Delhi

North East

cc/436/2011

Sh. Pawan Kumar Sharma - Complainant(s)

Versus

Bharti Airtel Ltd. - Opp.Party(s)

15 Jun 2020

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.  436/11

 

In the matter of:

	Shri Pawan Kumar Sharma S/o Shri Inderjeet Sharma R/o A-4/104 Tulip Violet Sector-69, Gurugram-122101	Complainant
	Versus
	Bharti Airtel Ltd. 1,Bharti Crescent, Nelson Mandela Road Vasant Kunj, Phase-II New Delhi-110070	Opposite Party

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

26.12.2011 15.06.2020 15.06.2020

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The case of the complainant in the present complaint is that he was a consumer of OP in capacity of holding a Primary Postpaid Mobile Phone connection no. 9810289926 since February 2004 vide relationship no. 102-100660298 and in January 2007, the complainant had applied for another add on postpaid mobile connection on submission all required documentary documents viz identity prove and residential address prove to OP and OP having been satisfied with the credential of the complainant, activated the add on connection bearing no. 9818431770 in January 2007. The said connection came with yearly advance rentals with the advance rental plan renewed year after year from 2007 till 2010 and all bills for the primary as well as this add on number were regularly paid by the complainant to OP against a single combined bill received monthly from OP. In January 2011, the complainant opted to pay two years advance rental at the time of renewal of the postpaid plan and OP levied Rs. 1,495/- in the Bill no. 404489685 dated 25.01.2011 as one time charges towards advance rentals for the said add on number valid till January 2013 and the said sum was duly paid by the complainant to OP and was acknowledged receipt of by OP in the next monthly Bill no. 424890966 dated 25.02.2011. both mobile numbers / connections became an integral part of complainant’s communication in his day to day life and dealing and the complainant continued to use both numbers uninterruptedly till suddenly on 08.08.2011, the outgoing calls on the add on connection were abruptly barred by OP without giving any prior intimation to the complainant and when the complainant shared his concerned over the said matter with the customer care of OP on 09.08.2011 asking for reason for disconnection, he was  told that the connection was discontinued due to incomplete documentation with respect to identity and residential proof submitted by the complainant to which the complainant replied that he had submitted all the documents way back in February 2004 at the time of taking primary connection and yet again in January 2007 at the time of taking add on connection but still was willing to provide the requisite documents again to OP if required. But the customer care of OP after checking the records of the complainant found the same to be intact and informed the complainant that there was no need to resubmit documents and OP then restored the outgoing call facility on the add on connection for which a transaction ID no. 911563788 and SMS on the regular no. of the complainant was generated. However, to utter shock of the complainant, on the very next day i.e. 10.8.2011 OP withdrew the network coverage from the complainant’s add on number and this time even in the incoming call facility on the said no. was also withdrawn and when the complainant contacted the OP customer care again, he was given the same reason of incomplete documentation for deactivation of services on the add on number and was asked to submit one photograph, one ID proof and one residence proof at the OP’s centre at New Friends Colony Market Delhi. The OPs representative at the said centre revealed to the complainant that the records of the complainant available with OP with respect to the alleged connection had instances of overwriting

Because of which his add on connection was suspended and complainant was asked to fill out a fresh Customer Relationship Form and he submitted the requisite documents alongwith it to OP without any protest and was assured of restoration of his add on connection within next 2-3 working days. However, when no response came forth till 11.08.2011, complainant called up the customer care of the OP vide reference no. F912810546 / transaction ID 912807575 requesting the restoration of at leastincoming call facility till network would be restored but his request was declined though the connection was restored on 12.08.2011 at around 5:15 by OP and SMS to this effect was received by the complainant on his primary number. But yet again after 45 minutes, the services of the add on number again were disconnected and the reason given for the same was incomplete documentation, the complainant visited the OP’s centre on 16.08.2011 where he was informed that the add on connection has been permanently disabled as the documents required at the “backend office” failed to reach there within 72 hrs of account suspension and in this regard when the complainant apprised the representative of OP at its centre that his connection was activated on 12.08.2011 for about 45 minutes which was within 48 hrs of submission of documents done by him on 10.08.2011, he was told that it was not because of his mistake but because “”something had happened at backend office” and complainant would be required to fill up all the forms again and a new SIM card would be activated for the same phone number (add on number) which was disabled but it would be a completely new postpaid mobile phone connection which shall get activated by 19.08.2011. When the complainant requested the OP for having the same postpaid plan for the add on connection, he was informed that the entire advance rental of Rs. 1,495/- (paid up till January 2013) would be forfeited for the disabled connection without any transfer of account or any reimbursement. The complainant has raised the objection that if his documentation was incomplete, OP could not have levied two years rental in January 2011 and secondly OP on 09.08.2011 had admitted its own mistake of blocking the outgoing facility despite complainant’s records being in order and which why the outgoing facility was reactivated on 09.08.2011. Thereafter, the complainant made series of communication vide emails and written complaints to OP between 20.08.2011 to 24.102011 for two months praying for restoration of his add on number but all such request and persuasion of complainant made to OP fell on deaf ears. Therefore, the complainant has alleged OP’s failure to maintain customers record properly and despite its own mistake, suspended services on establish postpaid connection without any forewarning for which it had already received two years advance rental as a clear case of deficiency of service and unfair trade practice for penalizing complainant for their own “backend office” mismanagement. The complainant has further submitted that the new connection was not activated 19.08.2011 despite promise and the complainant contacted the OP’s appellate office which informed him that the connection would be activated soon and he has to call again after generation of the first bill thereof for exploring possibility of carrying over the unutilized rental of his previous account of the new account. The new phone connection finally got activated on 23.08.2011 with a new SIM. The complainant has submitted the entire episode cause immense loss, mental agony and harassment to him in his day to day life and created a negative impression and image of the complainant due to abrupt discontinuation of mobile service by OP and complainant has alleged that the OP withdrew the services on the add on number with the intention to forfeit the advance rent paid by the complainant on the said number on hollow pretence / pretext of non-submission of documents which act is also palpably deficiency of service and gross unfair trade practice. Therefore the complainant has filed the present complaint against the OP paying for issuance of direction against the OP to pay a sum of Rs. 70,000/- for mental pain and harassment and Rs. 25,000/- towards cost of litigation to the complainant and also for OP to desist from unfair trade practice of withdrawing service of active connection on such fake ground as in the present case.

2. Complainant has attached copy of welcome letter dated 23.01.2007 from OP with respect to the add on connection for mobile no 9818431770 alongwith copy of one annual bill each for till 2007 to 2010, copy of bill dated 25.01.2011 for two years advance rental of Rs. 1,495/- for the said add on connection valid till January 2013 alongwith copy of subsequent bill dated 25.02.2011 reflecting the receipt of the said amount, copy of last bill dated 25.07.2011 for bill period June 2011, July 2011 with dew date 12.08.2011 generated by OP and copy of emails exchanged between complainant and OP between 20.08.2011 till 24.10.2011 pertaining to disconnection of add on number and request for restoration of its services and OP acknowledging the complaint registered for the same with assurance to respond thereto for resolution of complainant’s query.
3. Notice was issued to the OP on 06.01.2012. OP entered appearance and filed an application challenging the maintainability of the present complaint  relying on the judgment of the Hon’ble Apex Court in General Manager Telecom Vs M. Krishnan in CA. no. 7687/2004 decided on 01.09.2009 in which the Hon'ble Supreme Court held that Consumer Forum has no jurisdiction in dispute relating to telephone billing as it is a special remedy   provide u/s 7B of Indian Telegraph Act and judgment of Hon'ble National Commission and Hon’ble SCDRC Delhi dismissing the such complaints. Complainant filed reply to the said application praying for dismissal of the same on grounds that the present complaint does not pertain to “billing dispute” but is of deficiency of service for withdrawal of telephone connection. This Forum vide order 11.01.2013 dismiss the said application as the same was unsigned and so was the accompanying affidavit, the application being defected therefore.
4. Written statement was filed by OP on 23.05.2013 vide which it took the preliminary objection of complainant not being consumer of OP in as much neither has OP rendered any service to him nor has complainant hired any service from OP for consideration and therefore there was no case deficiency of service which could be made out against OP which provides one of the best cellular mobile telephone services and is bound by Indian Telegraph Act 1885. The OP made reference to several government notifications dated 24.05.1999, 04.02.2002, 10.05.2005 and 22.11.2006 issued by Government of India through its Department of Communication in its defence and was directed to place the same on record vide order dated 30.08.2018 but OP despite several opportunities granted between 30.08.2018 to 17.07.2019 failed to place the same on record expressing in its ability on frivolous ground, therefore its right to file the same was closed vide order dated 17.07.2019 and was made clear that reliance on such notification shall not be considered as defence taken in the written statement since they do not form part of court record. On merits, OP took the defence in the written statement that the complainant had since failed to submit the requisite document pertaining to identity and residence proof with the OP despite having been granted several opportunities, OP was constrained to bar the mobile services of the complainant for non-submission of document as no other alternative, OP denied the claim of the complainant of its customer care having informed him of complainant’s documents being in its possession and no need to resubmit them and per contra stated that the requisite documents were not with the OP for which the complainant was called time and again to submit the same for enjoying uninterrupted service but he failed to comply with the same requirements.
5. Evidence by way of affidavit was filed by both parties.
6. Written arguments were filed by complainant and OP in reassertion / reiteration of their respective grievance / defence.
7. We have heard the arguments addressed by both sides and may now advert to the core question viz as to whether the complainant is entitled to any compensation and if any, quantum thereof.

In the present case it is an admitted fact that the complainant was availing of primary postpaid mobile phone connection no. 9810289926 of OP since February 2004 and add on connection no. 9818431770 was given by OP in January 2007 on payment of advance rental paid till 2010 and subsequently renewed on payment of two years advance rental of Rs. 1,495/- from January 2011 till January 2013 paid to OP and complainant continued using both numbers till the dispute arose on 08.08.2011 when the outgoing service on the add on number were disconnected byOP on premise of improper / incomplete submission of requisite document and alleged overwriting therein and the said add on connection was off and on restored between 10.08.2011 and 12.08.2011 till it was permanently disabled till the servicespermanently disabled on the add on number as informed to the complainant by OP on 16.08.2011 w.e.f 12.08.2011 which date was also last/ due date of payment of last bill no. 526501388 dated 25.07.2011 with respect to both numbers for the bill period 23.06.2011 to 22.07.2011. From the perusal of emails / correspondence exchanged between parties and we observe that OP’s Appellate Office had duly acknowledged the grievance of the complainant made on 20.08.2011 / 21.08.2011 and had sought three working days to respond to the same. However, OP took no action which is evident from email dated 31.08.2011 by complainant to OP office for non redressal of his grievance expressing his intention to approach the consumer Forum and OP vide auto generated reply dated 31.08.2011 again acknowledged receipt of the said emails asking for the three days time for revert. However, yet again OP failed to respond till on 07.09.2011 when OP vide email informed the complainant that “the service of your airtel number is well connected” to which the complainant vide email dated 10.09.2011 raised his reservation on the response given by the OP as there was no mention of restoration of service and forfeiture of advance rental and requested for an itemized response to the queries raised by him from OP latest by 15.09.2011 failing which he would take legal recourse under Consumer Protection Act. The OP again vide auto generated response email dated 10.09.2011 acknowledged the complaint and sought three working days for redressal but no solution came forth. Therefore the complainant vide last email dated 23.09.2011 demanded redressal by way of penalty, compensation , litigation cost and refund of his unutilized rental amount out of Rs. 1495/- paid I January 2011 which was forfeited by OP as the subsequent bill did not show any adjustment for unutilized rental. OP vide email dated 24.10.2011, in stark contradiction to its earlier email dated 07.09.2011 informed the complainant his add on number 9818431770 “has been permanently disconnected due to non-receipt of documents with effect from 12 August 2011”. From the documents on record, it is evident that the add on number was in continuous use for four and half years from January 2007 till August 2011 by the complainant not to ignore the fact that the primary number was being used by him since February 2004, therefore implying that he was a customer of OP since February 2004 with respect to primary postpaid number and also its consumer from January 2007 too with respect to the add on number for both of which number, the complainant paid monthly bill and annual rental to OP till August 2011 and the advance rental of Rs. 1,495/- for add on connection was made from January 2011 till January 2013 by complainant to OP but the said services of the said number were disrupted in August 2011 on the same date which was its last bill payment due date i.e. 12.08.2011. The reason given by OP for the said disconnection / discontinuation is improper / incomplete documentation with overwriting on the application form. However, not any stage of pleadings either with written statement or with evidence by of affidavit did OP place on record copy of any such application form to prove its contention and main defence. Even otherwise it is highly improbable that the OP would have in the first place given connection to the complainant in February 2004 for the first time without submission of requisite documentation and in thesecond place would have given the add on connection to him in January 2007 without taking valid ID and residence proof to have allowed the complainant to use both connections, more so the add on connection (subject matter of dispute) uninterruptedly for so many years specifically with respect to the add on connection which was continuously used by complainant for four and half years from January 2007 to August 2011 and OP had even taken / accepted the advance rental of Rs. 1,495/- for the said connection from the complainant in January 2011 valid till January 2013 and therefore we see no cogent reason why OP had disrupted the services abruptly without any prior intimation to the complainant before the expiry of the validity period i.e. January 2013 when the subject connection would have come for renewal and updation of KYC. The OP was put to a specific query by this Forum as to why it allowed the complainant to use the add on connection for four and half years and also accepted advance rental for the same before arbitrarily discontinuing incoming and outgoing service on the said number to which OP could not present a cogent response / explanation. The contradiction between OP’s response vide email dated 07.09.2011 and 24.10.2011 is also a classic case of miscommunication and unprofessionalism on the part of OP for misguiding its consumer with respect to service render wherein in the former email the OP conveys to the complainant that is airtel connection is well connected and in the latter email informed him that the said number has been permanently disconnected since 12.08.2011. the overall conduct of OP in the present case is nothing short of being deficient in service within the meaning of Section 2(1)(g) and indulgent of unfair trade practice u/s 2(1)(r) of Consumer Protection Act.

Telephone Connection is not a luxury but necessity. When its user is prevented or obstructed on account of fault, a complaint regarding this requires to be properly responded and failure to do so by service provider is deficiency of service. Hon'ble National Commission in the recent judgment of Bharat Sanchar Nigam Ltd Vs Doctor Balwant Singh I (2019) CPJ 272 (NC) in RP No. 1897/2015 decided on 11.12.2018 held in a similar case of dysfunctional landline telephone and outgoing barred that the complainant being a senior citizen aged 76 years, deprived of using the telephone connection had since undergone mental agony, stress, pain, tension and hardship was entitled to compensation.  Compensation is for vindicating the strength of law and acts as a check on arbitrary and capricious exercise of power. It helps in curing social evil and aims at improving work culture and changing the outlook of officer/public servant and discourages arrogation of power in arbitrary manner. Hon'ble National Commission in Ghaziabad Development Authority Vs Yogesh Chandragupta in RP No. 128/2000 decided on 06.12.2004 held that where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the commission / Forum has a statutory obligation to award compensation.

The Hon'ble Supreme Court in Indochem Electronic Vs Addl. Collector of Customs (2006) 3 SCC 721 held that deficiency in service is must to award compensation and such deficiency must manifest itself for entitling complainant to compensation.

Hon'ble Supreme Court in Landmark judgment of Charan Singh Vs Healing Touch AIR 2000 SC 3138 observed that while quantifying damages, consumer Forums are required to make an attempt to serve ends of justice so that compensation is awarded, which not only serves the purpose of recompensing the individual but also aims to bring about a qualitative change in the attitude of service provider. Indeed no hard and fast rule can be laid down for universal application / calculation of damages but relevant factors be taken into a count for assessing compensation on the basis of accepted legal principles or moderation. It is for the consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.

The Hon'ble Supreme Court in GDA Vs Balbir Singh AIR 2004 SC 2141 held inter alia that consumer Forums could grant damage/ compensation for mental agony/harassment based on finding of loss or injury where it finds misfeasance in public office.

Under the Consumer Protection Act, Consumers are provided with an alternative, efficacious and speedy remedy for redressal of their disputes in simple and inexpensive manner. Therefore, keeping in view the preamble and spirit of the Consumer Protection Act, the interest and protection of consumer is paramount and considering that a layman is not familiar with legal proceedings and nuances of drafting, leniency and guidance is shown towards complainants unaided by counsels. The CPA being a beneficial legislation for the rescue of Consumers, the Forums are watch guards to protect their interests.     

8. After due appreciation of the facts and documentary evidence placed on record and pleadings filed before us we have no hesitation in concluding that there has been a gross negligence and deficiency of service writ large on the part of OP in so far as abrupt disconnection of add on number on flimsy unsubstantiated ground and forfeiture of balance rental is concerned compelling the complainant to file the present complaint seeking compensation.
9. We therefore deem fit to allow the prayer of the complainant for compensation as justifiable and direct the OP to pay a compensation of Rs. 7,000/- to the complainant for mental harassment, agony and inconvenience caused to him for abrupt disconnection of his add on connection by OP in August 2012. We father direct OP to pay a sum of Rs. 3,000/- to the complainant towards litigation expenses and warn OP to desist from indulging in such unfair trade practice of disconnection of numbers of its genuine customers on frivolous ground. Let the order be complied with by the OP within 30 days of receipt of copy of this order.
10. Let the copy of this order be sent to both parties free of cost as per Regulation 21 (1) of Consumer Protection Regulation 2005.
11.   File be consigned to record room.
12.   Announced on  15.06.2020

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member