DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.96/10
Sh. Ashok Kumar Goel
R/o 8, Central Lane,
Bengali Market,
New Delhi-110001 ….Complainant
Versus
Matrix Celluar (International) Services Pvt. Ltd.
7, Khullar Farm, Mandi Road,
Mehrauli, Delhi-110030 ….Opposite Party
Date of Institution : 15.02.10 Date of Order : 27.03.17
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
In short, the case of the Complainant is that he availed of the service of OP by taking a SIM Card bearing No.898520402004680526 with mobile connection No.67966916 before he was going to ‘Hong Kong’ trip for the period 22.07.2009 to 26.07.2009. For the aforesaid connection, the OP took an authorization from the Complainant to debit upto Rs.10,000/- from his CITI Bank Credit Card No.4386289058000006 against user-charges of incoming-outgoing through the said mobile connection on Hong Kong trip. He was shocked and surprised when he received a bill through email on 11.08.09 for a sum of Rs.8138.88 under the head ‘GPRS’ and debited the said amount from his credit card. It is submitted that the Complainant availed the services of OP for incoming and outgoing calls only and not for the GPRS. Therefore, he lodged his protest and made complaints for unauthorized, excess billing and illegal charges of GPRS and sought a refund of Rs.8138/- but the OP did not resolve the matter which has caused great physical pain and mental agony besides monetary losses to the Complainant. He sent a legal notice on 21.09.2009 to the OP but the OP did not bother to reply and/or refund the amount of Rs.8138/- to the Complainant. Hence, pleading deficiency in service on the part of the OP the Complainant has filed the present complaint for the following reliefs:-
- Direct the OP to refund to the Complainant Rs.8138/- alongwith interest @ 18% per annum from August 2009 till realization,
- Direct the OP to pay Rs.25,000/- to the Complainant towards compensation for causing harassment and mental agony to the Complainant,
- Direct the OP to pay Rs.50,000/- to the Complainant as costs of sending legal notice and pursuing the present complaint.
OP in its written statement has inter-alia stated that the Complainant has admitted taking service of OP wherein the Complainant signed the Customer Agreement Form (CAF) undertaking to pay all accruing dues thereto arising out of the said usage. The said agreement and the explicit terms and conditions mentioned therein were duly recognized and accepted by the Complainant. The bill was duly sent to the Complainant and was charged from his Credit Card for which the OP was duly authorized as it was specially mentioned in the Agreement Form that in case the unbilled amount crosses the authorization amount, Matrix Cellular (International) Services Pvt. Ltd. may charge/block the same on the credit cards of the customer. The Complainant used the said connection for making calls, SMS and GPRS Downloading during his trip to Hong Kong where the acquired network is a local network of that particular country. It is submitted that whenever a National Service (Mobile Sim Card) is used internationally, it logs on to the available/specific network of that visiting country and the bills are generated by that service provider and hence the local network provider like the OP is dependent on the foreign network which take time to access the same and transfer. It is submitted that the bills are computer generated and are directly sent from the specific country where the particular Sim Card is used as in this case used by the Complainant in Hong Kong. It is the responsibility and strictly under purview of the allottee of the International Sim Card to keep track of his usage as he is only responsible for the accruing usage of the Sim Card which is as per the Agreement. The Complainant was never misled at any point of time, in tariff plan it was specifically mentioned in bold letters that “GPRS (General Packet Radio Service) is the world’s most ubiquitous wireless data service, available now with almost every GSM network. GPRS customers enjoy advanced, feature-rich data services such as Internet browsing. It is pre activated on our SIM cards and charges are upto $20/MB; or as applicable by network.” The usage as per the certified itemized billing of the Complainant clearly shows that the GPRS was used while on International Sim Card. It is submitted that the GPRS was pre-activated on every SIM Card free of cost as it was the basic service provided by the Network of People’s Telephone in Hong Kong and the amount of GPRS was billed/charged as per the usage by the use and as such no cause of action arose at any point of time to file the present complaint. Denying any deficiency in service on its part the OP has prayed for dismissal of the complaint.
Complainant has filed a rejoinder. It is stated as under:-
“it is submitted that the complainant had merely signed the Customer Agreement Form on assurance of the representative of the opposite party that the signing of the said document was mere formality, however, the complainant has not gone through the extensive and evasive terms and conditions which are heavily one sided and even the said form has not been filled by the Complainant but the same was filled by the representative of the opposite party which made crystal clear that the complainant was not made conversant with the whole terms and conditions of the said form and even representative of the opposite party had given assurance to the complainant that only incoming outgoing charges would be charged on the said connection and nothing was said about the alleged pre-activated GPRS Service on the said connection….”
It is pleaded that the signatures of the Complainant were obtained under misrepresentation and fraud. It is stated that he never used GPRS.
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Chandra Shekhar, Executive Legal has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have heard the arguments on behalf of the Complainant and have also gone through the file very carefully.
Admittedly, the complainant had signed an agreement with the OP while taking the Sim card and the mobile connection in question from the OP for his Hong Kong trip for the period 22.07.09 to 26.07.09. Admittedly, the copy of the agreement is Ex. CW-1/2 ( Ex. OP6) though according to the Complainant (as submitted by him in the replication) the said agreement was a result of misrepresentation and the fraud played upon him. The onus to prove that the said agreement was signed by him on some misrepresentation or fraud was on the complainant but, however, the complainant has not given/led any evidence whatsoever. Undisputedly, the agreement was signed by him. Therefore, it is presumed unless to the contrary is proved that the said agreement was signed by him after understanding its terms and conditions.. The said agreement contains the following clause:-
“GPRS (General Packet Radio Service) is the world’s most ubiquitous wireless data service, available now with almost every GSM network. GPRS customers enjoy advanced, feature-rich data services such as Internet browsing. It is pre activated on our SIM cards and charges are upto $20/MB; or as applicable by network.”
The copy of the bill in question has been filed by the complainant As Ex. Ex. CW-1/4 with details of the calls and other data. GPRS data is shown to have been used. The said bill is a computer generated copy. Therefore, the genuineness and correctness is attached to the bill unless contrary is proved by the complainant. However, we are sorry to say that the complainant has even not led/adduced any evidence on this point as well. It is pertinent to mention here that even in his affidavit the complainant has not pleaded that the said agreement had been got signed from him by playing some misrepresentation or fraud upon him and that he had infact not read the same before signing it.
Hence, we hold that the complainant has failed to prove any deficiency in service on the part of the OP. Accordingly, we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 27.03.17.
