COMPLAINT FILED: 26.09.2010

DISPOSED ON: 11.02.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

11^TH  FEBRUARY 2011

       PRESENT :-SRI. B.S.REDDY                PRESIDENT                        

                         SMT. M. YASHODHAMMA    MEMBER    

                         SRI.A.MUNIYAPPA               MEMBER              

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Party (herein after called as O.P) to collect dues of Rs. 438.16 from the employees of the complainant and to refund the excess amount of Rs. 1038.20 along with interest at 18% p.a. Further to direct the OP for non-charging of monthly rental for the period the outgoing calls were barred and to pay litigation cost of Rs.5,000/- and compensation of Rs.90,000/- for mental agony and harassment on the allegations of deficiency in service.

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

          The Complainant was working for ING Vysya Bank Ltd., at No.22, K.H.Road, Regional Office, Hara Chambers, Bangalore-27.  Subsequently on December 2007 he was transferred to Corporate Office at No.22, MG Road, Bangalore-01.  During his service at Regional Office he was given Mobile Phone with Airtel connection as a corporate connection bearing No.9945112000 with all monthly bills paid by his employer.  On attaining superannuation on 31.01.2009 complainant requested for transfer of said Mobile number from corporate connection to his personal name through his employer.  Accordingly same was transferred to his personal name from Feb 01, 2009.  In the month of Aug 2009 complainant received a bill for the period 23.06.2009 to 22.07.2009 for a sum of Rs.960.75 which includes a one time charge of Rs.438.16.  On enquiry at their Basavangudi Airtel office they informed that the said amount pertains to before transfer of Mobile number in the name of the complainant.  Hence complainant informed OP to make arrangements to collect Rs. 438.16 from the complainant’s employer.  Complainant deducting said amount paid the bill for Rs.522.60 on 11.08.2009.  Thereafter complainant did not receive any bills from OP for subsequent months. On 25^th August 2009 complainant had been to Ahmadabad. Then noticed that his out going calls were barred. Complainant was put to embracement in the presence of his friends. After he came back to Bangalore; On 30.08.2009 complainant sent an email to OP requesting OP to collect one time charges from his employer. OP informed the complainant that he should inform his employer to pay the dues on 18.08.2009 OP sent SMS stating details have been handed over to “out sourced Agency” for collection. On 04.09.2009 complainant was sick due to Chicken – Guniya fever. He was unable to make payment due on 11.09.2009 he tried to pay by Credit card on internet.  He did not get confirmation massage. Hence he made arrangement to pay cash from his son in law. Complainant received email from OP thanking him for payment of two amounts of Rs.518.20 and cash of Rs.520.00 and further asked his bank details for crediting back the excess amount paid by the complainant.  Complainant gave all his bank particulars and requested for refund of excess amount of Rs.1038.20. Complainant was informed that outgoing facility was restored excess amount adjusted towards the dues which were supposed to be recovered from his employer and late fees and taxes. Inspite of repeated requests when OP failed to refund the excess amount complainant felt deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint for necessary relief’s.

3.      On appearance OP filed its version mainly contending that complaint is not maintainable in view of the judgement of the Hon’ble Supreme Court of India in Civil Appeal No.7887/2004 dated 01.09.2009 in the matter between General Manager, Telecom V/s. M. Krishnan and another. As per the said judgement any disputes raised by the complainant with respect to the telephone bills issued by OP, the remedy available for the complainant is u/s 7 – B of the Indian Telegraph Act which provides for adjudication of the dispute under the provision of the arbitration Act.  OP admits that the complainant earlier was using the mobile connection under Corporate Connection Scheme and later same was transferred to his personal name. Transfer of mobile connection from one particular scheme to other is subject to certain terms and conditions; subscriber who seeks for transfer of the scheme shall clear all the outstanding dues pertaining to the said connection as on the date of transfer, even if OP finds that there exists some dues with respect to the earlier scheme in later stage also, it is incumbent on the subscriber to clear such dues.  This is because there will be no transfer of facility as such and same person would continue to use the facility but only under different scheme; OP has issued a bill dated 24.07.2009 for the period 23.06.2009 to 22.07.2009 for a sum of Rs.960.97 which includes previous balance of Rs.438.16 which is mentioned under the heads “one time charges”. The said amount of Rs.438.16 was pertaining to a due/balance with respect to the mobile connection when the same was under Corporate scheme since complainant is duty bound to pay the said amount as per the contract. Complainant was appraised about the same and was requested to make the payment; as against that total claim of Rs.960.97. OP has denied that thereafter complainant has not received the bills for the subsequent months. OP has issued the bills regularly to the complainant. OP has produced the bills for month of July, August, September, October 2009; since complainant has not cleared entire dues even after repeated requests OP was compelled to suspend the outgoing calls of the complainant. It is the duty of the complainant to pay the outstanding dues. Complainant kept on insisting OP to collect the said amount from his employer which is not permissible. OP is not aware about the communication made between complainant and his employer. The averment that complainant did not get the confirmation message from ING Vysya Bank credit card is not within knowledge of OP. On 10.09.2009 complainant paid Rs.1038.20 out of said amount; Rs.518.20 was appropriated towards the bill charges for the period 23.07.2009 to 22.08.2009 and balance amount of Rs.520/- was appropriated towards the outstanding balance and surplus amount of Rs.102.02 was carried forward as credit balance to the next bill.  OP has demanded and appropriated its legitimate entitlement. There is no deficiency of service or negligence on its part. Among other grounds OP prayed for dismissal of the complaint.

4.      To substantiate the complaint averments complainant filed his affidavit evidence and email correspondence, payment receipts, statement of account issued by OP for the month of April, May, June, July and August of 2009, Medical bills. On behalf of OP Legal officer Mr. Prasanth N. filed affidavit evidence and along with memo produced copy of the customer enrolled application forum, payment receipt, copy of the pan card of the complainant, statement of January 2009, copy of the letter issued by ING Vysya Bank to OP dated 27.05.2009, copy of the request for contract transfer, customer information report, checklist for transfer of contract.  Complainant submitted his written arguments. Heard arguments from the both sides.

5.      From the above pleadings, the point now that arise for our consideration in this complaint is “Whether the complaint filed by the complainant is maintainable?

6.      We record our findings “In negative”

R E A S O N S

7.      At the out set it is not in dispute that the complainant was working for ING Vysya Bank Limited at No.22, KH Road, Regional Office, Hara Chambers, Bangalore. Subsequently in December 2007 he was transferred to corporate office at No.22, M.G.Road, Bangalore-1. During his service at regional office; he was given mobile phone with Airtel connection as a corporate connection bearing No.9945112000 with all monthly bills paid he his employer. On attaining superannuation on 31.01.2009; Complainant requested for transfer of said mobile no. from corporate connection to his personal name through his employer. Accordingly same was transferred to his personal name from 01.02.2009.  It is the grievance of the complainant that in the month of august 2009 complainant received the bill for the period 23.06.2009 to 22.07.2009 for a sum of Rs.960.75 which includes one time charge of Rs.438.16. On enquiry at OPs Basavanagudi Airtel Office it was informed that the said amount pertain to the transaction before transfer in the name of the complainant.  Hence complainant informed the OP to make arrangement to collect Rs.438.16 from the complainant’s employer. The complainant on 11.08.2009 paid bill for Rs.522.60 deducting in the said amount, thereafter complainant did not receive any bills from OP for subsequent months. In the month of august 2009 Complainant had been to Ahmadabad. He noticed that his outgoing calls were barred. After his return to Bangalore; on 30.08.2009 complainant sent email to OP requesting OP to collect one time charges from his employer; in turn OP informed the complainant that he should inform his employer to pay the dues. On 18.08.2009 OP sent SMS to the complainant stating details are handed over to “Outsourced Agency” as per collection rules. Complainant made arrangement to pay cash from his son in law.  OP through email confirmed the payment of two amount of Rs.518.20 and cash Rs.520/- and further asked the complainant to furnish bank details for crediting back the excess amount paid by the complainant. Complainant furnished all his bank particulars and requested for refund all excess amount of Rs.1038.20. Complainant was informed by OP that outgoing facility was restored from 11.09.2009 but OP instead of refunding excess amount adjusted the same towards dues which were placed to be recovered from his employer along with late fees, taxes.  In spite of repeated requests when OP failed to refund excess amount complainant approached this forum.

8.      As against the case of the complainant, the main defence of the OP is that the complaint is not maintainable before this Forum; in view of the judgement rendered by the Hon’ble Supreme Court in Civil Appeal No.7687/2004 in the matter between General Manager, Telecom Vs. M. Krishnan and another. The copy of the said judgement is produced; as per the said judgement 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. The copy of the judgement of the Hon’ble M.P. State Consumer Disputes Redressal Commission, Bhopal in appeal No.669/2008 Reliance Telecome Ltd., Vs. Jay Kumar Jain and Another dated 06.10.2009 produced. In the said case the dispute raised by the complainant regarding Telegraph Act, 1885 and the Rules. It was held that in view of the recent decision of the Supreme Court in General Manager, Telecom Vs. M. Krishnan & Another III (2009) CPJ 71 (SC) their Lordships have ruled that the special law overrides the general law and when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of the telephone bills, then the remedy under the Consumer Protection Act is by implication barred. Therefore the case pertaining to telecom are beyond the pale of the Consumer Forum and could be agitated only before the authority appointed under Section 7-B of the Telegraph Act. The copy of the judgement in appeal No.226/2009 before the Hon’ble State Commission dated 27.10.2009 between Mr. Saneesh Mathew Vs. M/s Bharati Airtel Ltd., produced wherein the appeal was dismissed relying on the principles laid down in General Manager Telecom Vs. M. Krishnan and Another. As in the instant case the dispute raised by the complainant is with respect to the telephone bills issued by OP. The principles laid down in General Manager, Telecom Vs. M. Krishnan and Another are aptly applicable to the facts of the case. Section 7-B of the Telegraph Act clearly provides that 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 shall be determined by the arbitrator. In view of the same the complaint filed before this Forum is not maintainable, the complainant is at liberty to pursue the matter under the Telegraph Act before the appropriate Forum. Accordingly we proceed to pass the following:

O R D E R

The complaint filed by the complainant is dismissed as not maintainable. Considering the nature of dispute there is no order as to costs.

Send the copy of this order to both the parties free of cost.

(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 11^th day of February - 2011.)

PRESIDENT

MEMBER                                                      MEMBER 

Snm /gm