DISTRICT CONSUMERDISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 62 of 27.2.2008 Decided on : 15.5.2008 <br /> <br /> Ram Narayan Bansal S/o Sh. Dev Raj Bansal, R/o House No. 404, Phase 1, Model Town, Bathinda.<br /> .... Complainant<br /> Versus<br /> <br /> 1.M/s. Tata Teleservices Limited, C-125, Phase-VIII, Industrial Focal Point, Mohali-160071 (Punjab) through its Incharge/Manager.<br /> 2.M/s. Tata Teleservices Limited, SCO No. 23-30, Mital Complex, Near HDFC Home Loan, Model Town, Phase-1, Bathinda.<br /> ..... Opposite parties<br /> <br /> Complaint Under Section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Ashok Gupta, Advocate<br /> For the opposite parties : Sh. J.S Kohli, Advocate<br /> <br /> O R D E R. <br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Complainant had purchased Tata Indicom Mobile handset with connection No. 92160-60106 under Unlimited Roaming Free Plan. After release of connection, its number and plan cannot be changed without the consent of the consumer. He was making payment of the bills regularly. In April, 2007, opposite parties had changed the plan without any intimation to him and sent the bill under changed plan without his consent. When protest was raised by him, plan was again revised to the previous one. Again in the month of May, 2007, plan was changed by them of their own without any intimation and his consent. Request was made by him on 12.6.2007 for changing the plan and sending the bill according to the plan under which the connection was released. Instead of acceding to his request, opposite parties without any notice to him stopped the incoming and outgoing facility and made the connection dead. He approached the officials of opposite party No. 2 to get incoming and outgoing facility restored, but to no effect. Legal notice dated 18.10.2007 was got issued by him through his counsel on 24.10.2007, but of no avail. In reply to the notice, they admitted that connection was originally released under tariff plan subscribed Get More 124 which was later on changed to Get More 274. It was falsely alleged that it was done on receipt of his request. They admitted that connection was temporarily suspended on 4.7.2007. Their plea was that he had failed to pay outstanding dues of Rs. 1093/-. He alleges that nothing was due against him. Moreover, matter was sub-judice. Opposite parties declined to restore his connection and extended threat to close the account. Hence, there is deficiency in service on the part of the opposite parties. In these circumstances, complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred seeking direction from this Forum to the opposite parties to restore his mobile connection; charge from him as per previous/original plan under which connection was purchased; pay him Rs. 20,000/- as compensation for embarrassment, harassment, botheration and mental agony, besides costs of the complaint.<br /> 2. Opposite parties filed their version taking preliminary objections that complaint is false and frivolous; complainant has concealed material facts from this Forum; amount of compensation claimed is highly exaggerated; no plan is for life time unless it is specifically offered under such category. Also life long plans are prevalent only in prepaid category and not in post paid category. All other plans are subject to change from time to time. They admit that telephone connection number once issued cannot be changed unless owing to technical requirements. There is change of series prescribed by Department of Telecommunications. Connection bearing No. 9216060106 was originally subscribed by one Anand Vikas Mittal under plan “Get More Roam Plan”. Later on the ownership was transferred in the name of the complainant. At that time M/s. Tata Teleservices Limited Company was offering unlimited free incoming while roaming to all the subscribers who had opted for this particular facility. It is added by them that they are governed by the guidelines issued from time to time by the Telecom Regulatory Authority of India (TRAI) which regulatory body has been established by enactment of TRAI Act, 1997. Section 11(2) of the TRAI Act empowers the Authority to fix rates for telecommunication services in India. In exercise of the powers conferred upon TRAI under section 11(2), TRAI had notified Telecommunication Tariff order (TTO), 1999 and had published it in the Gazette of India. In this manner, TTO is the tariff regulatory order of TRAI, applicable on all Telecom Service providers and violation of the order invites initiation of criminal prosecution against the erring service provider by the TRAI before the Court of Magistrate. Therefore, any tariff specified under the TTO or in its amendment becomes legal mandate to be adhered to by the Service providers. On 24.1.2007, TRAI had notified the 44th Amendment to TTO notifying the revised ceiling roaming tariffs in which TRAI has done away with monthly rentals for roaming and specified per minute ceiling roaming rates. Sub-order (2) of Order 1 of the TTO (44th Amendment) clearly stipulates that the tariffs notified under this order shall come into force w.e.f. 15th February, 2007. Order 2 of the TTO (For the 44th Amendment) further stipulates that the prevailing roaming tariffs i.e. available before 15th February, 2007 shall be substituted with the new revised ceiling tariffs given in Schedule II of this order. Further para 11.34 of the Explanatory Memorandum attached with this order directs the Service Providers to restructure their roaming tariffs consistent with this order and implement the same on 15.2.2007 and report to the TRAI. They have reproduced clauses 11.33 and 11.34 in the reply. It is further averred by them that in view of the above, all roaming tariffs including Add on Packs has been withdrawn and revised tariffs were reported to TRAI. Since the tariffs are in the nature of ceiling, offering “N” number of free minutes in any of the category a, b and c is permitted provided no monthly rental is levied for it. Accordingly, the company for the benefit of the subscribers, instead of completely withdrawing the free service, had offered 750 minutes free against a nominal charge of Rs. 150/- which are taken in form of plan charges. Letters were issued to all subscribers of free incoming while roaming facility including the complainant in consonance with the directions of TRAI with the details of changes proposed to be effected in the existing tariff plan. Letter was written to the complainant on 10.3.2007. Later a telephonic confirmation was also sought from the complainant wherein he was briefed over the components of new plan and was also given option to do away with and/or not to choose the free incoming while roaming facility. However, he specifically agreed and chose the new tariff plan structured in accordance with the directions from TRAI which had following components:-<br /> ( a ) Rs. 150/- as Bill Plan Charges;<br /> ( b ) All incoming calls while roaming free upto first 750 minutes and<br /> ( c ) Post 750 minutes, all incoming calls while roaming to be charged @ 1.75 paisa per minute.<br /> From Ist May, 2007 the call charges for incoming roaming had been further reduced to Rs.0.50 per minute instead of Rs.1.75 per minute, which is a further relief available to all subscribers. Change in plan with above components was effected with the consent of the complainant. New plan was made effective in April, 2007 and was not changed thereafter. No request letter dated 12.6.2007 was received by them from the complainant. Services to the connection of the complainant were temporarily suspended on 4th July, 2007 owing to non payment of the dues. He did not bother to deposit service/usage charges despite repeated telecalls and sms, after which services were barred. Reply of the notice sent by the complainant was submitted. A sum of Rs. 1093/- was due and payable by the complainant. They deny that matter was sub-judice at any point of time. He was duly conveyed to make payment of charges for restoration of the services. He was further intimated that after three months, in case of non payment, services would stand permanently disconnected. As per the terms and conditions of the Customer Application Form agreed by the customer, the company has all the rights to suspend/terminate the services in the event of non payment. In pursuance of the directions of TRAI vide its 44th Amendment dated 24.1.2007, they had to curtail the facility of free incoming while roaming. Accordingly, bill plan charges were also marginally modified. They have reproduced extract of Sub Clause ( b ) of Clause 11.23 as under :-<br /> ( b ) The Authority is fixing roaming tariff as ceiling and by this it seeks to provide flexibility to operators to offer tariffs in a competitive manner. The Authority also seeks to permit some additional margin in its choice of the available range of cost estimates.”<br /> They have not made the change of their own. They were bound to do the same in view of the guidelines issued by TRAI which are binding in nature. They deny deficiency in service and unfair trade practice on their part and the remaining averments in the complaint. <br /> 3. In support of his allegations and averments made in the complaint, Ram Narayan Bansal complainant tendered into evidence his own affidavits (Ex.C.1 & Ex.C.13), photocopies of bills (Ex.C.2 to Ex.C.5), photocopies of bill payment receipts (Ex.C.6 & Ex.C.7), photocopy of letter dated 12.6.2007 (Ex.C.8), photocopy of legal notice dated 18.10.2007 (Ex.C.9), photocopies of postal receipts (Ex.C.10 & Ex.C.11) & photocopy of reply to legal notice (Ex.C.12). <br /> 4. On behalf of the opposite parties, reliance is placed on photocopies of letters dated 10.3.2007 & 8.11.2007 (Ex.R.1 & Ex.R.2) and photocopy of postal receipt (Ex.R.3).<br /> 5. We have heard the learned counsel for the parties. Apart from this, we have perused the record. <br /> 6. Admittedly, tariff plan subscribed by the complainant was CMO-Get More Roam Plan. It was also known as Get More 124 as per copy (Ex.R.2) of the letter of the opposite parties. This plan was changed to Get More 274. Stance of the opposite company is that it is governed by the guidelines issued by TRAI which is the regulatory body established under TRAI Act 1997. This Act empowers the Authority to fix rate for telecommunication services. TRAI in exercise of the powers conferred upon it under section 11(2) had notified its Telecommunication Tariff Order (TTO). This TTO is of TRAI and opposite company is bound to follow it. TRAI on 24.1.2007 notified 44th Amendment to TTO notifying the revised ceiling roaming tariffs in which it has done away with monthly rentals for roaming and specified per minute ceiling roaming rates. Tariffs notified have come into force on 15.2.2007. Prevailing roaming tariffs i.e. available before 15.2.2007 stand substituted with new revised ceiling tariffs. As per para 11.34 of the Explanatory Memorandum, the service providers are to restructure their roaming tariffs consistent with the order. As per para No. 11.33, the Authority has decided the following tariff structure for various scenarios of call and SMS while roaming:-<br /> ( a ) For incoming call ceiling of Rs. 1.75 per minute.<br /> ( b ) For outgoing call (local)-ceiling of Rs. 1.40 per minute.<br /> ( c ) For inter-circle call-ceiling of Rs. 2.40 per minute.<br /> ( d ) Monthly access charge (rental) for roaming-Nil<br /> ( e ) PSTN charges-Nil<br /> ( f ) Surcharge-Nil<br /> ( g ) For incoming SMS while roaming-Nil<br /> ( h ) For outgoing SMS while roaming-Forbearance”<br /> Further plea of the opposite parties is that complainant was briefed over the components of new plan and was also given option to do away with and/or not to choose the free incoming while roaming facility. <br /> 7. Learned counsel for the opposite parties argued that complainant had specifically agreed and chosen the new tariff plan structured in accordance with the directions from TRAI which had following components:-<br /> ( a ) Charges for outgoing local call while roaming- Rs.1.40 per minute (ceiling)<br /> ( b ) Charges for outgoing STD call while roaming-Rs.2.40 per minute (ceiling)<br /> ( c ) Charges for incoming call while roaming -Rs.1.75 per minute (ceiling)<br /> Apart from this, call charges for incoming roaming have been reduced to Rs. 0.50 per minute instead of Rs. 1.75 per minute from Ist May, 2007. His next submission is that change in the plan opted by the complainant was effected with his consent and services to his connection were temporarily suspended on 4.7.2007 owing to non-payment of dues outstanding against him. For this, he drew our attention to the copies of the letters Ex.R.1 & Ex.R.2. <br /> 8. Mr. Gupta, learned counsel for the complainant argued that complainant was regularly making payment of the bills sent by the opposite parties. Copies of the bills are Ex.C.2 to Ex.C.5. Payment receipts dated 20.4.2007 & 21.5.2007 regarding the payment of the bills are Ex.C.7 & Ex.C.6 respectively. Complainant gave no consent for change of the plan. Plan has been changed to Get More 274 by the opposite parties of their own. Complainant was not bound to pay the dues as per the new plan. Opposite parties have illegally stopped incoming and outgoing facility and has made the connection dead without any intimation to the complainant.<br /> 9. We have considered the respective arguments. No-doubt, the TTO of TRAI becomes applicable on all the Telecom Service Providers, yet one thing which requires determination is as to whether any opportunity was afforded to the complainant before changing his CMO-Get More Roam Plan i.e. Get More 124 to Get More 274. Opposite parties are relying upon Ex.R.1 & Ex.R.2 which are their copies of the letters dated 10.3.2007 & 8.11.2007 respectively. Ex.C.2 is the copy of the bill for April, 2007. In this document, tariff plan has been recorded as CMO-Get More 124 Roam Plan. Even in the bills of May, June and July (Ex.C.2 to Ex.C.5), plan has not been recorded as Get More 274 although the rates appear to have been mentioned in them of Get More 274. Complainant reiterates his version in his affidavits Ex.C.1 and Ex.C.13. Letter dated 12.6.2007 was issued by him to opposite party No. 1 intimating that tariff plan has been changed without his written consent or telephonic message to him. Not to speak of this, legal notice was also sent by him to the opposite parties and copy of the same is Ex.C.9. Opposite parties gave reply of the notice, copy of which is Ex.R.2 in which they have mentioned that originally tariff plan subscribed by him was Get More 124 which was later on changed to Get More 274 on receipt of his request. No such request allegedly sent by the complainant has been placed and proved on record by the opposite parties. Ex.R.1 is the coy of the letter dated 10.3.2007 which has been shown to have been issued to the complainant on 10.3.2007. It is reproduced as under :-<br /> “Sub : Update on your Tariff plan<br /> Dear subscriber,<br /> We sincerely hope our roaming tariffs have been of great value to you on your business and holiday trips.<br /> Subsequent to regulatory revisions in roaming tariff structures, some changes have become necessary. The Incoming roaming pack has been withdrawn.<br /> For your next April'07 bill cycle the following changes has been carried out:-<br /> . All incoming calls while roaming will be FREE upto 750 minutes, per billing cycle<br /> . Post 750 minutes, all Incoming calls while roaming will be charged at Rs. 1.75 per minute.<br /> . The monthly rental continues to be at Rs. 99/-<br /> . There would be a Bill plan charge of Rs. 150/-<br /> . Caller Line Identification presentation is Rs. 25/-<br /> . Therefore your monthly commitment in the new plan with above mentioned incoming roaming advantage would be Rs. 274/-.<br /> . All the other plan details remain the same as before.<br /> You continue to get the best of roaming benefits with us! Enjoy value roaming with Tata Indicom and continue to save upto 1000/- on incoming roaming!<br /> You may call 121 in case you want to review your options.<br /> Thanking you and assuring you of the best of our services.<br /> Warm Regards,<br /> Sd/-<br /> (Suman Kargupta)<br /> Customer Service.”<br /> Contention of the learned counsel for the complainant that this letter was not received by the complainant, is acceptable. No postal receipt is on the record to show that this letter was actually issued to the complainant. There is no acknowledgement to prove that this letter, copy of which is Ex.R.1, was received by the complainant. Hence, plea of the opposite parties that due intimation was given to him regarding change of the tariff plan and due consent was taken to continue to provide the free incoming calls while roaming facility, is unfounded and baseless. The conclusion is that tariff plan has been changed by the opposite parties without the consent and connivance of the complainant which is against the principles of natural justice as no one can be condemned unheard. When it is so, opposite parties could not issue bill/bills applying the plan Get More 274 nor could they stop the incoming and outgoing facility and make the connection dead for non payment of the dues on the basis of changed tariff plan. Bills under Get More 274 plan are illegal and are liable to be revised under Get More 124 Plan. Hence deficiency in service on the part of the opposite parties is established. <br /> 10. Now question arises as to which relief should be accorded to the complainant. No-doubt, opposite parties being service providers are bound to comply with the Telecommunication Tariff Orders of TRAI. They can change the plan with the consent of the complainant or by affording opportunity to him in this regard which has not been done. In view of deficiency referred to above, direction deserves to be given to the opposite parties to restore connection No. 9216060106 under plan CMO-Get More Plan (Get More 124) for which connection was purchased subject to the condition that complainant makes payment of the amount due, if any, under this plan. Act and conduct of the opposite parties must have caused harassment, botheration and mental tension to the complainant for which he deserves some compensation which we assess as Rs.1,000/-.<br /> 11. In the result, complaint is allowed against the opposite parties with costs of Rs.1,000/-. Complainant and opposite parties are directed to do as under :-<br /> ( i ) If any amount is due against the complainant regarding connection No. 9216060106 under CMO-Get More 124 Roam Plan, opposite parties would send bill for it within 15 days from the date of receipt of copy of this order.<br /> ( ii ) If bill is sent, complainant would deposit the dues within 15 days from the date of its receipt.<br /> ( iii ) If bill is sent and the amount is deposited as referred to above, opposite parties would restore connection No. 9216060106 within seven days from the date of deposit of the amount.<br /> ( iv ) In case, no amount is found due towards the complainant under Get More 124 Plan, opposite parties would restore connection No. 9216060106 within 15 days from the date of receipt of copy of this order.<br /> ( v ) Pay Rs. 1,000/- to the complainant as compensation under section 14(1)(d) of the Act.<br /> ( vi ) Compliance with regard to payment of costs and compensation be made within 30 days from the date of receipt of copy of this order, failing which amount of compensation would carry interest @ 9% P.A till payment.<br /> 12. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 15.5.2008 President<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> 'bsg' <br />