Date of Filing:22-02-2017
Date of Order:13 -8-2019
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.VIJENDER, B.Sc. L.L.B. PRESIDENT.
HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER
Tuesday, the 13th day of August, 2019
C.C.No.107 /2017
Between
Pattapagalu Venkata Rao
S/o.China Venkanna,
Aged about 72 years, Occ: Business,
Resident of D.No.71-29-3, Malina Nagar,
Rajahmundry, East Godavari District,
Andhra Pradesh ……Complainant
And
IDEA Cellular Limited,
Rep. by its Authorized Officer,
Head office at Khan Latif Khan Building,
Opp: L.B.Stadium, Nampally,
Hyderabad-01 ….Opposite Party
Counsel for the complainant : M/s. Almas & Associates
Counsel for the opposite Party : Mr. Srinivasa Rao Pachwa
O R D E R
(By Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)
This complaint has been preferred under Section 12 of C.P. Act of 1986 alleging that issuance of bill for excess amount and collecting the same under the threat of disconnection of telephone service connection amounts to unfair trade practice and deficiency of service hence a direction to refund the amount of Rs.51,000/- towards the disputed bill dated 21-11-2016 for the complainant’s mobile No.9396466668 and to award a compensation of Rs.25,000/- for causing mental agony and harassment by collecting disputed bill amount from the complainant and costs of this complaint.
- Complaint averments in brief are that the complainant obtained mobile service connection with mobile No.9396466668 from the opposite party long back. He has been using the said mobile in a group and prompt payer of bill amount. He has no knowledge of usage of GPRS facility though activated certain applications on the phone for the purpose of getting pictures from his daughter who is staying abroad. Thus he used limited data for the said purpose.
The complainant is an Executive Director of Rotary Club of Rajahmundry and actively involved in its activities. For the service rendered by him his name was entered in the Limca Book of Gunnies World Record. He was invited by Telugu Association of Singapore for facilitating him in the month of November 2016. To visit Singapore he approached the opposite party customers service centre and requested to activate International voice Roaming facility for one month duration and as per the requirement of activation he paid a sum of Rs.2,000/- as deposit. Thereafter he visited Singapore. Though he did not request GPRS facility the opposite party activated International voice Roaming facility. After returning from Singapore on 6-12-2016 he received bill for an amount of Rs.50,805.04 in which GPRS data usage is shown exuberantly. Hence he approached the customer care of opposite party and sought clarifications of the bill and GPRS date usage. He was informed by the customer care executive that he utilized GPRS data particularly for international to that extent, hence the bill was raised for Rs.50,805/-.
There was no need for the complainant to use GPRS data as is evident from his earlier billings. Bill does not show any data usage in International Roaming whereas it has been exuberantly shown in the International roaming which he did not use as he was not aware of using of said facility. After the receipt of the disputed bill the complainant has been getting calls from opposite party to pay it otherwise his connection will be de-activated for the mobile number. Since he is actively involved in Rotary Kailasa Bhoomi project local people are organizing all the facilities relating to cremations, to have locally accessible are likely to effect if deactivation of the mobile number is effected he paid an amount of Rs.2,000//- for the voice calls by way of cheque drawn on Indian Bank and a letter was addressed to opposite party explaining his grievance on 10-12-2016. Having received the said letter the opposite party failed to consider the request and deactivated the service of all the group members. Since it was necessary for him to have the mobile service on account of his activities he requested the opposite party to activate the facility and promised to pay if he has really used the GPRS facility if the opposite party provides the detailed billing for it. He was suggested by opposite party to pay total bill for getting activation of the service to all the group members as that is the system generated data cannot activate any facility once the deactivation done without receipt of the payment. It was promised by customer care executive that they will provide detailed billing and to lodge a complaint with technical support department and got back to him. It was further promised that if any dispute was found the amount will be returned or it will be adjusted in the future bills.
Left with no alternative the complainant paid the disputed bill amount of Rs.51,000/- on 27-12-22016 and thereafter continuously followed with customer care of opposite party for clarification about the GPRS data details billing but there was no response. Hence the present complaint for the above stated reliefs.
- Opposite party filed written version denying the complaint averments including the complainant’s status as the customer of it.
Preliminary objections raised in the written version is that the complainant cannot maintain the present complaint and this Forum has no jurisdiction to entertain the complaint in view of the judgment of the Hon’ble Supreme Court of India in SLP (Civil)24577/2010 as the Hon’ble Apex Court had precluded the jurisdiction of the Consumer Forum from entertaining the disputes relating to Telephone and Cellular services. The Hon’ble A.P.State Commission also has taken the same view by following the judgment of the Apex Court while dealing with the F.A.No.111/2007 hence on this ground alone the present complaint is liable to be dismissed.
M/s. City Finance Corporation, Rajahmundry approached the opposite party in the year 2011 for porting out its services from Reliance Communications to Idea Cellular Ltd and accordingly on 21-04-2011 M/s. City Finance Corporation, Rajahmundry has ported its MSISDN into Idea Cellular for the mobile No.939646666 is one along them. The said mobile connections were availed by M/s. City Finance Corporation and the complainant is not the customer of opposite party. Hence he does not fall under the definition of Section 2(b) of C.P.Act 1986 and he has no locus standi to raise the present complaint and on this ground also complaint is not maintainable and liable to be dismissed.
M/s. City Finance Corporation, Rajahmundry had approached the opposite party at Rajahmundry on 1-11-2016 for activation of the international roaming to the MSISDN No.9396466668 and submitted an application with address proof for it. The opposite party explained in detail about the tie-ups with the telecom providers at Singapore. Based on the said confirmation opposite party accepted the application of City Finance Corporation, Rajahmundry along with other documents and collected a sum of Rs.2,000/- refundable /adjustable security deposit and activated the International roaming service on 2-11-2016 for the mobile No.9396466668.
Opposite party No.1 sent messages from time to time to the said mobile number to maintain the usage of voice calls and data package on 4-11-2016 at 12.16PM and again on 5-11-2016 at 8.06 am stating that (i) to avail the special discounts by latching the net work service providers with whom the opposite party got tie ups at Singapore, (ii) to switch off the data in handset if you do not intend to use it and (iii)Currently latched to Starhub and International roaming pack discounted rates are not available on the network, to enjoy discounted rates kindly latch to M1. Similarly messages were also sent on 5-11-2016 at different timings.
On 20-12-2017 the complainant approached the opposite party at Rajahmundry and requested to clarify the billing details of the mobile number and same was clarified on 26-12-2017 on phone by the customer care executive and thereafter the opposite party did not receive any grievance from the complainant about the billing or any other aspect. The opposite party sent various messages to the user of the mobile number to maintain the voice calls and date package while travelling at International locations. M/s. City Finance corporation got activated 3G GPRS 2 GB data package to the mobile number 9396466668 on 11-07-2016 during the billing month of October, 2016 to November, 2016. The user of the mobile excessively utilized 111.5 MB data in addition to the 2GB data package and paid the excessive overage charges. Thus it clearly explained that the said mobile phone was used by high data eligibility and later the said mobile number was deactivated on 20-12-2016.
At present the opposite party is not levying the any separate charges towards data package utilized by subscribers by latching to its own network. The statement of the complainant himself is that he is not acquainted with the GPRS facility and used only to receive photos from his daughter and it shows the data service were kept as ON in his mobile hand set deliberately with an intention to use the mobile during the travel to International Locations. When the data services are ON the mobile connection will automatically latch on to the net work and it includes the International roaming partners network and it happens on account of hand set features of the customer. The invoice for the month of November 2016 i.e, from the period from 21-10-2016 to 20-11-2016 was sent through Hi-Tech courier service and same was acknowledged by the City Finance Corporation on 23-12-2016. The complainant never approached the opposite party for the detailed bill. There was no excessive bill against the subject mobile number as alleged in the complaint. Hence the question of refund of the bill amount to the complainant does not arise. The present complaint suffers from lack of jurisdiction and bonafides on the part of the complainant and no relief can be granted in it.
- Complainant filed a re-joinder to the written version stating that from the beginning of the portability of the mobile number from Reliance communication to Idea Cellular Limited has been carried out as the same of Reliance Communication records. M/s. City Finance Corporation is proprietary concern and the complainant is proprietor of it hence M/s. City Finance Corporation is not different from the complainant and the complainant is only aggrieved by the opposite party to the disputed bill and is a consumer of the opposite party within a meaning of Section 2 (d) of C.P.Act and can maintain the present complaint.
In CC.No.249 of 2009 the Hon’ble District Consumer Disputes Redressal Forum, Ferozepur elaborately discussed the issue of the maintainability of the complaint before the Forum hence the present complaint is maintainable before this Forum. He never requested the opposite party to activate the data package as there was no necessity for him and he did not receive any message from the opposite party as mentioned in the written version hence he is entitled for the reliefs prayed in the complaint.
In the enquiry the complainant has got filed his evidence affidavit reiterating material facts of the complaint and to support the same got exhibited four (4) documents. Similarly for the Opposite Party evidence affidavit of its authorized signatory / power of Attorney namely Sri A.V.K.Naidu is got filed and substance of his evidence affidavit is in tune with the defense set out in the written version. He also got exhibited disputed bill with statement of account of group which includes mobile number 9396466668. Both sides have filed written arguments.
On a consideration of material brought on record the following points have emerged for consideration .
- Whether the complainant is a consumer of the opposite party?
- Whether this Forum has jurisdiction to entertain this complaint?
- Whether the complainant is entitled for the reliefs prayed for in the complaint?
- To what relief?
Point No.1: The first and foremost objection raised by the opposite party is that the service connection of the mobile No.9396466668 stand is in the name of a Firm M/s. City Finance Corporation , Rajahmundry which ported number from Reliance Communications to the opposite party service provider long back. In response to this stand of the opposite party complainant filed a rejoinder stating that the said M/s. City Finance Corporation , Rajahmundry is a proprietary concern and he is sole proprietor of it. The complainant having said so in the re-joinder did not to file even a scrap of paper to show that M/s.City Finance Corporation , Rajahmundry is a proprietary concern and is the sole proprietor of it. Ex.A1 document is addressed to the opposite party by M/s.City Finance Corporation , Rajahmundry Ex.A2 is the Xerox copy of the cheque for a sum of Rs.2,000/- in favour of opposite party from M/s.City Finance Corporation , Rajahmundry, Ex.A3 is the copy of receipt dt.10-12-2016 issued by the opposite party and Ex.A4 is copy of the bill for the disputed amount of Rs.51,000/- what prevented the complainant to file the Firm registration certificate of M/s.City Finance Corporation , Rajahmundry which will contain whether it is proprietary concern or a partnership firm and if it is a proprietary concern it will contain in the name of the complainant as a sole proprietor. In the absence of it the self serving statement of the complainant that he is a sole proprietor of the M/s.City Finance Corporation , Rajahmundry cannot be countenanced.
Even otherwise if it is believed that the complainant is sole proprietor of M/s.City Finance Corporation , Rajahmundry he ought to have filed the present complaint in the name of M/s.City Finance Corporation , Rajahmundry but not by himself personally. The disputed bill was issued in the name of M/s.City Finance Corporation , Rajahmundry so also the cheque Ex.A2 was drawn from the account of M/s.City Finance Corporation , Rajahmundry. So the dispute concerning the subject mobile number is between the M/s.City Finance Corporation , Rajahmundry and the opposite party but not between the opposite party and the complainant in his personal capacity. Thus the complaint is bad for non-joinder of necessary party and on this ground itself the complainant cannot maintain the present complaint and he cannot claim as a consumer of opposite party in his personal capacity. Accordingly point is answered.
Point no.2: The other legal objection taken by the opposite party is to the maintainability of the present complaint before Consumer Forum by placing reliance in the case of General Manager Telecom Vs.M/s. Krishnan and Anr. Reported in 2009 STPL (CL) 3185 NC [III (2009)CPJ 71SC]
The Apex Court vide disposing the Civil appeal No.7687 of 2004 arising out of the judgment and order dated 14-2-2003 from the full Bench judgment of Hon’ble High Court of Kerala at Ernakulam held as under :-
Consumer Protection Act 1986- Telegraph Act, 1885- Section 7B- Telegraph Rules- Rules 413, 443-juridiction –Telephone –Telephone connection disconnected for nonpayment of bill –reconnection with compensation awarded by Consumer Forum-Appeal to Supreme Court-Held: Special remedy provided under Section 7B of Indian Telegraph Act – Special law overrides general law- Remedy under Consumer Protection Act, barred by implication – Orders of Consumer Forum and High Court set aside.
Para 6, 7 and 8 of the above judgment of the Apex Court are relevant for the purpose of the present complaint before this Forum and they reads as under:
6. 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. Section 7B of the Telegraph Act reads as under:
“ Section 7B. Arbitration of Disputes-
- 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 or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an Arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this section.
- 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.”
Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules.
7. It is well settled that the special law overrides the general law. Hence, in our opinion the High Court was not correct in its approach.
8. In Chairman, Thiruvalluvar Transport Corporation Vs. Consumer Protection Council, (1995) 2SCC 479, it was held that the National Commission has no jurisdiction to adjudicate upon claims for compensation arising out of motor vehicles accidents. We agree with the view taken in the aforesaid judgment.
In the light of the law laid down by the Apex Court which is law of land the present complaint before this Forum is not maintainable as this Forum has no jurisdiction to entertain it. Accordingly point is answered.
Point No.3: Even assuming for a moment of complainant can maintain the present complaint now it is to be seen whether the allegation of the complainant that the opposite party issued disputed bill and he has not used GPRS facility while travelling International data availed by the opposite party. Under Ex.B1 clearly explained each and every call and its usage for the relevant period. The complainant himself filed separate petition in I.A for a direction to opposite party to file details and GPRS data for which disputed bill was issued . In fact the opposite party filed the same along with evidence affidavit and on close examination of this GPRS data shows that inspite of intimation by way of message the complainant kept on GPRs to receive the messages or photos and increasing the usage and as a result of it the opposite party issued the bill basing on the GPRS utilized by the complainant. So either the complainant could not establish that the disputed bill was issued by the opposite party exuberantly. Hence he is not entitled for reliefs prayed in the complaint.
Point No.4: In the result, the complaint is dismissed. No order as to costs.
Dictated to steno, transcribed and typed by her, pronounced by us on this the 13th day of August , 2019.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Exs. filed on behalf of the Complainant:
Ex.A1- copy of letter dated 10-12-2016
Ex.A2- copy of cheque for an amount of Rs.2,000/- given to the opposite party
Ex.A3- copy of receipt No.1806 dt.10-12-2016 issued by the opposite party
Ex.A4- copy of payment bill for an amount of Rs.51,000/-
Exs. filed on behalf of the Opposite party
Ex.B1 – monthly bill
MEMBER PRESIDENT
