BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 04^th DAY OF JUNE 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct them to pay him a compensation of Rs.75,000/- for deficiency in service.

2. The brief averments made in the complaint are as under:

The complainant was having landline from M/s.Airtel and he was in Rs.499 combo plan till August 2011.  At that time, one of the worker of OP contacted over him by phone and suggested him to switch over to better plan of Rs.649 combo plan to reduce his expenditure which was more than Rs.1,000/- every month.  That the said worker told him that in the new plan the bill would come around Rs.700+ including taxes and further stated if at all he is not happy with the said plan he can be revert back to Rs.499/-.  The complainant accepted the said proposal and when the next bill came the amount was Rs.3110.  When the complainant contacted over phone he was told that the plan was unlimited plan which in fact was not asked for by the complainant.  Further OP told that his problem would be resolved before 3.00 PM on 07^th September 2011.  However, there was no response till 9^th September 2011.  The complainant contacted the customer care again but no proper reply.  The bill of Rs.3110/- was paid through ECS from Syndicate Bank on 15.09.2011.  The complainant thereafter wrote letter on 15.09.2011 to OP, but there was no response.  Then complainant sent e-mail on 15.10.2011 narrating everything and he was promised that the problem will be solved shortly.  However the complainant received next bill on 08^th October 2011 for Rs.3307/-.  The complainant again contacted the OP on 14^th October 2011 and narrated the problems again for which he was promised that the problem will be solved within 24 hrs, however nothing happened.  Though the complainant requested for reverting back for Rs.499/- plan the same was not obliged.  Though the complainant requested to resolve the issue before generating the next bill the problem persisted and 3^rd bill for Rs.2,581/- was sent to him.  Despite repeated contacts over phone, letter and e-mail the OP failed to resolve the problem faced by the complainant and also failed to revert back to Rs.499/- plan.

The complainant sent e-mails on 15.09.2011, 28.09.2011, 15.10.2011, 02.11.2011 & 03.11.2011 and 08.11.2011 and spoke to customer care complaint for more than 15 times but there was no response from OP side.  That the OP appears to be not interested in resolving the problem faced by the complainant.  The complainant personally went to the Nodal Officer of OP at Bannerghatta Road office and narrated his problem but his problem was not resolved.  Subsequently the complainant received his next bill for Rs.1625/- after adjusting the wrong deduction of Rs.1599/- to be pay a sum of Rs.25/-.  That in the month of March 2012 one case worker from OP contacted him and told him that all bills received in 2011 are pending and were being reworked and e-mail will be sent to him.  However the complainant did not receive any e-mail or communications till today.  The complainant gave a final notice narrating his problems on 09.10.2013 stating that if the problem is not resolved by 31.10.2013 he will forced to approach the Consumer court.  Despite the said notice, the problem faced by the complainant is not resolved.  That the complainant thereafter switched over to BSNL by August 2012 after struggling for almost one year.  Because of the above said conduct of OP the complainant who is handicapped person put to great hardship and mental agony and he was made to suffer without there being any fault on his part.  Therefore, he prays for an order directing the OP to pay him a compensation of Rs.75,000/-.

3. In response to the notice issued OP entered their appearance and filed their version contending in brief as under:

That the present complaint is not maintainable in view of the judgment rendered by Hon’ble Supreme Court of India in Civil Appeal No.7687/2004 dated 01.09.2099 in a case between General Manager, Telecom Vs. M. Krishnan and another reported in 2009 AIR SCW 5631.  That the complainant has to invoke section 7-B of Indian Telegraph Act for adjudication of dispute.  It is false to allege that the complainant switched over to plan Rs.649/- combo plan at the insistence and advise of any worker of OP.  A policy decision was taken by OP to discontinue Rs.499/- plan with effect from September 2011 throughout India and the same was with a view to provide better speed and quality from the existing speed and same is done universally and not for any particular subscriber.  That all the subscribers including the complainant were duly informed by sending SMS/e-mail communication.  In view of the same the question of reverting back to old plan of Rs.499/- as requested by the complainant does not arise at all.  Upon the various complaints received, the OP only as a goodwill measure and as a business policy to retain a customer, a waiver of Rs.4,285/- was given.  That the adjustment of said amount given to the complainant cannot be construed as any admission of alleged deficiency of service but the same was made only as part of retention measure.  Nevertheless at the option of the complainant, the telephone facility was disconnected and his account was closed on 09.03.2012.  That the complainant after a period of 3 years filed this complaint with false assertions.  That the bill of Rs.3110/- and the subsequent bills were in accordance with the usage made by the complainant and the same have been paid by the complainant.  That the OP has not received any e-mail or calls on 15.10.2011, 28.09.2011, 14.10.2011, 02.11.2011 etc.  Since the alleged communications are of the year 2011 and since the complaint is filed only in the year 2014, the OP is unable to get the details of the communication as the same are not preserved in the system of OP.  The problems of the complainant have been resolved as and when complained by him.  OP has not received any final notice dated 09.10.2013 said to have been sent by the complainant.  There is no any deficiency on the part of OP.

For the aforesaid reasons, the OP prays for dismissal of the complaint with costs.

4. Subsequent to filing of version, the complainant was called upon to submit his evidence by way of affidavit.  Accordingly, he filed his affidavit evidence.  OP got filed the affidavit evidence of their authorized signatory Mr.D.Pradeep Reddy in support of their case.

5. On the rival contention of both the parties, the points that arise for our determination in this case are as under:

        6. Perused the allegations made in the complaint, averments made in the version, sworn testimony of both parties and other materials placed on record.  Neither of the parties filed their written arguments nor submitted any oral arguments.

7. Our answer to the above issues are as under:

REASONS

8.  The first and foremost objection that was raised by the OP is that, the present complaint is not maintainable in view of the judgment rendered by the Hon’ble Supreme Court of India in a case between General Manager, Telecom Vs. M.Krishnan and another reported in 2009 AIR SCW-5631.  It is contended by the OP that, the complainant has to initiate Arbitration proceedings as provided U/s.7-B of Indian Telegraph Act for adjudication of the present dispute.  It is pertinent to note here that, the OP in this case is a Private Service provider and not the General Manager, Telecom.  Subsequent to the above mentioned judgment rendered by the Hon’ble Supreme Court of India, Ministry of Communications & IT, Department of Telecommunications (Policy-I Section), Government of India issued an Office Memorandum dated 04^th February 2014 and the relevant portion of the said Office Memorandum is as under:

2.     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 Telecommunications (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 disputes 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.

3.     Further, while commenting on the implementation of provisions of National Telecom Policy-2012, related to amendment of Indian Telegraph Act to bring disputes between telecom consumers and service providers within the jurisdiction of District Consumer Dispute Redressal Forum (District Forum) established under Consumer Protection Act, Legal Advisor, DoT opined that District Forums are already having jurisdiction and promulgation of ordinance is apparently not required.

4.     The District Consumer Forums are competent to deal with the disputes between individual telecom consumers and telecom service providers.

5.     The above position has been brought to the notice of Secretary, Department of Consumer Affairs, Government of India and Chief Secretaries/Administrators of States/Union Territories for taking the matter up with District Consumer Dispute Redressal Fora and the State Consumer Disputes Redressal Commission in the States/UTs.

The above mentioned Office Memorandum makes it very clear that a dispute like the one on hand between the private service provider and an individual consumer is very well maintainable in this Forum.

9. The complainant claims that, he was availing Rs.499 combo plan till August 2011 and at the insistence of a worker of the OP, he switched over to plan of Rs.649 combo plan to reduce his expenditure on the information that the monthly bill would be little more than Rs.700 including taxes.  However, it is contended by the OP that Rs.499/- plan was discontinued by the OP with effect from September 2011 throughout India and a policy decision with a view to provide better speed and quality from the existing speed and the same is done universally and not for any individual subscriber.  The complainant in his affidavit evidence did not deny the same.  Therefore, we are of the opinion that, the complainant must have switched over to Rs.649 as Rs.499 was discontinued by the OP.

10. The complainant alleges that when the first bill after switching over to Rs.649 combo plan was received and he found that the amount of Rs.3110 which according to him is exorbitant and not as per his usage.  Complainant further alleges that, the bills subsequent months were Rs.3307/- & Rs.2581/-.  The complainant alleges that immediately after receipt of the first bill for Rs.6,310/- he contacted the customer care of the OP to cancel Rs.649/- combo plan and revert back to his earlier Rs.499/- combo plan but the same was not entertained by the OP.  The complainant did not produce any documentary evidence to substantiate that he paid Rs.3,110/- and subsequent bills issued by the OP were in accordance with the usage made by him.  On the other hand, it is contended by the OP that, the said bills have been issued as per the usage made by the complainant.  We have no material on record to believe that the said bills issued by the OP are not as per the usage or excessive.  Though the complainant claims that he sent e-mail on 15.09.2011, 28.09.2011, 15.10.2011, 02.11.2011, 03.11.2011 and 08.11.2011 but he did not produce the hard copy of any of such e-mails sent by him.  The OP has denied having received any such e-mail from the complainant.  Though the complainant claims that, he issued a final notice dated 09.10.2013 to the OP but he has not produced the copy of any such notice.  The only hard copy of the e-mail produced by the complaint is dated 21^st October 2013 sent by him.  The OP has responded to the said e-mail.  It is averred by the OP in their version that upon receiving the said complaint from the complainant as a goodwill measure and as a business policy to retain the customer the complainant was given wavier of about Rs.4,285/-.  This fact has not been denied by the complainant.  Thus, it is apparent that, OP has responded to the complaint made by the complainant through his e-mail dated 21^st October 2013 and has waived a sum of Rs.4,285/-.  Moreover the complainant has closed the landline connection with OP on 09.03.2012 itself.

11. In absence of the relevant documentary evidence, it cannot be believed that any of the bills issued by the OP to the complainant were exorbitant or excessive and not as per the usage made by him.  Moreover considering the grievance of the complainant a sum of Rs.4,285/- has been waived from the bill to be paid by the complainant.  Therefore, we don’t find any material to believe the allegations of the complainant that there is a deficiency of service on the part of the OP.  The complainant has miserably failed to place any credible oral or documentary evidence on record to establish the deficiency of service, if any, on the part of the OP.  Therefore, the complaint is liable to be dismissed.

12.  The order could not be passed within the stipulated time due to heavy pendency.

13.  In the result, we proceed to pass the following:   

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is dismissed.  Parties to bear their own costs.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 04^th day of June 2016)

MEMBER                            MEMBER                    PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 08.06.2015.

1. Sri.S.Baskarapandian

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 20.07.2015.

1. Sri.D. Pradeep Reddy.  

Document produced by the Opposite party – Nil.

MEMBER                            MEMBER                    PRESIDENT

Vln*