Order-13.
Date-07/08/2017.
RabidebMukhopadhyay, Member
This is a complaint lodged u/s 12 of the CPA, 1986. It is stated that the complainant being a bonafide customer under the OP-1 through post-paid connection no. 9831129385, had gone to Andaman for tour for 15 days in January, 2016 and after return she received a bill for Rs 48000/- app. from OPs. Getting the bill of such huge amount, the complainant is stated to have contacted the customer service team of OPs who asked first to clear the bill in order to avail the uninterrupted connection and then to get return of the excess bill amount. The complainant being a senior citizen had to deposit the whole amount to avoid disconnection and recovery proceedings.
It is stated that after paying excess amount of Rs 46800/-, the complainant severally called and complained to customer service of the OPs but in vain following which the complainant visited office of the OP-3 and complained. The complainant received monthly bill in March, 2016 mentioning previous balance of Rs 49082/- and
monthly user charges of Rs 423/-has been deducted therefrom. It is also mentioned that the amount due on or before 14th April, 2016 is Rs 48660/-. Since then OP started adjusting monthly charges from the balance amount.
The complainant was stated to have been surprised by such unauthorized/illegal act of OPs and complaints were raised but in vain. On 19/10/16 as advised by OP-3, the complainant submitted a letter with a cancelled cheque of her Axis Bank and copy of Bank pass book for refund of the excess payment into complainant’s account, but OPs continued adjusting monthly charges against the deposited amount inspite of information by the complainant for refund of the money for her urgent requirement for health purpose.
Till 26/12/16, the complainant did not receive any response to the sent letter nor any money back and sent legal notice for refund of Rs 45610/- as per last bill no. 714286585 dated 27 November, 2016 with interest within 15 days. But OPs paid no heed to such legal notice and continued adjusting monthly charges, which is termed unfair trade practice by the complainant.
The complainant prayed for direction upon OPs to refund excess payment of Rs 45056/- with interest, to pay Rs 50000/- as compensation for harassment and mental agony and Rs 10000/- as litigation cost.
Written Version has been filed on behalf of OPs. Gist of their version is that the complainant never went to the appropriate authority for solution of her problem and she never followed rules for solution. It is also stated that the complainant vaguely claimed that Manager Amit Kumar Shah of Bharti Airtel Office at 31, Chowringhee Road, Kol-16 advised her to issue a letter but no complaint number or service request has been mentioned in the complaint petition. So, the complainant has no iota of evidence to prove her case against the OPs.
The OPs stated that technical help is required to justify the complainant’s allegation and for that purpose TRAI should have been made a party. The system of complaint and Appeal has also been stated. At para-12(ii) of wv, OPs stated that the bill of the said period and bill of previous period have not been annexed. At para-12(iii), OPs stated that any amount can be deposited by the post-paid customer and the amount is treated as advance payment but the OP Company cannot refund the deposited amount whimsically but can adjust the advanced amount with subsequent bills. The OPs never told the complainant that her advance deposit would be refunded to her. OPs advocated, inter alia, that they did not defraud or deprive the complainant by any unfair trade practice or deficiency in service and the complainant cannot get any relief or compensation or litigation cost.
ADDITIONAL WRITTEN VERSION has been submitted by OPs. In the said version, OPs highlighted, inter alia, their identity and status under Companies Act, 1956, Indianj Telegraph Act, 1885, Indian Wireless Act and TRAI Act. The Complaint lodging and Appellate System with formation of Appellate Authority have also been laid down. Other submissions are like that in the original WV.
POINTS FOR DISCUSSION.
- Whether the case is maintainable;
- Whether the complainant is a consumer;
- Whether the OPs are deficient in service;
- Whether the complainant deserves Relief.
DECISION WITH REASONS
We have perused Evidences and Questionnaire of both the parties as well as copies of airtel mobile service including bill date 27 March, 2016 showing charges (for the period 26 Feb, 2016 to 25 March, 2016) of Rs 422.78 with previous balance Rs (-)49082.84 and amount due after14 Apr, 2016 at Rs (-) 48660.06, and bill date 27April, 2017 showing charges (for the period 26 Mar, 2017 to 25 April, 2017) of Rs 451.96 with previous balance Rs (-) 44201.32 and amount due till 15 May, 2017 at Rs (-) 43749.36, copy of Advocate’s letter dated 26/12/2016 to OP-3 through Speed Post which was refused on 29/12/16, copy of complainant’s letter dated 19/10/2016 to Bharti Airtel Ltd. claiming refund of excess amount of Rs 46800/-, copy of cancelled Axis Bank cheque No.133972, copy of passbook .-all filed by the complainant. No documentary evidence has been filed by OPs in support of their versions except a statement of account filed by OPs on the date of argument on 26/7/17 without annexure of invoices/bills mentioned in the statement.
MAINTAINABILITY OF THE CASE.
OPs filed a petition on 22/5/2017 challenging the maintainability of the complaint precisely on the following points.-
- Order of the Hon’ble Supreme Court dated 01/9/2009 in the light of section 7(B) of the Indian Telegraph Act, 1885;
- Claiming themselves as the Telegraph Authority in terms of sec 19(B) of Indian Telegraph Act, 1885;
- Recourse to Alternate Disposal Mechanism as stipulated in Redressal Mechanism in TRAI Act, 1997.
For point no. 1, and point no. 2, Department of Telecommunication, Govt. of India letter no.2-17/2013-Policy-1 dated 24 Jan, 2014 read with letter dated 07/3/2014 of Department of Consumer Affairs, GOI may be referred to wherein it is written, inter alia, that threadbare examination of Hon’ble Supreme Court’s order dated 1stsept, 2009 in General Manager, Telecom-vs-M. Krishnan has been done informing that district For a are competent to entertain consumer complaint and it has been decided that now-a-days existing telecom service providers—BSNL, Reliance etc. are the licensee and not vested with any authority. Therefore, implication of Hon’ble Supreme Court’s Judgement dated 1st September, 2009 does not extend to the disputes between Telecom Service Providers and the
Therefore, it is within the competence of Consumer For a to entertain such cases of disputes. Para-4 of the DOT’s letter states, inter alia, that powers of Telegraph Authority have neither been vested nor are available toPrivateTelecom Service Providers and BSNL.
It may also be noted that copy of the Notificationfor vesting power of Telegraph Authority in terms of sec 19(B) of the Indian Telegraph Act, 1885, as mentioned by OPs in the petition challenging Maintainability of the case has not been filed by OPs.
For Point no.3, it can be stated that the instant complaint is not related to the dispute for any defect in the product or deficiency in service. So, recourse to the Redressal Mechanism of TRAI would be redundant.
The case is, therefore, maintainable.
It needs to be mentioned that the complainant failed to file the disputed bill of huge amount after returning from Andaman on the plea that the same had been lost. Be that what it may, OPs could not specifically deny that the amount claimed by her remains as balance in favour of the complainant. During verbal argument also, Ld. Advocate for OPs admitted that the balance amount which the complainant deposited with them in excess than what was billed, remains with thembut they could not refund the same as claimed by the complainant because the Bharti Airtel Ltd has no such policy or scheme to refund excess amount except adjusting the same.
In reply no. 4 to questionnaire of complainant OPs stated “We do not have any scheme/system whereby customers can pay advance money ‘ This replycontradicts the version given by OPs at para-12(iii) of WV that ‘any customer candeposit any amountfor his/her post-paid number and the said deposit is considered as advancement payment but cannot demand refund”.OPs failed to file any cogent documentary evidence in support of such version.
OPs stated that no representation was made to Amit Kumar Singh who allegedly ensured refund and advised the complainant for the purpose, to file one cancelled cheque of her bank and a copy of bank pass book.
But the question remains why was reply to complainant’s letter dated 19/10/2016 not given by OPs. Receipt and non-entertainment of the letter has been admitted by OPs at para-12(vi) of WV. Moreover, the legal notice dated 26/12/2016 sent by complainant’s Advocate was refused on 29/12/16 as appeared from endorsement on the envelop by OP-3. OPs should have received the letter and sent reply to both the letters but instead, they remained silent.
It is hard to believe that a senior citizen, female customer, unless getting advised, would send suomotu a cancelled cheque and copy of the bank pass book to OPs.
OPs reiterated that the complainant did not follow the system of Service Request. It may be noted that the instant complaint does neither relate to any defect in the product nor deficiency in service rendered by OPs regarding communication. The complaint is unique not falling within regular types of service complaint.
Moreover, keeping aside the technicalities of complaint lodging system, OPs could have intimated to the senior citizen complainant, at least on humanitarian ground, the formal process of lodging complaint. It was the duty of OPs which could be carried out in the Reply to the letters of the complainant dated 19/10/16 and 26/12/16 but they did not send any reply.
Not allowing refund of excess money to the complainant by OPs means to restrict her to their (OPs’) service only and deprive her from the liberty to change or port to other Telecom Service Provider. This is one type of Restrictive Trade Practice adopted by OPs. The complainant can port to other service provider only after surrender of this huge amount of deposited money with the OPs leading to her heavy financial loss. This is not just and fair and we cannot allow such injustice.
The statement of Account filed by the OPs on the date of argument is not supported with the Invoices/Bills mentioned in the statement and is given up to 27 March, 2017 (bills amount Rs24058.64P) whereas payments are shown up to 01 Dec, 2015 (total
amount being Rs 67808/-). No payment has been shown after December, 2015 and balance refundable to the complainant up to billing on 27 April, 2017 stands at Rs 43749.36P. As the statement is not supported with relevant Invoices/Bills and as the same has been filed after the trial was over we could not take any cognizance of the same.
As the payments were made in cash and as monthly payments were made in excess amounts than actual monthly rental and usage charges (as claimed by OPs) , then it is very surprising why such excess amounts were accepted by OPs being a corporate organization and not returned to the complainant in the cash counter itself . Had they done so, then today’s complication would not have arisen. OPs did not venture to put forward any reason for it.
From the detailed discussion as above, we do not intend to mark the OPs as deficient in rendering conventional form of service but OPs are responsible for the monetary loss of the age-old complainant, as discussed above, and so, we are constrained to hold that the complainant being a consumer under the OPs deserves some kind of relief.
Hence,
Ordered,
That the complaint be and the same is allowed on contest against the OPs with cost of Rs 10,000/- payable jointly and severally by OPs to the complainant within 30 days from the date of this order;
That the OPs arejointly and severally directed to return/refund to the complainant her outstanding balance (in the form of excess deposit) of Rs 43749/- (ignoring 36 paisa) being held by OPs as on 27 April, 2017 with 9 percent interestfrom 27 January, 2017 till date of payment, after adjusting the monthly rental/usage charges from 27 May, 2017 to 27 July, 2017,within 30 days from the date of this order;
That on failure to carry out the above orders by the OPs within the stipulated time, the complainant shall have the liberty to execute the same in terms of section 27 of the C. P. Act, 1986 as amended so far read with section 25 of the Act ibid.
Parties be handed over copies of the Judgement free of cost when applied for as per rule.
