3)                 The respondent resisted the case.  It alleged that the complainant was a subscriber of   Airtel one GB data card with a monthly rent of Rs. 599/-.   As per terms and conditions  apart from payment of Rs. 599/-per month towards  rentals   the subscriber is entitled to  usage up to  one GB and there after  usage charges @ Rs. 3/- per every one MB of usage will be charged.    There are no extra usage charges on national roaming.    However, usage charges  are applicable to international operators when the customer is on international roaming.   Such a stipulation was mentioned in the offer letter.  There was no need to mention again in the data card.   It was not free from international roaming charges.   Even  in Ex. A6 filed by the very complainant the said fact was mentioned.    It has given reply to several e-mails that were forwarded to it.   After satisfying with the terms and conditions  he had subscribed to the same.   All the rates have been displayed  in the  website adc.support@bharti.com.    This fact was mentioned by them in the e-mail sent on  18,19,30 and 31.10.2006.   For the notice they had given correct reply.   The complainant is not entitled to any amount.  Therefore it prayed for dismissal of the complaint with costs.

4)                 The complainant in proof of his case filed his affidavit evidence  and got Exs. A1 to A10 marked while the respondent filed the affidavit evidence of its   Assistant Manager, and got Exs. B1 to B6 marked. 

5)                 The Dist. Forum after considering the evidence placed on record opined that  having availed the international roaming facility while he was in Australia  bound by the terms and conditions which  was  displayed its rates  in its website.  The complainant was under mis-conception  and mistaken  impression that it was free international roaming.  Holding that there was no deficiency  in service,  dismissed the complaint.

6)                Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.   Since he was travelling out of countries frequently he had opted for such facility.  No mention was made in the data card that international roaming  is not free.    It had failed to give the websites used by him  while he was in international roaming.   Ex. B1 is created for the purpose of  the case for the first time.   When the data card value is  Rs. 12,999/- whereas the  in Ex. B1  the value is shown at Rs. 6,099/-.   The website  does not display about international roaming.  Therefore he was entitled for refund of the amount.  Therefore he prayed that the complaint be allowed.   

7)                The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                At the outset, we may state that the complainant has admittedly subscribed to plan Rs. 599/- which according to him enable  one GB usage of data free from roaming charges.   He was to pay usage charges if it is more than one GB.  He complains that  bill for  Rs. 1,09,844.47 issued  under bill dt. 21.10.2006 and 21.11.2006  were illegal  and contrary to the terms of the agreement.   Ex. A4 is Airtel data card where rates were given in detail.   As far as ISD and roaming it was mentioned ‘as existing’.    On his request the company forwarded Ex. A5 where it was mentioned “ We would like to inform you that the one GB free usage plan is only applicable up to the extent of Indian territory.   If you are on international roaming, you will be charged extra according to the network provider of that country.   The data downloading/uploading is extra and above the free usage given on the plan.”  

9)                In Ex. A7 under the coloumn call back to India  relating to GPRS description it was mentioned AUS $ 16.5/MB charges per 10 KB increments. Minimum charge being 10 KB.  They are exclusive of  surcharge, at 15% of the total usage and VAT and other taxes chargeable.    It is not as though the complainant did not use the facility.  However, when bills Exs. A8 and A9 were issued on 28.10.2006 and 28.11.2006 amounting to Rs. 1,09,844.47   the complainant protested stating that  he was entitled to free roaming charges.    The respondent has filed Ex. B5 subscriber enrolment form and Ex. B6  plan enrolment form for data card, and   details of the calls and the amount  that were to be paid against each of the call,   the complainant did not mention  the non-mentioning of terms and conditions, and  as to where the respondent went wrong  in calculating the amounts.   Even in Ex. A7  there was a categorical mention that “AUS $  16.5/MB charged per 10 KB increments.  Minimum charges being 10 KB”   Even under plan-II  though rental was Rs. 599/-, fee bundling usage was limited to one GB, additional data charges was Rs. 3 per MB if it is used in roaming mode in the country.  

10)              The contention  of the complainant that in Ex. A4  in plan-II  for Rs. 599/-  free bundled usage  is  one GB which means up to  one GB even for ISD and roaming.   We are afraid that such a logic or   reasoning cannot be applied.    Though he alleged that he was informed orally  he did  not substantiate by filing  affidavit evidence of those persons who had given such an assurance.   The contention was that AUS  $ 16.5/MB  is related to voice calls usage of internet.   The respondent alleges   that “We are not  in receipt of any mail so far from your client seeking details of charges of international roaming, we request you to kindly forward the same for our perusal and appropriate reply.  Your client has used our services provided through data card and he was legitimately charged for the same as per the agreed terms and conditions, and thus there is no unfair trade practise  carried out by us. “   The complainant if he were to think that it was free for international roaming  up to one GB  the complainant before using ought to have specifically asked in regard to the tariff for international roaming.    He could not have used  without knowing the conditions  in Ex. B1  in regard to international roaming tariff.  There was a specific mention  that the usage charges would be applicable according to international operators while the customers are on international roaming.   He could have specifically questioned as to the charges that would be applicable  in case of usage of international roaming.  When terms are specific the complainant ought to have found out what could be the charges for international roaming.   He cannot assume that charges would be the same  for both national as well as international roaming.   

11)               In fact the Hon’ble in   General Manager, Telecom Vs. M. Krishnan reported in AIR 2010 SC 90  after considering the  remedy provided u/s 7B of the Indian Telegraph Act  opined that the Dist. Forum has no jurisdiction.    Since the question of jurisdiction has been raised by the  opposite party, and by virtue of  decision of  Hon’ble Supreme Court  being the law of the land  we must hold  this Commission has no jurisdiction to entertain the complaint.    We have to take cognizance of  the said decision.  Their Lordships’ opined :

“When there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred. Section 7-B of the Telegraph Act reads as under:- “ 7B Arbitration of Disputes :-

(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this Section.

(2) The award of the arbitrator appointed under sub-s. (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court.”

Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules.

It is well settled that the special law overrides the general law.”

12)               In regard to  mobile phones  also  the  Hon’ble Supreme Court reiterated the above said decision in  Prakash Varma Vs. Idea Cellular Ltd. reported in 2011 CTJ 489 (SC).      Their Lordships’  upheld the orders of National Commission  in dismissing the complaint  recoursing to Section  7-B of the Telegraph Act.

13)               Though said question was not raised, in view of the fact that  it pertains to  jurisdiction, we are constrained to follow the decision of the Hon’ble Supreme Court in this regard.   At any rate, the complainant could not prove  any unfair trade practise  on the part of respondent for collecting international roaming charges as per the stipulation.    We do not see any merits in the appeal.

14)               In the result the appeal is dismissed. No costs.

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

3)      ________________________________

 MEMBER           

11/08/2011

*pnr

“UP LOAD – O.K.”