BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30th day of January, 2010

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.117/2009

Between

Complainant : R.Daniel,

Kottavila House,

Vandiperiyar P.O,

Idukki District.

And

Opposite Parties : 1. Mr.Aruldas, S/o Devadas,

Quality Stores(A to Z),

Vandiperiyar P.O,

Idukki District.

(By Adv: M.M.Lissy)

2. The General Manager,

Bharti Airtel Limited,

Circle Office, SL Avenue,

NH Bypass, Kundanoor,

Maradu P.O, Cochin – 682 304.

(By Advs: K.M.Sanu, P.Fazil & V.S.Sreejith)

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Attracted by the advertisement in the "Mathrubhoomi" daily dated 27.12.2005 that “

the complainant availed an airtel mobile connection by paying Rs.199/- on 30.12.2005 from the Ist opposite party's shop as connection No.9895245497. On 14.01.2006 at 2.41 pm, the complainant recharged the same by a payment of Rs.999/-. At the time of availing the connection, the Ist opposite party who is the agent of the 2^nd opposite party never told about the period of free incoming. But after that the complainant charged the connection for Rs.150/-, Rs.100/- and Rs.50/-. But the balance amount was shown as incorrect and so the complainant enquired in No."121". They made apology and cured the defects. They charged Rs.1.99 for local calls and Rs.2.99 for STD calls. On 23.01.2009 at 2 pm, an SMS was received from the 2^nd opposite party stating that the connection should be recharged within 2 days. When enquired in the number '121', it was replied that the SMS might be made by mistake. They also told that the connection of the complainant was a life time connection. So no recharge is needed for the same. But, before 2 days on 24.01.2009 from the evening at 6 'O clock, the connection was disconnected. The complainant complained in the No.9895198951 and also filed a complaint to the authorised agent Sri.Biju in the No.9895290746, then the said Biju told that the connection would be reconnected if the complainant pays Rs.100/- and produces a photo with voter's identity card. So the complainant sent these particulars to the said Biju. After that the said Biju told that he cannot do anything, so the complainant collected the documents on 29.01.2009 from him. The complainant sent a letter to the 2^nd opposite party describing all these matters. But no reply was received from the part of the opposite party even after the receipt of the letter. After that on 20.05.2009 the complainant revealed that the connection of the complainant was given to one Subramanyan at Harippadu. The complainant has given his mobile No. to all of his business partners and the number was written in the glass in front of his office. So the complainant was not able to deal with his customers. Because of this, the complainant incurred a loss of Rs.60,000/-. So the petition is filed for getting reconnection of the said mobile number and also for compensation.

2. The Ist opposite party filed a written version stating that he is not aware of the advertisement given by the 2^nd opposite party. He is not an agent of the Airtel company or the advertisement. No information was given from the Airtel company about this. The complainant purchased an “easy re-charge” for his mobile connection from the Ist opposite party by paying an amount of Rs.999/-. The complainant never informed about the offer of the Airtel company to the Ist opposite party and the Ist opposite party never explained about these things to the complainant. The Ist opposite party is only selling the Airtel recharge coupons as an ordinary person. So the Ist opposite party is not responsible for any of the allegations in the petition and the petition may be dismissed.

3. As per the written version of the 2^nd opposite party, it is contended that the complaint is not maintainable either in law or on the facts of the case. It is submitted that in the Judgement dated 1.09.2009 rendered by the Hon'ble Supreme Court in Civil Appeal No.7687 of 2004, it has been held that the consumer Forum does not have jurisdiction on disputes relating to telephone services and telephone bills in the light of the special remedy provided in Section 7-B of the Indian Telegraph Act read with Telegraph rules. It is submitted that the opposite party in the present complaint is a Telegraph authority and hence this Forum is not having any jurisdiction to entertain the present complaint. It is admitted that the complainant has availed a prepaid connection from the 2^nd opposite party with effect from 29.12.2005 and on 14.01.2006 he recharged with Rs.999/- for

life time validity. The connection given by this opposite party was subject to the terms and conditions based on guidelines of the TRAI, which was clearly mentioned in the application form duly signed and submitted by the complainant. It is stated in clause A(5) that “The Airtel prepaid card shall be automatically deactivated when the calling value of the card is exhausted or the validity period expires whichever is earlier without any notice. Bharti Airtel Limited shall not refund the residual value left on the Airtel prepaid card to the subscriber after the validity period is over. Calls made to toll free numbers of Bharti Airtel Limited can be made even after deactivation for a maximum of 30 days. If the card is recharged before expiry of the validity period, the residual value shall be carried forward to the next validity period from the date of recharge”. In this case the card is not recharged before the expiry of the aforesaid period, the card will stand cancelled and any residual value shall lapse immediately. Once cancelled, the card cannot be recharged through Airtel prepaid recharge coupon. A customer who has availed the prepaid connection with life time validity could keep the connection live provided the stipulations are complied with. The opposite party never made any apology to the complainant for any mistakes in the account balance and those mistakes were corrected when notified through “121”. The complainant was issued a pre-disconnection message(SMS) on 19.01.2009. The text of the SMS was “you are requested to do one call or one recharge within next two days to enjoy life time validity, failing which the services will be disconnected as per policy”. The complainant was specifically informed that he will be able to keep the connection live only if he recharges the connection using a recharge coupon. Since the complainant had not recharged the connection, the message was repeated on 23.01.2009. The complainant admitted the receipt of SMS on 23.1.2009 but the complainant had not complied with the mandatory requirements to keep his connection alive. The further allegation that the authorised agent promised to reconnect the connection on payment of Rs.100/- and production of ID Card are false and denied. The opposite party had sent an SMS on 19.01.2009 and again a reminder on 23.01.2009. As a customer delight policy as they value all their customers, requesting the complainant to do a recharge in the next two days to avoided disconnection. As per clause C.3 of the terms and conditions, which reads as follows “In case of cancellation/deactivation the cellular number may be allotted to another subscriber as per the discretion of Bharthi Airtel Limited”. So this opposite party is justified in making such allotment. This opposite party was forced to disconnect the connection for the reasons explained above. This opposite party had not done anything to cause mental agony or monetary loss to the complainant as alleged. So the complaint may be dismissed.

4. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to ?

5. No oral evidence adduced by both the parties. Exts.P1 to P5 marked on the side of the complainant and Exts.R1 and R2 marked on the side of the opposite parties.

6. The POINT :- Complainant was attracted by the advertisement given by the opposite party and availed a life long prepaid connection of the 2^nd opposite party from the Ist opposite party. In the advertisement it is written that Rs.999/- is needed to pay once and the connection was for lifelong. It is also written that in the future, the entire talk time can be used for each recharge. Another offer was that the incoming for the lifetime was free. Ext.P1 is the copy of the advertisement. The complainant who is conducting a business at Vandiperiyar and the mobile Number was given to many of his daily customers. After availing the connection, the opposite party sent SMS to the complainant for recharging the same. But the complainant enquired in the toll free Number 121 of the 2^nd opposite party and they told that it was because of mistake, the SMS was sent to the complainant. The connection was given as life long and no recharge is needed. But again the connection was disconnected on 24.01.2009 without any notice. Ext.P2 is the notice issued to the General Manager describing all these things. Exts.P3 and P4 are connection details of the complainant. Ext.P5 is the copy of the AD card for receipt of the notice. As per the Ist opposite party, he is only an ordinary person selling the recharge coupons of the Airtel company as like of the other companies. He is not aware of any advertisement of the 2^nd opposite party. The Ist opposite party never offered anything to the complainant and the complainant never informed anything about the offer of the company to the Ist opposite party.

As per the 2^nd opposite party the complainant is not a consumer as per the Judgement dated 1.09.2009 of the Hon'ble Supreme Court in Civil Appeal No.7687/2004.

As per the order of the Hon'ble Supreme Court in Civil Appeal No.7687/2004, the special law overrides the general law and 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 Arbitration of Disputes :- “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”.  So it is very clear that in the disputes in respect of telephone bills, the remedy under the Consumer Protection Act is by implication barred. 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 an arbitrator. In this case, the matter in dispute is about the fake advertisement given by the opposite party and the complainant misleaded by the advertisement given by the opposite party so there is no dispute about the bill or the apparatus or the appliance or concerning any telegraph line. So we think that the matter is only concerned about the misleading advertisement and this Forum is having jurisdiction to try the same.

As per the opposite party, the connection was subjected to the terms and conditions based on the guidelines from TRAI which were clearly mentioned in the application form duly signed and submitted by the complainant. The application form for the Airtel prepaid connection is marked as Ext.R1. It is also stated in clause A(5) that "The Airtel prepaid card shall be automatically deactivated when the calling value of the card is exhausted or the validity period expires whichever is earlier without any notice". In this case the matter was informed to the complainant through SMS on 19.01.2009, that “you are requested to do one call or one recharge within next two days to enjoy life time validity, failing which the services will be disconnected as per the policy”. Since the complainant had not recharged the connection, the message was repeated on 23.01.2009. The complainant also admitted the SMS of 23.01.2009. However the complainant had not applied with the mandatory requirements to keep his connection alive. It is also written in the terms and conditions that in case of cancellation or deactivation the cellular number may be allotted to another subscriber as per the discretion of Bharthi Airtel Limited. So the opposite patty done as per the terms and conditions attached to the application form.

The complainant is an ordinary layman who was attracted with an advertisement in the Mathrubhoomi daily dated 27.12.2005, in which the advertisement only tells that “

and in the bottom portion of the advertisement in a very small fond of letter, it is written that “'

'' So it is very clear from the advertisement that the lifetime prepaid connection was for Rs.999/- and the incoming is free for life time. Nothing other than is written in the advertisement. In Ext.R1 application form, nothing is written as terms and conditions. But in the 2^nd page, it is written as terms and conditions. So the complainant argued that the opposite party never showed the terms and conditions of the company. They only asked to sign in the front page of the application and never gave any time to read the conditions and application form. So it is natural that the ordinary man is attracted by the advertisement published by the company that the lifelong incoming is free for Rs.999/-. The company ought to have printed the condition in the advertisement. Otherwise, the opposite party must print the matter that the terms and conditions will also apply, in the bold letter as that of the advertisement or even in the form of letter in which the ordinary man can read easily. So we think that the advertisement given by the opposite party is false and misleading because they also admitted that there are conditions for the free incoming prepaid connections. Anyway the connection is already disconnected and number is supplied to another subscriber. So it is not proper to order the opposite party to reconnect the mobile  connection of the complainant. No relief is sought against the Ist opposite party and there is no evidence to show that the Ist opposite party is an agent of the 2^nd opposite party. So we think that the misleading advertisement given by the 2^nd opposite party must be withdrawn or the conditions for life time connection should also be included in the advertisement. But the complainant has suffered a lot because the service connection has been disconnected. His business was also became down because of the loss of the regular using number, which caused mental agony to the complainant.

Hence the petition allowed. The opposite party is directed to withdraw the Ext.P1 advertisement given in the Mathrubhoomi daily dated 27.12.2005 that “

or include in the advertisement in the same fond of letter that “the terms and conditions shall apply”, within one month of receipt of a copy of this order. The opposite party is also directed to pay Rs.2,000/- as compensation for mental agony and inconvenience caused to the complainant and Rs.500/- as cost of this petition within one month of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 30th day of January , 2010

Sd/-

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

I agree SMT.SHEELA JACOB(MEMBER)

Sd/-

I agree SMT. BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

Nil

On the side of Opposite Parties :

Nil

Exhibits:

On the side of Complainant:

Ext.P1 - Photocopy of Advertisement published in

the “Mathrubhoomi” daily dated 27.12.2005

Ext.P2 - Photocopy of Complainant's Notice dated 29.01.2009 addressed

to the 2^nd opposite party

Ext.P3 & P4 - Photocopy of Connection details of the complainant

Ext.P5 - Photocopy of AD card for receipt of the notice

On the side of Opposite Parties :

Ext.R1 - Photocopy of Airtel prepaid Enrolment Form

Ext.R2 - Copy of Notification dated Ist September, 2008 issued by the TRAI