Complainant also stated that in spite of all these communications the complainant could not be able to avail roaming facility and the OPs did not provide roaming facility to the complainant’s mobile no as applied for. After all these botherations, harassment, time consumption and mental worry taken by the complainant, the OPs neglected and failed as was applied for by the complainant as a result of which the complainant found that Airtel has been deducting roaming charges from his prepaid balance money for both incoming and outgoing calls. This act of Ops tantamount to cheating as well.
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Complainant further stated that the complainant consequently was compelled to switch off his mobile phone most of the time which in fact has caused professional loss having professional assignments from whom he would have earned Rs.50,000/- as a Lawyer. The conduct of the Ops is a breach of contract for which the Ops are liable to give compensation of Rs.50,000/- for the loss, harassment and mental agony sustained by the complainant.
Complainant also stated that due to such deficient and negligent act and conduct of the Ops, i.e. the OP members, the complainant has been suffering huge mental and financial harassment and for which the OP members are liable to compensate the complainant. A legal notice was also sent but the complainant got no response.
The complainant being aggrieved and dissatisfied with the service of the Ops approached before this Forum for redressal and claimed for the following reliefs :
- An order directing the Ops to pay compensation of a sum of Rs.50,000/- only to the complainant for the loss, harassment and mental agony suffered by the complainant due to the Ops and also for negligent act and conducting the deficiency in service on their part.
- All the costs of the proceedings ;
- All other relief / reliefs as the complainant is entitled to get in law and equity.
To substantiate his claim the complainant files a piece of paper, wherein he has printed and typed the contents of messages which he received during the disputed period from the Ops.
The Ops appeared before this Forum in order to contest the case and filed W/V on 20.07.2016, The Ops denied all the allegations made in the complaint petitions, except those are matters of record.
The OPs in their W/V stated that the present contesting opposite party is a reputed company incorporated under the Companies Act, 1956. This present contesting opposite party is a private service provider of mobile telephonic services with a brand name “AirTel” to the subscribers at large through mobile hand sets from their transmission towers and Radio Base Station and other value added services related with mobile telephonic services all over india and also in West Bengal very honestly, sincerely, and carefully and also maintaining a goodwill and prestige in the field of mobile / cellular telephonic services being one of the largest services provider. The present contesting opposite party / Bharti Airtel Limited has been duly licensed by the Department of Telecommunications, Government of India to provide Cellular Telephonic Services. This present contesting opposite party /
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Bharti Airtel Limited defendant is not Manufacturer but only a mobile telephonic service provider through mobile hand sets to the customers at large. This the present contesting opposite party / Bharti Airtel Limited was / is all along very much diligent to providing the services to the high extend of satisfaction to their large number of subscribers. This the present contesting opposite party / Bharti Airtel Limited stated that the complainant is the subscriber under the present contesting opposite party / Bharti Airtel Limited being AirTel No. 9831430769 and the complainant has enjoyed the services of the present contesting opposite party / Bharti Airtel Limited since the very inception uninterruptedly as per his convenience. The opposite party has rightly acted upon by way of issuing the consumption bills of voice in favour of the petitioner as per terms of the service connection. It was agreed and settled in the CAF that the petitioner is liable to pay the consumption charges in favour of the opposite party. The O.Ps stated that the petitioner failed to pay the consumption charges. It is the adopted procedure of the opposite party to remind about the crossing of services and dues and others through SMS and there is no illegality in sending the reminder SMS. The O.Ps stated that the petitioner is a valued customer under the opposite party and the opposite party always served the petitioner with due care and caution. It is further submitted by the present contesting opposite party that the opposite party issued notice through advocate in favour of the petitioner stating all the facts intimating the fact of non-payments of the outstanding billed amount by the petitioner in favour of the opposite party and requested to pay the outstanding billed amount. So there is no deliberate laches and negligence on the part of the present contesting opposite party and also there is no deficiency in service on their part as the present contesting opposite party has duly performed their part of duties with regard to the said claim application of the petitioner and their services. It is stated by the O.Ps that the complainant at the time of taking the said connection has understands and agrees with the all terms and conditions of the service connection that the payments of the billed amount, are mandatory. It is submitted by the present contesting opposite party that the complainant is barred for want of jurisdiction as the instant Forum has got no jurisdiction to try and entertain the instant complaint in light of the following amongst the other grounds:-
1.That as per Clause 6 of the said License Agreement, the license shall be governed by the provisions of Indian Telegraph Act, 1985, Indian Wireless Telegraphy Act, 1933 and Telecom Regulatory Authority of India Act, 1997 as modified or replaced from time to time.
i)That as per the Section 7B of the Indian Telegraph Act, 1885 :
“(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telephone line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such
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determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this Section.
(2)The Award of the arbitrator appointed under sub-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court.”
- As per Rule 413 of the Indian Telegraph Rules, 1951 all services relating to telephone are subject to Telegraph Rules.
- The above provision is also supported in the case cited as Raag Rang Vs. G.M. Delhi Telephones in 1997 5 SCC 345-AIR 1997 SC 2653 wherein the writ petition with regard to the dispute as to making of payment of telephone bills was held to be not maintainable on the ground that alternative arbitration is available for adjudication of the dispute under the Indian Telegraph Act.
v)That in Senior Postmaster, G.P.O. Vs. Akhi Bharatiya Grahak Panchayat cited in (1995) 2 CPJ 230 (NC ) the National Commission had made the following observation :
“The Ld. Counsel for the petitioner rightly argued that Sec-3 of the Consumer Protection Act only provides additional remedy for the remedial of a grievance but if the remedy is barred under any other law, no relief can be granted under the Act.
Hence, in the aforesaid matter, /Section 6 of the Indian Post Act prevails over the Consumer Protection Act.
- The latest decision on the same issue which makes the legal position crystal clear is found in the judgement passed by Hon’ble Supreme Court of India on 1st September, 2009 in the Civil Appeal No. 7687 of 2004 wherein the crux of the decision is that Section 7B of Indian Telegraph Act provides for resolution of consumer disputes through arbitration and the remedy under the Consumer Protection Act is by implication barred. The Hon’ble Supreme Court has also observed that the special law overrides the general law and the Section 7B of Indian Telegraph Act provides for resolution of Consumer disputes through arbitration.
3) That in S.C. Case No. 107 of 2010 between Chitta Ranjan Bakshi Vs. Airtel Relationship Centre & Anr., the Hon’ble State Consumer Dispute Redressal Commission, West Bengal had upheld the aforesaid judgement passed by the Hon’ble Supreme Court of India and had dismissed the appeal filed by the appellant and had given liberty to the Appellant / Complainant to get the
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dispute resolved through arbitration as per the provisions of Section 7 of the Indian Telegraph Act and Rules framed there under. And hereby extended
the provision of Section 7B of Indian Telegraph Act to the service provider companies licensed to provide services as per Section 4 of the said Act like the opposite party No. 1 and 2.
It is further submitted by the present contesting opposite party that the opposite party always performed his part of duties. It is further submitted by the present contesting opposite party that the opposite party was always ready and willing to extend their service. It is further submitted that the petitioner with an ulterior motive intentionally and deliberately has filed the instant case with an intention to get some illegal benefit from the opposite party. Further it appears from the record submitted by the petitioner is incomplete differs from each other and baseless so no consideration is to be allowed on the basis of said incomplete, contradictory, baseless, motivated and differs to each other should not be considered. The opposite party was/is all along very much diligent in providing their part of services to the petitioner in high extend of satisfaction. The present contesting opposite party stated that billing dispute of telephonic service does not come under the purview of the consumer protection act, so the instant case is not maintainable. The present contesting opposite party stated that the petitioner has filed the instant case for wrongful gain suppressing the material fact. The petitioner has deliberately and intentionally suppressed the said material fact before this id Forum and on that score the instant case is not maintainable in the eye of law. It is further submitted by the present contesting opposite party that there are no deliberate laches or negligence on the part of the present contesting opposite party and also there is no deficiency in service on their part as the present contesting opposite party has duly performed their part of duties to the petitioner. The present contesting opposite party begs to submit that the petitioner is not at all the consumer within the meaning of the consumer as defined in the Consumer Protection Act, 1986 as amended up-to-date. There is no service provider and consumer relationship in between the petitioner and the opposite party exists. That the dispute as stated in the schedule of the application petition are contradictory, indefinites, motivated, vague and mis-representation of the original facts and basis of such a petition of the applicant in law and equity, is not entitled to get any relief as sought for. It is further submitted by the present contesting opposite party that the sender of application is an equitable relief and lacks of equity, must do equity by the petitioner and should come to court with clean hand. In the instant case the petitioner has not come before the court with clean hand but wilfully, intentionally and deliberately suppressed the materials facts and circumstances and as such the application of the applicant to be considered for rejection. But in spite of that the complainants has filed the instant case against the present contesting opposite party to fulfil his evil intention and wrongful gain to terminate the prestige of the present contesting opposite party and to realize the unlawful claim and money from the present contesting opposite party with the
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help of the instant the baseless, harassing, motivated, concocted, false, fabricated, oppressive, frivolous, scandalous, afterthought, vexations, imaginary speculative, with ulterior motive and wrongful gain, prolix, unnecessary story and statements and as a result of that the complainant is not entitled to get any relief and compensation as prayed for. It is further submitted by the present contesting opposite party that the petitioner has not filed any scrap of paper to substantiate the claim of the petitioner is a genuine one as allegedly claimed by the petitioner in the instant complainant under objection as such the said alleged claim of the petitioner is not sustainable in the eye of law. Considering the balance of convenience and inconvenience the petitioner is not entitled to get the relief as prayed for in the instant complaint under objection. The instant complaint under objection is speculative, harassing, motivated, concocted, false, fabricated, oppressive, frivolous, scandalous, after thought, baseless, vexatious, imaginary, prolix, and unnecessary, with ulterior motive and wrongful gain and thereby merits dismissal in limine with cost.
The complainant filed written examination in chief through affidavit in order to prove his case. He also filed B.N.A.
The O.Ps prayed by a petition on 24.11.2016 to treat their W.V as evidence of the O.Ps and it was allowed. O.Ps also filed B.N.A.
From the Complaint petition, W/V and evidence on record, the following points have been framed:-
- Is the complainant a consumer?
- Are the O.Ps deficient in providing service to the complainant?
- Is the complainant entitled to get any relief or reliefs from this Forum as prayed for?
Decisions with Reasons
All the points have been taken together for the sake of brevity and for avoidance of repetition of facts.
From the evidence of the complainant and the O.Ps and other materials on record it is found that it is the admitted position that the complainant has a mobile connection of the O.Ps, being Mobile No: 9831430769.
It is also admitted position that the complainant recharged his mobile number with an amount of Rs.5/ on 09.03.2015 in order to get roaming facility for one day and he got the acknowledgement from the O.Ps through SMS.
It is the contention of the complainant that despite payment of Rs.5/ for roaming charge for one day and after getting activated from the O.Ps as intimated through the SMS he did not get the benefit of roaming facility and as a result of that O.Ps deducted roaming charges for incoming and outgoing calls from the main balance of the mobile. The complainant therefore alleges for deficiency of service on the
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part of the O.Ps and prayed for payment of compensation due to his professional loss as well as mental pain and sufferings. Though the O.Ps denied all the allegations made in the complaint, but they did not specifically denied the existence of such facility available in that period or the complainant did not avail the facility or the complainant did not pay Rs.5/ for roaming facility for one day i.e for 09.03.2015.
From the case record it is also seen that the maintainability petition filed by the O.Ps is also rejected.
But the complainant did not mention either in his complaint petition or his evidence that how much he had to face monetary loss due to such inaction of the O.Ps. For that reason the claim of the complainant cannot be corroborated with any documentary evidence as no such document has been adduced by the complainant. Hence the prayer as sought for by the complainant having no basis at all, however in the interest of natural justice we are inclined to direct the O.Ps to make payment of Rs. 2000/ towards compensation due to unnecessary harassment and mental agony.
As the complainant has to incur some expenses for this proceeding, hence in our view he is entitled to get a sum of Rs.3000/ towards litigation cost.
Therefore, from the above discussions and considering the materials on record we can conclude that the complainant is a consumer of the O.Ps and the O.ps are deficient in providing service and consequently the O.Ps are liable to pay compensation as stated above.
The complainant has able to prove his case and therefore the case of the complainant is succeeded but in part.
Hence
it is ordered that the C.C case being No: 333 of 2015 is allowed on contest against the O.Ps but is part.
The O.Ps are directed to pay Rs.2000/ towards compensation and Rs.3000/ as litigation cost to the complainant within one month from the date of this order, failing which the complainant will be at liberty to put the entire order in execution.
Let a free copy of this order be given to the parties concerned.
Member Member President
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