STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA :
At HYDERABAD
FA No. 113 of 2016
AGAINST
CC NO.659 OF 2014, DISTRICT FORUM II, HYDERABAD
Between :
N. Sunil Rao, S/o Sri N. Sundara Rao,
Aged about 43 years,
Occ : Professional, R/o D.No. 12-1-89/2,
Lalapet, Secunderabad – 500 017 ..Appellant/complainant
And
IDEA Cellular Limited
Rep. by its Principal Officer,
3rd Floor, K.L.k. Estate,
Fateh Maidan Road,
Basheer Bagh,
Hyderabad – 500 001 .. Respondent/opposite party
Counsel for the Appellant/complainant : M/s. C. Radha Krishna
Counsel for the Respondent/opp. party : Sri Srinivasa Rao Pachwa
Coram :
Honble Sri Justice B. N. Rao Nalla … President
And
Sri Patil Vithal Rao … Member
Wednesday, the Thirteenth Day of September
Two Thousand Seventeen
Oral order : ( per Hon’ ble Sri Justice B.N.Rao Nalla, Hon’ble President )
***
1) This is an appeal filed under Section 15 of the Consumer Protection Act by the complainant to set aside the impugned order dated 25.02.2016 made in CC No 659 of 2014 on the file of the District Forum II, Hyderabad and allow the appeal.
2) For the sake of convenience, the parties are described as arrayed in the complaint before the District Forum.
3) The case of the complainant, in brief, is that the opposite party has offered him with a post paid mobile connection under easy 2 share plan with a monthly rental tariff plan of Rs.999 which facilitates and provides 3 free CUG Sims with 5GB which carries non-chargeable service for 1000 local minutes of voice call 200 local and National SMS with 5 GB of data and if data usage exceeds 5GB Rs.0.005/10 KB, local idea to idea and local mobile charges are Rs.0.3/-. The deposit collected for the connection is Rs.1000/- vide receipt No. SL.No.GEN264 dt. 11.4.2013. Along with the above package, the opposite party also offered various other plans which provides with more data limit such as 10GB and 20GB with higher costs in the same easy share plan. Basing on the said information, complainant has opted for 999 plan as per his actual requirement and keeping in mind his bill payment capacities and submitted an application to the opposite party. After due verification of documents and other things, the opposite party allotted three numbers 9666922221, 9666979944 and 8499997886. Though three numbers were allotted on the same day, the activation of 9666922221 was given on 4/11/2013, the other number 9666979944 was activated on 15-11-2013 and the number 8499997886 was activated with a delay of 30 days. Thereafter the opposite party barred the services of the initially activated number immediately after 3 days of its activation and caused lot of inconvenience to the complainant and when the complainant enquired about the same, the opposite party said that the connection has been barred as the complainant has to pay Rs.500/- for his excess usage in the initial 3 days of activation which has been paid immediately on 11-11-2013 and no reason has been given for non-activation of the other two postpaid mobile numbers. The complainant further contended that in the month of July, 2014 again, the opposite party sent a bill for an amount of Rs.8965.67/- for the Data usage of the complainant i.e, For 9666922221 the data usage is 773.60MB, for 9666979944 the data usage is 5.08MB and for 8499997886 the data usage is 6.96 GB, Total usage on all the numbers is 7.738 GB. Complainant contends that according to the plan taken by him, he is entitled for 5GB and after exhausting 5GB data, he is supposed to be charged at Rs.0.512 per 1MB and accordingly, the bill that is to be generated for excess data usage is to be calculated at Rs.1,426.43 along with the monthly rent of Rs.999 but the opposite party has sent the bill for Rs.8785.56 illegally without proper calculations. The complainant asked the opposite party for proper calculation of bill and waive the excess bill amount. He made several requests and also issued legal notice to which the opposite party did not reply. The complainant met many officials of the opposite party for correction and waiver of the excess bill. However, after several follow ups, the opposite party waived the wrong charges amount of Rs.6797.81 stating as “reversal charges but without providing the statement of account or the calculation of bill and further sent another bill for a sum of Rs.3051.90 dt.27/09/2014 which was again based on wrong calculation. They included the late payment charges for not paying wrongly calculated bill. The complainant questioned them that the bill was wrongly calculated by opposite party for which he should not be penalized but the opposite party kept sending bills for July, August and September. The complainant further states that without taking his prior intimation/approval, the opposite party has enhanced his credit limit from Rs.1000/- to 20,000/- and generated high bill amounts which was beyond his capacity as against the 999 plan, the complainant is charged heavily as against the agreed rates. Hence, the complaint to direct the opposite party ( 1) To rectify their wrong billing issued to the complainant for payment along with deducting the late payment charges and to restore all the three mobile numbers 9666922221, 9666979944 and 8499997886 immediately on receipt of payment of corrected bills (2) To pay a sum of Rs.2,00,000/- towards damages, undue loss, inconvenience caused and mental agony sustained by the complainant due to continuous irresponsibility, negligence and deficiency of service of the opposite party. ( 3), to award costs of the complaint.
4) The opposite party opposed the above complaint by way of written version admitting that the complainant has applied to the opposite party for availing cellular services under easy share @ 999 plan, under which, the subscriber can use three cellular connections as CUG with common facilities such as 1000 local minutes, 200 SMS and 5GB data per month and if the subscriber exceeds the above said limit, he will be charged as per the tariff plan agreed by the complainant. The opposite party contended that the complainant was allotted with 3 cellular numbers and the activation was given according to the requisition of the complainant and that there was no delay in activating the numbers and further stated that there was no wrong calculation of the bill on their part. The complainant was disputing the calculation of various charges, more particularly, the data charges for excess usage. The complainant even failed to pay the amount as per his own calculation. The complainant is making all false allegations in order to evade the payment of bill. The opposite party raised a preliminary question stating that this Forum has no jurisdiction to entertain the complaint in terms of the decision of the Hon’ble Supreme Court of India in the case of General Manager Telecom Vs. M.Krishnan and another AIR 2010 Supreme Court 90. Hence, the complaint is not maintainable and prayed to dismiss the complaint
5) During the course of enquiry before the District Forum, in order to prove his case, the complainant filed his evidence affidavit along with written arguments and got marked Ex.A1 to A- 14 and the opposite party filed evidence affidavit after forfeiting the right of the opposite party and no documents are marked. Complainant filed written arguments and also heard.
6) The District Forum, after considering the material available on record, dismissed the complaint relying on the decision of the Hon’ble Apex Court as per Section 7-B of the Indian Telegraph Act.
7) Aggrieved by the said order, the complainant preferred this appeal before this Commission.
8) Appellant present in person. Both sides have advanced their arguments reiterating the contents in the appeal grounds, rebuttal thereof along with written arguments. Heard both sides.
9) The points that arises for consideration are,
(i) Whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner?
(ii) To what relief ?
10). Point No.1 :
There is no dispute that the appellant/complainant has paid an amount of Rs.1,000/- towards the connection charges and the respondent/opposite party has allotted 3 post paid mobile connections to the appellant/complainant under easy share plan with a monthly rental tariff plan of Rs.999/- for the mobile Nos. 9666922221, 9666979944 and 8499997886 which carries non-chargeable services for 1000 local number of voice calls, 200 local and National SMS and 5 GB of data.
11) The main grievance of the appellant/complainant is that after allotting 3 post paid numbers to the complainant, the respondent/opposite party has not activated the numbers immediately and barred the services after 3 days of activation stating that the appellant/complainant has not paid Rs.500/- for excess usage. Further the respondent/opposite party has enhanced the credit limit of Rs.1,000/- to 20,000/- without his knowledge and also sent wrong bills claiming higher amounts without sending proper calculations of the bill amounts in spite of several requests and issuance of legal notice and further also imposed late payment charges on wrongly calculated bills and without there being any mistake on the part of the appellant/complainant and denied to rectify the same.
12)(i) First of all, it has to be determined whether the Consumer Fora have jurisdiction to entertain the complaint.
(ii) The main contention of the appellant/complainant is that section 7-B of Indian Telegraph Act applies to disputes between Telegraph Authority and a telephone service availing person ( consumer) and hence the decision of the Hon’ble Supreme Court in between General Manager, Telecom Vs. M. Krishnan and another , basing on which the complaint was dismissed by the District Forum, relying on Section 7-B of Indian Telegraph Act, is not applicable to the facts of the case on hand, since, the respondent/opposite party is a private service provider.
(iii) Section 7-B of Indian Telegraph Act reads as follows :
(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section.
(2) The award of the arbitrator appointed under sub-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court.
The above Section specify two aspects. The first aspect is, when the dispute is in between the telegraph authority and the person and the second aspect is any dispute concerning any telegraph line, appliance or apparatus. Then only, the above section is applicable. But, here, in the case on hand, the respondent/opposite party is a private service provider and the dispute belongs to rectification of wrong billing. Further, Section 3 of the Consumer Protection Act. 1986, states that “ the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force “ . In view of the above, we are of the opinion that the above section 7-B is not applicable to the facts of the case on hand. In addition to that, as per Section 14(B) of the Telecom Regulatory Authority of India Act 1997, the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under Section 9 of the Consumer Protection Act, 1986 (68 of 1986). In view of the above rule position and statutory position, we are of the opinion that the District Consumer Forum has jurisdiction to entertain the complaint.
12). The further contention of the appellant/complainant is with regard to wrong billing, collection of late payment charges for wrong billing and non-supply of statement of account of the bills of the three above numbers.
(i) , the appellant/complainant contended that according to the plan he is entitled for 5GB of data and after exhausting 5GB of data, he is supposed to be charged at Rs.0.512 per IMB vide Ex.A8 and accordingly the bill that is to be generated for excess data usage, i.e., 2.738 GB is to be calculated at Rs.1,426.43 along with the monthly rent of Rs.999/-. Admittedly, he used 7.738 GB data. But the respondent/opposite party in the month of July, 2014 sent a bill for an amount of Rs.8,785.56 for the usage of data illegally without proper calculations.
(ii). Counsel for the respondent/opposite party, while admitting that the appellant/complainant utilized approximately 7.738 GB data, exceeding the limit of 5 GB as per the tariff plan, accordingly he was sent bill by them for an amount of Rs.8,785.56 ps. He further contended that after receiving legal notice dated 13.08.2014, after verification, the respondent/opposite party credited an amount of Rs.6,797.81 to the account of the appellant and requested to pay the balance amount but he failed to pay the same along with the amounts of the bills pertaining to the usage of August, 2014 and September, 2014. He denied the delay in activation of one of the numbers. He further argued that it is incorrect to say that the appellant represented to the respondent/opposite party to deduct the lat payment charges. The appellant is disputing the calculation of various charges, more particularly, data charges for excess usage, however, he even failed to pay the amount as per his calculations also.
(iii). The appellant/complainant further argued that the bill dated 27.09.2014 which was generated after the above said rectification amounts to Rs.3051.90 but again with wrong calculations. But his request for individual calculations of the re-generated bill of Rs.3,051.90 was not sent. His request for separate bills for the months of July, August and September, 2014 was not considered. His contention is that the bill amount of Rs.3,051.90 vide Ex.A-10 includes the late payment charges,. Ex.A-10 supports the contention of the appellant/complainant that an amount of Rs.208.48 was charged for late payment charges. Despite request to send the complete statement of accounts of the three numbers, the respondent/opposite party sent the bill payable for the month of July Rs.1218.76, the bill for the month of August for Rs.1458.31 and the bill payable for the month of September for Rs.425.73 in total, Rs.3102.8 vide Ex. A12, but there are no details with regard to the usage, which supports the contention of the appellant/complainant. There is no rebuttal from the respondent/opposite party for the allegation of the respondent/complainant with regard to enhancement of credit limit from Rs.1,000/- to Rs.20,000/- on 27.09.2104 without any prior approval or intimation from the side of the respondent/opposite party, The respondent/opposite party denied the allegation of the appellant/complainant that the respondent/ opposite party barred the above said connections on 18.08.2014. The appellant/complainant could not be able to prove the wrong billing because the entire data was not available with him, but, from the respondent/opposite party.. The respondent/opposite party did not prove that they have supplied details of the charging of the bills to the appellant/complainant. It is the right of the consumer to know the correctness of the details of the bill amounts imposed on him, failing which, it amounts to deficiency in service.
13). After considering the foregoing facts and circumstances and also having regard to the contentions raised on behalf of the appellant/complainant and the respondent/opposite party, this Commission is of the view that there is wrong billing, collected late fee charges from appellant/complainant for wrong billing and did not provide statement of accounts for all the three numbers and enhanced his credit limit without his knowledge which amounts to deficiency in service on the part of the respondent/opposite party and hence the appellant/complainant is entitled to an amount of Rs.10,000/- towards compensation for mental agony and costs of Rs.5,000/-. This Commission answered Point No. 1, accordingly.
14). Point No. 2 :
In the result, the appeal is allowed setting aside the impugned order and consequently the complaint is allowed in part and the respondent/opposite party is directed to rectify their wrong billing issued to the appellant/complainant while giving statement of accounts for all the bills issued to him, along with, deducting late payment charges, fixing the credit limit as desired by the appellant/complainant and to restore all the three mobile numbers 9666922221, 9666979944 and 8499997886 immediately on receipt of payment of corrected bills, to pay an amount of Rs.10,000/- towards compensation and costs of Rs.5,000/- . Time for compliance four weeks.
PRESIDENT MEMBER Dated : 13.09.2017.
