Karnataka

Bangalore Urban

cc/13/2065

Mr. Hadya Prabhakar Praveen - Complainant(s)

Versus

Bharathi Airtel Ltd. - Opp.Party(s)

Indian Law Practice

10 Feb 2016

ORDER

Complaint Filed on:03.10.2013

Disposed On:10.02.2016

                                                                              

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 

 

 

 10^th DAY OF FEBRUARY 2016

 

PRESENT:-	SRI. P.V SINGRI	PRESIDENT
	SMT. M. YASHODHAMMA	MEMBER
	SMT. P.K SHANTHA	MEMBER

                         

               

COMPLAINT No.2065/2013

 

 

COMPLAINANT	Mr.Hadya Prabhakar Praveen, C/o India Law Practice – ILP No.7/5, First Floor, 2nd Main Palace Cross Road, Bangalore – 560 020.   Advocate – Sri.Prashanth M.V       V/s
OPPOSITE PARTY	Bharti Airtel Limited., No.55, Divyasree Towers, Bannerghatta Main Road, Bangalore – 560 076.   Also at:   Aravali Crescent, 1, Nelson Madela Road, Vasant Kunj, Phase II, New Delhi – 110 070.   Advocate – Sri.B.J Mahesh

O R D E R

 

SRI. P.V SINGRI, PRESIDENT

 

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party Bharti Airtel Ltd., (herein after referred as OP) with a prayer to direct the OP to refund him a sum of Rs.3,000/- out of the security deposit of Rs.5,049/-, Rs.10,000/- towards deficiency in service with litigation cost.

 

2. The brief averments made in the complaint are as under:

 

The complainant is managing partner of law firm India Law Practice – ILP.  The complainant had procured an Airtel 4G internet connection from OP along with Airtel 4G device with Dongle and assigned an account No.8861895919 and 1035978368 respectively in his name for his day to day office operations.  The said connection was procured from the OP based on the representations of its sales representative that the device would function efficiently and effectively and that the internet speeds attributable to 4G connection would be available to the complainant’s firm by virtue of the said connection without any hindrance/interruption.  Upon the said representation the complainant agreed to avail the said connection which was made available to the complainant’s firm on 09.01.2013 and was activated on 12.01.2013.  The complainant paid a sum of Rs.5,049/- by way of cheque towards deposit for the said connection.  The said connection was vital to the complainant for carrying on the office functions and day to day operations of the complainant.  Contrary to the representations made by the OP as aforesaid the said connection was not operational from very inception i.e., 12.01.2013, the date of activation.  The lack of connectivity in the said connection had disrupted the day to day functions of the office of the complainant.  The aforesaid fact was brought to the notice of OP who in turn informed the complainant that the 4G Device was defective and provided with replacement, a week or thereafter.  However, even after replacement of the device, the complainant continued to have issues with connectivity in relation to the said connection and suffered without any connectivity.  Apart from informing orally to one Mr.Yogish of OP regarding inability of getting access to the internet.  The complainant also registered a complaint with the OP 4G Customer Care Center.

 

Pursuant to the complaint and consent follow ups an Executive/Engineer from OP visited the office of the complainant on 28.01.2013 and inspected the connection and informed that there was no signal available to the said 4G device from 4G Tower, hence there was no internet connectivity and that the same would be activated within 48 hours from such date, however, to no avail.  Subsequently on 31.01.2013 yet another executive/engineer visited the office of the complainant to check on the said connectivity and informed the complainant that the device was still not receiving signals from 4G Tower and the same would be activated in 24 hours, however, contrary to the said assurance, the said connection remained inactive.  The issue with the connection continued thereafter, which compelled the complainant to address an email dated 05.02.2013 informing the OP of the inaccessibility of the said connection and sought for a swift remedy in the matter.  However, the complainant was not provided with a solution to the said issue, which compelled the complainant to once again address an email dated 15.02.2013 informing the OP about the same.  The complainant had not been able to use the connection at all for one and half months since after obtaining the same.

 

In response to the e-mail sent by the complainant, OP addressed an email dated 16.02.2013 informing the complainant that a personnel from their organization would contact the complainant by 18.02.2013 and resolve the issue, however, to no avail.  Subsequently in the month of March, 2013 OP Executive/Engineer visited the office of the complainant and inspected the 4G Device and informed that the replacement 4G Device was also defective, hence no connectivity and that they would provide the complainant with a replacement.  Accordingly, yet again the OP provided the complainant with a replacement 4G device on 23.03.2013, assuring the complainant that the same would function as represented.  The said 4G device started functioning with effect from 23.03.2013 and for a month thereafter.  However the complainant received bills for the said connection from OP calculated from 12.01.2013 without taking into account that the connection was functioning only from 23.03.2013.  The complainant brought the same to the knowledge of the OP vide several calls and emails, in response to which OP representatives informed the complainant that the earlier bills would be waived off and the amount payable would be calculated from 23.03.2013.  However, to the utter shock of the complainant he continued to get reminders for payments calculated from 12.01.2013.  The complainant having dissatisfied with the services and the equipment provided by the OP, in that, the 4G device, after sales service support and absolute failure in identifying issues and solving the same in a timely manner called upon the OP by email dated 10.05.2013 to deactivate the said connection and refund the deposit of Rs.5,000/- paid by the complainant, after deducting one month’s rental.  The OP has deactivated the connection on 10.05.2013, however they failed to refund the said deposit, after making due deductions for the period 23.03.2013 to 10.05.2013.

 

The complainant failed to act upon the demand made by the complainant even after email dated 23.05.2013 calling upon the OP to refund the balance amount of Rs.3,000/- within 7 days.  The OP repeatedly being addressed false and frivolous emails and letters making untenable claims thereunder.  Keeping in mind the aforesaid facts, by no stretch of imagination can it be construed that the complainant is liable to make payment of any sum.  The OP addressed a letter dated 01.07.2013 calling upon the complainant to pay a sum of Rs.7,868/- as outstanding amount.  The complainant has addressed an appropriate reply to the said letter.  The services provided by the OP in relation to the 4G services have been dismal, poor and negligent.  The OP has not only provided deficient service but also provided defective equipment.  The OP has falsely represented to the public that the 4G connection is the best in the market, contrary to the actual factual scenario.  The complainant has suffered financially, mentally and physically for which the OP is liable to pay compensation.

 

For the aforesaid reasons, the complainant prays for an order directing the OP to pay Rs.3,000/- being a portion of the security deposit paid by the complainant towards availing Airtel 4G Internet connection together with interest @ 18% p.a from May 10^th 2013 till the date of realization.  Further to pay a sum of Rs.10,000/- towards deficiency in service resulting in personal inconvenience, mental agony and physical strain together with litigation cost of Rs.10,000/-.

 

3. The OP appeared through their advocate in response to the notice issued and filed their version contending in brief as under:

The present dispute raised by the complainant is not maintainable before this Forum in view of the judgment rendered by the Hon’ble Supreme Court of India reported in 2009 AIR SCW-5631.  Therefore, the complaint is liable to be dismissed at threshold.  It is true that, the complainant had availed the 4G Internet connection with 4G device/dongle.  When the complainant complained about the difficulty in getting the signal immediately an inspection was made at the place of the complainant and it was found that, there was no mistake or problem with the instrument provided to the complainant nor the network.  Since, there was no problem with the instrument and the network, it was informed to the complainant that, they would examine other aspect causing alleged problem of the complainant if any on receipt of an email dated 05.02.2013 to the OP.  Immediately treated the said email as a complaint and was registered and the staff of the OP visited the premises and again after verification no any problem found with the instrument and the same was informed to the complainant.  However, the complainant was suggested to change the instrument.  Accordingly, OP provided a new device free of cost to the complainant.  Once again the complainant raised the complaint stating that still he is not able to get proper speed.  If at all the complainant is unable to get the proper network in the particular place where the device is placed, the OP cannot be find fault with.  It is quite possible that, in some places for various reasons, the subscriber might not get proper network and the same cannot be attributable to the OP.  After thorough verification on several occasions, the OP did not find any fault on his part that the issues faced by the complainant.  However, the OP free of cost has provided a new device to the complainant and the technical engineer of OP visiting the office of complainant found that the complainant is not finding any difficulty in accessing the internet.

 

The complainant has not cleared the payment of the bills dated 19.03.2013, 19.04.2013 and 19.05.2013, totally for a sum of Rs.8,025.64 as on 06.06.2013.  The complainant is bound to pay the rental charges and usage charges to the OP.  When the OP demanded for payment of the dues, the complainant has sent untenable reply seeking refund of the amount along with interest though there was no deficiency in service on the part of the OP.  Since, there is no willful negligence or default on the part of the OP, the question of refunding any amount to the complainant does not arise for consideration.  The OP denies all other allegations made against it by the complainant regarding the 4G service provided to the complainant.  The OP is not liable to refund the security deposit of Rs.3,000/- unless the complainant surrender the device and the services subject to deductions like taxes, over dues if any.  There is no deficiency of service or willful default on the part of the OP.

 

For the aforesaid reasons, the OP prays for dismissal of the complaint with exemplary cost.

 

4. After filing of the version by the OP, the complainant was called upon to file his affidavit evidence.  Accordingly, he filed affidavit evidence in lieu of oral evidence reiterating the allegations made in the complaint.  OP failed to file their affidavit evidence despite sufficient time and opportunity given.  Written arguments have been submitted on behalf of complainant.  However, OP failed to submit either written arguments or oral arguments.

5. The points that arise for our determination in this case are as under:

 

 

 

1)	Whether the complainant proves deficiency in service on the part of OP as alleged?
2)	What relief or order?

        6. Perused the allegations made in the complaint, the sworn testimony of complainant, the averments made in the version, written arguments submitted by the complainant, various judgments relied upon by the complainant and other materials placed on record.

 

7. Our answer to the above points are as under:

 

 

 

Point No.1:-	In Affirmative
Point No.2:-	As per final order for the following

 

REASONS

 

8. Though the OP filed their version contesting the claim of the complainant and denying the allegations made against them, but for the reasons best known to them failed to let-in any evidence to substantiate the averments made in the version.  The first and foremost objection that was raised by the OP in their version is regarding the jurisdiction of Forum in entertaining the present complaint.  It is averred by the OP that, as per the provisions contained in Section.7-B of the Indian Telegraph Act, the dispute has to be adjudicated by an Arbitrator and this Forum has no jurisdiction to entertain the complaint.  For this proposition of law the OP placed reliance on a judgment rendered by the Hon’ble Supreme Court of India in civil Appeal No.7687/2004 dated 01.09.2009 in case between General Manager, Telecom V/s. M.Krishnan & another reported in 2009 AIR SCW 5631.  The OP also placed reliance on a judgment rendered by the Hon’ble Apex Consumer Court in a Revision Petition No.398/2011 dated 18.07.2012.  In view of the principles laid down in the said judgments, referred supra, it is contended by the OP that, this Forum does not get jurisdiction to adjudicate the dispute raised by the complainant and he has to be directed to proceed in accordance with the provision contained in Section.7-B of the Indian Telegraph Act for redressal.

 

9. Against this, the learned advocate for the complainant argued that, the judgment rendered by the Hon’ble Supreme Court reported in 2009 AIR SCW 5631 was between the Department of Telecommunications (DoT) and an individual Consumer and the same was prior to the separation off telegram services into a separate company namely Bharat Sanchar Nigam Ltd., (BSNL) and hence the Hon’ble Apex Court took recourse to Section.7B.  In view of the facts and circumstances existing in the said case, he pointed out that in the present dispute a private service provider is involved and not the Department of Telecommunications so as to invoke the provisions contained in Section.7B of Indian Telegraph Act.

 

10. The learned advocate for the complainant also brought to our notice the provisions contained in Section.14 of Telecom Regulatory Authority of India Act, 1997 (TRAI Act, 1997) which reads as under:

 

“(1) If a dispute arises, in respect of matters referred to in sub-section (2), among service providers or between service providers and a group of consumers, such disputes shall be adjudicated by a bench constituted by the Chairperson and such bench shall consist of two members;

 

Provided that if the members of the bench differ on any point or points they shall state the point or points on which they differ and refer the same to a third member for hearing on such point or points and such point or points shall be decided according to the opinion of that member.

 

(2) The bench constituted under sub-section (1) shall exercise, on and from the appointed day all such jurisdiction, powers and authority as were exercisable immediately before that date by any civil court on any matter relating to-

 

i. technical compatibility and inter-connections between service providers;

ii. revenue sharing arrangements between different service providers;

iii. quality of telecommunication services and interest of consumers;

 

Provided that nothing in sub-section shall apply in respect of matters relating to-

 

            a. the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of section 5 of the Monopolies and Restrictive Trade Practices Act, 1969;

 

            b. the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under section 9 of the Consumer Protection Act, 1986;

 

            c. dispute between telegraph authority and any other person referred to in sub-section (1) of section 7B of the Indian Telegraph Act, 1885”.

 

11. As mentioned above proviso-B to Section.14 of TRAI Act, 1997 provides that, a complaint by an individual Consumer is maintainable before the Consumer Disputes Redressal Forum or Consumer Disputes Redressal Commission or the National Consumer Disputes Redressal Commission established under Section-9 of the Consumer Protection Act, 1986.  Apart from the above mentioned proviso to Section.14, the learned advocate also brought to our notice an Office Memorandum dated 04.02.2014 issued by the DoT.  Perused the said Office Memorandum dated 04^th February 2014 issued by the Government of India, Ministry of Communications & IT, Department of Telecommunications (Policy-I Section).  The necessity of issuing the said Office Memorandum arouse in view of several references being received regarding Telecom consumers’ agitation throughout the Country against ousting the jurisdiction of Consumer Fora since 2009 as a consequence to the judgment rendered by the Hon’ble Supreme Court of India in a case between General Manager, Telecom Vs. M.Krishnan.  For better understanding and appreciation the relevant portion of the said Office Memorandum is reproduced here under.

 

2.     The matter has been examined in this Department.  It is mentioned that the matter referred to in the Hon’ble Supreme Court involved a dispute between Department of Telecommunications (DoT) as a service provider prior to the hiving off of telecom services into a separate company namely Bharat Sanchar Nigam Limited (BSNL).  Since DoT was also the telegraph authority, reference was made by the Hon’ble Supreme Court to the provisions of section 7B.  However, powers of the telegraph authority have neither been vested nor are available to private telecom service providers and BSNL.  Therefore, recourse to section 7B in case of disputes between consumers and private service providers and BSNL would not be available.  The Hon’ble Supreme Court’s judgment is sui generis in its application and has to be read with reference to the particular facts and circumstances of the case before it.

 

3.     Further, while commenting on the implementation of provisions of National Telecom Policy-2012, related to amendment of Indian Telegraph Act to bring disputes between telecom consumers and service providers within the jurisdiction of District Consumer Dispute Redressal Forum (District Forum) established under Consumer Protection Act, Legal Advisor, DoT opined that District Forums are already having jurisdiction and promulgation of ordinance is apparently not required.

 

4.     The District Consumer Forums are competent to deal with the disputes between individual telecom consumers and telecom service providers.

 

5.     The above position has been brought to the notice of Secretary, Department of Consumer Affairs, Government of India and Chief Secretaries/Administrators of States/Union Territories for taking the matter up with District Consumer Dispute Redressal Fora and the State Consumer Disputes Redressal Commission in the States/UTs.

12. The text of the above Office Memorandum makes it abundantly clear that, the District Consumer Disputes Redressal Forum has jurisdiction to entertain the dispute raised by the Consumer against a private service provider such as the OP.  According to the said Office Memorandum, dispute raised by the Consumer against BSNL can also be entertained by the District Consumer Disputes Redressal Forum.  Furthermore, the Apex Consumer Court in its judgment dated 26^th September 2011 rendered in Revision Petition No.2775/2007 in a case between Vodafone Essar South Ltd., Vs. Arvind Reddy has confirmed the order passed by the District Consumer Disputes Redressal Forum-II Hyderabad in ordering the OP therein, Vodafone Essar South Ltd., to pay a sum of Rs.5,000/- to the complainant therein, together with litigation cost of Rs.1,000/-.  The judgment referred to above rendered by the Hon’ble National Consumer Disputes Redressal Commission confirms that this Forum has jurisdiction to entertain the present dispute which is between a private service provider and individual Consumer like the one in the above mentioned case.

 

13. In view of the provisions contained in Section.14 of TRAI Act, 1997, the Office Memorandum dated 04^th February 2014 issued by the Government of India, Ministry of Communications & IT, Department of Telecommunications and the judgment rendered by the Apex Consumer Court in a case between Vodafone Essar South Ltd., Vs. Arvind Reddy referred supra, we are of a firm opinion that, the present complaint is maintainable in this Forum and this Forum can determine the dispute raised before it.  Therefore, we don’t find any substance in the contention of OP that, this Court has no jurisdiction to entertain the dispute raised by the complainant.

 

14. POINT NO.2: As already stated above the OP except filing version did not contest the complaint thereafter.  The OP has failed to file their affidavit evidence to substantiate the averments made in the version.  The OP also did not produce any documents to substantiate that there is no deficiency in service on their part as claimed in the version.  On the other hand, the complainant filed affidavit evidence reiterating the allegations made in the complaint.  It is not in dispute that the complainant obtained a 4G connection with dongle to his office on 09.01.2013 and the same was activated on 12.01.2013.  It is also not in dispute that a sum of Rs.5,049/- was paid to the OP by way of cheque towards security deposit by the complainant.  The copies of e-mail communication produced by the complainant confirms the allegations of the complainant that though the connection was activated on 12.01.2013 the said connection was not operational since on 12.01.2013 due to lack of connectivity. The complainant has immediately informed the same to the OP and one of the official of the OP visited the office of the complainant and has found that the 4G device provided to the complainant was defective and the complainant has been thereafter provided with a replacement.Even thereafter there wasno connectivity and again the complainant has lodged complaint with the OP which is evident from the e-mail communication sent by the complainant.  Though repeatedly the officers of the OP have promised to set right the issue faced by the complainant, but the issue was not at all resolved, as promised.   As a result, the complainant was put to great inconvenience and hardship.

         

          15. As could be seen from the material placed on record, and also the allegation in the complaint the 4G device started functioning only from 23.03.2013 despite the fact that the same was activated on 12.01.2013.  However, the OP has issued bill to the complainant for the said connection calculating from 12.01.2013 without taking into account that connection was not at all functioning till 23.03.2013.  Though the complainant has brought same to the notice of the OP, but the OP has not taken any steps to correct the bills and charge for usage of the internet from 23.01.2013 on which date the connection started functioning.  In given facts and circumstances of the case, we do not find any justification on the part of OP in issuing bill for the period between 12.01.2013 till 23.01.2013.  The OP has absolutely no right to raise bill for the period during which the said 4G connection was not at all functioning.  Therefore, the OP has no right to claim that the complainant is liable to pay a sum of Rs.7,868/- as claimed in the letter dated 01.07.2013.  Therefore, OP has to be directed to restrict their claim for the period between 23.03.2013 till 10.05.2013 the day on which the said connection was activated at the request of the complainant.  The said connection was functioning only during the period between 23.03.2013 to 10.05.2013.  Therefore, we do not find anything wrong in the prayer of the complainant seeking direction to the OP to charge them for the period between 23.03.2013 to 10.05.2013 during which time the connection was functional and during which time the complainant has made usage of the said connection.  The OP shall have to be directed to refund the security deposit of Rs.5,049/- after deducting the usage bill for the period between 23.03.2013 to 10.05.2013.

 

          16. As mentioned above, the OP failed to let in any evidence to substantiate their contention that the complainant is liable to pay a sum of Rs.7,868/- as mentioned in their letter dated01.07.2013.  The OP has absolutely no right to charge the complainant for the period during which the said connection was not at all functional.  The conduct of the OP in providing a defective device and their inability to provide 4G connection to the complainant despite collecting necessary fees, amounts to deficiency in service.  Further, the conduct of the OP in claiming bill for the period during which the said connection was not functional amounts to unfair trade practice.  The said conduct of OP must have disrupted the day to day work of the office of the complainant thereby causing huge loss, inconvenience and hard ship to the complainant.  Therefore, the OP has to be directed to pay compensation of Rs.10,000/- to the complainant towards deficiency in service.

 

          17. For the discussion made above, we are of the considered opinion that the complainant is successful in proving deficiency in service on the part of the OP.  Therefore, OP has to be directed to refund security deposit of Rs.5,049/- to the complainant after deducting the usage charges for the period between 23.03.2013 to 10.05.2013 only and also to pay compensation of Rs.10,000/- towards deficiency in service together with litigation cost of Rs.5,000/-.

 

          18. In the result, we proceed to pass the following:

O R D E R

1. The complaint filed by the complainant u/s.12 of the Consumer Protection Act, 1986 is allowed in part.

 

2. The OP is directed to refund Rs.5,049/- after deducting the usage charges for the period between 23.03.2013 to 10.05.2013 together with interest at the rate of 9% per annum from 10.05.2013 till the date of realization.

 

3. Further the OP is directed to pay compensation of Rs.10,000/- to the complainant for deficiency in service together with litigation cost of Rs.5,000/-.
4. The OP shall comply the order of this Forum within a period of six weeks from the date of communication of the order.
5. Furnish free copy of this order to both the parties.

 

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Forum by us on this the 10^th day of February 2016)

 

 

 MEMBER                         MEMBER                     PRESIDENT

 

 

Vln/Nrs*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

C.C.No.2065/2013

Complainant	Opposite Party
Mr.Hadya Prabhakar Praveen, C/o.India Law Practice-ILP, No.7/5, First Floor, 2nd Main Palace Cross Road, Bangalore-560020	Bharti Airtel Limited No.55, Divyasree Towers Banngerghatta Main Road, Bangalore-560076. Also At: Aravali Crescent, 1, Nelson Madela Road, Vasant Kunj, PhaseII, New Delhi-110070.

 

Witnesses examined on behalf of the complainant dated 11.03.2014.

 

1. Sri.Hadya Prabhakar Praveen,

 

LIST OF DOCUMENTS PRODUCED BY THE COMPLAINANT
1.	Doc No.1 is copy of the application form
2.	Doc No.2 is copy of the receipt dated 08.01.2013.
3.	Doc No.3 to 7 are copies of e-mail  correspondences between the parties dated 05.02.2013, 15.02.2013, 16.02.2013, 10.05.2013 and 23.05.2013.
4.	Doc No.8 is copy of the legal notice dated 16.08.2013 along with acknowledgement due card.
5.	Doc No.9 is copies of the three authorities
6.	Doc No.10 is copy of the Office Memorandum dated 04.02.2014 from Department of Telecommunications

 

Witnesses examined on behalf of the OP – Nil

List of documents produced by the OP – Nil

 

 

 

MEMBER                                   MEMBER                    PRESIDENT

 

 

Vln/Nrs*