Date of Filing: 21/08/2011
Date of Order: 30/08/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 30th DAY OF AUGUST 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO. 1346 OF 2011
Sri. Krishnamurthy G,
Purohit, S/o. Late Gopala Bhatta,
Aged About 63 years,
R/at: No.545, Fort Street, Fort,
Devanahalli-562 110.
Bangalore Rural District,
Rep. by his son & authorized person
Sri. Harish D.K, S/o. Krishna Murthy G,
Aged About __ years, R/at: No.545,
Fort Street, Fort, Devanahalli-562 110.
Bangalore Rural District. Complainant.
-V/s-
M/s. Bharti Airtel Ltd.,
No.55, Divyashree Towers,
Bhannerghatta Road,
Bangalore-560 029.
Rep. by its Regional Manager/
Authorised Officer.
(Rep. by Advocate Sri.N.Prashanth) Opposite party.
BY SRI.H.V.RAMACHANDRA RAO, PRESIDENT
ORDER
The brief antecedents that lead to the filing of complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to pay Rs.1,00,000/-, are necessary:-
The complainant has purchased the SIM of mobile No.9900113603 about six years back from the opposite party and his son was using it. On 21.02.2011 a request was made with the opposite party to provide “3G service” for the said mobile. It was activated on 21.02.2011, on a rental plan of Rs.100/-. After using the said service for few days it was found that the network for the said service was not up to the mark but has serious technical problem. Hence a request was made to the opposite party to cancel the same which was answered by Sri. Manu on 24.02.2011 at 20:29:30 hours to discontinue “3G service” and activate only “2G service” on monthly rental plan of Rs.98/-. The request Number is 36010987 and confirmation code was 446953756. The charges for “3G service were exorbitant, hence the 2G service were sought earlier. On 25.02.2011 Smt. Shalini of the opposite party interacted regarding the change in request at 16:10:02 hours. On 28.03.2011 the bill was received for the period between 26.02.2011 to 25.03.2011 bearing No.446953756 wherein the opposite party has charged Rs.3,826.74 paise. Hence the complainant informed the same and made enquiry with the opposite party who told that “3G service” has been used and for that usage this is the bill. Immediately after it was clarified that on 24.02.2011 itself the “3G service” were discontinued. Even the latest bill dated: 28.03.2011 the opposite party has charged a sum of Rs.3,826.74 paise. Regarding this Rs.500/- and Rs.300/- has been paid to the opposite party towards the normal charges as the complainant has already cancelled the 3G services. This is nothing but deficiency in service. On 01.04.2011 the opposite party was requested to cancel the service instead of harassing the complainant. Hence the complaint.
2. In brief the version of the opposite party are:-
In view of Section 7-B of the Indian Telegraph Act and the judgment of the Apex Court and National Commission in Civil Appeal No. 7687/2004, in 2009 AIR SCW 5631 this Forum has no jurisdiction to entertain the dispute. The complainant is the subscriber of the opposite party with respect to the mobile in question. It was changed to 3G format on 21.02.2011 and it was used up to 23.03.2011. It was changed to 2G on 24.02.2011. Between 21.02.2011 and 23.03.2011 the complainant had used the facility of 3G. The 3G and 2G is only speed and nothing else. It was informed to the complainant accordingly. Hence the complainant informed the opposite party to provide facility of 3G on 28.02.2011. Accordingly it was activated. Hence he cannot say that it is activated behind his knowledge. All the allegations to the contrary are denied.
3. To substantiate the respective cases, the parties have filed their affidavits. The arguments were heard.
4. The points that arise for our consideration are:-
(A) Whether the complaint is not maintainable?
(B) Whether there is deficiency in service?
(C) What order?
5. Our findings on the above points are:-
Point (A) & (B) : In the Negative.
Point (C):As per the final order
For the following:-
REASONS
POINT (A) to (C):-
6. It is an undisputed fact that the complainant has been provided with the mobile service of the opposite party in SIM No. 9900113603 and he was using it through his son since 7 to 8 years and 3G service obtained for the said mobile and it was discontinued for some time and it was reactivated later. Regarding these things this complaint is filed. It was contended that in view of Section 7-B of the Indian Telegraph Act and the judgment of the Apex Court the matter has to be decided by arbitrators and not by this Forum. In 2010 CTJ 688 it has been held thus:-
“Mobile phones’ complaints-Private telecom operators-Consumer Protection Act, 1986-Indian Telegraph Act, 1885-Section 7-B-Telecom Regulatory Authority of India Act, 1997 (TRAI Act)-Section 14-Alleged deficiency in service of the private mobile service provider-Contention raised by the service provider that following the judgment of the Supreme Court in General Manager, Telecom –V/s- M.Krishnan and another, 2009 CTJ 1062 (SC)(CP), the parties are to be relegated to avail of the remedy available to them under Section 7-B of the Telegraph Act-In the cited judgment the Court held : 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-In the same context the Court also observed that the special law overrides the general law-Section 7-B comes into play in the event of a dispute arising between the telegraph authority and the person who had obtained the line/appliance or apparatus for his use-Telegraph authority as defined in the said Act means the Director General of (Posts and Telegraphs) and includes any officer empowered by him to perform all or any of the functions of the telegraph authority under it-Private service providers are licencees to operate private mobile lines under Section 4(f) of the Telegraph Act-They cannot be equated with the Director General, Posts and Telegraphs nor be termed as designated officers-Therefore, the dispute between a licencee and its customer not to be covered by Section 7-B-Functioning f the private mobile operators is regulated by the Telecom Regulatory Authority of India Act-Its Section 14 makes it amply clear that the private service providers are not governed by Section 7-B-It also makes it clear that the Consumer Forums can proceed to exercise jurisdiction over them-This being the position, the private service providers cannot take advantage of the judgment of the Supreme Court in the cited case.”
The judgment of the Apex Court has been considered and held that the said judgment of the Apex court is applicable to only to the BSNL and not to the private telephone service providers. The opposite party has cited AIR 2010 SC 90, the judgment in Reliance Telecom Limited –V/s- Jay Kumar Jain & Another in Appeal No.669/2008 dated: 06.10.2009 by the M.P. State Consumer Disputes Redressal Commission Section 7-B of the Indian Telegraph Act and certain notification. These are not applicable to the facts and circumstances of this case, though there is no dispute about the proposition of law stated therein. Hence the contention that this Forum has no jurisdiction to entertain the complaint is untenable one.
7. Here the contention is that the complainant was provided with 3G facilities for some time it was discontinued later, even then the bill for 3G service that is the bill of 28.03.2011 for Rs.3,826.74 paise and the bill of 28.06.2011 for Rs.3,526.77 paise which is illegal. Anyway the opposite party has stated that difference between 3G and 2G is only the speed and nothing else. If the complainant has used alone then the bill may be given. The complainant does not dispute about his using the mobile for the said period and for this use alone the bill has been given. The opposite party has produced the details of the use made by the complainant regarding the said period that has not been challenged or denied by the complainant. When he has used the services of the opposite party, the opposite party has charged for it, whether it is 3G or 2G it is immaterial. If the complainant has not used how can the bill come? There is no answer. Hence there cannot be an excessive billing. Hence it cannot be held deficiency in service. Hence we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Dismissed.
2. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
3. Send a copy of this order to the complainant free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 30th Day of August 2011)
MEMBER MEMBER PRESIDENT
