D.o.F: 27/3/09 D.o.O:31/12/09IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC. 86/09 Dated this, the 31st day of December 2009. PRESENT: SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SYAMALADEVI : MEMBER Ashraf Kooriyil, ITI Road, Nairmanmoola, : Complainant Vidyanagar, Po, Kasaragod. - Customer Care Centre,
Airtel,Cochi (Adv.Srikant Shetty,Kasaragod) - Kolikkara Communication, : Opposite Parties
Bank Road,Kasaragod ORDER SRI.K.T.SIDHIQ : PRESIDENT Complainant Sri.Ashraf is a serving soldier in the army. He is a subscriber of mobile phone with No.9746032446/- provided by the opposite parties, a Cellular phone service provider. The grievance of Sri.Ashraf is that the opposite parties wrongly debited a sum of Rs.106/- from credit. Though he spent much time and efforts to know the reason for this illegal debiting of Rs.106/-, none of the officers of the cellular mobile provider or their dealers give him any explanation. Hence ,this complaint praying for a compensation of Rs. 30,000/- and also a direction to the cellular mobile telecom service provider not to repeat this kind of defective service. 2. Ist Opposite party, Bharat Air Tel Ltd. appeared and filed version. According to them, the debiting of Rs.106/- from the credit of the complainant was owing to a technical defect of the system. When this fact came to their knowledge they tried their level best to remove the grievances of the complainant by way of compensating him with the service of the company for which the complainant do not agree. The complainant claimed a huge amount of Rs.30,000/- and he was not prepared settle the matter for a lesser amount and hence the amicable settlement failed. Further the amount of Rs.106/- was already credited to the account of the complainant ‘s mobile phone. The complainant took advantage of the cause of debited amount to his unlawful gain by filing this complaint. Hence the complaint is liable to be dismissed. Subsequently, Ist opposite party challenged the maintainability of the complaint by filing an additional version in the light of the decision of the Hon’ble Supreme Court in the civil appeal No.7687/2004 in the matter of General Manager Telecom vs. M Krishnan and another. 3. The wife of the complainant Smt.Mumtaz as the authorized representative of the complainant adduced evidence on behalf of the complainant. On the side of opposite party N o.1 Ext.B1 marked. Both sides heard and document perused. 4. Now the points arises for consideration are: 1. Whether the complaint is maintainable before the Forum? 2. Whether there is any deficiency in service on the part of the opposite parties? 3. What are the reliefs to be ordered? 5. Point No.1: Relying on the decision of the Hon”ble Apex court in the case of General Manager Telecom vs. Krishnan decided in Civil Appeal No.7687/04 the learned counsel for Ist opposite party Sri Srikanta shetty vehemently argued that the complainant is not maintainable before the Forum and it shall be referred to an arbitrator appointed in terms of 7(B) if the Indian Telegraph Act 1885. We disagree with his submissions. Firstly, the said provision 7 (B) of the Indian Telegraph Act is not applicable to private telecom service providers like opposite party since as per 7(B) of the Act, the Central Govt. has to appoint an arbitrator to settle the dispute between an individual consumer and a private telecom service provider. We don’t think that in this era of liberalization the Central government had any business in the settlement of disputes between a private telecom service provider and an individual consumer and therefore it is clear that the said provision of Telegraph Act is not applicable to private telecom service providers. Secondly, the application of relevant provisions of TRAI Act The TRAI Act is a special act enacted in 1997 and amended in 2000 to provide for the establishment of the TRAI( Telecom Regulatory Authority of India) and TDSAT ( Telecom Disputes Settlement Appellate Tribunal) to regulate the telecommunication services, adjudicate the disputes, dispose of appeals and to protect the interests of service providers and CONSUMERS of the telecom sector. etc… 6. Therefore, when compared to consumer Protection Act and Indian Telegraph Act TRAI Act is a special act enacted to protect the interests of service providers as well as the consumers of Telecom sector. Sec.11 of the Act deals with the functions of TRAI and Sec.12 describes it’s powers to call for information, conduct investigations, etc Sec.14, deals with the establishment of TDSAT ( Telecom Disputes Settlement Appellate Tribunal) to adjudicate any dispute -- i.) between a licensor and licensee, ii). between 2 or more service providers iii). between a service provider and a group of consumers The proviso clause of this sections further says that nothing in the above clause shall apply in respect of matters relating to – (A) the monopolistic trade practice , restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of Sec.5 of the Monopolies and Restrictive Trade Practices Act ,1969(54 of 1969).: (B) the complaint of an individual consumer maintainable before a Consumer Disputes Redressal forum, and Consumer Disputes Redressal Commission established under section 9 of the C.P.Act,1986(68 of 1986); (C) the dispute between telegraph authority and any other person referred to in sub-section (1) of Section 7)B of the Indian Telegraph Act, 1885(13 of 1885) 7.. So after the constitution of TDSAT all the disputes relating to the telecom sector shall be adjudicated before the TDSAT including the dispute between a telecom service provider and a GROUP OF CONSUMERS. But as per the proviso clause in Sec.14 TRAI recognizes the jurisdiction of the Consumer Fora constituted under Sec.9 the Consumer Protection Act with respect to the disputes between an individual consumer and a telecom service provider. Therefore, we hold that Consumer Fora constituted under the Consumer Protection Act has got jurisdiction to try the matters filed by individual consumers against telecom service providers. Therefore, this point is found against the contention of the Ist opposite party. 8. Points Nos 2&3: The specific case of the complainant is that inspite of his repeated contact with the various authorities of Ist opposite party, his grievance was neither redressed nor they could give any prompt reply for the wrong debit of the amount from his credit. Hence he filed the complaint. Further he is aiming the public interest of those who are exploited by the mobile phone service provider in the manner in which he is exploited. The Ist opposite party has admitted the wrongful debit of Rs.106/- from the credit of his mobile phone. But according to them, it was happened due to a technical default. Where was the technical defect? What was the technical default? How it occurred ? How long it continued? How many customers of the Ist opposite party are affected by this technical default? How much money was wrongfully debited due to this default? What are the steps taken by them to credit the wrongful debits to its customers?, What are the corrective measures taken to prevent the recurrence of this defect ? etc were unexplained by Ist opposite party. It is pertinent to note that even the amount of Rs.106/- wrongfully debited from the account of the complainant was credited only very long after filing this complaint, inspite of repeated contacts with the various service agencies of Ist opposite party before filing the complaint. Hence the contention of Ist opposite party that they tried settle the matter amicably but the complainant claimed a considerably big amount of Rs.30,000/- by way of compensation is not appears to be true. 9. We appreciate the complainant Sri.Ashraf, an army man fighting for our nation, has spent much time and efforts to fight against the injustice suffered by him without considering the monetary loss suffered. 10. The Hon’ble Supreme Court in the case of Charan Singh vs. Healing Touch Hospital has observed as follows: While quantifying the damages consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded in an established case, which not only serves the purpose of recompensing the individual but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider……” We find that this is a fit case in which some excess compensation has to be awarded to make a qualitative change in the minds of opposite party. Hence the dictum laid down by the Hon’ble Supreme Court can be applied in this matter to fix the compensation. In the result, complaint is allowed in part and Ist opposite party M/s Bharat Air Tel Ltd is directed to pay a compensation of Rs. 7,500/- along with a cost of Rs.2000/-to the complainant. Time for compliance is limited to 30 days from the date of receipt of copy of the order. Failing which the said compensation of Rs.7500/- will carry interest @12% per annum from the date of complaint till payment. MEMBER MEMBER PRESIDENT Ext.B1-Copy of KRL subscriber information PW1-Smt.Mumtaz- wife of the complainant MEMBER MEMBER PRESIDENT
......................K.T.Sidhiq
......................P.P.Shymaladevi
......................P.Ramadevi | | 
