BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 170 of 2015

Date of Institution:24.3.2015

Date of Decision: 25.7.2016  

Kritika Dusuja aged 35 years , 92 Akash Avene, Fateh Garh Churian Road, Amritsar

Complainant

Versus

The Zonal Manager, Airtel, SCO 25, 2^nd Floor, District Shopping Complex, Circular Road, Upper North, B-Block, Ranjit Avenue, Amritsar

Opposite Party

Complaint under section 11 & 12  of the Consumer Protection Act, 1986 as amended upto date.

Present: For the Complainant: Ms.Ruchika Khanna, Advocate.

              For the Opposite Party: Sh.Gautam Majithia,Advocate

Coram:

Sh.S.S.Panessar President

Ms.Kulwant Kaur Bajwa, Member

Mr.Anoop Sharma, Member     

Order dictated by:

Sh.S.S.Panessar,President.

Kritika Duseja complainant has filed the present complaint under section 11 & 12 of the Consumer Protection Act on the allegations that  she was holder of mobile connection No. 9803065999 from November 18,2010 and was ported to Airtel on February 2,2013. The complainant selected the plan of Rs. 499/- and  gave Rs. 250/- in advance which was refundable/adjustable in the4 bill. As per plan 90000 seconds/1500 minutes, 2 GB data and cre4dit limit was Rs. 1300/-. The complainant used 2 GB data from 2^nd February, 2013 to 22^nd February, 2013. Her email address th February, 2013 message started coming that the data limit is getting finished. The complainant visited Airtel Web office at Hall Bazar  on account of the messages to which they informed that she can choose the plan of Rs. 149/- with her number  for unlimited usage of data. The complainant had talked with the customer care and the customer care informed her the plan of unlimited data  has been activated at present. After 22^nd February, 2013 emails from Airtel stopped coming about usage of data. Suddenly, on 3^rd March, 2013 Airtel company made the bill of Rs. 4572.47 with due date 21^st Jan.,2013 and pressurized the complainant to pay this bill. The Airtel company was well known by the fact that using of incoming and outgoing calls on the number of the complainant was heavy. The company regularly pressurized  the complainant to pay the amount of Rs. 4572.47 paisa  of her other new Aircel No. 9803059333. The complainant requested that actual amount of her bill was Rs. 499/- plus Rs. 37.25 (net usage charge from 23^rd February, 2013 to Ist March, 2013 at the price of Rs. 149/- per month). The actual bill was for Rs. 499/- + Rs. 37.25 (536.25) + Rs.8.72 (roaming charges) + 5.70 = Rs/ 550-67 + taxes. But company insisted to pay Rs. 4572.47 paisa. The company was black mailing to the complainant by sending the legal noticed dated Ist April, 2013 and criminal notice dated 20^th June, 2013 under section 403, 405 a, 406 and 420 IPC. In the legal notice opposite party insisted the complainant to pay  even Rs. 500/- for the legal notice charges. On 7^th March, 2013 company has already barred the mobile  number of the complainant. The complainant requested  to start incoming calls till the dispute of the bill to be finalized but the company never started her incoming calls. The complainant contended that the company when their credit limit while signing form
was  Rs.500/- and on bill it is  Rs. 1300/- and when the bill has crossed the limit of limit of Rs. 1300/-, why they did not disconnect the outgoing calls of the  plan  of the complainant  at that time.  Mobile companies automatically disconnect number when usage cross the limit. If they informed about   high bill then there would have been  dispute only about Rs. 650/-. Company also make false call bill of Rs. 677.15 paise of 67715 seconds while as per plan 90000 seconds free on bill detail. The company has also mentioned  677.15 discounts 582.45 (which was not deducted). The complainant issued online notice  to start incoming till bill in dispute is restored otherwise complainant  claim damages of Rs. 3000/- per day. However, Airtel did not start the number and regularly pressurized the complainant to pay first bill. Thereafter complainant filed complaint before Lok Adalat. However, after receipt of the notice by the opposite party no settlement  was reached inter se parties. Airtel company refused to start the number of the complainant  as incoming calls only and regularly insisting upon the complainant to pay the bill amount in  the court. Later on complaint filed by the complainant before the Lok Adalat was dismissed in default. The complainant has prayed that opposite party may be directed to pay damages to the tune of Rs. 20 lacs for black mailing, mental torture, business loss to the complainant.

2. Upon notice, opposite party appeared and filed written reply taking certain preliminary objections therein inter alia that the complainant has not approached the Forum with clean hands and the complaint is liable to be dismissed on this  very ground alone ; that complaint is a frivolous and vexatious exercise and is fit to be dismissed under section 26 of the Consumer Protection Act, 1986 ; that it is submitted that this Forum has no jurisdiction to try the present complaint in lieu of observations of the Hon’ble Supreme Court in “General Manager, Telecom Vs. M.Krishnan and Another” Civil Appeal No. 7687 of 2004 ; that complainant is not entitled  to any compensation, whatsoever. In any event, the compensation claimed by the complainant  is excessive and deserves dismissal ; that present complaint is liable to be dismissed as it involves complicated and complex question of fact, which requires elaborate evidence and trial which can be decided only in the Civil  Court and not by  this Forum ; that  answering opposite party reserves its right to file additional reply/affidavit, as may be deemed necessary by this Forum. On merits, it is submitted that as per records  of the opposite party, the number in question was got activated under connection 499 CUG plan. It is further relevant to note that as and when the usage exceeds the benefit, the same is charged. Thus, in the present case, in the bill in question i.e. bill dated 3.3.2013, the complainant was given the benefit of 2G free data and was charged for the usage over and above the free data benefit. Accordingly, a discount of Rs. 9437.17/- was provided to her. Further, the subscribers are intimated as and when the usage exceeds the limit  and in the present case  as well, the complainant was intimated via SMA that her usage of internet data had exceeded the free usage limit and charges shall apply. It is further relevant to mention here that the plans opted by the subscribers are specific for the benefits and any benefit that is provided is specific and cannot be changed in between. The mobile connection was in post paid and with a specific plan, with benefits, as per plan. The complainant apparently wanted to  increase the benefit  of data usage only in her plan, which was not possible. The complainant was informed that her requested component was rejected as she was already under beneficial plan. The complainant but put to strict proof of facts to prove the contents of the complaint. It would not be out of place to mention here that the systems of the opposite party are fully computerized and are subject to Audits. The complainant was bound to pay for the pending dues for the services used by her  but since the payment was not made, the number was barred. Hence, no cause of action has accrued in favour of the complainant to file the present complaint . The non paid amount always reflects in the new bills for which the payment had to be made by the complainant. It is denied that opposite party ever blackmailed  or threatened the complainant , as alleged in the complaint and a prayer for dismissal of the complaint with cost was made.
3. In her bid to prove the case complainant made into the witness box and tendered her duly sworn affidavit Ex.C-1 alongwith documents Ex.C-2 to Ex.C-19 and closed her evidence.
4. To rebut the aforesaid evidence Sh.Gautam Majithia,Adv.counsel for the opposite party tendered into evidence affidavit of Sh.Birinder Singh Mohindru, Manager (Legal) Ex.OP1 and closed the evidence on behalf of the opposite party.
5. We have heard the ld.counsel for the parties and have carefully gone through the record on the file.
6. Ld.counsel for the complainant has filed the synopsis of written arguments while reiterating same and similar averments of the complaint.  The complainant selected the plan of Rs. 499/- and  gave Rs. 250/- in advance which was refundable/adjustable against the bill. As per plan 90000 seconds/1500 minutes, 2 GB data and credit limit was Rs. 1300/-. The complainant used 2 GB data from 2^nd February, 2013 to 22^nd February, 2013. Her email address th February, 2013 message started coming that the data limit is getting finished. The complainant visited Airtel Web office at Hall Bazar  on account of the messages to which they informed that she can choose the plan of Rs. 149/- with her number  for unlimited usage of data. The complainant had a talk with the customer care and the customer care informed her that  the plan of unlimited data  has been activated at present. After 22^nd February, 2013 emails from Airtel stopped coming about usage of data. Suddenly, on 3^rd March, 2013 Airtel company issued a bill of Rs. 4572.47 with due date 21^st Jan.,2013 and pressurized the complainant to pay this bill. The Airtel company was well aware of the fact that using of incoming and outgoing calls on the number of the complainant was heavy. The company regularly pressurized  the complainant to pay the amount of Rs. 4572.47 paisa  of her other new Aircel No. 9803059333. The complainant requested that actual amount of her bill was Rs. 499/- plus Rs. 37.25 (net usage charge from 23^rd February, 2013 to Ist March, 2013 at the price of Rs. 149/- per month). The actual bill was for Rs. 499/- + Rs. 37.25 (536.25) + Rs.8.72 (roaming charges) + 5.70 = Rs/ 550-67 + taxes. But company insisted to pay Rs. 4572.47 paisa. On 7^th March, 2013 company barred the mobile  number of the complainant. The complainant requested  the company to start incoming calls till the dispute of the bill was resolved but the company never started her incoming calls. The complainant told the  company that their credit limit while signing form was  Rs.500/- and on bill it was  Rs. 1300/- and when the bill has crossed the limit of limit of Rs. 1300/-, why they did not disconnect the outgoing calls of the  plan  of the complainant  at that time.  Mobile companies automatically disconnect the number when usage crossed the limit. Had the company informed the complainant after crossing the limit of Rs.1300/-, the dispute would have been for Rs.650/- only. Company also made false call bill of Rs. 677.15 paise of 67715 seconds while as per plan 90000 seconds was free on bill detail. The company has also mentioned  677.15 discounts 582.45 (which was not deducted). The complainant issued online notice  to start incoming till bill in dispute is restored otherwise complainant  claim damages of Rs. 3000/- per day. However, Airtel did not start the number and regularly pressurized the complainant to pay first bill. Thereafter complainant filed complaint before Lok Adalat. However, after receipt of the notice by the opposite party, no settlement  was reached inter se parties. Airtel company refused to start the number of the complainant  as incoming calls only and regularly insisting upon the complainant to pay the bill amount in  the court. It was contended that the Opposite Party made the false bill and in the bill, they had charged the bill’s rent, GRPS charges and phone call charges while the GRPS and phone call charges were free in the plan itself. Later on complaint filed by the complainant before the Lok Adalat was dismissed in default. The complainant has prayed that opposite party may be directed to pay damages to the tune of Rs. 20 lacs for black mailing, mental torture, business loss to the complainant.
7. Ld.counsel for the Opposite Party has vehemently contended that the present complaint is liable to be dismissed as it involves the complicated and complex question of fact, which requires elaborate evidence and trial, which can be decided only in the Civil Court and not by this Forum. Reliance in this connection had placed in Oriental Insurance Company Limited Vs. V.Munimahesh Patel IV (2006) CPJ 1(SC), in which it has been held that complex factual position requires that the matter should be examined by an appropriate court of law and not by this Commission. Hon’ble National Commission, in United India Insurance Company Limited Vs. Sri Dwarika Dhees Industries while relying  upon the judgement of Hon’ble Supreme Court of India has held that wherever not only the complicated questions of law but disputed questions of facts and law relating to forgery, etc. are involved requiring recording of voluminous evidence, etc. it would be desirable that the matter should not be dealt with by any Consumer Forum and the complainant could be directed to approach the Civil Court or any other appropriate Fora.  Ld.counsel for the Opposite Party further contended that as per the records of the Opposite Party, the number in question was got activated under Connect 499 CUG plan.  It is further relevant to note that as and when the usage exceeds the benefit, the same is charged. Thus, in the present case, in the bill in question i.e. bill dated 3.3.2013 the complainant was given the benefit of 2G free data and was charged for the usage over and above the free data benefit. Accordingly, a discount of Rs.9437.17 paisa was provided to the complainant. Further the subscribers are intimated as and when the usage exceeds the limit and in the present case as well, the complainant was intimated via SMS that her usage of internet data had exceeded the free usage limit and charges shall apply. It is further relevant to note here that the plans opted by the subscribers are specific for the benefits and any benefit that is provided is specific and can not be charged in between. The mobile connection was in post paid and with a specific plan, with benefits, as per plan. The complainant apparently wanted to increase the benefit of data usage only in her plan, which was not possible. The complainant was informed that her request was rejected as she was already under beneficial plan. The systems of the Opposite Party are fully computerized and are subject to audits. The complainant was bound to  pay for the pending dues for the services used by her, but since the payment was not made, the number was barred. The relevant Terms and conditions under the head ‘Tariff and Charging’ are reproduced as under:-

“Tariff associated with services (a) depend upon the bill plan chosen by; bill plans are available at www.airtel.in; (b) are subject to change and unless as such change is warranted by change in any compliance requirement or taxes, licence fee, cess or similar increase in services costs; shall only be affected upon prior notice; (c) shall be charged in accordance with the tariff plan selected  by you, for, in the absence of any such selection, in accordance with airtel then default tariffs. Please note that calls or messages to some number may attract premium non tariff rates; (d) on certain days, no free or discounted voice calls/ sms will be available to existing/ new customers who subscribe to or  have subscribed to voice or sms packs/ promotional offers on the customary/ festivals days (black out days). On these days, the tariff will be charged as per your tariff plan. For complete detail, visit www.airtel.in or your nearest airtel relationship centre.”

Similarly, under the head Paying your Airtel bill of terms and conditions, relevant extract is  reproduced as under:-

“You agree that airtel has the right to prefix  or refix the credit limit for the usage of the services availed by you based on its internal credit rating. In the event of your usage exceeding the credit limit, you  shall be liable to make interim payment forthwith for the services availed including rental failing which airtel is the right to totally or partially disconnect/ suspend the services.”               

8.       From the entire above discussion, it transpires that the complainant was bound to pay for the pending dues for the services used by her. But since the payment was not made by the complainant, the number in question was barred. Hence, the  Opposite Party has committed no deficiency in service in providing the services to the complainant. Consquently, the complaint fails and is ordered to be  dismissed.  Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated: 25.07-2016.                                             (S.S.Panesar)                                                                                           President

                                           (Anoop Sharma)     (Kulwant Kaur Bajwa)   

              Member                         Member