OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.26/2015
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar -Member
3) Md Jamatul Islam - Member
Sri Amit -Complainant
S/O- Chotte Narain Sinha
Arpan House,Shanti Ram Das Path,
AK Azad Road,Rehabari,Guwahati,Assam-781008
-VS-
1) Bharat Sanchar Nigam Limited -Opp.Party
Assam Circle
Ananda Ram Baruah Road
Panbazar,Guwahati,Assam
Pin-781001
Represented by The Chief General Manager
2) Telecom Regulatory Authority of India
Mahanagar Doorsanchar Bhawan
(Next to Zakir Hussain College )
Jawaharlala Nehru Marg
Old Minto Road,Delhi-110002
Represented by the Chairman
Appearance:
Ld advocate Mr Dipjyoti Deka appears for the complainant .
Date of argument - 22.06.2018
Date of judgment - 14.08.2018
EXPARTE JUDGMENT
This is a proceeding U/S- 12 of the Consumer Protection Act, 1986
1.The complaint filed by Sri Amit Against Bharat Sanchar Nigam Limited (BSNL) , Assam Circle and Telecom Regulatory Authority of India, Delhi was admitted on 10/04/2015 and notices were served upon them but they did not contest the case and accordingly the case against them is proceeding on exparte vide our order dtd.23/02/2018 . The complainant filed his evidence in affidavit on 04/05/2018 and Ld advocate Mr Dipjyoti Deka filed written argument and did oral argument on 22/06/2018, and today, we deliver the exparte judgment , which is as below:
2.The story of the complainant is that he is an owner and user of mobile phone No-9864126200 since almost a decade under BSNL , Assam Circle which is a government owned telecom company of which Chief General Manager, Assam Telecom Circle is in over all control of telecom service provided by Opp.Party No-1 in the entire state of Assam. Opp.Party No-1 is the largest telecom operator in Assam providing comprehensive range of telecom services in the state of Assam viz., Landline phone, WLL mobile, GSM mobile, Internet, Broadband,WI-MAX FTTH, I-Net, IN Services ,Carrier service ,MPLS-VPN etc and Opp.Party No-2 is the statutory authority formed in the year 1997 which is entrusted with the duty and power to regulate telecom services including fixation and revision of tariffs and all ancillary and incidental matters related to telecom services within the territory of India .He subscribed his mobile number from Reliance Telecom Co. and after few years back he had ported his mobile number to Opp.Party No-1 being lured by the advertising about best 3G and other services and on completion of porting procedure Opp.Party No-1 issued the complainant a new SIM Card retaining the same number as such he became the customer of opp. parties and has been availing the telecom service from Opp.Party No-1 and since after time of porting to Opp.Party No-1 , he has been using the same number with a post paid plan and bill comes with a cap on total usage and the said cap varies from customer to customer and the meaning of cap is nothing but the limit of services allowed to avail on loan or without making the payment (subject to due date) . This is also known as credit limit and the bill despatched to the customer shall have the mention of credit limit and the amount generated against the usage has to paid within a period of time , devised by the service provider which is also known as payment due date and service provider is at liberty to withdraw the services if payment is not made within the due date or the amount payable reaches the credit limit, subject to notice to the customer . The total cap on usage of the complainant was Rs.5,500/- only . He being the President of Assam Institute of Management and Technology (AIMT), Guwahati is a primary institution imparting various professional courses to a large number of students from the state of Assam and elsewhere and accordingly he is entrusted with entire responsibility of promoting education in the region ,obtaining government educational contracts and in overall development of the institute and for that reason mobile facility is a must to him . In the month of September,2014 he went to Bengaluru and avail treatment there staying over there almost one month and after recovery from his health he decided to travel to Dubai ,United Arab Emirates and he subscribed the internet roaming facility from Opp.Party No-1 in the aforesaid mobile number so as to be able in remain in touch with colleagues back in Guwahati and accordingly he flew to Dubai on 27/10/2014 with return ticket on 05/11/2014 and before leaving for Dubai the Govt. of Assam on 25/09/2014 had floated an education related tender for providing coaching classes to the under privileged and unemployed youth of Assam and the last date of submission of tender was 20/10/2014 and the presentation was on 19/11/2014 and he submitted tender before the government and in the intervening period from 20/10/2014 to 19/11/2014 he decided to prepare presentation that was due on 19/11/2014 , but he had to go abroad ; he assured all assistance through phones and left for Dubai but after two days of reaching Dubai he found that Opp.Party No-1 withdrew the services from his mobile leaving him in a helpless state and that to in a foreign country and then he called his institute by spending huge amount of money and instructed the officials to look into reason for such discontinuation of service and found that Opp.Party No-1 discontinued the service as the uses has exceeded the total credit limit and Opp.Party No-1 gave a copy of the bill vide No-345607581 dtd .05/11/2014 which reflected an amount of Rs. 47,151/- as due and due date of payment was 28/11/2014 . The total amount due crossed limit of Rs.5,500/- and the services were withdrawn prior to generating of the bill dtd. 05/11/2014 and on being compelled and helpless he had no option of paying such huge amount as mobile phone bill after having done treatment at Bangaluru and at the time when he was travelling to abroad, but he instructed representatives of his institution to raise objection, but the opp. party showed their inability to resolve the service in his mobile and then he reduces his frequency and intensity of his guidance ,as he had to shell out huge amount of money each time he called his institution and eventually tender was lost and he couldnot procure the tender and thereby he suffered monetary loss and had also suffered mental trauma and mental harassment during the aforesaid period for not having his own mobile phone . The billing amount Rs.47,151/- which is much higher that of credit limit is not only amounts to bad services but also amounts of cheating and non-adherence to their policy; exposing their conduct of business . No notice and intimation was issued before discontinuation of service on his mobile number and this also amounts to breach of contract and it also reflects unfair trade practice on the part of the Opp.Party No-1 . After coming from Dubai he came to know that about 80% of total usage has been shown as data uses . The act of constructive cheating by giving a credit limit for keeping a tap on usage and then slapping a bill about 1000% more than the credit limit of the opp. party being a govt. owned telecom company giant can be that arbitrary and can the opp. party be whimsical and take the interest of the customers for loss and as such forum may take strict view on the conduct of the opp. party. In the meantime floated another tender in the similar line of the previous tender dtd. 25/09/2014, however by a different agency and he though participated couldnot procure the tender and failure in the previous tender process for lack of preparation has caused institution to loss another tender and therefore the onus of failure on the subsequent tender also lies on the opp. party and hence they are liable to compensate him . The current bill which is No- 360508647 of Rs.57,760/- with due date 28/02/2015 . He approached the opp. party checking for proper redressal of grievance but they were completely different towards him . He suffered huge loss and also suffered mentally and physically and accordingly he prays for directing the opp. party to pay compensation as follows-Rs.3,50,000/- for loss of mental peace , Rs.50,000/- for loss of physical pain, Rs.3,00,000/- for bad service in a different country , Rs.3,00,000/- loss in terms of losing tenders and reputation in education sector and Rs.26,000/- as a cost incurred for discontinuation of service and also to issue direction to waive the bill 05/02/2015 and to pay him another amount of Rs.25,000/- as litigation cost.
3.We have perused of the complainant and it is found that the complainant had taken mobile service from Opp.Party No-1 namely Bharat Sanchar Nigam Limited vide Mobile No-9864126200 and he was using the same mobile since a decade and he had subscribed to this mobile number from Reliance Telecom Co. and few years back he ported his mobile number to Opp.Party No-1 and he become consumer of Opp.Party No-1 thereby and he used the same with post paid plan with “cap” for the cash credit limit for Rs.5,500/- .From his evidence , it is also found that he had not changed his existing cash credit limit though he subscribed to international roaming but after reaching Dubai on 27/10/2014, he found that Opp.Party No-1 withdraw the service from his mobile leaving him in helpless state and on enquiry Opp.Party No-1 issued bill being Bill No-345607581 dtd. 05/11/2014 amounting to Rs.4,715/- with payment date -28/11/2014 . The complainant states that as his cash credit limit was Rs.5,500/- only and as the services was withdrawn prior to 05/11/2014 how Opp.Party No-1 demand Rs.47,151/- through that bill and that is why the billing of Rs.47,151/- amounts to cheating him. After perusing the evidence , we have found that , the cash credit limit is Rs.5,500/- and prior to preparation of the bill dtd. 05/11/2014 , the service to his mobile was withdrawn by Opp.Party No-1 that too without notice to him. This act on the part of the Opp.Party No-1 amounts to breach of contract and unfair trade practice .
It is also found that Opp.Party No-1 sent another bill to the complainant vide bill no-360508647 dtd.05/02/2015 amounting to Rs.57,760/- with payment date of 28/02/2015. We have found that , the complainant approach Opp.Party No-1 and requested them to attend his grievance but they have been completely indifferent towards him.
4.Another moot question is that ,whether Sec-7B of the Telegraph Act bars jurisdiction of this forum in respect of dispute in our hand .We have found that Sec-7B of the Telegraph Act envisages that any dispute between any licencee and the telegraph authority would be amenable to arbitration but it would be wrong to construe that Sec-7B of the Telegraph Act envisages that the dispute between the consumers and licensed service-provider is also amenable to Telegraph Act ? Opp.Party No-1 is a licensed service provider under Telegraph Act and the complainant is a consumer under them . Hence, as per provisions of Consumer Protection Act ,1986 , Opp.Party No-1 is a service provider in respect of the dispute in our hand and the complainant is a consumer of service under them; and hence , the dispute is not amenable under Sec-7B of Telegraph Act but amenable under Consumer Protection Act ,1986, and accordingly this forum has jurisdiction to dispose of the present dispute .Thus we hold that this forum has jurisdiction to dispose the dispute in our hand.
We have already found that Opp.Party No-1 illegally demanded Rs.57,760/- from the complainant by their Bill No-360508647 dtd. 05/02/2015, which is a demand in consequence of illegal billing of Rs.47,151/- vide Bill No-345607581 dtd. 05/11/2014 against his mobile . Therefore, we are of opinion that the complainant is not liable to pay the said amount to Opp.Party No-1.
5.The complainant is found to be the President of Assam Institute of Management and Technology, which is entrusted with promoting education in the region on taking educational contract from the Government but due to sudden withdrawal of service from his mobile he had to suffer certain amount of professional and business loss, and secondly while he went to Dubai on 27/10/2014 and after returning from Dubai he had to submit tender before the Govt authorities which was due on 19/11/2014, but he failed to start process for filing the said tender due to withdrawal of mobile service to his mobile by Opp.Party No-1 , and thereby he suffered financial loss . Thirdly, it is also found that the service to his mobile was withdrawn prior to bill dtd. 05/11/2014 and that too with-out notice to him. So, we are of opinion that such withdrawal is illegal withdrawal and by that illegal withdrawal Opp.Party No-1 caused professional and financial loss to the complainant and also caused harassment to him. Hence, in our opinion, Opp.Party No-1 is liable to pay the complainant at least Rs.50,000/- for causing such financial loss to him and Rs.10,000/- for causing harassment to him by illegally withdrawing service to his mobile as well as Rs.10,000/- as cost of the proceeding.
6.Because of what has been discussed as above, we hold that , the complainant has a cause of action against Opp.Party No-1-Bharat Sanchar Nigam Ltd. , Assam Circle, Guwahati, which he has succeeded to prove but he has no cause of action against Opp.Party No-2 -Telecom Regulatory Authority of India . Accordingly , the complaint against Opp.Party No-1 is allowed on exparte but against Opp.Party No-2 is dismissed with a direction to Opp.Party No-1 to withdraw the Bill No-360508647 dtd. 05/02/2015 amounting to Rs. 57,760/- which, we have already held to be an illegal billing ,and to pay the complainant Rs.50,000/- for causing business loss to him , Rs.10,000/- for causing harassment to him and also to pay Rs.10,000/- as cost of the proceeding . Opp.Party No-1 is directed to pay the awarded amounts within 45 days, in default, they are liable to pay interest @12% per annum.
Given under our hands and seal today on this 14th August , 2018.
(Smt Archana Deka Lahkar) (Md.Jamatul Islam) (Md.Sahadat Hussain) Member Member President
