1. This is a petition filed U/S 12 of the consumer Protection Act, 1986 praying for refund of money, compensation and other reliefs. The petition is filed by the petitioner Kamala Prasad Agarwal against the opposite parties, namely, Bharat Sanchar Nigam Limited, Guwahati and Nagaon and two others.

2. The case of the complainant in brief is as follows:-

The complainant online purchased a SMART PHONE and after receiving the same started using the same and thereafter, BSNL started to send exorbitant bill for the said phone to him from the month of August/2015. He stated that he received bill for the period of 01.08.2015 to 30.08.2015 wherein a sum of Rs.1138.59 paisa including taxes was charged as GPRS/WAP calls, for the period of 01.09.2015 to 30.09.2015 wherein Rs.1308.41 including taxes was charged for GPRS/WAP and for the period of 01.10.2015 to 31.10.2015 wherein Rs.74.21 paisa including taxes was charged for data use in total he paid Rs.2874.16 in time to avoid disconnection.

The complainant stated that he vide a Registered letter dated 15.09.2015 protested for the charged amount and also visited the related Accounts Officer, BSNL at Nagaon and he was told that “ONCE YOU START USING SMART PHONE YOU ARE AUTOMATICALLY CONNECTED TO INTERNET” and the charged amounts in the bills were for use of INTERNET. Complainant stated that in fact the version of the Account Officer was not true while DATA SERVICES are connected by BSNL at the moment they find a SMART PHONE is being used and in the instant case they connected DATA SERVICES from 01.08.2015 i.e. after one month of his using the SMART PHONE but no other service provider does this act as one has to purchase internet packs offered by them from time to time. Petitioner’s further case is that regarding connection of internet, the TELECOM CONSUMER PROTECTION REGULATIONS reflects in Section 10B (1) dealing with ACTIVATION AND DEACTIVATION OF DATA SERVICES clearly states that NO SERVICE PROVIDER SHALL ACTIVATE OR DEACTIVATE DATA SERVICES ON CELLURE MOBILE TELEPHONE CONNECTION OF A CONSUMER WITHOUT HIS EXPLICIT CONSENT. He in his petition further added that as directed by the Accounts Officer, he sent an SMS on 02/09/2015 to 1925 requesting to DEACTIVATE DATA SERVICE of his Smart phone and in response, also received an SMS after about a fortnight i.e. on 19/09/2015 that “YOUR REQUEST FOR GPRS DEACTIVATION IS RECEIVED FOR MOBILE NO.94355-38505 THANKS FOR CHOOSING BSNL.” Petitioner further stated that thereafter, BSNL sent details of DATAS used in 28 pages during the period 01/08/2015 to 30/08/2015 vide their letter AO/CMTS/NGG/Excess billing/2015-2016 dated 05/10/2015, DATA recorded for the period of 01/09/2015 till 30/09/2015 provided in 34 pages vide their letter no.AO/CMTS/NGG/Excess billing/2015-2016 dated 16/11/2015 there in also they refused to pay the claimed amount of Rs.2874/- details of which are narrated above.

The petitioner alleged that an UNFAIRE TRADE PRACTICE was adopted by the service provider which is evident from the fact that even after deactivation which was confirmed by the Service Provider, Data Usage were recorded as per details provided by the service provider, moreover DATAS were recorded in the month of October, 2015 also to the extent of 74104 this can be ascertained from the Bill for the period 01/10/2015 to 31/10/2015.

                  The petitioner further stated that he served FINAL NOTICE BEFORE FILING A COMPLAIN WITH THE APPROPRIATE CONSUMER FORUM on 24/05/2016 by Registered Post to all the above three opposite parties but in vain.

The petitioner stated that he never used the DATAS charged for and hence, prays for following relief

1.        Refund of Rs.2874.16 paisa along with Interest@ 24% from the dates of payment of the bill upto the date of payment.
2. Rs.2500/- as Cost of preparation of this complain including stationary, photocopies and fee paid for filling the complaint.
3. Rs.10,000/- as compensation for agony and mental torture.
4. Any other relief the complainant is entitled.

In total Rs.15374.16 paisa.

3.                The opposite parties filed written statement denying all the allegation of the petitioner. The opposite parties stated that petition filed by the petitioner is not maintainable due to lack of jurisdiction of this court and hence, liable to be dismissed, that there is no cause of action for filing the petition, that the petition is bad for non-joinder and mis-joinder of necessary parties, that the petition is bad for weaver, estoppel and acquisition, that the petition is filed with malafide intention to misappropriate the public money from the opposite parties. The opposite party denies the allegations raised by the complainant as a whole save and accept whatever specifically admitted by the answering opposite parties.

The opposite parties stated that the bills issued to the complainant are as per record and data generated by system for using the smartphone by him and as such, total bill of Rs.2875.16/- as stated by the complainant is correct and genuine and hence, the allegations/objection raised by the petitioner are totally false, concocted and imaginary. Further case of the opposite party is that the data services are connected by BSNL for the smartphone as per rules and procedure of BSNL and as per terms and conditions agreed upon by the petitioner at the time of applying for the smartphone for his use and hence, the allegations raised in his petition are baseless. The opposite parties though admitted that the request for GPRS deactivation was received for Mobile No.9435538505, but thereafter the petitioner failed to contact with the authority of BSNL regarding compliance of his request and as such, these answering opposite party has not informed the complainant whether deactivation of the said mobile has been done or completed. They added that as per record of the BSNL authority, the said data connection was not deactivated and remain open for use and the complainant was using the service of the said data connection in his mobile phone for which the genuine bills, as per use, was generated by the system and were issued to the petitioner and hence, the allegations/objections raised by the petitioner are fully baseless, imaginary and with ulterior motive to misappropriate the public money.

                         The opposite parties also denied that an unfair trade practice adopted by them that is evident from the fact that even after deactivation of data service which was confirmed by them, data usages were recorded as per details provided by them while there was no confirmation of deactivation of data service for the mobile phone of the petitioner. The opposite parties also submitted that as applied by the complainant, the smart-phone allotted to him under the terms and conditions agreed upon by him and the bills were generated by the system as per use of the phone for his various purposes, the bills were not made manually but generated by the system automatically and hence, all the bills are genuine and correct and as such, there is no reason for excess billing. The opposite parties stated that as the data connection was not deactivated, the complainant used the phone as per record of the bills and he never insisted the opposite parties for confirmation of the deactivation and hence, the allegations of the petitioner are baseless, malafide and without any basis and so, he is not entitled to get refund of Rs.2874.16 along with interest @24% Rs.2500/- as cost, Rs.10,000/- as compensation as prayed for.

                         Under the above premises, the opposite parties prays for dismissal of the petition filed by the petitioner with cost.

 4.                    Upon the claims of both side the points for consideration in this case are found as follows:-

1. Whether there is cause of action for the petitioner to file the petition?
2. Whether the petition is not maintainable for want of jurisdiction of this Commission?
3. Whether the petitioner never used DATAS for the disputed period and the opposite parties charged excess amount for the said period and thus, the service rendered by the opposite parties   amounts to deficiency?
4. Whether the petitioner is entitled to any relief as prayed for?

5. .                     Both parties filed evidence in affidavit of one witness each and also exhibited several documents in support of their respective claims. The witnesses were cross-examined by the opponents.

6. .                    Written argument filed by the parties and oral arguments also heard in support thereof.

7.                       Decision and reasons thereof:-
8.       Point (i) & (ii) are taken together for discussion and decision.:-

The opposite party though in their written statement averred that there is no cause of action for the petitioner to file the petition and that the petition is not maintainable for want of jurisdiction of this commission but they did not agitate both these two points by adducing any convincing evidence. Hence, point (i) is decided in affirmative while point (ii) is decided in negative and both the points decided in favour of the petitioner.

9. Discussion and decision on point (iii)& (iv) :-

Fore sake of brevity, these two points are taken together for discussion and decision. The claim of the petitioner is that he did not use DATAS for the disputed period that is for the month of October but the opposite parties charged excess amount from him for using DATAS and thus, the service rendered by the opposite partiesamounts to deficiency. In support of his claim, the petitioner as P.W.1 adduced evidence to the effect that he online purchased a SMART PHONE and after receiving the same started using the same and thereafter, Bsnl started to send exorbitant bill to him from the month of August/2015 till 31-10-2015 and an excess amount of Rs.2874.16 paisa charged by them for the said period from him which he paid in time to avoid disconnection. The petitioner also deposed that vide a Registered letter dated 15.09.2015, he protested for the charged amount from Bsnl authority and also visited the related the Accounts Officer at Nagaon and he was told that once using smart phone started, internet connection automatically to the phone automatically started which is not true but activation or deactivation of data service depends upon the consent of customer as per rule. His further evidence is that as directed by the Accounts Officer, he sent an SMS on 02/09/2015 to 1925 requesting to deactivate his data service and in response to that he, after about a fortnight i.e. on 19/09/2015 also received an SMS from the opposite parties that his request for deactivation was received for MOBILE NO.94355-38505. He further deposed that thereafter, the Account Officer sent details sheet of DATAS used by him during the period of 01/08/2015 to 30/09/2015 vide their letter AO/CMTS/NGG/Excess billing/2015-2016 dated 16/11/2015 and refused to pay the amount of Rs.2874/- as claimed. He deposed that Bsnl recorded datas even after deactivation of data service to the extent of 74104 in the month of October and charged excess amount from him which he already paid and hence, he is entitled to receive back the excess amount of Rs.2874.16 paisa which he already paid together with the cost of litigation and compensation for mental agony and pain suffered by him due to the deficiency in service of the opposite parties. He deposed that the opposite parties adopted an unfair practice which is evident from their conduct that even after deactivation of data service data was recorded for the smart phone used by him and DATAS were recorded in the month of October15 to the extent of 74104 and this can be ascertained from the Billing period 01/10/2015 to 31/10/2015 but he never used DATAS as charged by the opposite parties and an excess amount of Rs.2874.16 paisa was charged from him by the opposite party which he paid in time to avoid disconnection.He exhibited the purchase bill of his smart phone vide Ext.1, the bill of BSNL for the period of 01-08-2015 till 31.08-2015 vide Ext.2, the bill for the period of 01.09.2015 till 30.09.2015 vide Ext.3, the bill for the period of 01-10-2015 till 31.10.2015 vide Ext.4, the copy of his registered letter to Accounts Officer vide Ext.5 and Data Sheets provided by the opposite parties vide Ext.8 and 9.

9.                        The opposite party adduced evidence in affidavit of one Kundil Chandra Bordoloi, Asstt. Director (Legal) in the office of GMTD, BSNL, Nagaon as D.W.1. In his evidence in affidavit, this D.W. deposed that  as applied by the petitioner, he was allotted with the smart phone  as per terms and condition agreed upon by him and bills are generated by the system as per use of the phone and the bills issued to the complainant were as per record and data generated by the system for using the mobile phone by him for various  purposes and those were not prepared manually and as such, all the bills send to the complainant are correct and genuine and there is no reason for charging excess billing. He further deposed that the Data connection for the smart phone of the petitioner was not deactivated as though he applied for that but never enquired about confirmation of deactivation later-on and as such, he is not entitled for any relief in this case. He also exhibited the bills for the smartphone used by petitioner vide Ext.1 to 58.   

(10)                           Thus, both the contesting parties admitted the facts of using of smart phone by the petitioner for the period of 01.08.2015 till 31.10.2015. The petitioner stated that he applied for deactivation of Data service by a registered letter dated 15.09.2015. However, the Data service was not deactivated till 31-10-2015 and petitioner received bill from the BSNL for use of his mobile phone. The opposite parties claim is that as the petitioner did not enquire about deactivation of Data service and the bills were sent to him as generated by system as per record for use of his phone and data service. The petitioner did not dispute the use of his smart phone till 31.01.2015. He also admitted the fact that data service in his mobile phone was not deactivated till that date. His claim is that he did not use data service of the service provider  as recorded by the opposite parties. Under Section 2(1)(g) of the Consumer Protection Act, 1986, deficiency in service means any fault, shortcoming, inadequacy, and imperfection of quality, nature and manner of performance of the service.. The standard has to be maintained by or under any law for the time being in force. In the instant case, it is not disputed that the petitioner is customer of the opposite parties who are service provider. The petitioner also did not dispute the fact of using his smart phone till 31.10.2015 but his claim is that he did not use data as recorded by the opposite parties. However he did not dispute particularly that he did not use data service provided by the opposite parties as a whole. It can not be disputed that the bills send to the petitioner were generated by the system automatically and were not made manually.  Hence, it is the duty of the petitioner to prove that he did use data service of his smart phone for any particular period as assessed by the opposite parties. The petitioner in his petition and in evidence even did not even clarify for which period, he did not use data service rendered by the opposite parties. After all, it is his liability for which particular period, he did not use data service of the opposite parties. Hence, petitioner is a not on better footing than the opposite parties that he did not use data service as assessed by the opposite parties. Hence, the service rendered by the opposite parties to the petitioner cannot be termed as deficient.

                       Hence, in view of above discussion point (iii) & (iv) for discussion are answered in negative and go against the petitioner.   

                                            O   R  D   E  R

11.                         In view of the above discussion, it is found that the petitioner has failed to prove that there is a deficiency of service on the part of opposite party for the service rendered by the BSNL for using his Smart phone. Hence, he is not entitled for any relief in this case.

                        Accordingly, the prayer made by the petitioner U/S  12 of the Consumer protection is dismissed on contest. Inform all the parties concern.

                       Given under the hand and seal of this commission we signed and delivered this Judgment on this  12^th   Day of  March, 2021.