ESCOTEL MOBILE COMMUNICATIONS LIMITED Vs. RAJESH SETHI

JUDGEMENT

(1.) By this order of ours, two appeals bearing Nos.2177 and 2178 of 2001 (R. B. T. Nos.59 and 60 of 2007) received by transfer from Haryana State Commission under the orders of Hon'ble National Consumer Disputes Redressal Commission, New Delhi are being decided as both are directed against order dated 11.4.2001. The contextual facts in brief are as under : as per averments the respondent/complainant subscribed to the mobile service of the appellants/ops after going through the advertisements given by the appellants/ops in media (printed as well as electronic ). The complainant has also averred that promises/assurances were made by the OPs and specifically the OP No.3/appellant No.3 regarding the excellent service together with the assurance that from 1.8.1999, the linkage within the State of Hayana shall be on the basis of local charges and no STD charges nor the dialling code shall be required from the said date i. e.1.8.1999. The complainant has also averred that it was stated by appellant No.3 in addition to aforesaid promises, that calls from one mobile to another would become free. In a backdrop of these promises/assurances the complainant decided to subscribe and made a payment of Rs.4,415 to the OPs. The respondents/complainants alleged that aforesaid promises proved false as neither the incoming calls w. e. f.1.8.1999 were free nor the calls made from mobile to mobile as was promised in the advertisements floated by the appellants. He has further alleged that whenever he took the matter with the respondent No.3 and he was assured that the aforesaid promises would be fulfilled within short period thereafter. The grievance of the complainant is that in spite of having failed to fulfil their commitments of the services to be provided as stated above, he started receiving the bills towards the rental of charges. The case of the complainant is that the aforesaid facility was availed by him to facilitate the receipt of incoming calls during odd hours but the service did not prove beneficial to him. The complainant has stated that he would not have subscribed to their service had he any doubt regarding the genuineness of the claim made by the OPs. It has been submitted that he requested the OPs/appellants to suspend his number till such time the aforesaid free incoming call and free mobile to mobile service were started. However the needful was not done and the complainant was subjected to inconvenience and monetary losses. The grievances of the complainant is that wrong and incorrect bill sent to him were received under protest. The complainant is also aggrieved against the unfair trade practice adopted by the appellant company the same being against the financial interest of consumers as other companies are giving better services on comparatively lesser rates as no security amount is being asked and low call rates are being charged from the customers. The complainant has alleged that the arbitrary and monopolistic practices have resulted in financial losses and agony and OPs are guilty of deficiency in service. A prayer for direction to refund the amount of Rs.4,415 with interest @ 18% p. a, a sum of Rs.10,000 towards damages, Rs.25,000 towards exemplary damages and the costs of litigation in addition to above reliefs have been made.

(2.) In the written statement filed on behalf of OP Nos.1 to 3 , the preliminary objection taken is that complaint is false, frivolous, vexatious and deserves to be dismissed under Sec.26 of Consumer Protection Act, 1986 . The allegations of deficiency in service have been denied and it is stated that no cause of action has arisen against the OPs. On the grievance of the complainant regarding non-provision of free incoming calls, it is stated that vide its interim order dated 27.10.1999 the Delhi High Court stayed the operation of free incoming calls and the legislation of TRAI (Telecom Regulatory Authority of India) dated 17.1.2000 was quashed. Thus, the complaint is baseless. It is further stated that as per clause 2.13 of terms and conditions of Subscriber Agreement duly signed by the complainant and also has given an undertaking wherein it is clearly stated that the scheme, if any, opted by him may be withdrawn or extended by Escotel at its discretion and the subscriber will not have any claim against it. The locus standi of the complainant has been questioned but it is stated that no specific instance having suffered any financial loss has been given due to which he is not entitled to any relief whatsoever, on any ground.

(3.) In reply on merits, it is stated that the free incoming call schemes were published by them in the leading newspapers on 30.9.99, 1.10.99, 4.10.99 and 8.10.99 mentioning clearly therein that incoming free facility would be free to prospective customer. It was further mentioned that the same was subject to implementation of TRAI Regulations, copy of advertisement has been brought on record vide Annexure D-1. The appellants have vehemently pleaded that on a PIL filed by M/s. Telecom Watchdog, the TRAI Regulations were challenged and the operation of the same was stayed vide its order dated 17.1.2000 and above regulations of the TRAI were quashed. The public notice dated 6.11.99 wherein the general public was informed regarding the aforesaid order of Delhi High Court and it was also declared that the customers whose phones were activated under the scheme as on 9th November, 1999, would get the benefit of free incoming calls till 30.11.99. The OPs have stated that since it was restrained by Delhi High Court, the free incoming services could not be provided. The OPs have denied the allegation of the complainant that he was informed regarding linkage with State of Haryana on local call charges basis. It is denied that STD facility or dialling code would not be required as were allegedly assured by the OPs at the time of giving the connection. In fact it is stated that the respondent/complainant was informed that STD charges would not be levied for towns falling under SDCA (Short Distance Charging Area) Towns where the OPs are providing the services but the same was not applicable for the rest of the towns, as per DOT time bands. The OPs have denied having making false, frivolous or fraudulent assurances and it has been stated that the allegations have been levelled with a view to cause harassment and injury to the reputation of the OPs as the same have not been substantiated with any evidence, and are purely defamatory. The allegations of the complainant for having suffered any mental or physical harassment have been denied. The allegations of not keeping with the assurances/promises have been denied and it is stated that since no unfair trade practice as has been indulged in by the OPs, there cannot be any mental sufferance or inconvenience as alleged. It is reiterated that the facilities as stated by the complainant could not be granted due to the order of the Delhi High Court as stated above. No deficiency can be alleged on the part of OPs and the complaint is liable to be dismissed with costs.