Order dictated by:

Sh.S.S. Panesar, President.

1.       Sh.Ravinder Singh through is attorney has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that he was allotted one mobile connection number having connection No. 98142-33133 IDEA for his personal use and the complainant is a consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. The complainant went to Australia alongwith his aforesaid mobile connection and he never applied for any international internet roaming facility with Opposite Party, but the international internet roaming facility  was allotted. Thereafter, the aforesaid mobile connection of the complainant was disconnected  by Opposite Party without any notice on 18.11.2015 and the complainant immediately approached the Opposite Party, but no response was given to the queries of the complainant by Opposite Party. Meanwhile, the complainant was shocked to get the monthly bill dated 23.11.2015 wherein the demand of Rs.12,307.74 paisa was raised against him and the said amount includes the international internet roaming usage of Rs.11,672.75 paisa which facility, the complainant never availed and nod detail was further given about the said usage. The complainant made strong protest that he had not used the said facility, then why he should be made to pay the said amount, but the Opposite Party flately refused to accede to the genuine requests of the complainant. The aforesaid acts of Opposite Party in demanding the arbitrary amount for the non usage of the international internet roaming facility is an acts of deficiency in services, unfair trade practice and mal practice and is not sustainable in the eyes of law and has caused a lot of mental tension, agony and harassment. Vide instant complaint, the complainant has sought the following reliefs:-       

a)       Opposite Party be directed not to demand the illegal bill dated 23.11.2015 and refund the amount collected thereof during the pendancy of the complaint with interest due thereon.

b)      Opposite Party be directed to pay the compensation of Rs.50,000/- to the complainant.

c)       Opposite Party be directed to pay the adequate cost of the present litigation.

Hence, this complaint.

2.       Upon notice, Opposite Party appeared and contested the complaint by filing  written statement taking preliminary objections therein inter alia that the present complaint is not maintainable in law and on facts and is false, frivolous and untenable in law and is liable to be dismissed; that the complaint is vexatious, baseless, misconceived and is an abuse of the process of law; that the complainant is not a consumer because at the time of filing of the present complaint, the mobile number of the complainant was disconnected. Therefore, since the complainant was not availing the services of the Opposite Party, is not consumer and hence, is not competent  to file the present complaint; that the present complaint is liable to be dismissed on the ground that as per the latest judgement of Hon’ble Supreme Court of India in case titled as General Manager, Telecom Vs. M.Krishanan and others, the ld.court has held that when there is a special remedy provided under section 7B of the Indian Telegraph Act, then the remedy  under the Consumer Protection Act is by implication barred; that it is not in dispute that the complainant went to Australia for his personal visit and he took the said number with him. It is pertinent to mention herein that the international internet roaming facility  was activated on the phone of the complainant when he came a subscriber of the Opposite Party in the year 2003. It is further pertinent to mention herein that before going to Australia, the complainant called at 198  on 10.11.2015 to know the details about international internet roaming. He was duly informed that the said  facility was already active on his number and he  was not even required to deposit the amount of Rs.2000/-. Thereafter, the complainant went to Australia on 15.11.2015 and availed the services of the  roaming partner of the Opposite Party namely TELSTRA, AUS. It is pertinent to mention herein that the complainant used to internet/ GPRS services while on international roaming and he was charged an amount of Rs.11,656/- for the same. Copy of the Call Detail Records  generated by the Opposite Party is attached. When the complainant went to Australia and used the services of the International Operator, his sage exceeded the credit limit of Rs.10,000/-. The complainant was duly intimated of the exceeding of the credit limit and was requested to make the interim payments in order to avoid disconnection of services. The complainant failed to make the payments as requested and hence, as per the agreed terms and conditions, the mobile number of the complainant was temporarily barred on 17.11.2015.  It  further substantiates the fact that the complainant was aware that international internet roaming facility was active on his number. It can further be induced from the said bill and the CDRs that if the intention of the Opposite Party was to illegally charge the complainant for the services that had not been used by him, the same could have been done by them in December, 2015 again when the services were restored only as a good will gesture as the complainant was a very old subscriber of the Opposite Party.  However, the Opposite Party has only charged for the services availed of by the complainant. Thus, the bonafide intention of the Opposite Party and the malafide intentions of the complainant are ample clear from the above. The complainant returned to India on 2.1.2016 and failed to make the payments to the Opposite Party. He was given enough opportunities and was requested time and again to fulfil his obligations towards the Opposite Party, but the complainant has failed to make the payment of the bill amount. As a result, the services of number were again barred on 15.1.2016 and the said number was permanently disconnected on 29.2.2016. On merits, the facts narrated in the complaint have been specifically denied and a prayer for dismissal of the complaint with costs was made.                          

3.       In his bid to prove the case Sh.Deepinder Singh,Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1, copy of bill dated 23.11.2015 Ex.C-2 and closed the evidence on behalf of the complainant.

4.       To rebut the aforesaid evidence Sh.K.K.Thakur,Adv.counsel for the opposite party tendered into evidence affidavit of Sh.Manoj Madan,authorized signatory Ex.OP1 alongwith documents Ex.OP2 to Ex.OP24 and closed the evidence on behalf of the opposite party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of the opposite party.

6.       On the basis of the evidence on record,ld.counsel for the complainant has vehemently contended that complainant owns mobile connection No. 9814233133 IDEA for his personal use. The complainant is a consumer as provided under the Act. The said mobile connection of the complainant was taken by him  during his personal visit to Australia. The complainant has never applied for any International Roaming facility with the opposite party and no International Roaming facility was allotted. However, the said mobile phone of the complainant was disconnected by the opposite party without any notice on 18.11.2015. The complainant immediately approached the opposite party but no response was given to the queries of the complainant by the opposite party. Meanwhile complainant was shocked to get the monthly bill dated 23.11.2015 copy whereof is Ex.C-2 on record wherein demand of Rs. 12307.74 paise was raised against the complainant. The amount included International Internet usage to the tune of Rs. 11,672.75 which facility complainant never availed and no detail was further given about the said usage. Ld.counsel for the complainant has vehemently contended that opposite party has indulged in unfair trade practice and has wrongly charged the complainant on account of Internet usage to the tune of Rs. 11,672.75 paise and the opposite party may be directed not to demand illegal amount of Rs. 11672.75 and refund the amount collected during the pendency of the complaint with interest. Opposite party may also be directed to pay compensation to the tune of Rs. 50000/- to the complainant and the opposite party may be directed to pay adequate cost of the litigation as well.

7.       But, however, from the appreciation of the facts and circumstances of the case,  it becomes amply clear that complainant while in Australia used internet/GPRS service while on International roaming and he was charged an amount of Rs. 11,656/- for the same, copy of the call detail records (CDRs) generated by the opposite party is annexed as Ex.OP6. It is evident from CDRs  that the complainant is an extensive user of internet facility within India/Punjab Circle . On 15.11.2015, the date usage was done in  Delhi circle by the complainant at 12:50:56 hour in India. On 16,.11.2015 the complainant used internet services in Telstra, Australia at 06:27:19 hours and 07:18:47 hours totalling 14545.31 units which  was charged @ Rs.8/10 Kb ,which is predefined rate for the usage in the present network. Thus complainant was charged for Rs. 11,656/- for the said usage while on International roaming. Copy of tariff of International roaming is Ex.OP8. Further perusal of CDRs shows that the mobile used by the complainant in India  and Australia was the same having same IMEI Number and the IMSI number are also the same as in India. It is pertinent to mention here that in case of International roaming, the customer does not avail the services on the network of IDEA but of those foreign/International telecom service providers with whom the opposite party has roaming tie ups all across the world. In this case, the  complainant availed the services of telecom service provider TELSTRA in Australia. It is further pertinent to mention here that the customer is charged for the services availed by him on International roaming as per the rates applicable in the said country wherein the customer is on roaming. Furthermore, the complainant himself requested for enhancement of credit limit  of his mobile number before going to Australia and for this purpose he deposited Rs. 1000/- on 10.11.2015 and Rs. 1000/- on 14.11.2015 although the previous bill was for Rs. 474/- but he paid Rs. 1574/- in excess in November, 2015 for increasing the credit limit. Thus the credit limit was enhanced from Rs. 4800/- to Rs. 10000/- which is evident from the snap shot Ex.OP16. In Australia, when usage of complainant crossed  limit of Rs. 10000/- , he was duly intimated of exceeding credit limit and was  requested to make interim payment in order to avoid disconnection and  on failure to pay, connection was barred temporarily on 17.11.2015. Complainant requested to pay the outstanding on returning India. Copy of authorization cum request letter for restoration of services signed by the complainant in favour of Harinderpal Singh alongwith ID proof are Ex.OP17 to Ex.OP19. As a goodwill gesture, the connection was restored on 30.12.2015. Thereafter the complainant again used the services while being in Australia and this fact is evident from bill dated 23.10.2016 which was never disputed by the complainant. It shows that complainant was fully aware of the fact that International roaming facility was active on his mobile number. On returning India on 2.1.2016, complainant failed to make the payments to the opposite party although opportunities were given to pay the same and thus service of this number was again barred on 15.1.2016 and this number was permanently disconnected on 29.2.2016. The complainant wilfully got  his credit limit enhanced before going to Australia and used the services to that  extent. Despite being fully aware of the reason for the high bill generated, the complainant with a malafide intention,  chose to file the present complaint in order to avoid his liability towards the opposite party. From the discussion, it becomes clear that complainant has played a foul trick with the opposite party in order to  use the services of opposite party without paying for it. Almost similar case  was taken up by the Hon’ble State Consumer Disputes Redressal Commission, Punjab in Appeal No. 412 of 2015 titled as IDEA Cellular Ltd. Vs. Dr. Ashok Kumar wherein ld. District Forum, Gurdaspur has partly allowed the complaint of the  complainant directing the opposite party to withdraw the impugned internet charges from the impugned bill besides to pay compensation  of Rs. 5000/- . On appeal filed by the company, the Hon’ble  State Commission has held that the bill was generated by system as per the actual usage. The appeal was allowed and the complaint was dismissed.

8.       The facts of the case ‘supra’  analogous to the facts & the law laid down in the judgement supra is fully applicable to the facts of the present case. Bill in dispute has been generated on the basis of actual usage of internet facility by the complainant on his mobile phone No.98142-33133 . No fault can be found in the impugned bill. Therefore, instant complaint fails and the same is ordered to be dismissed accordingly. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated : 08.9.2016

/R/