant and also a cost of Rs.2,000/-.  Hence,

ORDERED

That the appeal is allowed in part with cost of Rs.2,000/- to be paid to the complainant by the OPs who are also directed to pay to the complainant a compensation of Rs.25,000/- and an amount of Rs.11,000/- towards reimbursement of the cost that the complainant had to incur for the deficiency on their part.

The OPs are directed to pay jointly and severally the entire amount of Rs,38,000/- within a span of 45 days from the date of this order, failing which the OPs shall pay simple interest @ 9% p.a. from the date of default till the amount is fully realised.