Delhi

West Delhi

CC/17/695

PK SETHI - Complainant(s)

Versus

BHARTI AIRTEL - Opp.Party(s)

24 Feb 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (WEST).

150-151; COMMUNINTY CENTER ; C-BLOCK; JANAK PURI; NEW DELHI

 

CASE NO. 695/17

 

P.K. Seth

S/o  Late  Sh. P. L. Seth

S1/200,  First Floor, Gali No. 3                                   .…. Complainant

VERSUS

 

Bharti  Airtel

Bharti  Crescent, 

1 Nelson Mandela Marg

Vassant Kunj  II.,

New Delhi-110070                                             …..Opposite Party No. 1

 

 

Airtel Mobile Phone Services

At 24,25,35 Westend  Mall,

District Centre

Janak Puri,

New Delhi-110058                                             ..….Opposite Party No. 2

 

 

O R D E R

 

 

S.S.SIDHU, MEMBER  

 

The complainant has filed the present complaint against the O.PS under section 12 of Consumer Protection Act, 1986.  Brief facts of the case are that the complainants is subscriber of the OP-1 i.e. Bharti  Airtel for the past several years in respect of mobile phone No.  9870518322 and internet service on phone No.  9971588322.   The first mentioned mobile phone connection is a cellphone and the other one is in a tablet computer.  The complainant and his wife needed to be in touch with their daughter who is settled in Pune and his son and his family in Holland through internet   based  video  calling applications such as Skype and  Watsapp.  The  complainant’s  phone  and  internet  services some times  in the moth of Feb and March began to go  out of reach  rendering the complainant and   his family unabled to contact the  family of his son daughter and that  with the passage of time problem of lack of signals became  nearly  permanent.  The  complainant  made several complaints to customer care of  OP-1 and sent several e-mails for rectification of  defects  but no relief was given .  Copy of the e-mails sent by the complainant  are  attached as Annexure CW./A.  The complainant has also attached email of  OP as Annexure CW/B  vide which  assurance  was  by the OP saying that  “their team is trying  to  resolve the problem and   needful would be  done within  72 hours”  but  nothing happened. It has also been alleged that instead of giving a trouble free service to the complainant who is senior citizen, OP- 1 has raised unjustified bills and rather forced him to make the payment immediately.  It has also been stated by the complainant that he visited the OP-2 which is the area office of OP-2 who did not take any action to redress the grievance despite verbal assurances.  Latest copy of the paid bill has been annexed as Annexure CW/C. 

2.         Alleging deficiency of service on the part of the OPs, the complainant has sought the following relief:-

1. To rectify the defect of lack of cellphone and internet signals at the earliest, and
2. To pay the complainant a sum of seven lakh rupees as  compensation
3. To order refund the entire money with interest of the payments paid for unutilized/useless services.
4. Any other relief as desired by the Hon’ble Forum in the light of special fact and circumstances of this very case.

3.       Notice of the complaint was issued to the OPs who did not file reply .Further on 11.10.2018 OP-1was proceeded ex-parte due to non appearance. Therefore evidence was filed by the complainant followed by written argument by complainant and OP-1. 

4.      The OP -1 has also filed following judgments in support of its case:-

1. Judgment dated 01.09.2009 of Hon’ble Supreme Court as Annexure “A” in case title General Manager, Telecom Vs                M. Krishnan  and Another in support of their case.

In support of   the Complainant has also filed the following (1)  

2. Order dated 11.11.2009 of Hon’ble National Consumer disputes Redressal Commission in RP No, 2107 of 2005.
3. Order dated 20.04.2011 of Hon’ble State Commission Delhi in RP  10/11  in  titled   Bharti Airtel Vs Arvind Kumar Bansal. 
4. Order dated 21.09,2012 of Hon’ble  State Commission in FA 38/10   Mahanagar  Telephone Nigam Ltd. Vs. M/s  Earl  Chawla  & Co. Ltd.

5.     In support of his claim and to rebut  the contentions of OP-1, the

complainant   has also filed  the following order /judgments:-    

1. Order of Hon’ble  National  Commission in RP  No. 865/2013 dated 19.11.2014 titled Reliance Communication  & Anr. Vs Beena Menon.  
2.  Order judgement of  Hon’ble Supreme Court in RP 2629-2630 of  2018 titled Aftab Singh Vs EMAAR MGF  Land  Limited & Anr.  

6.     In the course of proceeding an application for interim relief was filed by the complainant. Reply to the application was filed by OP-1 opposing  the relief  sought  by complainant alongwith copy of survey  report as  Annexure R-1  for  interim relief  on 06.12.2017 this Forum  directed  the OPs to rectify the defects if any  in service of the complainant on payment of service charges if any  in  mobile hand set of the complainant. 

5.     In its averment OP-1 has denied the allegation of complainant and has stated that there was no deficiency on its in its part.  It has been contended that immediate need of complainant had been taken care of.  Further a survey  was conducted in area where the complainant resides and survey report  was submitted by the team which clearly stated that there is no network issue and the hand set of the complainant was found faulty.  The survey report has been filed as Annexure R-1.  

7.     The OP-1 has also argued that they have been granted license under Section 4 of the Indian Telegraph Act, 1885 and that this  complaint is not maintainable and is not  within purview of  Consumer Protection  Act  in view judgments/orders  cited above( Para 4)

8.     We have gone through the evidence on record  and averments of the parties carefully.  Since the jurisdiction of Consumer Forum to entertain this complaint has been challenged by the  OP, it is

  deemed  appropriate to deal with this issue  first as to whether this complaint is within the  purview of this Forum or not.  In this context main argument of the OP rests on the judgment of the Hon’ble Supreme Court dated 01.09.2009 in Civil Appple  No.  7687/2004 Case title General  Manager , Telecom Vs  M. Krishnan  and Another dated 01.09.2009 where in it is held as under :-

“ In our opinion  when there is a special remedy provided  in Section 7-B of the Indian Telegraph Act regarding disputes in respect  of telephone bills, then the remedy under the  Consumer Protection Act is by implication barred.

 

 

Further in the judgment of  Hon’ble National Commission in RP No. 1703 of 2010 titled as Prakash Verma Vs Idea Cellular  has also been referred. it has been held that :-

 

“…… any dispute between the subscriber and the telegraph authority can be resolved by taking recourse to arbitration proceedings only.  The judgment of Supreme Court is binding on all the subordinate courts.  There is no scope for interference…….”

 

 

An SLP was also filed against this order and the same was dismissed by the Hon’ble  Apex Court. 

9.     However the complainant has filed subsequent judgment of Hon,ble  Supreme Court of India in the  Review Petition in the case  titled   M/s EMAAR  MGF Land Ltd Vs Aftab Singh  dated  10.12.2018  whereby   Honb’ble  Appex  Court  had rejected the appeal against the order passed by   Larger Bench of the National Consumer Redressal  Commission holding consumer disputes to be  non-arbitrable and this order  of Ho’ble  NCDRC was upheld.  Another order  dated  19.11.2014 of the Hon’ble National Commission titled Reliance  Communications Ltd. & Anr. V.Beena Menon  has also been filed by the complainant where in Hon’ble National Commission has held  as under:-         

“In a recent authority, the Delhi High Court in J.K. Mittal Vs Union  of India & Ors.   W.P (C )8285/2010 & C.M.  No. 21319/2010 decided on  06.02.2012, his Lordship, Hon’ble  Mr. Justice  Vipin Sanghi, was pleased to hold as under:  the impugned order dated 02.09.2010 passed by the State Commission cannot  be sustained, as it erroneously hold that the consumer complaint  of the petitioner was barred by section 7B of the Indian Telegraph  Act.  It is clear that the respondent no. 2  is not a telegraph authority.  The bar under Section 7B, if at all, could have applied, had the dispute arisen betweenthe petitioner and a telegraph  authority, which the  respondent no. 2 is not.  Merely because respondent No. 2 is a licensee under Section 4 of the Indian Telegraph Act, it does not confer on it the status of a telegraph authority. It was held that the petitioners consumer claim is maintainable before the District Forum.  The District Forum is, therefore, directed to entertain  and consider the said claim on its merits.

 

The gamut of all these  facts, circumstances and arguments lean on the side of the consumers/complainants.  There lies on rum in filing the complaint, before the consumer fora.  All the revision petitions, filed by the petitioners are hereby dismissed.  Stay, if granted, stands vacated…….. J. J. M.MALIK PRESIDING MEMBER……… DR. S.M. KANTIKAR MEMBER” 

 

10.    In view of the judgments filed by complainant  and (para 8) the  judgment  of Hon’ble National Commission  referred  above which are subsequent  to the judgments referred  by the OP, it is clear that this complaint is within the  purview  of Consumer Protection Act and as such  this Forum can entertain  this complaint.  Hence the  plea of OP that this Forum has no jurisdiction to entertain the complaint is rejected. 

11.    Coming to the merits of the case we find that OP has denied the allegations of the complainant ( as discussed in para  above) only on the basis of  survey  report  stated  to be prepared  after conducting  a survey  which is referred  by the OP  in its  reply to the application of complainant for interim relief claiming as under:-

“Summary:-

• No Network Issue.( Customer Handset Faulty).
• Customer  Handset found Fault- It’s  Observed that While Calling from customer  handset  only one-way speech  on the other end same  SIM(9971588) Plugin  Engineer’s  Handset calls Absolutely   Fine there is no problem from the same location.  So” Handset  Faulty “

Contact person:-    Mr.  P.K. Seth.

Survey has been done at S-1/200, 1^st floor Gali No.-3, Old Mahabir Nagar Delhi- India.

Customer VOC- 

Customer using 2G customer Coverage, Voice clipping, call drop issue from last 1 year & 6 SIM already Swapped by me .

Eng. Observation    

• Good  2G/3G and 4G coverage found; No Voice clipping  and call  drops  found,
• Problematic area and surrounded by G+3/G+4 clutter;  Individual Floor Area in Sq ft:-900 sq ft.
• The Customer Building Height :1- meters; The Customer Owner Ship  in Building  No.
• Roof ownership:- Yes. Survey  Not Permitted; Pole Site not feasible at the location.
• Total occupied looors by the customer in the building: the First floor out of G+2.
• Customer using DSL: No.: Lat/long-28.638450/77.086480

Speed Test Report

3G Speed test report: Ping:42ms, DL-5.03 Mbps, UL-2.06Mbps.

4G Speed test report:  Ping:28ms, DL-15.12Mbps, UL-5.13Mbps.”

On the other hand the OP-1 its communication dated 30.10.2017 which is at Annexure CW/B of complainant has given assurance as under:-

“As per your conversation, we would like to inform that your service request number 80554098 has been addressed by our network team. 

This is to apprise you that maximum optimization has been done at the  nearest network  cell site of your location.  The team has also  confirmed availability of adequate  outdoor  coverage in your area.  However we understand that while the network coverage in your area has been optimized, you might still be facing network issues.

 I regret for the inconvenience you are experiencing due to network issue.  Please rest assured that we, Airtel,  are continuously  working towards  providing you the best network experience and  have duly l noted your valuable  feedback  for further network enhancement.   You can always check the network coverage in your area by visiting  our Open Network website ?www.airtel.in/opennetwork.

We appreciate your cooperation and assure you that we are continuously working towards providing you the best network experience.” 

   12.         It is obvious and also admitted in the above said communication(para 11) by the OP that “even after having optimized network coverage in the area of still remained net work issue”.  Further from the details of network usage  data filed,  by complainant as  Exhibited –CW1/F we observe that during the period from 26.03.2018 to 07.12.2018 the unused data in the package  of complainant continued to be accumulated and it   increased  from 93.43 GB in March  2018 to 202.09 GB till 07.12.2018 and the fact of this accumulated  unused data give credence to the claim of the complainant and  establish  that he could not  utiliz the data due to net work problem.  From the copy of the latest bill dated 07.10.2018 filed by the complainant as exhibited CW1/D it is seen that the complainant has been making  payment for  the bill which was raised by the OP, despite the fact that he could not utilize the  full data due to  net work problem. We find that   no evidence  has been addduced by  the OP-1 to substantiate its claim that handset of complainant was faulty.    The complainant has been writing several e-mails to OP for rectification of defects, Copies of e-mails are at Annexure CW1/A but in spite of several assurances written as well as verbal by the OP the problem of network was not fully resolved. Consequently, the complainant, an Old man, being senior citizen,  was not able to interact and maintain constant contact with his son and daughter who were living far away from him.  As a result the complainant not only suffered mental trauma but also faced lot of harassment in the process due to non-redressal  of problem of net work by the OP-1.

13.  We however notice that no documentary evidence has been filed by complainant with regard  to alleged deficiency  by OP-2.  

14.  In view of the facts and circumstances discussed   above we are of the considered opinion that OP-1 is guilty of deficiency in service and as  such  we allow the complaint.  Accordingly we direct OP-1 as under:-

1. to rectify  the defects in network in the  mobile  phone & internet services of the complainant to  facilitate utilization of full data and uninterrupted internet & mobile phone  servicesby him 

2.     to refund the amount of bills for the mobile  phone and  internet service paid by the complainant pertaining to the  period from 26.03.2018 to 07.12.2018 alongwith  interest @ 9% from the date of payment of bill till  actual payment.

3. Pay Rs. 30,000/-to the complainant as compensation for harassment, mental agony and litigation expenses.

15.    The above directions shall be complied within 45 days from the date of  this order failing  which an interest @ 9% shall be  liable to be paid on Rs. 30,000/-(Sr. No. 3) for the period of default.

 

Copy of this order be sent to the parties as per rules.

File be consigned to the record room. 

Announced this__24^th ____ day of _February_ _____ 2020.

 

 

 

(S.S.SIDHU)                          (PUNEET LABA)      (K.S.MOHI)              

24.02.2020                                     24.02.2020               24.02.2020