DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Complaint No. CC/84/15 of 24.4.2015

                                      Decided on:        8.10.2015

Dr.Ravi Kant, resident of #282-R,Ajit Nagar, Patiala.     

                                                                   …………...Complainant

                                      Versus

M/s Airtel Tele Services, C-25,Industrial Area, SAS (Mohali)-160055, through its Nodal Officer.

                                                                   …………….Op

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

                                      Smt.Sonia Bansal,Member

Present:

For the complainant:   Sh.Nitin Goyal, Advocate

For Op:                         Sh.Shashi Pal Verma,Advocate

                                      Proxy counsel for Sh.K.S.Sidhu,Advocate              

                                         ORDER

D.R.ARORA, PRESIDENT

1. The complainant is a subscriber of mobile phone connection of the Op bearing No.98889-14045 since long. The average monthly consumption of the complainant is below Rs.300/-. On 19.2.2015at about 12PM the customer care executive of the Op made the misrepresentation  of the internet pack and collected the monthly bill of Rs.3936/- On 19.2.2015, the complainant received the message from the Op that his internet usage had crossed the limit of 500MB.At this the complainant called the customer care for redressal. He was advised by the Customer care to close the current pack and to get the new pack vide which 500MB was provided @ Rs.60/- activated. The Customer care did not disclose the complainant that he will receive only half of the said capacity of 500MB and that he will not get the benefit of full capacity of 500MB.Before the Op activated the new pack, the complainant got it clarified from the Customer care whether he will receive the benefit of total 500 MB as on 19.2.2015 and the Customer Care Executive told the complainant that he will receive the full benefit of 500MB till 19.2.2015 and extra charges beyond 500MB will be levied. At this the complainant had asked the executive to activate the new pack from 19.2.2015.
2. The complainant received the bill dated 6.3.2015 from the Op for the period 5.2.2015 to 4.3.2015 for the amount of Rs.3956.19.The complainant had not used the said connection to such an extent that he had to receive such a huge bill. The complainant immediately made a complaint through e-mail on 9.3.2015 to the Op. At this the Op subtracted an amount of Rs.2247.20 from the bill regading which the Op sent an e-mail to the complainant on 10.3.2015.
3. It is alleged that the Op charged the extra money in the bill dated 6.3.2015 in respect of the previous pack pertaining to 250-300MB for the period prior to 19.2.2015 and thus the Op defrauded the complainant. The Op having charged the extra amount is liable to rectify the bill but to no effect. Accordingly the complainant got the Op served with a legal notice dated 18.3.2015 with a request to rectify the bill and to adjust the amount and further to pay him Rs.50,000/-by way of compensation on account of the harassment and the inconvenience but the Op failed to respond.
4. It is further averred that no bills were supplied by the Op to the complainant and rather the facility of the incoming calls was stopped by the Op on 22.3.2015 and on 28.3.2015 the Op stopped the facility of the outgoing calls. The Op sent the bill dated 6.4.2015 for the period 5.3.2015 to 4.4.2015 for Rs.2124.27 after adjustment of the amounts and the Op wrongly disconnected the connection on 28.3.2015.The act of the Op is said to be an unfair trade practice as also deficiency of service, which resulted into the harassment and mental agony experienced by the complainant. Accordingly the complainant brought this complaint against the Op under Section 12 of the Consumer Protection Act,1986 ( for short the Act) for a direction to the Op to rectify the bill, subtract the excess amount and to restore the connection of the complainant; to pay him Rs.80,000/- by way of compensation on account of the harassment and mental agony experienced by him and further to award him Rs.11000/- towards the costs of the complaint.
5. On notice, the Op appeared and filed the written version having raised certain preliminary objections, interalia, that the Forum lacks jurisdiction to try the complaint; that the complaint has been brought to the harassment of the Op and for causing the wrongful gain to the complainant and that the complaint is frivolous and vexatious. As regards the facts of the complaint, it is not denied by the Op that the complainant is a consumer of the Op in respect of the mobile phone connection No.98889-14047.It is however, not denied by the Op that the complainant had received the bill dated 6.3.2015 for Rs.3956/- and a sum of Rs.2247.20 was subtracted . It is denied by the Op that the bill was issued wrongly. The same was issued as per the usage made by the complainant. It is denied that any misrepresentation was made by the Customer Care Executive to the complainant. The mobile phone connection of the complainant was disconnected because of the overdue payment. The complainant has not suffered any loss. The complainant was obliged to pay for the services availed of but the complainant failed to clear his outstanding dues and therefore, his number was rightly disconnected for which the Op is entitled under Rule 443 of the Telegraph rules. The complainant was at fault and therefore, he can not take any advantage of his wrong. No unfair trade practice or deficiency of service can be attributed to the Op. The other allegations made by the complainant going against the Op have been denied.
6. It is also the plea taken up by the Op that in the case of the Citation General Manager Telecom Vs. M.Krishnan and another Civil Appeal No.7687 of 2000, the Hon’ble Supreme Court observed that where there is a special remedy  provided under Section 7B of the Indian Telegraph Act, then the remedy under the Consumer Protection Act is barred. The Op has also quoted Section 7B of the Telegraph Act as under:

“Section 7-B Arbitration of Disputes:

(i)      Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph Authority and the person for whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Govt. either specifically for the determination of that dispute or generally for the determination of disputes under this Section.”.

7. Ultimately it was prayed to dismiss the complaint.
8. In support of his complaint, the complainant produced in evidence Ex.CA, his sworn affidavit alongwith documents Exs.C1 to C6 and his counsel closed the evidence.
9. On the other hand on behalf of the Op, it’s counsel tendered in evidence Ex.OP1, the copy of the bill dated 6.3.2015 and the evidence of the Op was closed by the order of the Forum.
10. The complainant filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence on record.
11. First of all we take up the objection raised by the Op that the Forum lacks jurisdiction to try the complaint in view of the law laid down by the Hon’ble Supreme Court of India in the case of the citation General Manager,Telecom Vs.M.Krishnan and Another, Civil Appeal No.7687 of 2004.In the said citation, the Hon’ble Supreme Court of India observed: “ In our opinion when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer  Protection Act is by implication barred. Section 7-B of the Telegraph Act reads as under:-

“S. 7B Arbitration of Disputes:-

(1)     Except as otherwise expressly provided in  this Act , if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this Section.

(2)     The award of the arbitrator appointed under sub-s.(1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court.”

Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph  Rules. A telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules.

          It is well settled that the special law overrides the general law. Hence, in our opinion the High Court was not correct in its approach”.

12. In the case of the citation, the telephone connection  of respondent No.1 was disconnected on account of non payment of the bill. Respondent No.1 filed a complaint before the District Consumer Disputes Redressal Forum, Kozhikode. The complaint was allowed vide order dated 26.11.2001 having directed the appellant to reconnect the telephone connection. Feeling aggrieved of the order, the appellant preferred a writ petition before the Hon’ble High Court of Kerala having challenged the jurisdiction of the Consumer Forum and the same was dismissed. Thereafter, the appellant filed a writ appeal before the Division Bench of the High Court and the Hon’ble Division Bench  felt that the matter required consideration by a larger bench and therefore, the matter was placed before the larger bench. The full bench of the Hon’ble High Court dismissed the writ appeal.
13. In the case of the citation JK Mittal versus Union of India & Ors. W.P.(C)8285/2010 & C.M.No.21319/2010 decided on 6.2.2012, the Hon’ble High Court of Delhi at New Delhi observed: “Having heard learned counsels for the parties, I am of the view that the impugned order dated 22.9.2010 passed by the State Commission can not be sustained, as it erroneously holds that the consumer complaint of the petition was barred by Section 7B of the Indian Telegraph Act. It is clear that the respondent No.2 is not a telegraph authority. The bar under Section 7B, if at all, could have applied, had the dispute arisen between the petitioner and a telegraph authority, which the respondent No.2 is not. Merely because respondent No.2 is a licensee under Section 4 of the Indian Telegraph Act, it does not confer on it the status of a telegraph authority. If the intendment of Director General of Posts & Telegraph were to confer the status of the Telegraph Authority upon the licensee under Section 4, the Director General of Posts and Telegraph, which comes under the Central Government could have issued the requisite notification under Section 3(6) of the Indian Telegraph Act, which has not been done. The Parliament was conscious of the fact that there could exist a lincesee(s) by virtue of Section 4 of the Indian Telegraph Act. However, it has not chosen to fasten the statutory arbitration on the licensee or its consumer under Section 7B. Else, while mentioning the Telegraph Authority, the legislature could easily have included the “licensee” as one of the parties to an arbitration dispute under Section 7B of the Indian Telegraph Act”.
14. The Hon’ble High Court of Delhi further observed that the Parliament did not consider the definition of “Telegraph Authority” contained in Section 3(6) of the Telegraph Authority to include a licensee per se.Here, it may be noted that the Forum has received copy of letter No.2-17/2013-Policy-1 dated 24^th January,2014 of the Govt. of India, Ministry of Communication and IT department of Telecommunication through the Hon’ble State Consumer Disputes Redressal Commission Punjab vide endorsement No.SCDRC/Pb/SA1/2014/5316 dated 28.3.2014 and the said letter interalia  provides in para no.4 as: “The  matter has been examined in this Department. It is mentioned that the matter referred to in the Hon’ble Supreme Court involved a dispute between Department of Telecommunication (DoT) as a service provider prior to the hiving off of telecom services into a separate company namely Bharat Sanchar Nigam Limited (BSNL).Since DoT was also the telegraph authority, reference was made by the Hon’ble Supreme Court to the provisions of Section 7B.However, powers of the telegraph authority have neither been  vested nor are available to private telecom service providers and BSNL. Therefore, recourse to section 7B in case of dispute between consumers and private service providers and BSNL would not be available.The Hon’ble Supreme Court’s judgment is sui generis in its application and has to be read with reference to the particular facts and circumstances of the case before it”.
15. Therefore, it would appear that the Op namely M/s Airtel Services not being a telegraph authority and the dispute not being between the Telegraph Authority and the Consumer, the same could not be referred to the Arbitration under Section 7B of the Indian Telegraph Act,1885 and therefore, this Forum has got the jurisdiction to try the complaint.
16. Now coming to the merits of the complaint, the complainant seeks the rectification of the bill dated 6^th March,2015 and the refund of the amount charged in excess consumption of internet beynd 500MB. The complainant has produced Ex.C1, the copy of the bill dated 6^th March,2015. It is shown to be comprised of four pages but the complainant has produced only first page. The complainant has withheld pages No.2to4, which might have contained the data and other particulars regarding the usage of the internet as also the package of the internet. Here, it may be noted that the complainant has produced Ex.C6, the copy of the bill dated 6.4.2015 for the period 5.3.2015 to 4.4.2015 which is also shown to be comprised of four pages but the complainant has produced only first two pages. The second page under the heading  ‘monthly charges description’ provides:

“bill plan charges-pb star 125cug plan 1gb 2g gprs free, thereafter 10ps/10kb(after 1.078679gb,100% free @40kbps)@175”.

Again the complainant has withheld the part of the bill to show the pack of the internet.

17. Ex.C2 is the copy of the e-mail dated 9.3.2015 sent by the complainant to th feb in morning at about 12:00 p.m. Due to that misguidance about the internet pack I received a bill of Rs.3956 in this month. The matter was that on the day 19^th feb I got a message from airtel that my internet usage has crossed the limit of 500MB so I called on customer care for the remedy. She advised me to close the current running pack and to get activate the new pack for internet that is 500MB for Rs.60. She did not tell me that I will receive only half of the MB’s and that I will not get the benefit of full 500MB’s I clarified from her before activating my new pack that either I will receive benefit of total 500MB’s on 19^th feb 2015 and she said that you will receive the full benefit of 500MB’s then I said her to activate my new internet pack from date 19^th feb”.
18. The complainant has not been able to show as to what was the data of the internet actually used by him upto 19^th feb and what was the limit of his pack.From the said e-mail Ex.C-2, it appears that he had a pack of 500MB upto 19^th Feb.2015 and the same pack was again granted to him w.e.f.19^th Feb.,2015. Unless and until, it is shown by the complainant with the help of the bill received by him on 6^th March,2015 that he had made a use of the internet data within the permissible limit, he could not say that he was charged the amount in excess.
19. It was submitted by Sh.Nitin Goyal, the learned counsel for the complainant that on an e-mail sent by the complainant on 9.3.2015, the Op had subtracted an amount of Rs.2247.20 from the said bill , a fact not disputed by the Op and therefore, it would appear that the Op had charged the excess amount beyond the permissible tariff of the internet usage. In this regard, we are to appreciate the matter with the help of e-mail dated March,10^th,2015, Ex.C3, sent by the th March,2015 and  informed him: “We at airtel value your ongoing association with us and hence, a credit adjustment of Rs.2247.20 has already been processed on the said account as a one-time good-will gesture and your number”. Therefore, it would appear that no amount was refunded by the Op to have been charged in excess and rather taking into account the long association of the complainant with the Op and under a good-will gesture , the adjustment of Rs.2247.20 was made. In any case, the amount of Rs.2247.20 having been processed to be adjusted in the credit of the complainant as per e-mail,Ex.C3 dated March 10^th,2015, sent by the Op to the complainant, the complainant had no cause of action to file the complaint particularly when the complainant has not alleged that the refund of Rs.2247.20 is in any way less than what had to be subtracted from the bill dated 6^th March, 2015,Ex.C1.
20. As a matter of fact, we are at a loss to know as to what was the pack of the internet of the complainant, what was the data of the internet used by the complainant in respect of the bill Ex.C1for the period 5.2.2015 to 4.3.2015, in the absence of which, we are not in a position to appreciate the plea of the complainant. The complainant has withheld the material data i.e. pages no.2to4 of the bill Ex.C1 for the reasons best known to him. No presumption can be drawn by the Forum simply because the complainant was given a refund of Rs.2247.20 by the Op under goodwill gesture so as to say that the Op had charged the excess amount in respect of the usage of the internet in the impugned bill.Consequently, it would appear that the complaint lacks in material particulars and the complainant has thus failed to establish his plea with the help of the evidence and the same is bound to fail and accordingly complaint is hereby dismissed.

Pronounced

Dated: 8.10.2015

                   Sonia Bansal                Neelam Gupta                        D.R.Arora

          Member                        Member                                  President