PER MR.B.S.WASEKAR, HON’BLE PRESIDENT

1)                The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986.  According to the complainant, he is the customer of the opponent for post paid mobile connection No.9870530505.  The complainant is paying service bills regularly since last several years.  The complainant requested the opponent to change the tariff plan to NEW DST EXPRESS PLAN whereby the complainant has to pay Rs.149/- as fixed monthly rent.  The complainant has not availed any extra service from the opponent. The complainant received the bill dated 14^th May, 2013 for the usage period from 14^th April, 2013 to 13^th May, 2013.  In that bill, amount of Rs.145/- was charged under the head of VALUE ADDED SERVICES (VAS).  The complainant had never requested for such service nor used such service.  Therefore, the complainant lodged complaint with the opponent on their telephone number 198.  The staff of the opponent assured to resolve the problem of excess billing.  Again, the complainant received bill on 14^th June, 2013 for usage period from 14^th May, 2013 to 13^th June, 2013.  In that bill, amount of bill Rs.504/- was charged under VAS.  The complainant had never asked nor used such service.  The complainant lodged the complaint with the opponent for excess billing and the staff of the opponent assured to resolve the billing problem. Again, the complainant received bill on 14^th July, 2013 for usage period from 14^th June, 2013 to 13^th July, 2013.  In that bill, amount of bill Rs.156/- was charged under VAS. The complainant had never asked nor used such service.  The complainant lodged the complaint with the opponent for excess billing and the staff of the opponent assured to resolve the billing problem. Again, the complainant received bill on 14^th August, 2013 for usage period from 14^th July, 2013 to 13^th August, 2013.  In that bill, amount of bill Rs.155/- was charged under VAS. The complainant had never asked nor used such service. The complainant sent email letter dated 2^nd September, 2013 and lodged the complaint.  It was not complied therefore reminder was issued on 5^th September, 2013.  On 10^th September, 2013, the opponent reconciled the account for amount of Rs.305/-

2)                Again, the complainant received bill on 14^th September, 2013 for usage period from 14^th August, 2013 to 13^th September, 2013.  In that bill, amount of bill Rs.155/- was charged under VAS. The complainant had never asked nor used such service. The complainant sent email dated 29^th September, 2013 but there was no response.  Again, the complainant received bill on 14^th October, 2013 for usage period from 14^th September, 2013 to 13^th October, 2013.  In that bill, amount of bill Rs.150/- was charged under VAS. The complainant had never asked nor used such service. Thus, the complainant has wrongly charged excess amount of Rs.1,082/-.  In spite of several requests, the opponent has not corrected the bill.  Therefore, the complainant has filed this complaint to recover excess amount of Rs.1,082/- with interest.  He has also claimed compensation of Rs.15,000/- for mental agony and cost of this proceeding Rs.10,000/-. 

3)                The opponent appeared and filed written statement.  It is admitted that the complainant is the customer of the opponent.  But, it is denied that there was any claim of excess amount.  It is submitted that the complainant used VAS therefore the charges were claimed from the complainant.  These services are fully computerized therefore the customer can use these services by clicking on the link banner.  The complainant had utilized auto renewal super games services therefore the complainant has been charged daily at the rate of Rs.5/- per day.  The matter is of complicated nature and can not be decided in this summary proceeding.  Therefore, the complaint is liable to be dismissed with cost.

4)                After hearing both the parties and after going through the record, following points arise for our consideration.

POINTS

REASONS

5) As to Point No.1 & 2 :- It is not disputed that the complainant is the customer for mobile connection No.9870530505.  The dispute starts from the bill dated 14^th May, 2013 onwards.  In the bill dated 14^th May, 2013, the opponent has claimed amount of Rs.145/- for VAS.  According to the complainant, he had never asked for such facility nor he was utilized such facility.  Therefore, immediately, he lodged complaint with the opponent and the staff of the opponent assured to correct the bill.  Again, the same thing happened in the bill dated 14^th June, 2013, 14^th July, 2013, 14^th August, 2013, 14^th September, 2013, 14^th October, 2013.  The complaint was lodged for excess billing after receiving these bills by the complainant.  According to the opponent, the complainant has utilized these services by clicking on the link banner and therefore charges are claimed from the complainant.  Some of the charges are adjusted by way of goodwill gesture.  The opponent is the company therefore the opponent is expected to keep the record of the request of the customer and also utilization of the services by the customer.  It is alleged by the complainant that he had never requested nor utilized these services from the opponent.  Therefore, immediately, on receiving the bill, he lodged complaint with the opponent and the staff of the opponent assured to correct the bill and accordingly adjustment is given in some of the bills.  According to the opponent, the amount was adjusted by way of goodwill gesture though the facility was utilized by the complainant.  The opponent is claiming the charges from the customer i.e. complainant therefore burden lies on the opponent to produce the evidence showing request or utilization of the VAS services by the complainant/customer. The evidence produced by the opponent is not sufficient to prove the request of the complainant for VAS or utilization of the services by the complainant. Therefore, apparently, the charges claimed by the opponent are not proper.  It amounts to unfair trade practice of the opponent. 

6)                In the written notes of argument, the learned advocate for the opponent has place reliance on the judgment of Hon’ble Supreme Court reported in 1994 (1) SCC 1.  As per this judgment, the party has to produce documents.  In the complaint before us, the complainant has produced all the bills sent by the opponent.  It is for the opponent to maintain the record and the opponent failed to produce the record.  The learned advocate for the opponent has further placed reliance on the judgment of the Hon’ble Supreme Court reported in 2005 (4) SCC 605.  In view of this judgment, the party can not withheld the documents.  Both these judgments are against the opponent as the opponent failed to produce the concern record before the Forum. 

7)                In the complaint, the complainant has claimed recovery of excess amount of Rs.1,082/-.  In the written notes of argument filed by the complainant, he has adjusted earlier credit dated 21^st June, 2013 and he has shown balance amount of Rs.581/-. The opponent failed to produce proper evidence authorizing the opponent to recover excess billing amount.  Therefore, the opponent is liable to refund the excess billing amount of Rs.581/- to the complainant. 

8)                In spite of several requests by the complainant, the opponent continued to send bills claiming excess amount thereby the complainant suffered from mental agony. The complainant has claimed compensation of Rs.15,000/- towards mental agony. We think compensation of Rs.10,000/- will suffice the purpose. Besides this, the complainant is entitled for cost of proceeding Rs.5,000/-.  Hence, we proceed to pass the following order.

ORDER

1. Complaint is partly allowed.
2. The opponent is directed to refund the amount of Rs.581/- (Rs.Five Hundred Eighty One Only) to the complainant with interest at the rate of 9% per annum from the date of filing of complaint i.e. 2^nd November, 2013 till realization.
3. The opponent is also directed to pay Rs.10,000/- (Rs.Ten Thousand Only) to the complainant as compensation for mental agony.
4. The opponent is further directed to pay Rs.5,000/- (Rs.Five Thousand Only) to the complainant as cost of this proceeding.
5. The above order shall be complied with within a period of one month from today.
6. Copies of this order be sent to the parties free of cost.

Pronounced on 10^th October, 2014