Complaint filed on: 09-08-2011
Disposed on: 18-04-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.1483/2011
DATED THIS THE 18th APRIL 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
Abhishek Sinha,
Door no.E-1004,
Alpine Eco Apartment,
Karthik Nagar,
Doddanekundi,
Marathalli, Bangalore-37
V/s
Opposite party: -
Hamsa.B./Sharad Damani,
Bharti Airtel Ltd,
55, Divyasree towers,
Bannerghatta road,
Bangalore
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP, praying to pass an order, directing the OP the complete amount of 3G charges including the usage charge, any interest and fines on the charge amount, and any other charges amounting to approximate Rs.4,400=00 should be waived off, and the amount of Rs.10,000=00 is to be awarded as a compensation, and no extra charges whatsoever except the call charges should be levied.
2. The brief facts of the complaint can be stated as under.
The complainant is using a cell number 9902399533 from Airtel Telecom Service provider. The complainant has been using this number since April 2008, the cell number was under COIP (company owned individual pay) payment plan till March 2011. In the month of March 2011, the complainant shifted to another payment plan IOIP (individual owned individual pay) due to change in process in the company where he has working. During the payment plan shifting, he had to refurbish his personal details such as PAN number, Passport size photo, address proof etc. The billing cycle for the new payment plan is 20th of current month of 19th of next month. The complainant has been using 2G plan since last one year, the plan was 2GB of 2G usage for which charge is Rs.98 and he continued using the same evenafter to another payment plan. On 15th April, 2011, the complainant received SMS from Airtel AX-Service informing as “Enjoy 3G speeds on your current 2G data plan for next 5 days. To opt for 3G pack, SMS 3G to 121. The complainant liked the offer and thought that for next 5 days, he will get 3G service without paying anything extra, and as he will know the value add from this facility and sent SMS 3G to 121 and he received few instructions and setting to activate 3G, he did exactly as mentioned in the SMS to activate 3G service. On 17th April, 2011, he received SMS from Airtel AX-service as “Last 2 days of 3G speeds on your current 2G data plan, why wait?? SMS 3G to 121 and opt for your 3G pack”. Till this time, the complainant used the 3G plan for 3 days and he did not like the value add from the 3G service; hence, he did not send any SMS. On 20th April, 2011, he received three SMS from Airtel AX-service as “your speeds are now reduced to 2G speeds, to get back 3G speeds SMS 3G to 121 and opt for 3G pack”. On 20th April, 2011 or 21st April, 2011 the complainant got a call from Airtel executive that 3G plan is now moved to 2G and asked about his experience of 3G and explained about the different plans of Airtel 3G service. The complainant told the executive clearly that he is not interested in the 3G plan and he is OP with the current plan of Rs.98 with 2GB data plan at 2G speed. For the same month of usage from 20th April till 19th May 2011, he received a bill of approximate Rs.4,000=00 for his net usage of internet facility. The complainant registered a complaint with Airtel customer care against extra charges on his internet usage, and at the time, he came to know that he was using 3G since last one month without being aware of the same. On 24th May, he got a call from Mr.Ganesh from mobile number 9662536155 regarding the payment of Rs.4,000=00 of 3G usage, he explained to him and said Ganesh told that he will revert within few days but he never called the complainant. But the complainant received numerous calls from the Airtel regarding the payment of Rs.4,000=00, he explained his situation but nobody helped him. On 31st May 2011, the complainant wrote a complaint to Miss.Padmapriaya, relationship manager of Airtel, he also called her many times to know about the complaint, but she did not reply. On 20th June 2011, the complainant sent a mail to Airtel appellate Mr.Sharad and he got few calls from his office and all of them tried to convince that the charges are correct and he has to pay Rs.4,000=00 for 3G usage. As per appellant office of Airtel, since the complainant sent SMS on 15th April in reply to SMS sent to him from Airtel AX service is liable to pay the 3G charges of Rs.4,000=00. On 17th June 2011, he sent a mail to Akhil Gupta explaining in detail about 3G charges, but he did not give any response. On 6th July 2011, he wrote another mail to Mr.Manoj Kohli, still nothing happened. In between, the complainant received many calls from Airtel regarding 3G payment. On 22nd July 2011, the complainant wrote another mail marking both Mr.Akhil Gupta and Mr.Manoj Kohli, on 23rd July 2011, he got a call from head office of Airtel from a person by name Mr.Manoj, he said he is from customer care department he has gone through complete set of mails and told that his contention is correct and the SMS content is wrong and he is eligible for complete waiver of Rs.4,000=00 and it will be waived off and he will take necessary permission and revert accordingly. But he sent a mail on 1-8-2011 stating that 3G charges are correct and valid and the complainant has to pay the complete amount of Rs.4,000=00. In between, the complainant has paid charges for his calls till the 19th July 2011, but he has not paid his calls charges for the month of July-August as the charges are only Rs.800=00 and outgoing call was discontinued as total outstanding was near to R.4,800=00. So the present complaint is filed praying to pass an order, directing the OP complete amount of 3G charges including the usage changes any interest and fines on the charges amount and any other charges related to 3G services should be waived off, an amount of Rs.10,000=00 as compensation and no extra charge whatsoever except the calls should be levied.
3. After filing of the complaint, the notice was issued to the OP. The OP has appeared through his counsel, and filed his objection, contending inter-alia as under:
At the outset the complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limine. The complainant has questioned and disputed the correctness of the bill of May 2011 for Rs.4,000=00. The present dispute raised by the complainant is not maintainable before this forum in view of the judgment rendered by the Hon’ble Supreme Court in Civil appeal no.7687/2004 dated 1-9-2009. As per the said judgement, it is made clear that the dispute raised by the complainant is between the subscriber and telecom service provider, the remedy available for the complainant is under section 7 (b) of the Indian Telegraph Act, on this count itself the present complaint is liable to be dismissed. The complainant is a subscriber of the OP with respect to mobile connection bearing no.9902399533, at the option of the complainant the internet facility with 2G pack was activated with effect from 25-6-2010 to the complainant. On 15-4-2011, the complainant has accepted the offer made by the OP to use 3G pack under VBU, upon activation of 3G plan, the complainant has made the extensive usage of internet facility under 3G plan, and accordingly the bill was issued as per the usage. It is pertinent to note that, it is well within the knowledge of the complainant that, the internet facility being used by him was under 3G plans. On 25-4-2011 the complainant was cautioned by sending an SMS that his GPRS data usage as on 24-4-2011 is 68 MB which exceeds his free MB quota and he was further advised to use data calculator on www.airtel.in to know his usage in spite of the information to the complainant about the extensive usage, he continued the same and accordingly the usage charges of Rs.4,899=00 has emerged which includes Rs.909.90 towards usage under 2G plan and Rs.3,989.10 towards 3G plan. Evenafter the receipt of the bill and despite repeated request and remainders since the complainant did not clear the bill amount in full, the OP was compelled to suspend the services of the complainant. The averments made in the complaint from para no.1 to 6 are true, however, it is submitted that the offer made to the complainant by the OP is that the complainant can get 3G pack activated under the same rentals and without paying any charges towards activation etc. but by paying the charges as per value based usage. The averments made at Para no.7 that complainant has used the plan only for 3 days is not correct. Complainant has used the GPRS under 3G plan till 19-5-2011. The averments made in Page no.8 about the contents of the SMS may be true, however, the complainant continued to use the facility under 3G pack till 19-5-2011. The averments made at Para no.9 to 18 made in the complaint may be true, all enquires/complaint made by the complainant are looked into by the OP and complainant was appraised about the correctness of the bill and requested to make the payment of the bill. So, the averments that, executives of the OP have never helped the complainant nor replied are not correct. In fact, once again the complainant was informed about the correctness of the usage and was requested to pay the bill amount. Since the payment was not made in full, the OP has suspended the outgoing calls. The charges levelled by the complainant against the OP are all false, baseless and made only to avoid the payment of outstanding bill amount and the offer made by the OP on 15-4-2011 is very clear. The subscriber more particularly the complainant was never told that usage would be free nor under 2G tariff. There was no inducement or misleading contents in the SMS sent to the complainant. The complainant was well aware bout the fact that he was using the 3G pack and continued to do so. It is further denied that Mr.Manoj was confirmed over phone that he would get wavier of Rs.4,000=00. There is no willful negligence or default on the part of the OP, hence the complainant is not entitled for any of the reliefs, so it is prayed to dismiss the complaint with exemplary cost in the interest of justice and equity. .
4. So from the averments of the complaint of the complainant and objection of the OP, the following points arise for our consideration.
1. Whether the complainant proves that, the complete amount of 3G charges should be waived off, as he is not entitled to pay the same, and there is deficiency of service on the part of the OP?
2. If point no.1 is answered in favour of the complainant, whether the complainant is entitled to claim the relief as prayed in the complaint.
3. What order?
5. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: In the Negative
Point no.3: For the following order
REASONS
6. So as to prove the case, the complainant did not file his affidavit by way of evidence, though ample opportunity was granted. We have heard the arguments of both sides. We have gone through the oral and documentary evidence of both parties meticulously.
7. On the other hand, one Suchitra Suman Mulky, who being an authorized signatory on behalf of the OP has filed affidavit. It is the specific case of the complainant in the complaint that, he has been using 2G plan since last one year, the plan was 2GB of 2G usage for which charges is Rs.98. On 15th April 2011, he received SMS from Airtel AX-service stating that “Enjoy 3G speeds on your current 2G data plan for next 5 days, to opt for 3G pack, SMS 3G to 121”. The complainant liked the offer and thought that for next 5 days, he will get 3G service without paying anything extra and he sent SMS 3G to 121, he has used the 3G plan for 3 days and did not like the value add from the 3G service, So he did not send any SMS. On 20th April 2011, he received three SMS stating that “Your speeds are now reduced to 2G speeds, to get back 3G speeds SMS 3G to 121 and opt for 3G pack”. On 20th April 2011 or 21st April 2011, the complainant got a call from Airtel executive that, his 3G plan is moved to 2G, and asked about experience of 3G and he told the executive clearly that he is not interested in the 3G plan and he is OK with the current plan of Rs.98 with 2GB data plan at 2G speed, and for the same he received a bill of Rs.4,000=00 for his net usage of internet facility. The complainant registered a complaint with Airtel customer care, he came to know that, he was using 3G since last one month, he got a call from Mr.Ganesh, who being the Airtel Executive regarding the payment of Rs.4,000=00 of 3G usage, and explained to him, he said that he will revert within few days, but he never called him but he received numerous calls from the Airtel regarding the payment of Rs.4,000=00, he raised a complaint to Miss.Padmapriya, but she did not reply and he sent a mail to Airtel appellate, Mr.Sharad and he told that the charges are correct and asked to pay Rs.4,000=00. on 22nd July 2011 he wrote a mail marking both Mr.Akhil Gupta and Mr.Manoj Kohli and Manoj told him that his contention is correct and he is eligible for complete waiver of Rs.4,000=00, and that man gave verbal confirmation stating that the complete charges of Rs.4,000=00 will be waived off and he will take necessary permission and revert accordingly, but that man sent a mail on 1-8-2011 stating that, 3G charges are correct and he has to pay the same. So, he has filed this complaint praying to waive off the bill amount of Rs.4,400=00, and to pay compensation of Rs.10,000=00.
8. But unfortunately, the complainant who knocks the door of the forum for seeking relief under the provision of the Consumer Protection Act, as failed to file his affidavit by way of evidence. As per the order sheet, it is exhibited that, the complainant was given ample opportunity to file his affidavit to prove the case, as made out in the complaint. Despite granting sufficient time, the complainant did not choose to file his affidavit for the reasons best known to him. On 2-12-2011 it is mentioned in the order sheet that, the complainant was absent and affidavit of the complainant is not filed. In the absence of leading evidence by the complainant whatever stated in the complaint with regard to waiver of 3G charges bill of Rs.4,400=00 cannot be looked into. The complainant who comes to the forum seeking relief has failed to prove his own case by adducing evidence. On the other hand, the OP has filed version denying the averments of the complaint, and an authorized signatory of the OP has filed her affidavit by way of evidence stating that, the complainant was never told that usage would be free nor under 2G tariff and there is no inducement or misleading contents in the SMS sent to the complainant, and the complainant was well aware that, he was using the 3G pack and continued to do so, there is no willful negligence or default on the part of the OP. So the complainant is not entitled for any relief, so the complaint be dismissed with cost.
9. So looking to the case of complainant as made out in the complaint and facts of tendering no evidence by the complainant, we are of the considered opinion that, the complainant has utterly failed to prove his case with clear cogent and consistent material evidence that, the complete amount of 3G charges should be waived off, as he is not entitled to pay the same, and there is deficiency of service on the part of the OP. In view of paucity of material evidence, the complainant cannot maintain the complaint, and accordingly we answer this point in a negative.
10. In view of the negative findings on point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed. So, under the circumstance, parties shall bear their own cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 18th day of April 2012.
MEMBER MEMBER PRESIDENT
