COMPLAINT FILED: 26-05-2009 <br /> DISPOSED ON: 09-12-2009<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 9TH DECEMBER 2009<br /> <br /> PRESENT :-SRI. B.S.REDDY PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> COMPLAINT NO.1199/2009<br /> <br /> <br /> COMPLAINANT <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Dr. H.C.Rajesh,<br /> S/o.LateDr.N.Chikkalinge Gowda,<br /> Aged about 38 years,<br /> R/a No.2969, 16th Cross, <br /> K.R.Road, Banashankari III Stage,<br /> Bangalore – 560 070.<br /> <br /> Advocate–Sri.B.Madhusudhan Adiga<br /> <br /> V/s.<br /> <br /> OPPOSITE PARTY Bharti airtel Limited,<br /> No.55, Divya Sree Towers, <br /> Bannerghatta Main Road, <br /> Bangalore – 560 029.<br /> <br /> Advocate – Sri.B.J.Mahesh<br /> <br /> <br /> O R D E R<br /> <br /> SRI. B.S.REDDY, PRESIDENT<br /> <br /> The complainant filed this complaint u/s. 12 of the C.P. Act of 1986 seeking direction against Opposite Party (herein after called as OP) to a sum of Rs.2,00,000/- as compensation to the complainant on an allegations of deficiency in service on the part of the OP.<br /> <br /> The case of the complainant to be stated in brief is that:-<br /> <br /> 2. The complainant is a consultant anesthesiologist and intensivist working for Sagar Hospital. He is also the consultant for four other hospitals. For the purpose of his profession he is using the Mobile Phone No:98451 56865, the service provider being the OP. He was regular in paying bills and has never defaulted. The phone bill for the month of October’2008 was Rs.650/-, the same was paid on 12-11-2008 in time at an authorized collection centre of the OP ‘Cell Point’, 7th Block, Jayanagar. Despite having paid the bills the complainant received several calls from OP from call centre, reminding him to pay the bill for the month of October’ 2008. The complainant used to apprise the caller that he has paid bill and gave all the details. In the bill for November’2008 received by the complainant, the bill for October’ 2008 was shown as arrears and late payment fee of Rs.75/- was levied. Despite his hectic schedule, the complainant has to waste his time in making several calls to several persons of the OP to inform that bill for October’2008 was duly paid and to rectify the bill and send a fresh bill. The same was promised but not done. Getting infuriated the complainant did not pay the bill for the month of November’ 2008 hoping the defect would be rectified. However the bill for the month of December’2008 too did not have the required rectification but instead again had a late payment fee of Rs.75/- apart from carrying over the bill of October’ 2008 as arrears. The complainant personally went to the office of the OP and apprised them of the payment of the said bill; they promised to rectify the said mistake and send a fresh bill but did not do so. In the month of January’ 2009 OP disconnected the phone of the complainant. When the complainant approached office of the OP at Bannerghatta Road he was asked to pay Rs.1,393/- for immediate reconnection, that amount was calculated after deduction of the alleged arrears, late payment fee. The same was paid by the complainant but the phone was disconnected for 3 days. The bill for the month of January’ 2009 did not have a necessary rectification and continued to show arrears as Rs.800/- and again late payment fees was levied. Thereafter the complainant received bill for the month of February’ 2009 in which the required rectification were not made. The complainant being fedup did not pay the bill and the phone was disconnected in the first week of March’ 2009. Due to disconnection the complainant, Doctors, Hospital authorities, Patients and other relatives put to lot of inconvenience, trouble and agony for 3 days. The complainant being fed up discontinued the service of the OP and availed the services of a new provider and accordingly he took a new connection from a different service provider. However, the complainant was deprived of his phone facility for 3 days, in all for 6 days during this period. The complainant was humiliated by the OP who made calls to the complainant that the phone was under disconnection for non payment of bills. Due to this act of OP the complainant’s reputation was tarnished; the complainant’s patients who were in ICU could not be monitored. OP has unnecessary harassed the complainant for no obvious reason. The complainant has been repeatedly billed in respect of a bill which has been duly paid without any justification late payment fee has been repeatedly levied. No rectification has been carried out despite several reminders, personal visits. Under these circumstances the OP is guilty of gross deficiency of service. The complainant deserves to be compensated Rs.1,00,000/- for making him to run up and down several times to the OP’s office and for the inconvenience, hardship caused to himself and his patients and Rs.1,00,000/- for the humiliation, tension and agony caused. Hence the complaint seeking relief. <br /> <br /> 3. OP on appearance filed version contending that the payment alleged to have made with respect to bill dated 28-10-2008 on 12-11-2008 at “Cell Point” has not been credited to the account of the OP, the said amount was shown as arrerars in the subsequent bill dated 28-12-2008. Since the complainant did not paid the entire amount in the bill dated 28-11-2008, the amount was carry forwarded to the bill 28-12-2008. As against bill dated 28-12-2008 for Rs.2,193-19, the complainant has paid a sum of Rs.1,393/- on 06-01-2009, again leaving the balance of Rs.800/-. After giving deduction of said amount of Rs.1,393/-, OP issued bill dated 28-01-2009 for Rs.1,898-78 which remained un paid. Further bills dated 28-02-2009 and 28-03-2009 for Rs.2,548-03 and 2,914-75 were issued which also remained unpaid. Hence having no other option the calls were barred on 28-02-2009, subsequently the connection was suspended on 11-03-2009 and ultimately the connection was permanently disconnected on 21-09-2009. It is submitted that the ‘Cell Point’ agency before which the complainant said to have made payment of Rs.650/-, ceased to be the agent of OP with effect from 17-12-2007. Inspite of specific instructions given to said ‘Cell Point’ it has alleged to have received the payment from the complainant and same has not been credited to the account of OP. In view of this the bill dated 28-10-2008 remained unpaid. Though this fact was appraised to the complainant and he was requested to make good the bill amount, he did not cleared the bill even after the due dates. It is only after giving sufficient opportunity for more than 3 months, the mobile connection was disconnected. The said ‘Cell Point; is a necessary party, the complaint is liable to be dismissed for non-joinder of necessary party. It is denied that OP has unnecessarily harassed the complainant for no obvious reasons, without any justification late payment fees have been repeatedly levied and OP is guilty of gross deficiency of service. Hence it is prayed to dismiss the complaint with exemplary costs. <br /> <br /> 4. The complainant filed affidavit and additional affidavit in support of the averments made in the complaint. The legal officer of OP filed affidavit in support of defence version and produced documents. <br /> <br /> 5. The learned counsel for the OP filed memo on 03-10-2009 with copy of the judgment of Supreme court dated 01-09-2009 in Civil appeal No.7687/2004 and the copy of the judgment in Appeal No.226/2009 of the Hon’ble Karnataka State Consumer Disputes Redressal Commission and copy of the judgment in Appeal No.669/2008 passed by M.P. State Consumer Disputes Redressal Commission. <br /> <br /> 6. Arguments on both the sides heard. Points that arise for our consideration is:-<br /> <br /> Point No. 1 :- Whether the complaint is not maintainable<br /> in view of Sec.7-B of the Indian Telegraph <br /> Act?<br /> <br /> <br /> 7. We record our findings in Affirmative for the following :-<br /> <br /> R E A S O N S<br /> <br /> 8. The complainant has claimed the relief seeking direction against the OP Bharati Airtel Limited to pay compensation of Rs.2,00,000/- on an allegation of deficiency in service on the part of the OP. The case of the complainant is he has taken mobile phone connection of the OP, the mobile phone Number is:98451 56865. The bill for the month of October’ 2008 amounting to Rs.650/- in respect of mobile phone was paid by him in the ‘Cell Point’ of the OP. In the subsequent bill for the month of November’ 2008 the arrears of the bill of October’ 2008 was carried and further late payment fee of Rs.75/- was levied. In spite of his efforts convenincing the officials of OP that he has already cleared the October’ 2008 bill by making payment in the ‘Cell Point’ and to rectify the same, OP has not heeded to his request and rectified the same. In subsequent bills also with arrears was shown. In the month of December’ 2008 bill late payment fee of Rs.75/- apart from the arrears for the month of October’ 2008 was shown. In the month of January’ 2009 the complainant paid Rs.1,393/- for immediate reconnection of his mobile; that amount was calculating after the deducting the arrears and late payment fee. However the phone was disconnected for 3 days. In the bill received for the month of February’ 2009 the same arrears were shown. He being fed up did not pay the bill and phone was disconnected in the first week of March’ 2009.<br /> <br /> 8. The defence version is that the ‘Cell Point’ in which the complainant is stated to have deposited the amount of the bill of October’ 2008 was not credited to the account of the complainant; as a result the same was shown as arrears. The agreement entered into between the OP and the ‘Cell Point’ came to an end by terminating the same with effect from 17-12-2007, as such the said ‘Cell Point’ was not an authorized agency of the OP to collect any amount from the customers. Thus it is contended that after affording opportunity to pay the arrears of bill the mobile phone connection was disconnected. The main contention of the learned counsel for the OP is that in view of the judgment of the Supreme Court in Civil appeal No.7687/2004 dated 01-09-2009 General Manager, Telecom Vs. M.Krishnan & others, this Forum has no jurisdiction to entertain the complaint, the complaint is liable to be dismissed.<br /> <br /> 9. It is contended for the complainant that Sec.7-B of Indian Telegraph Act is not applicable to the dispute involved in this complaint as the complainant is claiming compensation on account of humiliation and inconvenience caused to him and his patients, as a result of deficiency in service on the part of the OP in providing the mobile telephone service.<br /> <br /> 10. The Hon’ble Supreme Court in General Manager Telecom Vs. M.Krishnan and others in Civil Appeal No.7687/2004 held that when there is a special remedy is provided in Sec.7-B of Indian Telegraph Act regarding dispute in respect of Telephone bills; the remedy under C.P. Act is by implication barred. In that case the dispute was with regard to non-payment of telephone bill for the telephone connection provided and for non-payment of the bill the telephone connection was disconnected. Being aggrieved of with the disconnection of mobile phone the complainant approached the District Consumer Disputes Redressal Forum, The District Consumer Disputes Redressal Forum allowed the complaint directing to reconnect the telephone connection and to pay compensation of Rs.3,000/- with interest at 12% p.a. The writ petition and writ appeal filed before the High Court of Kerala challenging the jurisdiction of the Consumer Forum were dismissed. By special leave appeal filed before Hon’ble Supreme Court was allowed holding that, Sec.7-B of Indian Telegraph Act being a special remedy provided; the remedy under the Consumer Protection Act is by implication barred. In view of this judgment the present complaint is not maintainable in this Forum. It cannot be said that the relief sought by the complainant to award compensation can be considered without concerning as to whether the disconnection made by the OP was illegal with regard to the arrears of bill of the connection provided to the complainant. <br /> <br /> 11. In Appeal No.226/2009 dated 27-10-2009 the Hon’ble State Commission dismissed the appeal holding that in view of judgment of Supreme Court civil Appeal No.7687/2004 the appeal is liable to be dismissed. M.P State Consumer Disputes Redressal Commission in Appeal No.669/2008 Reliance Telecom Ltd., Vs. Jay Kumar Jain and others relying on the decision of the apex court in General Manager Telecom Vs. M.Krishnan and others reported in III (2009) CPJ 71 (SC) held that the case pertaining to telecom are beyond the pale of the Consumer Forum and could be agitated only before the authority appointed under Sec.7-B of Telegraph Act. Under these circumstances we are of the view that the complaint filed by the complainant is not maintainable, the same is liable to be dismissed. Accordingly we proceed to pass the following:<br /> <br /> <br /> <br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is dismissed holding that this Forum has no jurisdiction to entertain the complaint. <br /> <br /> In view of nature of dispute no order as to costs. <br /> <br /> Send copy of this order to both the parties free of costs. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 9th day of December 2009.) <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> NRS<br /> <br />