PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of June 2012
Filed on :07/06/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 293/2011
Between
George Harris, : Complainant
House No. 33/955-B, (Party-in-person)
Chalikkavattom, Vennala P.O,
Kochi-682 028.
And
Bharathi Airtel Ltd., : Opposite party
SL Avenue, NH Bypass, (By Adv. P. Fazil, Opp. Panampilly
Kundannoor Junction, Nagar Ladies club, Panampilly
Maradu P.O., Nagar, Cochin-682 028. )
Kochi-682 304.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
On 09-09-2009 the complainant availed a post paid data card internet connection from the opposite party. The data card could be used both for internet access and for making mobile calls. At the time of taking connection the opposite party had collected Rs. 3,000/- as activation charges, promising that the internet connection is with life time validity and with unlimited usages. Rs. 300/- was collected as security deposit for post paid connection. In October 2009 the amount of Rs. 1,790/- also was collected from the complainant as activation charges. While taking the connection the complainant was informed that monthly rent is Rs. 165/- fixed amount for ever. The complainant was paying the amount without fail from October 2009. In October 2010 the opposite party demanded an amount of Rs. 383/- as monthly rent instead of Rs. 165/-. On enquiry the opposite party informed that the internet connection holds one year validity and the complainant is liable to pay Rs. 250/- extra along with the monthly charges of Rs. 165/- to continue with the connection. The complainant was cheated by the opposite party by charging Rs. 4,790/- with activation charges. The internet connection was disconnected on 13-03-2010. On 26-11-2010 the complainant caused a notice to the opposite party to disconnect the internet connection. But there was no response. Thus the complainant is before us seeking direction against the opposite party to refund Rs. 4,790/- collected as activation charges for lifetime validity and to cancel the bills issued after the first year and to award a compensation of Rs. 25,000/-.
2. The version of the opposite party
This complaint is not maintainable in view of Section VII B of the Telegraph Act. Rs. 3,000/- was collected from the complainant towards cost of the cost of the data card not as activation charges. The opposite party never offered that the said internet connection was with life time validity and unlimited usages Rs.300/- was collected towards activation charges for GPRS facility for a period of one year. The complainant was specifically informed that the facility will be charged at the rate of Rs. 165/- for the 1st year and the complainant has to pay an extra amount of Rs. 350/- for availing the facility for the 2nd year. The complainant never requested the opposite party to disconnect the facility on completion of the one year period. The complainant is not entitled to get any of the reliefs in the complaint.
3. The complainant was examined as PW1 and Exts. A1 to A6 were marked. Neither oral or documentary evidence was adduced by the opposite party. Heard the complainant who appeared in person and the counsel for the opposite party.
4. The points that came up for consideration are as follows:
i. Whether the complaint is maintainable in this Forum?
ii. Whether the complainant is entitled to get refund of Rs.
4,790/- and to get the bills cancelled issued after the first
year?
iii. Whether the opposite party is liable to pay a compensation
of Rs. 25,000/- to the complainant ?
5. Point No. i. The counsel for the opposite party took a contention that in view of the decision of the Hon'ble Apex Court in General Manager, Telecom Vs. M. Krishnan & Anr (2009) 8 SCC 481 this Forum has no jurisdiction to entertain this complaint. The complainant submitted that admittedly the service availed by the complainant and rendered by the opposite party is internet facility. According to him, as per the Telecom Regulatory Authority of India Act 1997, this Forum has ample jurisdiction to entertain this complaint arising out of deficiency in rendering internet service. Telecommunication service is defined in Section 2 (k) of the above Act which reads as follows :
“telecommunication service means service of any description (including electronic mail, voice mail, date service, audio tex services, video tex services, radio paging and cellular mobile telephone services) which is made available to users by means of any transmission or reception of signs signals writing images and sounds or intelligence of any nature, by wire radio, visual or other electromagnetic means but shall not include broadcasting services.”
Section 14 B and C of the Act reads as under :
“the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Disputes Redressal Commission established under Section 9 of the Consumer Protection Act 1986.”
The Hon'ble Supreme Court in General Manager Telecom case, held as follows :
“In our opinion 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 of the Telegraph Act reads as under :-
Section S.7B Arbitration of Disputes :-
(1) 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.”
In the instant case, since the dispute is with regard to internet facility alone the above decision of the Hon'ble Supreme Court has no application in this case. Obviously, the learned counsel seems to have misread the decision of the Hon'ble Supreme Court with no reason otherwise stated. So, there is nothing in law to say that this Forum does not have jurisdiction in this matter.
6. Point No. ii. Ext. A1 cash receipt dated 07-09-2009 goes to show that the opposite party collected a sum of Rs. 3,000/- towards deposit amount for the data card. Ext. A2 is the payment receipt issued by the opposite party for Rs. 1,790/- on 13-10-2009 from the complainant. It is not stated in Ext. A2 that on which account the opposite party has collected the amount. Ext. A3 would show that the opposite party collected a sum of Rs. 300/- towards post paid deposit. According to the complainant after the expiry of one year the opposite party demanded excess amount from the complainant. The opposite party maintains that Rs. 3,000/- was collected towards activation charges and Rs.1,790/- was collected towards charges of GPRS facility for a period of one year. But nothing is on record to substantiate the same squarely the complaint of the complainant has not been controverted substantially hence. Even though admittedly the connection was disconnected by the opposite party after the completion of one year for no reasons explainable. Since the service was discontinued without issuing notice to the complainant as per law, the opposite party is liable to refund the deposited amounts of Rs. 3,000/- and Rs. 1,790/- as per Exts. A1 & A2 to the complainant. In turn the complainant is liable to return the data card to the opposite party simultaneously. If the opposite party is aggrieved they are free to approach the appropriate Forum for redressal of their grievances if any and so advised.
7. The primary grievance of the complainant has been met squarely we find no reason or grounds primarily to award compensation.
8. In the result, we partly allow the complaint and direct that the opposite party shall refund the amount as per Exts. A1 and A2 to the complainant. The complainant is directed to return the data card to the opposite party simultaneously.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of the order. Failing which the above amounts shall carry interest @ 18% p.a. till payment.
Pronounced in the open Forum on this the 30th day of June 2012.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of cash receipt dt. 09-09-2009
A2 : Copy of payment receipt dt.30-10-2009
A3 : Copy of cash receipt dt. 09-09-2009
A4 : Copy of letter dt. 26-11-2010
A5 : Copy of proof of deliver
A6 : Copy of postal receipt
Opposite party’s Exhibits : Nil
Depositions
PW1 : George Harris
