BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD.
FA.No.161/2006 against C.D.No.1399/2004, District Forum-II, Hyderabad.
Between:
1. Tata Tele Services Ltd.,
5-6-92, Khan Latif Khan Estate,
Fateh Maidan Road, Hyderabad
Rep. by its President-Telecom
Mr.Amit Bose.
2. Tata Indicom Customer Services,
Rep. by its Mr.Naresh Malhan,
Chief Operating Officer,
Khan Latif Khan Estate,
Fateh Maidan Road, Hyderabad. .Appellants/
Opp.parties
And
S.B.Ramesh,
S/o.Krishnaiah, aged about 34 years,
Occ:Business, R/o.180/C
Sanjeevareddynagar, Hyderabad. Respondent/
Complainant.
Counsel for the Appellants: Mr.C.Niranjan Rao
Counsel for the Respondent. Mr.S.Nagesh Reddy
QUORUM:THE HON’BLE MR.JUSTICE D.APPA RAO, PRESIDENT..
AND
SMT.M.SHREESHA, MEMBER.
WEDNESDAY, THE TWELFTH DAY OF AUGUST,
TWO THOUSAND NINE
ORAL ORDER: (Per Hon’ble Sri Justice D.Appa Rao, President .)
***
This is an appeal filed by the opposite parties-teleservice providers against which the District Forum passed an order making them jointly and severally liable to revise the bills and statements marked as Exs.A6, A7 and A8 and issue fresh bills to the complainant. The complainant should pay the amount accordingly and then the opposite parties should reconnect the mobile connection and the opposite parties were further directed to pay Rs.3,000/- towards compensation and Rs.1,000/- towards cots.
The brief facts of the appeal as gleaned from the pleadings, evidence and arguments are as under:
The complainant/respondent obtained a mobile connection from the opposite parties which represent the one teleservice provider in two levels w.e.f. 26-9-2001. He claimed to have continuously paid the subscription charges, bill charges etc. promptly. Gradually he began to suspect the correctness of the bills. So he time and again protested against the wrong bill but in vain. He closely verified the bills pertaining to February and March, 2004 and found to his surprise.
<!--[if !supportLists]-->a) <!--[endif]-->Calls to numbers which he never called
<!--[if !supportLists]-->b) <!--[endif]-->Rates of calls found not tallying with tariff plan
<!--[if !supportLists]-->c) <!--[endif]-->Billing for calls in quick succession within a gap of 4 or 5 seconds
He also noticed some more errors. He claimed to have taken all these facts to the attention of the opposite parties. They promised to correct mistakes and send fresh bills. Accordingly they issued revised bill only for March, 2004 reducing it by a paltry amount of Rs.155/-. Not satisfied with such lukewarm response, he discontinued payment of bills and ultimately they stopped the service. He sent a lawyer notice and filed the complaint as it evoked no response.
The opposite parties resisted the claim pointing out that the jurisdiction of the Forum is inhibited by the Arbitration clause as the complainant failed to activate it. They also pointed out that they were constrained to disconnect as the complainant fell in arrears of bills to a tune of Rs.9,000/- and odd. They also insisted that their billing was faultless.
During the course of the enquiry, the complainant caused them to produce full details of the bills marked as Ex.A1. He also relied upon Ex.A2 to A13 besides filing an affidavit. The opposite parties also filed Exs.B1 to B5.
On a consideration of the material on record, the District Forum gave a finding of deficiency in service and passed the impuged order against the opposite parties.
Aggrieved by the same, the opposite parties filed this appeal on the usual ground importing to the District Forum incorrect appreciation of evidence and misapplication of law etc. Both sides filed written arguments.
The points that arise for consideration in this appeal, therefore, are:
<!--[if !supportLists]-->1) <!--[endif]-->Whether the complainant could prove deficiency in service against opposite parties?
<!--[if !supportLists]-->2) <!--[endif]-->Whether there are any good grounds to interfere with the findings of the District Forum?
<!--[if !supportLists]-->3) <!--[endif]-->Whether the relief granted by the District Forum called for any modification?
<!--[if !supportLists]-->4) <!--[endif]-->To what relief?
The complainant after a long user and wait grew suspicious that
there were errors in the bills issued by the opposite parties. So he closely examined the bills of February and March, 2004 to find that some unwarranted items were charged and he therefore made a final complaint taking those wrong inclusions of so called charges for calls which he never did etc. to the notice of the opposite parties. They caused a scrutiny to be made and reduced only Rs.155/- in the March bill. He was not happy with that and perhaps took that so called rectification as merely by way of eye wash. Though his perseverance he made the opposite parties to cough up the entirety of details of billing running into 97 pages which he marked as Ex.A1. The complainant/respondent very shrewdly illustratively cited various irregularities picked out of the said material Ex.A1 through a separate memo and challenged the appellants to explain those facts which mutually contradictory and destructive of credibility. The following selection synopsis makes out the untenability of the claim of the appellants that their billing was correct. Some of the glaring errors are pointed out for which the appellants could not explain on the ground of that had occurred long long ago. It is sheer calculations, time will not prevent correcting the exfacie mistakes. For example:
<!--[if !supportLists]-->1. <!--[endif]-->On 18-6-2004 timings of calls are not in order viz. after 2:37:18, the timing of 2:09:36 has come. Likewise the timings i.e. A.M. and P.M. are jumbled here and there in the statement.
<!--[if !supportLists]-->2. <!--[endif]--> From 21-4-2004 to 30-4-2004 the duration of the calls have not been shown unlike other entries and jut mentioned as local calls.
<!--[if !supportLists]-->3. <!--[endif]-->On 21-6-2004- rate per unit is charged at Rs.1.30.
but on 22-6-2004-rate per unit is charged at Rs.0.60.
No explanation was given as to why the unit rate was changed
within 24 hours.
<!--[if !supportLists]-->4. <!--[endif]-->On 20-6-2004 the first entry is shown as PM and the second entry is shown as AM and the third entry is again shown as PM and as it is a computer generated statement, these mistakes cannot occur.
<!--[if !supportLists]-->5. <!--[endif]-->On 28-3-2004, 10 seconds are treated as one unit and on the same day 3 seconds were treated as 4 units, which is very irregular.
The District Forum extensively adverted to these discrepancies to rightly discount the credibility of the appellants version contradicting the complainant’s grievances. There is yet another reason to reject the defense of the appellants. Appellant is the service provider. It is in full command of the whole machinery, the hardware as also software with which it runs its commercial wing also as the measurement of the service rendered by it to the customer for the purpose of billing cannot be disassociated with the operation of the teleservice. In other words, it is the opposite party that is in the exclusive knowledge of the essential facts that impact the interests of the consumers and it is high time the service providers cultivate the culture of carrying on the operations with utmost transparency. Apart from that it is a party that is having or reasonably expected to have exclusive knowledge of certain facts essential for the just and adjudication of causes suppresses or feign ignorance of such facts. A court is not helpless it can turn round and draw an adverse inference against such concealing party. Though Ex.A1 papers rather bear testimony to considerable disclosure on the part of the appellant, their failure to explain the patently paradoxical statements in that record randomly printed out by the respondent/complainant in his memo, go a long way debilitating their defense against deficiency in service.
For these and the reasons very well articulated by the District Forum, we have no hesitation to uphold the finding of the District Forum that the opposite parties were wrong in the matter of rendering service to the consumer for consideration.
Next in the row of issues is mere formal in the sense that by concurring with the essential finding with the District Forum, hardly do we have any material to interfere with the order of the Forum on that aspect.
Coming to the mode of relief granted by the Forum, there is nothing wrong with it. But it looks unworkable as rightly urged by the appellant in the written arguments in the following terms:
‘Further, the appellant is disputing the revising the bills and issuing
the fresh bills after revising the same cannot be done as the same
is prepared through system generated programme and after a gap
of 5 years it is not possible for again going back and revising the
bills is not possible and the data will also not available in the
systems. Therefore, the impugned order is liable to be set aside.
In any case if this Hon’ble Court has found that the is not default
in the order instead of granting revised bills this Hon’ble Court
may grant some reasonable compensation’
We too feel that it is better to afford the opposite parties to atone their mistakes by paying a specific amount by way of damages adjustable in part as against the ‘arrears’ claimed by the appellant.
Accordingly the relief granted to the complainant is recast as follows:
The opposite party shall drop totally its claim of arrears, restore the Telephone or cell phone service as the case may be, to the consumer and then pay Rs.3,000/- by way of compensation and Rs.1,000/- by way of costs as ordered by the District Forum. Time for compliance six weeks.
The appeal is disposed with the above directions but without costs in the circumstances of the case.
PRESIDENT.
MEMBER
Dated 12-8-2009
