BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

                                                Complaint No.CC/10/207 of 18.3.2010

                                                Decided on:          2.5.2011

Avtar Singh s/o Sh.Jaswant Singh Tiwana R/o village & P.O.Dhablan, Tehsil and District Patiala (Punjab)

                                                                             -----------Complainant

                                      Versus

1.                 Airtel Office, Patiala Branch, through its Incharge, having office at Surya Complex Patiala.

2.                 Incharge, Circle Office, Bharti Airtel Limited, Plot no.21, Rajiv Gandhi Chandigarh Technology Park, Chandigarh.

3.                 Circle Office, Punjab, C-25, Industrial Area, Phase-II, SAS Nagar, Mohali (Punjab).

4.                 M/s CSPL, Shop no.18, Street No.1, Desi Mehmandari, Backside Neetu Colour Lab, Patiala through its Manager.

                                                                             ----------Opposite parties.

                                      Complaint under Sections 11 to 14 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh.D.R.Arora, President

                                      Sh.Amarjit Singh Dhindsa, Member

                                      Smt.Neelam Gupta, Member

Present:

For the complainant:       Sh.M.S.Dhingra, Advocate

For opposite party No.1:          Exparte.

For opposite parties:       Sh.K.S.Sidhu, Advocate

No.2&3

                                        Complaint withdrawn against op no.4.

                                         ORDER

D.R.ARORA, PRESIDENT

                                      The grievance of the complainant as reflected in the complaint brought by him under Section 12 of the Consumer Protection Act, 1986 (for short the Act) is that he had availed the Demo plan from the ops, whereby he had to pay the rental of Rs.325/- per month and the tariff of the calls from Airtel to Airtel were 0.10 paisa to the services of the other service providers @ 0.50 and  the land line @Rs.1/- per minute. Under the plan the complainant also enjoied 1500 minutes free usage of the Airtel connection. However, in the month of August/September the said plan of the complainant had been changed to ‘Gupshup plan’ without the consent of the complainant and as a result there of the monthly charges of the services were increased. The complainant lodged the complaints with the ops for the non supply of the bills, one said complaint being 28819144 dated 13.10.2009. However, the ops failed to provide any information to the complainant. When the complainant, at his own level traced out the agency through whom the ops used to send the bills, the complainant contacted the same i.e. op no.4 and enquired about the bills. The owner of the agency apologized for the non supply of the bills.

2.                                   The complainant had also talked on mobile phone No.98150-49721 for the problem and the Sr.Executive of the ops advised the complainant to make the payment of the previous bills and the amount of the disputed bills will be adjusted in the next billing cycle. However, the ops failed to adjust the disputed bills. The complainant deposited  the partial amount of the bills in  await of the correction of the disputed bills, which were not corrected/adjusted by the ops.

3.                                   It is further averred by the complainant that in the month of December/2009 the complainant received the bill for the period 23.11.2009 to 22.12.2009 from the ops, whereby he learnt that the plan had been changed from ‘Gupshup to Demo plan’ wherein the monthly rental was shown at Rs.125/- but the tariff for the outgoing local calls was shown to Rs.0.20,other service providers Rs.0.65 and the land line at Rs.1/-.In that way the ops had charged the excess amount from the complainant.

4.                                   The complainant lodged a complaint with the ops, but instead of adjusting the amount of the disputed bills, the ops imposed a sum of Rs.870/- for the usage of GPRS services in respect of which the complainant raised the objections and made a request to the service center of the ops.Instead of giving any positive reply to the complaint, the ops suspended the services of the number of the complainant. The complainant had never used GPRS services. Due to the suspension of the number of the complainant, the complainant had to suffer, in respect of which he lodged the complaint No.30769183 dated 3.2.2010 with the ops but the ops failed to redress the same. Accordingly the complainant approached this Forum for a direction to the ops to reactivate the mobile phone No.98154-27271  suspended by the ops no.1to3   without the notice to the complainant; to pay the compensation of Rs.50000/- to the complainant for the harassment suffered by him at the hands of the ops, to pay the litigation expenses of Rs.21000/- and to waive of the GPRS charges made illegally.

5.                                   On notice, the ops no.2&3 appeared and filed their written version, op no.1 having been proceeded against exparte. Here it may be noted that the complaint against op no.4 has been withdrawn by the learned counsel for the complainant having suffered a statement in this regard only today.

6.                                   In the written version filed by the contesting ops they  raised certain legal objections, interalia, that the jurisdiction of the Forum is barred to entertain and try the complaint in view of the law laid down by the Hon’ble Supreme Court in case of General Manager Telecom Vs. M.Krishnana and Anr Civil Appeal No.7687 of 2004 in view of the provisions contained in Section 7-B of the Indian Telegraph Act 1885

( for short the Act of 1885); that there was no deficiency of service on the part of the ops and that the complicated questions of fact and law are involved, which require elaborate evidence and therefore, only the civil Court can decide the matter involved in the complaint. As regards the facts of the case; it is denied if the complainant had been availing the connection under Demo plan. Mobile connection of the complainant was provided under the “Air Tel 325 plan”. As regards the change of the plan to ‘Gupshup plan’, it is a matter of record. The tariff of the Gupshup plan was the same as pertained to Airtel 325 plan.In that way, the complainant had no reason to express any grievance and had no cause of action. The tariff of unamended Airtel 325 plan was as under:

Airtel to Airtel                                  0.10 paisa per minute

Airtel to other mobile connections    0.50 paisa per minute

Airtel to Landline                              Rs.1.00 per minute

Monthly rental                                  Rs.325/-

7.                                   The same was later on revised and the revised tariff of the Airtel 325 Plan was as under:-

Airtel to Airtel                                  0.20 paisa per minute

Airtel to other mobile connections    0.65 paisa per minute

Airtel to Landline                              Rs.1.00per minute

Monthly rental                                  Rs.325/-

8.                                   It is further submitted that the revised tariffs under Airtel 325 plan were the same as were applicable to the gupshup plan and rather the monthly rental under Gupshup plan was Rs.125/- per month. Thus, even if the plan had under gone  a change without the consent of the complainant, the same was for the benefit of the complainant and by no stretch of imagination it could be said that the complainant had been charged excessively by the change of the plan.

9.                                   It is further averred by the ops that the GPRS service plan was never activated on the mobile connection of the complainant nor he was charged for the same. The complainant was charged Rs.870/- for having used the net services through “Airtel Live”. Since the complainant had used the net via Airtel live, he was charged for the same but as a gesture of goodwill a sum of Rs.400/- was reduced from the said charges of Rs.870/-.

10.                                 It is further averred by the ops that the services to the mobile number of the complainant were barred in February/2010 as the complainant had failed to clear the outstanding dues and the ops were  within their right to bar the same. Ultimately,  ops prayed for the dismissal of the complaint.

11.                                 To substantiate the allegations made in the complaint, the learned counsel for the complainant produced in evidence the sworn affidavit,Ex.C10 of the complainant alongwith documents Exs.C1 to C9 and closed the evidence of the complainant.

12.                                 On the other hand, the ops having failed to lead any evidence despite having availed of ample opportunities their evidence was closed by order of the Forum.

13.                                 The complainant filed written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence/record on the file.

14.                                 Ex.C6 is the bill dated 24.2.2009 for the period 23.1.2009 to 22.2.2009 in respect of mobile No.9815427271 issued in the name of the complainant for a sum of Rs.873.43 pertaining to Airtel 325 plan showing monthly charges as Rs.325/- and the tariff for outgoing local calls at Rs.0.10, to other mobiles at Rs.0.50 and the land line at Rs.1/-.In the bill a discount of 1500 minutes usage from Airtel to Airtel has also been shown.

15.                                 Ex.C4 is the copy of the bill dated 24.11.2009 for the period from 23.10.2009 to 22.11.2009 in respect of mobile No.9815427271 pertaining to  ‘Gupshup plan PB’ showing the monthly rental charges as Rs.125/- and the tariff for outgoing local calls as Rs.0.2  to other mobile at Rs.0.65 and the land line at Rs.1/-.

16.                                 It was submitted by Sh.M.S.Dhingra, the learned counsel for the complainant that the tariff in respect of rent and the outgoing calls was changed without the consent of the complainant and without any intimation regarding the decision of the ops to change the tariff for all the subscribers of Airtel 325 plan. The complainant would have welcomed the change in the plan in case the monthly rental charges and the tariff of the outgoing calls remained the same.On the one hand the ops reduced the monthly rental charges from 325/- to Rs.125/- but enhanced the tariff for the outgoing local calls from Airtel to Airtel at Rs.0.20 to other mobile at 0.65 and in that way it affected the complainant adversely.

17.                                 Then it was submitted by Sh.Dhingra that in Ex.C1 the bill dated 24.1.2010 for the period 23.12.2009 to 22.1.2010 in respect of airtel 325/- plan PB, the complainant was charged for Rs.870/-for GPRS but the complainant never availed of the same.

18.                                 On the other hand it was submitted by Sh.K.S.Sidhu, the learned counsel for the ops that the change of airtel 325 plan PB to Gupshup plan PB was made for all the subscribers for their benefit as the  monthly rental was reduced from Rs.325/- to Rs.125/- and similarly the tariff for the outgoing local calls from Airtel to Airtel and other mobiles was changed for all the subscribers.

19.                                 As regards the complainant having been charged for having used the GPRS services as incorporated in the bill,Ex.C1, it was submitted that it is possible only when a subscriber makes a use of GPRS as the detail of each and every user of the service with reference to date and time has been given.

20.                                 Then it was submitted by Sh.K.S.Sidhu, that the jurisdiction of the Forum is barred to  entertain and try the complaint in view of the citation General Manager Telecom Vs. M.Krishnan and Anr. Civil appeal no.7687 of 2004 decided by the Hon’ble Supreme Court.

21.                                 We have considered the submissions. As regards the point raised  by the learned counsel for the ops that the Forum does not have the jurisdiction to entertain and try the complaint, the Hon’ble State Consumer Disputes Redressal Commission, Punjab Chandigarh in the case of  citation Spice Communication Pvt. Ltd. Vs. Gurinder Kaur and another 2010 CTJ688(CP)(SCDRC) observed that section 7B of the Act of 1885 is applicable if a dispute arises between a telegraph authority and the person for whose benefit the line/appliance or apparatus was or was being provided.

22.                                 The Hon’ble State Commission Punjab Chandigarh having discussed the definition of “telegraph authority” as provided under section 3(6) “telegraph” as provided under section 3(1) and “telegraph line” as provided under Section 3(4) under Section 3(4) of the Act 1885 observed :

                   “With respect we disagree with the view taken by the Hon’ble Tamil Nadu State Consumer Disputes Redressal Commission, Chennai. In our humble opinion the words’ telegraph authority’ as  used in Section 7-B of the Indian Telegraph Act, 1885 clearly rule out the inclusion of private service providers in Section 7-B of the India Telegraph Act,1885.Moreover the provisions of Section 14 of the TRAI Act can not only leave the provisions of Section 7-B of the India-Telegraph Act,1885, untouched but also save the provisions of the Consumer Protection Act,1986.

                   Since the dispute of the private service providers with their individual consumer does not fall in the scope of Section 7-B of the India Telegraph Act,1885, therefore, the private service providers can not avail the benefit of the judgment of the Hon’ble Supreme Court in M.Krishnan & another’s case(Supra).

                   In view of the discussion  held above, it is held that the private service providers are not covered by the judgment of the Hon’ble Supreme Court in M.Krishnan & another’s case(Supra) and the consumers/customers have the right to challenge the actions of the private service providers by filing complaints under the Consumer Protection Act,1986”.

23.                                 Therefore, it would appear that the dispute having arisen between the complainant and the Private Service Providers , the Forum has got the jurisdiction to entertain and try the complaint.

24.                                 It is a fact established on file with the evidence led by the complainant that the original Airtel 325 plan PB as reflected in the bill,Ex.C1 dated 24.1.2010,Ex.C3 dated 24.12.2009 and Ex.C6 dated 24.2.2009 was changed to gupshup plan PB as shown in the bill dated 24.11.2009 without the consent of the complainant, thereby having changed the monthly charges from Rs.325/- to Rs.125/- and the tariff for the outgoing calls from Airtel to Airtel from 0.10 to Rs.020 and to other mobile phones from 0.50 to 0.65.The ops have not produced any order to have been passed by the ops that  the plan was changed qua the tariff for all the subscribers, which on the face of  it does not seem to be plausible because every individual enters into a contract with the service providers for availing the services under a particular plan and the same can not be changed without the consent of the subscriber of the particular plan.

25.                                 There is no evidence to have been led by the ops that before changing the plan, the ops had informed the complainant in any way. Therefore, the change of the plan from ‘Airtel 325 Plan PB’ to ‘Gupshup plan PB’ can not be approved. Consequently the bills to have been issued by the ops under the gupshup plan have got to be overhauled and the amount if charged excess has to be adjusted/refunded.

26.                                 As regards the complainant having been charged with the GPRS services, the plea taken up by the complainant that he had not avail of the same, can not be accepted because it is only when a subscriber makes a use of the GPRS services then the charges are levied. It was fairly conceded by the learned counsel of the complainant that the GPRS services can be utilized by a subscriber without the facility being activated as it is a facility in built in the mobile phones and it has to be utilized by the user of the same.

27.                                 The ops have also failed to lead any evidence that the initial discount of 1500 minutes usage was meant for a limited period and thereafter, the same had to be stopped, in the absence of which, it would appear that the withdrawal of discount of 1500minutes usage from Airtel to Airtel also could not be withdrawn  by the ops without the consent of the complainant.

28.                                 As an up shot of our above discussion, we find that the ops  were deficient on their part in rendering the services to the complainant in having changed the ‘Airtel 325 plan’ to ‘Gupshup plan PB’ and therefore, we direct the ops to restore the initial Airtel 325 plan by way of applying the tariff for the outgoing calls from Airtel to Airtel @010 to other mobile phones @0.50 and landline @Rs.1/-perminute and also to provide the discount of 1500minutes usage from Airtel to Airtel local calls per month and consequently to overhaul the bills issued under the changed plan and to adjust/refund the excess amount, if, charged from the complainant on the basis of the changed plan. They are also directed to activate the mobile no.9815427271 within five days on receipt of the copy of the order. As the complainant had to suffer because of the deficiency of service on the part of the ops, we direct the ops to pay a sum of Rs.5000/-as the compensation which also includes the costs of the complaint within one month on receipt of the copy of the order.

Pronounced.

Dated:2.5.2011

                             Neelam Gupta      Amarjit Singh Dhindsa    D.R.Arora

                             Member                Member                            President