Date of Filing – 13.07.2015

Date of Hearing – 13.01.2017

PER HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER

            The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Complainant to impeach the Judgement/Final Order dated 25.03.2015 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (for short, Ld. District Forum) in Consumer Complaint no. 212/2014 whereby the consumer complaint initiated by the Appellant Sri Sanjay Kumar Khilani under  Section 12 of the Act was dismissed on contest without any order as to costs.

          The Appellant herein being Complainant lodged the complaint with the assertion that he was a Airtel International Roaming Corporate Customer having Cell No.9831031481 in the name of M/s. Khilani Construction Company (P) Ltd. and being used by the Managing Director i.e. the Complainant himself.  In the month of October, 2013 Complainant went to Dubai and while he was trying to activate the hands free head set, the Hot Spot got activated.  The next day the Complainant got the SMS that an amount of Rs.3,26,000/- had been consumed on the data card.  On scrolling through the messages, he found one SMS wherein he was informed that Rs.44,000/- had been used on the Data Card and whether he would like to continue to use the Data services to which he had not replied and had not uploaded or downloaded any data during that period.  The Complainant alleged that he had a credit limit maximum Rs.13,500/- reflected in the statement for the month of October, 2013.  Complainant had approached the Consumer Affairs Department where the OP i.e. Airtel had agreed to waive 50% of the amount.  The Complainant submits that an amount of Rs.3,71,000/- remains disputed as it is beyond the means and since the credit card was Rs.13,500/- and as such he is willing to pay the same.  Hence, the Appellant approached the Ld. District Forum to pass an order directing the OP to withdraw the demand of Rs.3,71,000/- and recovered only the maximum credit only i.e. Rs.13,500/- only.

          The Respondent i.e. the OP by filing a written version disputed the claim of the Complainant.  The OP submits that the Complainant is not a ‘consumer’ as defined in the Consumer Protection Act and no relation between them and the Complainant exists as ‘service provider’ and the ‘consumer’.  The specific case of the OP was that the Complainant has enjoyed the voice call and data services of them since the very inception.  The Complainant went for roaming in the abroad and used and utilised both voice and data at random and due to such huge usage, OP has duly charged the usage charges in the account of the Complainant and crossed the credit limit after going abroad and as such the complaint should be dismissed.

          On evaluation of the materials on record, the Ld. District Forum by the impugned Judgement/Final Order dismissed the complaint with an observation that in accordance with the decision of the Hon’ble Supreme Court reported in (2009) 8 SCC 481 (General Manager Telecom – vs. – M. Krishnan & Anr.) Complainant cannot be categorised as ‘consumer’ as defined in Section 2(1)(d) of the Act and further the OP/Airtel i.e. service provider was not  deficient in rendering services to the Complainant.  Challenging the said order of dismissal, Complainant has come up in this Commission with the present appeal.

          We have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates appearing for the parties.

          Ld. Advocate for the Appellant has submitted that the Credit Limit of the service of the Appellant was Rs.13,500/- and as such prior crossing the said limit, it was incumbent upon the service provider to inform a consumer as to whether he has any inclination to increase the said credit limit or not and the Respondent being service provider cannot unilaterally raised a bill to an extend of Rs.3,26,000/- and claimed a demand of Rs.3,71,000/-.  He has further submitted that the Ld. District Forum has committed a serious mistake by holding that Complainant is not a consumer basing upon the decision of a case of General Manager Telecom (supra) and further has drawn our attention to a Office Memorandum dated 04.02.2014 issued by Department of Telecommunications of Govt. of India.

          Ld. Advocate for the Respondent, on the other hand, has contended that the Appellant being customer of Airtel went abroad and used and utilised both voice and data at random and as such huge bill has occurred.  He has further submitted that the Office Memorandum of Govt. of India cannot take away the spirit of decision of the Hon’ble Supreme Court of India.

          We have given due consideration to the rival contention of the parties.  The Ld. District Forum has given much emphasis to the decision of the Hon’ble Apex Court in the case of General Manager, Telecom (supra) and it has been observed –“Any dispute between the subscriber and the Telegraph Authority can be resolved by taking recourse to Arbitration proceedings only.  We are bound by the decision of the Supreme Court”.

          In this regard, it would be profitable to refer a decision of Three Member Bench of the Hon’ble National Consumer Commission in MA/204/2014 arising out of RP/1228/2013 (Bharati Hexacom Ltd. – vs. – Komal Prakash & Anr.) wherein it has been observed –

      “We may also note that the main point on which notice in this revision petition was issued was with regard to the maintainability of the complaint, in view of the judgement of the Hon’ble Supreme Court in General Manager, Telecom – vs. – M.Krishnan & Anr. (2009) 8 SCC 481.  However, subsequently, vide a letter dated 24.01.2014, the Govt. of India, Ministry of Communication & I.T., while responding to the communication received from the Secretary, Department of Consumer Affairs, Government of West Bengal on 07.10.2013 in relation to the Hon’ble Supreme Court’s judgement in M. Krishnan (supra) has clarified that the said decision involved a dispute between the Department of Telecommunications (DoT) which was a ‘Telegraph Authority’ under the Indian Telegraph Act, as a service provider prior to the hiring of telecom services into a separate company, viz- Bharat Sanchar Nigam Ltd. (BSNL).  However, as the powers of a Telegraph Authority are now not vested in the private telecom service provider, as is the case here, and also in the BSNL, Section 7B of the said Act will have no application and, therefore, the Forums constituted under the Consumer Protection Act, 1986 are competent to entertain the dispute between the individual telecom consumers and telecom service providers”.

       Therefore, the observation of the Ld. District Forum does not depict the actual proposition of law.  In other words, it is quite apparent that the Appellant is a consumer under the OP who was bound to provide services properly as a service provider. 

      Now, the materials on record indicate that the Appellant was a customer under Respondent having Cell No.9831031481 and it had a credit limit up to Rs.13,500/-.  The Appellant went to Dubai in the month of October, 2013 and while he was trying to activate the hands free head set the Hot Spot got activated.  Thereafter, a bill amounting to Rs.3,26,000/- had been sent.  As there was a credit limit of Rs.13,500/-, certainly, the Respondent being service provider cannot unilaterally increased the said credit limits without the consent of the consumer.  The Respondent has failed to produce any document whatsoever as to use of such huge voice and data.  In fact, when the Respondent claimed such a huge amount, the onus lies upon them to substantiate the same but the Respondent being service provider has failed to produce any document to that effect.  Therefore, without any hesitation it can be safely said that the Respondent/OP was deficient in rendering the services to the Appellant.

      The Ld. District Forum has failed to appreciate the situation in proper perspective and mis-directed itself in passing the order impugned.  As a result, the appeal should be allowed and consequently, the complaint should be allowed.

       For the reasons aforesaid, the appeal is allowed on contest.  However, there will be no order as to costs.

      The impugned Judgement/Final Order is hereby set aside. 

     The CC/212/2014 is allowed with a direction upon the Respondent/OP to recall or withdraw the demand of Rs.3,71,000/- and the Appellant/Complainant is directed to deposit the amount of Rs.13,500/- at the credit of the OP within 30 days from date, otherwise the amount shall carry an interest @ 9% p.a. from this date till its full realisation.

     The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information.