Haryana

Ambala

CC/342/2019

Kiran Bainerji Director of Saint - Complainant(s)

Versus

Idea Mobile Franchisee office - Opp.Party(s)

Darshan Kumar

08 Dec 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	342 of 2019
Date of Institution	:	04.11.2019
Date of decision	:	08.12.2022

 

1. Kiran Bainerji-Director of Saint Joseph School, Shahzadpur House, Ambala City:
2. Ashima Bainerji-Deputy Director of Saint Joseph School, Shahzadpur House Ambala City.

…..Complainants

Versus

1. Idea Mobile Franchisee Office, Near Manav Chowk, Ambala City, through its' owner Shri Sandeep Sharma.
2. Idea Cellular Head Office, 5th Floor, Windsor, Off CST Road Kalina, Santa Cruz East Mumbai, Maharashtra (Mumbai), through its Authorised Signatory.

….…. Opposite parties

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri Darshan Kumar, Advocate, counsel for the complainants.      

              Shri P.K. Goel, Advocate, counsel for the OPs.

Order:        Smt. Neena Sandhu, President.

1.                Complainants have filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

i) To return Rs.7,998/-deposited by the complainants through 'Shri Nagender Mohan Pal through the account of Saint Joseph School Shahzadpur House Ambala City for activating International Roaming Plan on both the Mobile Nos.94160-24355 and No.97288- 66888 from the date of deposit i.e. 18.06.2019, till the date of payment, to the complainants.

(ii) To grant interest at the rate of 18% per annum on the above deposited amount from the date of deposit till the date of entire payment;

(iii) To pay Rs.4,00,000/- on account of compensation for causing deficiency in services and unfair trade-practice, harassment, mental torture, agony and damages suffered by the complainants due to closing of service of mobiles in England, to the complainant.

(iv) To pay Rs.33,000/- as litigation costs.

                             Or

(v)  Grant any other relief which this Hon’ble Court may deem fit.

2.             Brief facts of this case are that complainants no.1 and 2 are working as Director and Deputy Director in Saint Joseph School, Ambala City, respectively. The complainant no.1 is having Post Paid Mobile Phone No.94160- 24355 and complainant no.2 is having Post Paid Mobile Phone No.97288-66888 of Idea Company. On 21.06.2019, both the complainants were to go to England and accordingly on 18.06.2019 in order to activate International Roaming Plan in their both respective numbers, the complainants sent one Shri Nagender Mohan Pal s/o Shri Som Nath, R/o H.No.1733, Housing board Colony, Sector-09, Ambala City, who is working as a Senior Accountant in Saint Joseph School, Shahzadpur House, Ambala City to OP No.1. Shri Nagender Mohan Pal- Senior Accountant met the two officials namely Mr.Rajender Kumar and Ms.Sapna present in the Franchisee Office of OP No.1 and requested them to activate International Roaming Plan in the said mobile numbers of the complainants, for which they were asked to make payment of  Rs.7,998/- i.e. Rs.3,999/- each for international rooming having validity for 10 days.  The complainants through the said Shri Nagender Mohan Pal attempted to give Rs.8,000/- for activating International Roaming Plan on both these numbers of the complainants but the officials present in the office of OP No.1 frankly told that the amount of plan will be added in the bills of the complainants, as the connections on aforesaid mobile numbers of the complainants were Postpaid. On 21.06.2019, the complainants went to England but the said International Roaming Plan was not activated in their aforesaid mobile numbers; rather the service of Mobile Phone No.97288-66888 was closed. Accordingly the complainants through Shri Nagender Mohan Pal contacted the officials of OP No.1 and asked the reason of closing the service of Mobile No.97288-66888. It was disclosed to Shri Nagender Mohan Pal that a sum of Rs.12,800/- towards Bill is pending against this Mobile Number and thus its' service was closed and on payment of pending bill, the service of this mobile number will be restarted. Accordingly the complainants deposited Rs.12,800/- online from the School Account but despite payment of bill, the service of Mobile No.97288-66888 was not restarted. On coming to know about not restarting the service on the aforesaid mobile number of complainant no.2, the said Senior Accountant tried to contact the office of OP No.1 on phone but since he could not contact on phone of the office, as such he had disclosed about his problems through sending message on Mobile No.90176-77310. The officials of OP No.1 gave message to said Shri Nagender Mohan Pal to contact the official of Idea Mobile Company namely Shri Vimal Kumar on his Phone No.98130-17772. On 25.06.2019, Shri Nagender Mohan Pal had received a message from the office of Idea Franchise Computer Screen Shot on his Mobile No.89501-08883 regarding activation of International Roaming Plan on Mobile No.94160-24355. After talking to Shri Vimal Kumar on phone on 25.06.2019, then he disclosed to Shri Nagender Mohan Pal that the bill of Rs.1,70,000/- on Phone No.97288-66888 became due and on asking credit limit of this phone number, the said Shri Vimal Kumar disclosed the credit limit of this phone number is Rs.3,29,000/-. He further disclosed to Shri Nagender Mohan Pal to deposit Rs.1,50,000/- at once, for getting the service of this mobile number restarted. The complainants through said Shri Nagender Mohan Pal again contacted the officials of OP No.1 in the matter. The attending official told them to talk the officials of Idea Company namely Shri Raman Arora on his Mobile No.98120-13356 and Shri Amit Kumar on his Mobile No.98120- 13298. On 26.06.2019, the complainants through Shri Nagender Mohan Pal talked on phone with Shri Raman Kumar in the matter. The complainants through their said Senior Accountant did their best to clear the position but to no avail. On 26.06.2019, the complainants through their said Senior Accountant, personally went to the office of OP No.1 and apprised all the situation to the official namely Ms. Sapna, who verified the Register in the office and  disclosed to Shri Nagender Mohan Pal that the entry of activating the International Roaming Plan regarding both the aforesaid numbers of the complainants was existing but the officials of the OP No.1 have forgotten to activate the Roaming Plan on both these numbers of the complainants. Ms. Sapna disclosed that International Roaming Plan has been activated on Mobile No.94160-24355. Photograph of the concerned registered was also taken by the complainants through Shri Nagender Mohan Pal. The complainants landed to India on 01.07.2019 and incoming of Mobile No.97288-66888 was started, however outgoing of this mobile number is still closed. Thus, OP No.1 have caused a very huge loss to the complainants by closing the services on Mobile No.94160-24355 and No.97288-66888 and at the same time, OP No.1 have raised wrong and illegal bills against the said mobile numbers and the complainants have suffered a huge financial loss in England. Consequently the matter was reported to the police but to no avail. Hence this complaint.
3.           The OPs appeared and filed written version wherein they raised preliminary objections to the effect that the complaint is not legally maintainable in light of the express provisions of Section 78 of the Indian Telegraph Act. 1885 which provides an alternate forum for adjudication of disputes such as the present one and, being a special remedy, implicitly bars the jurisdiction of this Hon’ble Commission.; the complainants have not come with clean hands and have suppressed material facts from this Commission etc. On merits, it has been stated that upon Complainants' request and their undertaking to abide by the Terms & Conditions governing the use of the mobile connection as contained in the Customer Application Form (hereinafter referred to as "the CAF"), the OPs activated the postpaid mobile connection bearing no.9416024355 (in the name of the Complainant No. 1) and 9728866888 (hereinafter referred to as "the said connection") to them. Subsequently, on 25.07.2019, Complainant No.1, being satisfied with the services provided by the OPs on the mobile connection bearing no. 9416024355, requested the OPs for the purpose of having international roaming activated on the said connection. The Complainants opted for "IR pack 3999" (for a sum of Rs. 3999/- for 10 days) to be activated from 25.07.2019. This package included certain areas where the Complainants could enjoy and, in fact, enjoyed free services such as free outgoing and incoming calls, free outgoing SMS, free Mobile Data, etc. The Complainants were informed of all the benefits, limits (territorial), charges applicable outside of package, etc. by the customer care executive. The details of these packages were explained to the Complainants and Complainant No. 1 made a conscious decision of opting for this package on mobile connection bearing no. 9416024355. Besides the aforesaid and without prejudice, it would also not be out of place to mention that the details the "IR pack 3999" package are also available on various portals such OPs's website, app etc. Accordingly, as per the terms of the arrangement, the International roaming was activated with effect from 25.07.2019 for a period of 10 days, and the due benefits were given to Complainant No.1, as available under the package on mobile connection bearing no. 9416024355. As regard the Complainant No. 2, it is stated that Complainant No. 1 made no request for activation of IR pack to the OPs for activation of International Roaming Package and as such, the services of IR were never activated on connection no. 9728866888. Therefore, Complainant No. 2 was charged as per the actual usage. It is pertinent to mention that all the charges levied on the Complainant No. 2 are as per the actual usage and as such, the bills raised are correct and the Complainant No. 2 is obligated to clear the outstanding amount without initiating these proceedings to delay the recovery of the OPs. While activation of international roaming pack, as a matter of practice and policy, all the customers (which includes the Complainants) are duly informed about the applicable international roaming pack. It is essential to mention that afore-said IR Pack covers various countries. All details with respect to IR Pack are detailed in the official website www.vodafoneidea.in for all the subscribers and same was applicable for countries mentioned on the website. It is not the case of the Complainant no.1 that the promised facility was not provided during the relevant period when international roaming pack was activated. Rather the Complainants seem to have raised the issue of billing for the services utilized in a country. It is essential to mention that international roaming pack was not activated on connection no. 9728866888. The Complainants despite being aware of the charges applicable in international roaming, used the services outside the chosen countries. The OPs through its every bill (sent to its customers) keep its customers informed about the international rates. The cellular service is provided through automated mechanism, wherein, no manual interference is made. Usage is registered on Subscriber Identity Module (SIM) Card of the subscriber and such usage is metered by automated machines without any manual interference. It is evident from the Tariff Plan that the OPs no. 2 has correctly raised the bill on the complainant no. 2. This activation of "IR pack 3999" plan was done only to provide benefit to the Complainant No. 1 and to save the Complainants from exorbitant international roaming charges. Due benefits were passed onto the Complainant No. 1 pursuant to said activation and no further amount charged on said number despite high data usage on international roaming. The same duly reflects in the itemized Bill dated 14.07.2019. All the charges levied on the Complainants are as per the actual usage and as such, the bills raised are correct and the Complainants are obligated to clear the outstanding amount without initiating these proceedings to delay the recovery of the OPs. Complainant No. 1 only contacted the OPs on 25.07.2019 for activation of IR pack and not before this date. Rest of the averments of the complainant were denied by the OPs and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for complainants tendered affidavit of the complainant No.1 as Annexure CA and affidavit of Nagender Mohan Pal son of Shri Som Nath, R/o H.NO.1733, Housing Board Colony, Sector-09, Ambala City, Senior Accountant of Saint Joseph School, Shahzadpur House, Ambala City as Annexure CB alongwith documents as Annexure C-1 to C-10 and closed the evidence on behalf of the complainants. Learned counsel for the OPs tendered affidavit of Shikha Sharma, Senior Manager, Legal, Vodafone Idea Limited, available at A-19, Mathura Road, Mohan Co-operative Industrial Estate, New Delhi-110044, New Delhi as Annexure RX alongwith documents as Annexure R1 to R-3 and closed the evidence on behalf of the OPs.
5.           We have heard the learned counsel for complainants and learned counsel for OPs and carefully gone through the case file.
6.           Learned counsel for the complainants submitted by not providing the services of international roaming on the mobile numbers of the complainants, despite request having been made for the same, the OPs were deficient in providing service to them and on the other hand, raising huge bill amount, referred to above, also indulged into unfair trade practice.
7.           On the other hand, learned counsel for the OPs submitted that  in light of the express provisions of Section 78 of the Indian Telegraph Act. 1885 which provides an alternate forum for adjudication of disputes such as the present one and, being a special remedy, implicitly bars the jurisdiction of this Commission. He further submitted that the complainants opted for "IR pack 3999" (for a sum of Rs. 3999/- for 10 days) to be activated from 25.07.2019. He further submitted that as per the terms of the arrangement, the International roaming was activated with effect from 25.07.2019 for a period of 10 days only on one number of complainant no.1. International roaming pack was not activated on connection no. 9728866888. He further submitted that the complainants despite being aware of the charges applicable in international roaming, used the services outside the chosen countries .He further submitted that all the charges levied on the complainants are as per the actual usage and as such, the bills raised are correct and the complainants are obligated to clear the outstanding amount.
8.            The first question that falls for consideration is, as to whether, this complaint is maintainable or not?. It may be stated here that  recently, the Hon’ble Supreme Court of India in Civil Appeal No 923 of 2017 (Arising out of SLP (C) No 28615 of 2016) Vodafone Idea Cellular Ltd. Versus Ajay Kumar Agarwal, Civil Appeal No 1389 of 2022, decided on 16.02.2022 (Three Judges Bench) has held that “tt would be open to a consumer to opt for the remedy of arbitration, but there is no compulsion in law to do so and it would be open to a consumer to seek recourse to the remedies which are provided under the Act of 1986, now replaced by the Act of 2019. the insertion of the expression ‘telecom services’ in the definition which is contained in Section 2(42) of the Act of 2019 cannot, for the reasons which we have indicated be construed to mean that telecom services were excluded from the jurisdiction of the consumer forum under the Act of 1986. On the contrary, the definition of the expression ‘service’ in Section 2(o) of the Act of 1986 was wide enough to comprehend services of every description including telecom services. In this view of the matter, objection taken by the OPs to the effect that in the light of the express provisions of Section 78 of the Indian Telegraph Act. 1885 which provides an alternate forum for adjudication of disputes such as the present one and, being a special remedy, implicitly bars the jurisdiction of this Commission  is devoid of merit hence rejected.
9.           The next question that falls for consideration is, as to whether, the complainants have been able to prove their case or not. It may be stated here that not a single cogent and convincing document has been placed on record by the complainants to prove the allegations leveled by them in their complaint against the OPs. Not even a single documents has been placed on record to prove that any request for activation of International Roaming Package on mobile no. 9728866888 was ever made by complainant no.2. Mere placing on record copy of police report Annexure C-9 made against the OPs by the complainants without any evidence is of no use to the complainants. Whereas, on the other hand, the OPs have placed on record the details of the charges per pulse, Annexure R-1 to R-3 in  respect of mobile no.9728866888, which shows that the complainant no.2 had made calls to Oman (Duration 00.25) and United Kingdom (49.05), for which she was charged Rs.11,796/- for Oman and Rs.1,61,790/- for United Kingdom and after applicable taxes etc. the total amount payable came to Rs.1,92,113.98/- . The complainants have failed to place on record any evidence rebutting the documents, Annexure R-1 to R-3. Under these circumstances, the bald allegations of the complainants to the effect that they are not liable to make any payment or that the OPs raised illegal and arbitrary bills, cannot be taken into consideration. The complainants were liable to make payment for the services, which were provided to them by the OPs.  
10. In this view of the matter, it is held that since the complainants have failed to prove their case, as such, no relief can be granted to them in that regard. Resultantly, this complaint stands dismissed with no order as to cost. Certified copies of the order be sent to the parties concerned as per rules. File be annexed and consigned to the record room.                                  

Announced:- 08.12.2022

 

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President