CC No.2131.2014

Filed on:15.12.2014

Disposed on 04.07.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE – 560 027.

DATED THIS THE4^thDAY OF JULY2016

CONSUMER COMPLAINT NO.2131/2014

PRESENT:

Sri.H.S.RAMAKRISHNA

                                PRESIDENT

               Smt.L.Mamatha, B.A., (Law), LL.B.

                             MEMBER

                                              V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 15.12.2014 u/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to pay a net amount of Rs.5,455/-, Rs.10,400/- towards deficiency of service and Rs.5,000/- as cost of the proceedingsto complainant along with interest at 9.5% p.a and other reliefs.  
2. In the complaint, the complainant has applied internet broadband plans through email dt.23.07.2013, the complainant received information about the various internet broadband plans from the Opposite Party, received an updated set of broad band plans from the Opposite Party via email dated 11.09.2013 and expressed interest to the Opposite Party in procuring a new internet broadband connection as per plan FLBPL391829, via email date 15.09.2013.   The complainant filled up the customer enrollment form on 24.09.2013 and Opposite Party was promised to installation will be performed within 2-3 working days, and confirmed installation of the connection to the Opposite Party via email dated 30.09.2013.   The plan opted by the complainant was FLBPL391829 and included the following terms:

1. Plan Rental               1599/-
2. Proposed Speed         16 Mbps
3. Free voice usage        500 mins
4. Free DSL usage         50 GB

However, the plan was activated was a different plan UL Fiber net 30GB 1599 (16Mbps/512Kbps) Standalone Plan and had the following:

1. Plan Rental               1599/-
2. Proposed Speed         16 Mbps
3. Free voice usage        0 mins
4. Free DSL usage         30 GB

Subsequently, the complainant has approached the Opposite Party innumerable number of times over phone and several times over email with a plea to rectify the above discrepancies.   Via mail dt.18.10.2013 describing the experience of interacting with a customer care representative from the Opposite Party about the 50 GB vs 30 GB discrepancy, via mail dated 19.10.2013 reiterating yet again that the voice connection was still not working, via mail dated 26.08.2014 regarding both the voice connection not working and the discrepancy in the DSL date usage, every single time the complainant would call the customer care department from the Opposite Party, the customer care department would simply justify to the complainant that the charges are not correct according to the plan.  However, in spite of the complainant repeatedly and painstakingly explaining that the issue is that the plan itself has not correct been correctly allocated to the complainant, the Opposite Party did not acknowledge or rectify that.  The complainant no option to get the issues rectified from the Opposite Party, and frustrated with the harrowing customer care experiences each time the issue was raised, the complainant informed the Opposite Party via mail dated 17.09.2014 of the refusal to pay the bills unless the issues are rectified.  The Opposite Party then disabled he internet connection as of 10.10.2014.  The complainant then requested for termination of the internet connection via mail dated 17.10.2014 and demanded compensation for overcharging by the Opposite Party for allocating the incorrect price plan to the complainant.  Only upon taking such a stance did the Opposite Party finally relent after about 13 months of having activated the connection, and finally corrected the plan.  The Opposite Party did the activation of the voice connection on 21.10.2014 as well as rectification of the 30 GB limit to 50GB without any change in the rental.   However, inspite of repeated requests made by the complainant to settle the compensation for overcharging for services not rendered to the complainant.  The Opposite Party turned a deaf ear.   The Opposite Party only tried to placate the complainant by offering a token refund of Rs.530/- for disabling the service between 10.10.2014 and 20.10.2014.   The Opposite Party disabled the internet connection again on 07.11.2014.  The complainant had undergo significant trauma and the Opposite Party has taken a very very long period of time to fix the simple problem of incorrect price plan allocation.   This amounts to a deficiency of service under the Consumer Protection Act. Hence, this complaint.  

3. In response to the notice, the Opposite Party put their appearance through their counsel and filed their version.   In the version pleaded that the complainant is not maintainable either in law or on facts.  The present dispute raised by the complainant is not maintainable before this Hon’ble Forum in view of the Judgment rendered by the Hon’ble Supreme Court of India in Civil Appeal No.7687/2004 dt.01.09.2009.  As per the said judgements, the dispute raised by the complainant is between the subscriber and Telecom Service Provider, the remedy available for the complainant is under Seciton7-B of the Indian Telegraph Act which provides for adjudication of dispute under the provisions of Arbitration Act, on this count itself the present complaint is liable to be dismissed.  The grievance of the complaint, as could be gathered from the complaint is that, he has opted for a broadband connection (Internet Service) on 24.09.2013 by submitting the applications for a plan FLBPL391829 but the Opposite Party has activated the different plan and despite the grievance being made by the complainant, the Opposite Party has activated the different plan and despite the grievance being made by the complainant, the Opposite Party have activated the voice connection on 21.10.2014.  The Opposite Party has provided the plan prevailing then known as Standalone Plan (UL fiber net 30 GB 1599).   The plan opted by the complainant which was known as Combo Plan was not available.  Hence with prior intimation and clear appraisal to the complainant and only upon his consent the said plan was activated.   In fact the complainant was using the said plan extensively.   During August 2014 the complainant requested for providing voice connection.   Accordingly, the Opposite Party has activated the voice connection on 21.10.2014.   Further the 50GB facility was provided in place of the existing 30 GB limit.  This provision was in view of the availability of new plan known as Combo Plan (1599 50 GB) with effect from September 2014.   The complainant was due huge amount towards arrears of bills as on August 2014, as such the Opposite Party only with prior intimation was compelled to disconnect the services on 28.11.2014.  There is no overcharging or wrong activation of plan on the part of the Opposite Party, as contended by the complainant.  Further there is no deficiency of service or willful default on the part of the Opposite Party.  In fact the complainant himself is the defaulter in payment of the bill amount and as on December 2014 itself the complainant was due a sum of Rs.7,989.50.  The Telecom service provider can provide/activate the plans subject to availability of such plans during the relevant period.  The launching and withdrawing of a plan is preparatory of a service provider and the same cannot be as a matter of right from a subscriber. I the instant case also the Opposite Party was unable to provide the plan opted by the complainant having utilized the same for almost one year, havingdefaulted in payment of bill amount, only with a ill motive of evading the payment of bill amount, has come up with this false complaint. Hence, the Opposite Partyprays for dismissal of the Complaint.

4.      The Complainant has filed his affidavit by way of evidence and closed his side.On behalf of Opposite Party, the affidavit of oneSri.D.Pradeep Reddy, Authorized Signatory has been filed.   Heard the arguments of both parties.  

5.      The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Parties?
2. If so, to what relief the Complainant is entitled?

6.      Our findings on the above points are:-

                   POINT (1):-Affirmative

                   POINT (2):-As per the final Order

REASONS

          7.      POINT NOs. 1& 2:         As looking into the averments made in the complaint and also the version filed by the Opposite Party, it is not in dispute that the complainant applied for a new Broad Band Connection as per plan FLBPL391829 and Opposite Party installed the same. To substantiate this fact, the complainant has filed his affidavit and in the sworn testimony reiterated the same and also produced the email dt.15.09.2013.As looking into this document,the complainant send this mail to the Opposite Party that he is willing to go for FLBPL391829 plan(16Mbps/512Kbps) and also produced the enrollment Form.  This evidence of the complainant remains unchallenged.  There is no rebuttal evidence to disconnect the testimony of the complainant.Thereby,it is proper to accept the contention of the complainant that the complainant was promised by the Opposite Party to install the new Broad Band Connection as per plan FLBPL391829. 

          8. It is further contention of the complainant that the complainant wasactivated was a different plan UL Fibernet 30GB 1599 (16Mbps/512Kbps) Standalone Plan and complainant has approached the Opposite Party innumerable number of times over phone and several times over email with a plea to rectify the above discrepancies.   But the Opposite Party have not rectify the defect.   On the other hand, informing about the complainant the charges are not correct according to the plan and also overcharging by the Opposite Party for allocating the incorrect price plan to the complainant.   Opposite Party in their version denied this fact so, in order to establish this fact, the complainant in his sworn testimony reiterated the same and produced the mail dt.18.10.2013, by looking into this mail it clears that the complainant send a mail to Opposite Party informing that he had signed up for 1599/- 16Mbps 50GB plan, it was 30GB.   When he has discussed with wrong information with Gayatri, she said that she will confirm and call me back.  But she has not confirmed the same and also produced another mail dt.19.10.2013.  The complainant by sending this mail to the Opposite Party informed that the Broad Band Connection installed to his system voice connectionstill does not working and also produced the mail dt.26.08.2014.  Even in this mail also he clearly informed that the landline connection needs to be activated so that he can access the free calls available with this plan and he should be getting 50GB of free data usage on his number, but he is only getting 30GB and further produced another mail dt.17.09.2014 by sending this mail to the Opposite Party.  The complainant clearly informed that he would like to clarify that he is not going to pay the bills until this issue is rectified.  So from this evidence, it is very clear that the Broad Band Connection installed to the complainant, it is not working properly and also there is no voice connection, and the installed was wrong plan, but he has not requested by him. Due to this, the complainant become upset and finally send a mail dt.17.10.2014 to terminate the connection.   This evidence of the complainant remains unchallenged.  To disbelieve this evidence, there is no rebuttal evidence.

9.  On the other hand, the defence of the Opposite Party is that, the Opposite Party has provided the plan prevailing then known as Standalone Plan (UL fiber net 30 GB 1599).   The plan opted by the complainant which was known as Combo Plan was not available.  Hence with prior intimation and clear appraisal to the complainant and only upon his consent the said plan was activated. In order to substantiate this defence, D.Pradeep Reddy on behalf of Opposite Party have filed affidavit and reiterated the same.  Except his interested version of the D.Pradeep Reddy, the Opposite Party have not placed any separating evidence, if at the time of installation of the Broad Band to the complainant has requested by him, there was no Combo Plan and Opposite Party with prior intimation and clear appraisal to the complainant and only with his consent, the activated Standalone Plan (UL fibernet 30 GB 1599), Opposite Party ought to have produced the same material evidence.  But there is no such evidence, on the other hand, as looking into the evidence produced by the complainant.  The complainant opted for installation of FLBPL391829 plan but has admitted by the Opposite Party, instead of installing FLBPL391829 they installed Standalone Plan (UL fiber net 30 GB 1599).  Thereby, there is deficiency of service on the part of the Opposite Party and not providing proper and correct service as requested by the complainant.

10. The other defence of the Opposite Party is that, during August 2014, the complainant requested for providing voice connection.   Accordingly, the Opposite Party has activated the voice connection on 21.10.2014.   Further the 50GB facility was provided in place of the existing 30 GB limit.  Even to substantiate this document also except the interested version of Opposite Party, the Opposite Party have not placed any separating evidence.   On the other hand has stated earlier, the complainant applied for connection of FLBPL391829 Plan butthey installed Standalone Plan (UL fiber net 30 GB 1599).   On the other hand, the Opposite Party installed only 30 GB.   Thereby, it is not proper to accept the defence taken by the Opposite Party.

11.  Further defence of the Opposite Party is that, the complainant was due huge amount towards the arrears of bills as on August 2014, as such the Opposite Party only with prior intimation was compelled to disconnect the services on 28.11.2014. Even to substantiate this defence also except the interested version of D.Pradeep Reddy of Opposite Party there is no other cogent evidence if really the complainant is due of huge amount.   As the defence taken by the Opposite Party, the Opposite Party ought to have produced some piece of evidence, this clearly sufficient to disbelieve the contention of the Opposite Party and on the other hand, as this stand taken by the complainant without any prior intimation illegally and unjustifiable reason.   The Opposite Party have disconnected the service to the complainant.   Thereby, this amounts to deficiency of service on the part of the Opposite Party.   Even though, the Opposite Party have received amount for providing proper service to the complainant, but Opposite Party failed to provide proper service to the complainant and without prior intimation and valid reason and disconnected the Broad Band connection.   This amounts to deficiency of service. 

12.  The learned counsel for the Opposite Party argued before me, the complaint is not maintainable, the dispute raised by the complainant is between the subscriber and Telecom Service Provider, the remedy available for the complainant is under Seciton7B of the Indian Telegraph Act which provides for adjudication of dispute under the provisions of Arbitration Act, on this count itself the present complaint is liable to be dismissed.  In support of his case, he relied upon decision reported in General Manager, Telecom V/s M.Krishnan & another 2009 AIR SCW-5631.  The Revision Petition No.398/2011 (Ziyauddin Alvi V/s Bharti Airtel Ltd.,)by National Commission, Ziya Uddin Alvi V/s Bharti Airtel Ltd., and ordered passed in Revision Petition No.1703/2010 Prakash Verma V/s Idea Cellular Ltd and another by National Commission.   The laid down in the above said decision is not applicable to the facts of the case, on the other hand, as looking into the Section-3 of the Act it is very clear that the Provision of this Act shall be in addition to and not derogation of Provision of any other law.   It is also settled a law on this point has reported in Dhanbir Singh V/s Haryana Urban Development Authority, 2012(5) SLT 35, in the said decision, it is clearly observed that the Consumer Protection Act was enacted to provide for better protection of the interests of consumers and for establishment of Consumer Councils and other authorities for the settlement of consumer disputes and for matters connected therewith.   Provisions contained in the Act are in addition to and not in derogation of the provisions of any other law for the time being in force.   There is no provision in the Act which bars filing of a complaint by a consumer after availing other statutory remedies.   Therefore, it is not proper to accept the learned Counsel of the Opposite Party that the present dispute raised by the complainant is not maintainable before this Forum.  

13. On the other hand, the complainant by placing cogent evidence have clearly establish that they deficiency of service rendered by the Opposite Party to the complainant, in spite of receiving the consideration.   Hence, this points are answered in the affirmative.   In the result, for the foregoing reasons, we proceed to pass the following order:

ORDERS

The Complaint is allowed holding that there is deficiency of service on the part of the Opposite Parties. The Opposite Party is directed to refund a sum of Rs.5,455/- to the complainant and to pay a sum of Rs.10,000/- as compensation for mental agony.   The complainant is entitled for a sum of Rs.2,000/- towards the cost of this litigation.   The Opposite Party is directed to pay aforesaid amount within 30 days from the date of this order.  Failing which, the aforesaid amount shall carry interest at 9% p.a. from 24/09/2012 till the date of realization.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 4^hday of July 2016)

L.MAMATHA                              H.S.RAMAKRISHNA

MEMBER                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

Witness examined on behalf of the Complainant:

1. Mr.Anand Janakiraman who being Complainant has filed his affidavit.

List of documents filed by the Complainant:

1. Copy of Emails dt.23.07.2013, 23.07.2013, 11.09.2013, 15.09.2013, 24.09.201330.09.2013.18.10.201319.10.2013, 26.08.201417.09.2014. 17.10.2014, 17.11.201412.01.2014.

Witness examined on behalf of the Opposite Party:

1. D.Pradeep Reddy,has filed his affidavit on behalf of the Opposite Parties.

List of documents filed by the Opposite Parties:

1. Copy of the Citations dt.18.12.2015.

MEMBER                                                      PRESIDENT