CC No.680.2016

Filed on 02.05.2016

Disposed on.24.02.2018

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 24^th DAY OF FEBRUARY 2018

CONSUMER COMPLAINT NO.680/2016

PRESENT:

 Sri. H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                     V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 02.05.2016 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to withdraw the bill amount of Rs.10,959.42/-, to pay a sum of Rs.1,00,000/- together with interest at 18% p.a., to pay award sum of Rs.10,000/- being the costs and other reliefs.
2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Complainant is a registered subscriber of a mobile telephone connection bearing No.9341221505 with Opposite Party more than ten years with the same being a postpaid connection with as advance deposit of Rs.300/- and a credit limit of Rs.4,200/-. The Complainant visited St.Louis Province Missouri state in U.S.A along with his wife and daughter to leave his daughter after the delivery of the baby in Bangalore between 8.04.2015 and 28.05.2015.  For his travel abroad he opted to take international roaming facility in the above mobile number after being convinced of the tariff offered by Opposite Party.  The tariff offered by the Opposite Party was under a Scheme called international roaming with 100 minutes incoming at Rs.999/- and the same was activated under the said scheme on 04.04.2016 for period of 30 days.  Accordingly his phone number was activated for international roaming under the said tariff by the Opposite Party.  During the stay abroad the Complainant had the facility international roaming service and connection to his phone number and was utilizing the same.  For the first month of usage between 4.04.2015 and 01.05.2015 Opposite Party raised the bill bearing reference Number 824737078 dt.03.05.2015 for sum of Rs.1,964.62 as per the above tariff.  The said payment is duly paid on 03.06.2015 to Opposite Party and the same has been accepted by the Opposite Party.  The Complainant stayed abroad till 28.05.2015.  The Complainant continued to receive text messages by way of SMS from the Opposite Party regarding the same tariff as above and the Complainant was under genuine and bonafide impression that the tariff under which the connectivity was activated was continuing.  No other scheme was activated by him.  So the Complainant continued to use the phone during his stay abroad.  He returned back to India on 29.05.2015 and thereafter International roaming was deactivated on 01.06.2015.  The Complainant was shocked to receive the bill bearing Number 859352875 dt.03.06.2015 with billing period from 02.05.2015 to 01.06.2015 demanding a sum of Rs.10,247/- as the billing charge for the month May 2015.  The Complainant sent an E-mail on 07.06.2015 and 08.06.2015 requesting Opposite Party to revise the said bill and issue a fresh bill in accordance with the tariff under which International roaming was activated.  In reply to the same, the Opposite Party representative issued reply on 08.06.2015 stating that the charges were raised based on the usage abroad and not under the tariff under which was activated on 04.04.2015.  In response there to the Complainant again reiterated that billing was wrong and Opposite Party had no right to switch over to any plan tariff without the consent or approval of the Complainant. In response, the Opposite Party has stuck to the same demand as per bill dt.03.06.2015 and reiterated that Complainant can approach appellate bench.  The Complainant accordingly approached through E-mail on 30.06.2015 raising a dispute before them regarding the illegal and exorbitant bill dt.03.06.2015.  The Opposite Party Bench by way of the reply dt.2^nd and 4^th July 2015 confirmed the bill dt.03.06.2015 by raising a peculiar plea to the effect that the tariff chosen by the Complainant was valid only for a period of 30 days commencing from 04.04.2015 to 02.05.2015 and not thereafter. They further commit that there will be no automatic renewal of the tariff.  It is seen from the reply by the Opposite Party Bench which is at variance from the nodal officials reply that a strange defense sought to be raised in support of their illegal and exorbitant demand.  A connection is activated under particular tariff for a particular number of days, unless there is no option or approval by the Complainant for any other tariff with an express consent the tariff cannot be changed to another plan and the International roaming services had to be automatically suspended or ceased.  Continuation of service on any other tariff without notice to the Complainant and the notice of the Complainant and consent of the Complainant is also an illegality and unfair trade practice.  So it is quite evident that the Opposite Party committed and represented to the Complainant that the activated tariff is continued even for the continuing month since the connection was not discontinued or deactivated the moment period of 30 days completed.   Having regard to the fact that the Complainant had a credit limit of Rs.4,200/-with Opposite Party, even assuming that the said amount had been spent in utilization of the international calls, his phone connection had not been deactivated.  In any event it will establish unfair trade practice, deficiency in service and illegal extortion by Opposite Party.  The incoming calls have been barred with effect from 13.07.2015 and prior to that the outgoing calls has been barred from 26.06.2015.  This is illegal any highhanded.  As the phone number of the Complainant was in wide circulation amongst his family relatives and business circles, he was facing extreme difficulties and losses.  So the Complainant decided to pay the amount demanded in the disputed bill under protest and without prejudice to his rights by way of cheque and the same is sent under the cover of the letter dt.04.08.2015 and the same is received.  Instead of accepting the payment an email dt.10.08.2015 was received by the Complainant to make the payment in alternate modes such as on line payment of cash payment so as to have the services activated.  Therefore again under the cover of the letter dt.12.08.2015 sent the excess amount of Rs.10,755.30 as demanded by way of a demand draft under protest and without prejudice and the same has been received without any demur.  The Complainant has been actively following up about this matter and visited all the offices concerned in this regard and requested for activation of the phone services. A Legal Notice dt.19.08.2015 was therefore issued to the Opposite Party to forthwith activate the Complainant’s phone connection and not to deprive him of the connectivity to his day to day existence any further immediately on receipt of the notice.  But till 07.09.2015 it is surprising and disheartening to note that the phone services has not been activated and the Complainant has been deprived of the precious connectivity to his family members relatives and business for all purposes including domestic gas connection, income tax department and various other statutory authorities, banks and important activities of day to day activities of life.  The Opposite Party has enchased the DD on 18.08.2015 and not returned the cheque.  The Opposite Party has thereafter activated the phone only on 07.09.2015.  This establishes gross negligence and deficiency in service and continuous harassment.   In aforesaid circumstances the Complainant is left with no option but to approach this forum for redressal.  Hence this complaint.     

3. In response to the notice, the Opposite Party put their appearance through their counsel and filed their common version. In the version pleaded that the Complainant is not maintainable either in law or on facts.  The present dispute raised by the Complainant is not maintainable before this Hon’ble Forum in view of the Judgment rendered by the Hon’ble Supreme Court of India in Civil Appeal No.7687/2004 dt.01.09.2009 in the matter between General Manager, Telecom V/s M.Krishnan & another reported in 2009 AIR SCW-5631, followed by the Hon’ble National Commission in the Order dt.18.07.2012 passed in Revision Petition No.398/2011 (Ziyauddin Alvi V/s.Bharti Airtel Ltd.,) As per the said judgments, since the dispute raised by the Complainant is between the subscriber and telecom service provider, the remedy available for the Complainant is under Section 7-B of the Indian Telegraph Act which provides for adjudication of dispute under the provisions of Arbitration Act, on this count itself the present complaint is liable to be dismissed.  The Complainant has contended that, he got activated international roaming facility under a Scheme whereby he would get 100 minutes incoming at Rs.999/- for 30 days.  It is the grievance of the Complainant that, he has used the facility under the bonafide impression that, the same tariff would continue even after 30 days during his entire stay in abroad i.e., from 04.04.2015 to 29.05.2015 and the international roaming was deactivated on 01.06.2015.  He has contended that, for the bill dt.03.06.2015 for the period 02.05.2015 to 01.06.2015 a sum of Rs.10,247/- was charged by the Opposite Party, which is sought to be disputed by the Complainant.  The facility of International roaming with the tariff of Rs.999/- with 100 minutes incoming was only for a period of 30 days and the said fact was clearly appraised to the Complainant at the time of Complainant availing the facility.  Immediately after expiry of 30 days the said tariff would not be applicable, unless the subscriber again seek for activation of the same.  The Opposite Party would not be knowing about the duration of stay of a subscriber in abroad. The Complainant immediately after 30 days ought to have sought for extension of the said tariff/scheme.  Since the Complainant did not took any such action immediately after 30 days the normal applicable tariff was levied and bill was issued in accordance to the usage.  The Complainant having utilized the services extensively, despite due appraisal of facts by the Opposite Party, cannot now contend that, he was under the bonafide impression that, the said tariff/scheme would continue beyond 30 days.  The Complainant has further contended that, he has communicated through e-mail to the Opposite Party seeking issuance of fresh bill by revising the said bill and by applying the earlier tariff, which is not been considered.  The Complainant was clearly informed that, the earlies tariff was only for a period of 30 days and it is not duty or obligation on the part of a service provider to remind a subscriber that, it was the obligation of the Complainant, if required to had the facility extended by making necessary procedure.  The Opposite Party has issued the reply explaining the same to the Complainant and requested him to make the payment of the bill amount.  Despite clearly appraisal Complainant persisted with his absurd claim which is refused by the Opposite Party.   The claim made by the Complainant before the Appellate Authority was also examined and since the bill was in accordance to the usage and as per the applicable tariff, his claim was rejected by the appellate authority.  There is no variance or strange defence raised by the Opposite Party nor the same is illegal or exorbitant as contended by the Complainant.  The contention of the Complainant that, unless there is no option or approval byte Complainant for any other tariff with an express consent the tariff cannot be changed to another plan and the International roaming services had to be automatically suspended, continuation of the services on other plan without notice is an illegality and unfair trade practice are denied as false.  The Complainant has sought for activation of International roaming with a particular plan for a particular period and once that period is ceased, it would not automatically disconnect the very roaming facility.  In fact it is also admitted by the Complainant that, the said scheme was only for 30 days. The Complainant having used the facility even beyond 30 days is estoped from contending that, the Opposite Party should have discontinued the roaming facility.  The credit limit fixed by the service provider to a subscriber is only a right and not the obligation on the service provider.  If the usage of a subscriber surpass the credit limit, the service provider would get right to demand for payment of usage charges immediately, even before completion of the billing cycle and issuance of bill from such subscriber.  This is a privilege given to service provider to avoid bad debts.  Even otherwise in the instant case, since the Complainant was in roaming, the Opposite Party who is a service provider only in India would get the details of usage charges from the service provider of that country wherein the Complainant was logged in.  Hence, the actual usage charges can be assessed only upon completion of the billing cycle, accordingly the bill was issued to the Complainant.  It is relevant to note that, the Complainant has not disputed the usage of the roaming facility during his stay abroad.  The Complainant did not make the payment even after the due date, despite repeated reminders, the Opposite Party had to suspend the telephone service of the Complainant.  The Opposite Party has got power to do so under Rule 443 and 444 of Indian Telegraph Rules.   There is no illegality or highhandedness on the part of the Opposite Party.   The grievance of the Complainant about non-receipt of the demand draft by the Opposite Party towards bill amount is concerned, it is submitted that, the mode of payment by cheque and demand drafts would normally take bit more time for recording and processing by the concerned departments in reactivating the barred services.   In the instant case, the demand draft though encashed on 18.08.2015 the same would require considerable time for uploading the system for reactivation and it is for the said reason through e-mail dt.10.08.2015, he was requested to make the payment through other modes which would enable the Opposite Party to reactivate the services within 4 hours of payment receipt.  Despite this information, for the reasons best known to the Complainant he has opted to make the payment through demand draft and the alleged delay in restoration of services is not due to any malafide intention or deliberate but it is only due to procedural delay, for which no negligence can be attributed to the Opposite Party.  All the averments made by the Complainant alleging negligence and deficiency in service against the Opposite Party are denied as false.  There is no willful default or negligence on the part of this Opposite Party.  There is no cause of action to file the complaint and prays to dismiss the complaint.

4. The Complainant, Sri.Jugraj Sethia filed his affidavit by way of evidence and closed his side.  The Opposite Party, Sri.Siddaveer Chakki filed his affidavit by way of evidence.  Heard the arguments of both parties.

5.      The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Party ?
2. If so, to what relief the Complainant is entitled ?

6.     Our findings on the above points are:-

                POINT (1):-  Negative

                POINT (2):-  As per the final Order

REASONS

7.    POINT NO.1:- It is the case of the Complainant that the Complainant is a registered subscriber of a mobile telephone connection bearing No.9341221505 with Opposite Party more than ten years with the same being a postpaid connection with as advance deposit of Rs.300/- and a credit limit of Rs.4,200/-.  The Opposite Party in their version has not been denied this fact.  Further to substantiate this the Complainant in his sworn testimony, he has reiterated the same.  This evidence of the Complainant is also not been challenged by the Opposite Party.  Therefore, it is proper to accept the contention of the Complainant that the Complainant is the Subscriber of a mobile telephone connection bearing No.9341221505 with Opposite Party more than ten years with a postpaid connection with as advance deposit of Rs.300/- and a credit limit of Rs.4,200/-.

8. It is further case of the Complainant that the Complainant visited St.Louis Province Missouri state in U.S.A along with his wife and daughter for his travel abroad he opted to take international roaming facility in the above mobile number after being convinced of the tariff offered by Opposite Party.  The tariff offered by the Opposite Party was under a Scheme called international roaming with 100 minutes incoming at Rs.999/- and the same was activated under the said scheme on 04.04.2016 for period of 30 days.   Even this fact is also not been denied by the Opposite Party in their version.  Further to substantiate this, the Complainant in his sworn testimony, he has reiterated the same and produced the tariff Brochure.  By looking into this document, it is very clear that ISD has been activated on the Complainant Airtel mobile with effect from 04.04.2015.  Service update International Roaming, IR with 100 min incoming @ Rs.999/- for 30 days.  Even this evidence of the Complainant is also not been challenged by the Opposite Party.  Therefore, it is proper to accept the contention of the Complainant that the Complainant visited St.Louis Province Missouri state in U.S.A. between 08.04.2015 and 28.05.2015.   For his travel abroad he opted to take International Roaming facility to his mobile number after being convinced of the tariff offered by Opposite Party.  The tariff offered by the Opposite Party was under a Scheme called International Roaming with 100 minutes incoming at Rs.999/- and the same was activated under the said scheme on 04.04.2015 for period of 30 days. 

9. It is also further case of the Complainant that for the first month of usage between 4.04.2015 and 01.05.2015 Opposite Party raised the bill bearing reference Number 824737078 dt.03.05.2015 for sum of Rs.1,964.62 as per the above tariff.  The said payment is duly paid on 03.06.2015 to Opposite Party and the same has been accepted by the Opposite Party.  This fact is also not been denied or disputed by the Opposite Party.  Further to substantiate this, the Complainant in his sworn testimony, he has reiterated the same and produced the bill, it is dt.03.05.2015.   By looking into this bill, it is in the name of the Complainant with respect to his Airtel No.9341221505 and the bill period 02.04.2015 to 01.05.2015 for a sum of Rs.1,964.62 pulses.  Even this evidence of the Complainant also not been challenged by the Opposite Party.  Therefore, it is proper to accept the contention of the Complainant that for the first month of usage between 4.04.2015 and 01.05.2015.  The Opposite Party raised the bill bearing reference Number 824737078 dt.03.05.2015 for a sum of Rs.1,964.62 pulses.  The said payment is duly paid on 03.06.2015 to Opposite Party and the same has been accepted by the Opposite Party. 

10. It is the further case of the Complainant that the Complainant stayed abroad till 28.05.2015. The Complainant continued to receive text messages by way of SMS from the Opposite Party regarding the same tariff as above and the Complainant was under genuine and bonafide impression that the tariff under which the connectivity was activated was continuing.  No other scheme was activated by him.  The Complainant continued to use the phone during his stay abroad.  He returned back to India on 29.05.2015 and thereafter International roaming was deactivated on 01.06.2015.  The Complainant was shocked to receive the bill bearing Number 859352875 dt.03.06.2015 with billing period from 02.05.2015 to 01.06.2015 demanding a sum of Rs.10,247/- as the billing charge for the month May 2015.  But the Opposite Party in their version denied this fact and taken a defence that the facility of International Roaming with tariff of Rs.999/- with 100 minutes incoming was only for a period of 30 days and the said fact was clearly appraised to the Complainant at the time of Complainant availing the facility.  Immediately after expiry of 30 days the said tariff would not be applicable, unless the subscriber again seek for activation of the same.  The Opposite Party would not be knowing about the duration of stay of a subscriber in abroad. The Complainant immediately after 30 days ought to have sought for extension of the said tariff/scheme. Since the Complainant did not took any such action immediately after 30 days the normal applicable tariff was levied and bill was issued in accordance with the usage.  The Complainant having utilized the services extensively, despite due appraisal of facts by the Opposite Party, cannot now contend that, he was under the bonafide impression that, the said tariff/scheme would continue beyond 30 days.   It is on the burden of the Complainant to establish his case, in support of his case, the Complainant in his sworn testimony, he has reiterated the same and produced text message dt.04.05.2015.  As looking into this message, it is very clear that Roaming offer for USA get 100 min of incoming calls free, thereafter all incoming calls @ Rs.15/- per minute, outgoing calls @ Rs.30/- min, outgoing SMS @ Rs.15/- and data charges @ 30p/10KB at Rs.999/- month.  To activate now, dial *121*99#, Click st month of the roaming facility offered to the Complainant with 100 minutes of incoming calls at 999/-, after 1^st month Opposite Party send a message to his mobile to activate now, dial *121*99#, click www.airtel.in ir (data charges apply as per plan or call No.919910099100 at Rs.10/- min.  The Opposite Party by sending message clearly indicates that the Complainant to activate now the above said tariff but dial *121*99#, click (data charges apply as per plan) or call.  Inspite of giving message to the Complainant, the Complainant has not taken any steps.  On the other hand, he is of bonafide impression that the tariff under which the connectivity was activated continuing.  So also the Opposite Party send similar messages on 11.05.2015 and 18.05.2015.  Inspite of remainder, the Complainant has not taken any steps to reactive with 100 minutes of incoming calls at 999/-.  For that reason, the Opposite Party raised the bill on a normal tariff basis and issued bill dt.03.06.2015 for a period of 02.05.2015 to 01.06.2015 for a sum of Rs.10,247/-.  Nodoubt the Complainant sent an email on 07.06.2015 and 08.06.2015 requesting Opposite Party to revise the said bill and in accordance with the tariff under which International roaming was activated.  But to those emails, Opposite Party replied on 08.06.2015 and in that reply message, the Opposite Party have clearly communicated that they have checked their record and noted that the Complainant have activated the IR with 100 min incoming @Rs.999 for 30 days on 04.04.2015 and the same has been deactivated on 01.06.2015.  Further the bill period started from 02.05.2015 to 01.06.2015 and International roaming Incoming calls, he noted that you have consumed 81 minutes.  Hence they have charged Rs.7020/- towards the incoming calls.  International roaming Outgoing calls.  You have consumed 25 minutes.   You have charged Rs.1,620/- towards the outgoing calls.  International roaming SMS, you have consumed 442 pulses.  You have charged Rs.50.00/- towards the SMS.  In their reply, they have clearly mentioned that what are charges are charged by the Opposite Party after 30 days during further stay at Abroad.  For that reason, they have not considered the request of the Complainant to revise the said bill.  The Complainant approached the Opposite Party Bench after refusing to revise the bill through email on 30.06.2015 raising the dispute before them.    The Opposite Party Bench by way of the reply dt.2^nd and 4^th July 2015 confirmed the bill dt.03.06.2015 by raising a peculiar plea to the effect that the tariff chosen by the Complainant was valid only for a period of 30 days commencing from 04.04.2015 to 02.05.2015 and not thereafter.  There will be no automatic renewal of the tariff.  This is also very clear as seen from the reply given to the Opposite Party Bench on 02.07.2015 and 04.07.2015.  Even as the evidence placed by the Complainant himself, it is clear that the Opposite Party have raised the bill for a period of 02.05.2015 to 01.06.2015 demanding a sum of Rs.10,247/- as per the normal tariff. 

11. It is also case of the Complainant that the incoming calls have been barred with effect from 13.07.2015 and prior to that the outgoing calls has been barred from 26.06.2015.  This is illegal any highhanded.  As the phone number of the Complainant was in wide circulation amongst his family relatives and business circles, he was facing extreme difficulties and losses.  So the Complainant decided to pay the amount demanded in the disputed bill under protest and without prejudice to his rights by way of cheque and the same is sent under the cover of the letter dt.04.08.2015 and the same is received.  Instead of accepting the payment an email dt.10.08.2015 was received by the Complainant to make the payment in alternate modes such as on line payment of cash payment so as to have the services activated. The Complainant therefore again under the cover of the letter dt.12.08.2015 sent the excess amount of Rs.10,755.30 as demanded by way of a demand draft under protest and without prejudice and the same has been received without any demur.  The Complainant has been actively following up about this matter and visited all the offices concerned in this regard and requested for activation of the phone services. A Legal Notice dt.19.08.2015 was therefore issued to the Opposite Party to forthwith activate the Complainant’s phone connection and not to deprive him of the connectivity to his day to day existence any further immediately on receipt of the notice.  The said notice is duly served to the Opposite Party but till 07.09.2015 it is surprising and disheartening to note that the phone services has not been activated and the Complainant has been deprived of the precious connectivity to his family members relatives and business for all purposes including domestic gas connection, income tax department and various other statutory authorities, banks and important activities of day to day activities of life.  Even to substantiate this, the Complainant in his sworn testimony, he has reiterated the same and also produced the email correspondences made with Opposite Party and also legal notice.  Even by looking into the documents produced by the Complainant himself, it is clear that the Complainant has not paid bill amount raised on 03.06.2015 till 12.08.2015.  For that reason, the Opposite Party have disconnected the service to the Complainant’s mobile but not any other reason after making payment on 12.08.2015 the Opposite Party have immediately activated the service on 07.09.2015, thereby there is no deficiency of service by the Opposite Party as alleged by the Complainant.  The Complainant have not placed any evidence to show that there is a deficiency of service on the part of the Opposite Party or the Opposite Party is adopting unfair trade practice.  Hence, this point is held in Negative. 

12. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The Complaint is dismissed.  No costs. 

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 24^th day of February 2018).

        MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Jugraj Sethia, who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Tariff Brochure dt.04.04.2018.
2. Bill dt.03.05.2015, 03.06.2015, 03.07.2015, 03.08.2015 and 03.09.2015.
3. Text messages dt.04.05.2015, 11.05.2015 and 18.05.2015.
4. Email dt.07.06.2015, 08.06.2015, 26.06.2015, 30.06.2015, 30.06.2015, 15.07.2015, 15.07.2015, 06.08.2015, 10.08.2015 and dt.28.09.2015.
5. Reply dt.07.06.2015, 08.06.2015, 30.06.2015,02.07.2015, 04.07.2015, 15.07.2015, 17.07.2015, 06.08.2015 and 10.08.2015
6. Letter, cheque, postal receipt dt.04.08.2015,
7. Letter delivery acknowledge dt.05.08.2015
8. Letter, Demand Draft, Postal Receipt dt.12.08.2015
9. Letter delivery acknowledgement dt.12.08.2015
10. Visiting tokens dt.06.06.2015 to 23.07.2015.
11. Legal Notice dt.19.08.2015.
12. Delivery acknowledgment dt.21.08.2015.
13. Acknowledge of PAN application dt.27.07.2015.
14. Bank Certificate dt.07.09.2015.

Witness examined on behalf of the Opposite Parties:

1. Sri.Siddaveer Chakki, Authorized person of Opposite Party by way of affidavit.

List of documents filed by the Opposite Party:

                              -NIL-

    MEMBER                                                                         PRESIDENT