Karnataka

Bangalore 4th Additional

CC/13/1238

Mr. Paul P John - Complainant(s)

Versus

M/s. Bharti Airtel Ltd - Opp.Party(s)

G.T. Rudra Murthy

09 May 2018

ORDER

Complaint filed on: 03.07.2013

                                                      Disposed on: 09.05.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1238/2013

DATED THIS THE 09^TH MAY OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Mr.Paul P John,

Aged about 49 years,

S/o Mr.T.John,

No.17/5, Brunton Road,

Bengaluru-25.

 

By Adv.Sri.G.T.Rudramurthy     

 

V/s

Opposite party/s

Respondent/s:-

 

1. M/s.Bharti Airtel Limited, Registered office at:

Bharti Crescent,

Nelson Mandel Road,

Vasant Kunj, Phase II,

New Delhi – 110070.

Rep. by its Authorized Signatory

 

2. M/s.Bharti Airtel Ltd.,

No.55, Divyashree Towers, Bannerghatta main road, Bengaluru-29.

Rep. by its Authorized Signatory

 

3. Mr.Prasad Routray,

Business Head,

Airtel Business, Karnataka. M/s.Bharti Airtel ltd.,

No.55, Divyasree Towers, Bannerghatta Main road, Bengaluru-29.

 

By Adv.Sri.B.J.Mahesh

 

 

MEMBER: SMT.ROOPA.N.R

 

 

            This complaint is filed by the Complainant against the Opposite party no.1, 2 & 3 (herein after referred as Op.no.1, 2 & 3 or Ops) seeking issuance of direction to refund a sum of Rs.13,000/- consideration amount paid to Ops with interest at 18% p.a. Further direct them to pay damage of Rs.3 lakhs towards deficiency of service and unfair trade practice and to grant such other reliefs deem fit for which the Complainant is entitled to, including cost.

 

          2. The brief facts of the case of the Complainant are that, he is the promoter and Chairman of John distilleries Pvt. ltd.,, India and he is a respectable and well known entrepreneur in India and has been awarded by many business and financial institutions.  The Complainant further submits that, believing the advertisement and assurance of good services of Op, he obtained Airtel 4G connection to the mobile no.9632455887 for his personal use through Uthkarsh Communications by depositing a sum of Rs.10,000/- towards required items including a multimode dongle. Thereafter the Complainant started using Ops service and used to pay the monthly usage bill without any default. However owing to fluctuation of signal at his residence, he has requested to cancel the service by email dtd.12.09.12. However, there is absolutely no response and the utility bill for the month of September and October has been raised. Again on19.11.12, he requested for cancellation for which Ops replied on 20.11.12 confirming the registration of request for cancellation and informed that their team will contact him with update on the same. But there is absolutely no response from Ops. The Complainant further submits that, as per Ops suggestion he cleared entire pending bills by closing the account mentioning as full and final payment. But to his shock and surprise, Ops have again issued another bill dtd.28.12.12 seeking a balance payment against him inspite of cancellation confirmation and payment made by the Complainant as advised by Ops. The Complainant further submits that, thereafter, Ops have further caused to issue a false, baseless and forged notice dtd.04.02.13 through the legal cell purported to be sent through District Legal Services Authority, Bengaluru Urban under PLC no.256264/13 thereby directed him to appear before the pre-litigation Lok Adalath sitting no.234/13 on 27.02.13. On 27.02.13 through his counsel, he appeared personally at Lok Adalath along will all supporting documents but no one positively responded. Aggrieved by the chain of events, the Complainant contacted the phone numbers provided in the notice dtd.04.02.13 for clarifications, however both the female representatives remain elusive and all efforts to set the matter at rest were in vein. The notice is issued without the signature of the Member or Secretary of the said authority which is clear act of forgery and cheating to the prosecution authority and is Criminal Act. The Complainant further submits that, Ops again issued another bill dtd.28.01.13 even after giving various complaints about service and also a request for cancellation. Further Ops sent email dtd.05.02.13 stating that the complaint has been registered and confirmed to cancel the connection provided the outstanding bill of Rs.2,194.80 to be paid. Immediately, Complainant referred his previous emails dtd.14.12.13 to Ops, who agreed to cancel the service. In fact, Complainant wrote to waive off the bill as there is a deposit of Rs.10,000/- towards dongle, but failed to do so. Thereafter, Ops customer care sent various emails stating that ‘regret for the delay and sincerely apologies for the same’. The Complainant further submits that, in addition to that, number of telephone calls were made to Ops by spending quality time, money etc., and also inconvenience caused to him in this regard. Particularly Op.no.1 to 3 through customer care without any such services as they promised, expect tempting advertisements. In this context, he issued legal notice dtd.01.03.13 for which Ops not replied. Hence prays to allow the complaint.

 

3. On receipt of the notice, Op.no.1 to 3 did appear through their counsel and amongst them Op.no.1 & 2 filed version denying the allegations made in complaint. The sum and substance of the version of the Op.no.1 & 2 are that, the complaint filed by the Complainant is not maintainable either in law or on facts, hence liable to be dismissed.  Ops further submits that, as per the judgments of the Hon’ble Supreme Court and Hon’ble National Commission, this complaint is not maintainable, since the dispute raised by the Complainant is between the subscriber and telecom service provider, the remedy available for the Complainant is u/s.7-B of the Indian Telegraph Act. Ops further submit that, Complainant availed Airtel 4G internet facility during June 2012 and sought for cancellation of the services on 12.09.12 and the said request was registered by Op and connection was deactivated on 18.09.13. Ops further submit that, retention team of the Ops approach the subscribers to ascertain the reason for cancellation and also clears any difficulties if found on the part of it, so as to convince the subscriber to continue with the services of Op. Similarly, retention team of Ops contacted the Complainant and he opted to continue with Op, as such the service was reconnected. Ops further submit that, once again on 20.11.12 Complainant has requested for cancellation of service, alleging that he is finding difficulty in getting the proper network, accordingly the connection was deactivated on 28.11.12. In fact on 11.12.12 and 14.12.12, Complainant corresponded with the Op enquiry about the status of deactivation and on both occasion Complainant was replied and confirmed about the deactivation being done on 28.11.12. Ops further submit that, as mentioned above, retention team of Op has contacted the Complainant on 25.12.12, though the Complainant did not agree to retain the connection but has proposed for migration of his connection from post-paid to pre-paid and accordingly Complainant agreed for retention of the connection, as such connection was retained. However, due to bonafide mistake, the connection was retained with the postpaid and migration was not done to pre-paid. However, upon receipt of the complaint on 21.04.13, the connection was deactivated. Nevertheless though the Complainant was contacted by the Op on 11.04.13 to update the status of disconnection and inform about the waiver being passed for delay in deactivation, the Complainant did not respond to the staff of Op. However, Op has passed a waiver of Rs.2,531.52 towards the bills of 28.12.12 and 28.01.13. An amount of Rs.10,000/- was paid by the Complainant towards cost of the device, as such the balance amount of Rs.336.72 was refunded to the Complainant on 12.04.13. Hence on these grounds and other grounds prays for dismissal of the complaint.

         

          4. The Complainant to substantiate his case filed affidavit evidence and produced 15 documents. Assistant Manager – Legal of Op company filed affidavit evidence. Both filed written arguments. Heard both side.

  

5. The points that arise for our consideration are:

1. Whether the Complainant proves deficiency of service on the part of Ops, if so, whether he entitled for the relief sought for ?    
2. What order ?

                   

           

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Negative.  

Point no.2: As per the final order for the following

 

REASONS

 

          7. Point no.1:  We have briefly stated the facts of the complaint and also the version filed by the Ops. The issue in question in this case is with regard to the cancellation of airtel 4G connection to the mobile no.9632455887. As the Complainant did not satisfy with the service, hence he requested to disconnect the service. In this context, he paid the entire balance amount. But the say of Ops is quite different that the present complaint filed by the Complainant is not maintainable in view of the arbitration clause u/s.7B of Indian Telegraph Act. It is also taken the specific contention that, the Complainant has taken multiple grounds including the plea of forgery in respect of creating/forging the document as if duly sent through District legal Services Authority, Bengaluru Urban under PLC no.256264/13, thereby directed the Complainant to appear before the pre-litigation Lok Adalath sitting no.234/13 on 27.02.13. Further it is stated that, it has already settled the issue in question stating that Ops have passed a waiver of Rs.2,531.52 towards the bills of 28.12.12 and 28.01.13. An amount of Rs.10,000/- was paid by the Complainant towards cost of the device, as such the balance amount of Rs.336.72 was refunded to the Complainant on 12.04.13 by delivering to the billing address of the Complainant through courier vide consignment no.XD2417978 and one Mr.Venkatesh has endorsed the receipt on 27.04.13. This fact is not denied by the Complainant. When the issue in question is already settled by refunding of Rs.336.72 as stated by the Ops, it is needless to go in detail with regard to the deficiency of service on the part of Ops. The Complainant has made specific allegations against Ops in respect of forging the document in the name of Lok Adalath. This issue needs to be triable by competent court of law having got jurisdiction in the light of the following decisions:

1. I (1993) CPJ 88 (NC) in the case of N.Shivaji Rao vs. M/s.Daman Motor company & ors.,

Consumer Protection Act, 1986 – Sec.2(1)(c) - complaint – fraud and cheating – State Commission declined to adjudicate the complaint because of complicated questions including fraud and cheating – hence appeal.

Held: It is evident from above that it is not a case of supply of defective goods or of deficiency in rendering service. Prima facie it is a case of fraud and cheating as alleged by the appellant – Complainant himself. Consequently, the factum of fraud and cheating would have to be established first before a consumer forum can arrive at a finding of deficiency of service. We agree with the view expressed by the State Commission that the Consumer Protection Act and the machinery there under cannot be effectively utilized for determining complicated questions of the fraud and cheating. The appeal is rejected and the order of the State Commission is confirmed.

 

2. I (1996) CPJ 283 in the case of Dr.Sudhir G Rao vs. Kokila & Ors

Consumer Protection Act, 1986 – Section 2(1)(c) – complaint – fraud – complaint filed – allegations of fraud and cheating – whether investigation can be done by the Redressal forum ? – No

Held: As per the averments made in the complaint, the case set up by the Complainant is of fraud regarding which no investigation can be done by the Redressal forums.

Held further: In the present case, as referred above, deficiency of service on the part of the Ops is only incidental to the act of fraud and cheating alleged to have been committed by the Ops.

So, having regard to these facts, we are constrained to hold that this complaint is untenable.

 

3. Hon'ble Karnataka State Commission, Appeal no.1109/2011 dtd.02.08.12 in the case of M/s.Praveen Gift centre vs. Smt.Jyothi Jain, wherein it is held that:

5. The LC for the appellant has submitted that the complaint filed by the Complainant is not maintainable. The DF has no jurisdiction to entertain the complaint as the respondent/Complainant has alleges fraud and cheating played by the appellant in selling the goods for wrongful gain and to cause wrongful loss to him. He further submitted that the order passed by the DF is against the documents that have been produced by the appellant before it as the invoices were prepared in the name of a third person.

6. Admittedly, the Complainant/respondent has purchased four mobile handsets from the appellant/Op in all for Rs.94,150/- on 07.11.09. Admittedly, the invoices were raised in the name of Mr.Sandeep. If at all, the respondent was unaware of Mr.Sandeep she should not have accepted the bills. Moreover, both the parties agrees that the respondent has purchased the mobile sets in the name of third person. That means it creates a doubt that the Complainant/respondent has purchased 4 mobile handsets for commercial purpose and not for her own use. It is not the case of the respondent that the mobile handsets which were purchased by her are suffering from any manufacturing defects. The only grievance is that the Op/appellant has duped and cheated her. If at all, there is fraud and cheating played by the appellant as alleged by the respondent/Complainant for which she is at liberty to approach appropriate court for relief. DF has no jurisdiction to entertain the complaint. In the result, we pass the following:

ORDER

Appeal is allowed. The impugned order is set aside. The complaint filed by the Complainant is dismissed with a liberty to approach appropriate court for relief.

 

8. Recently we come across that the decisions of the Apex court as well as the different Hon’ble State Commissions including Hon'ble Karnataka State Commission in respect of referring the matter to the arbitration u/s.7B of IT Act. The decisions cited by the learned counsel for the Op, reported in AIR 2010 SC 90 in the case of General Manager, Telecom vs. M.Krishnan & Anr, wherein it is specifically held that, special law overrides general law, wherein it is held in the said decision as:

 

Consumer Protection Act (68 of 1986) Ss.11, 17, 21 – Telegraph Act (13 of 1885), S.7B- Consumer for a – jurisdiction –disputes about telephone bills – beyond jurisdiction – Telegraph Act being special Act overrides 1986 Act.

 

9. The said judgment has been subsequently followed by Hon’ble National Commission in RP.no.398/2011, Hon'ble Karnataka State Commission in appeal no.226/2009 and also by Hon'ble Madhya Pradesh State Commission in appeal no.669/2008. In the light of the decisions cited supra, this complaint filed by the Complainant before this forum has no legs to stand as the Complainant ought to have invoke the arbitration clause to get redress his remedy. In this view of the matter complaint filed by the Complainant is liable to be dismissed. Accordingly we answered the point no.1 in the negative.

 

10. Point no.2: In the result, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant is dismissed.

 

          2. Looking to the circumstances of the case, we direct both the parties to bear their own cost.   

 

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer in the open forum and pronounced on 9th May 2018).

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.Paul P John, who being the complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Doc.no.1	Invoice dtd.12.06.12
Doc.no.2 to 4	Emails dtd.12.09.12, 08.12.12, 14.12.12
Doc.no.5	Collection receipt dtd.15.12.12
Doc.no.6	Cheque dtd.15.12.12
Doc.no.7	Bill dtd.28.12.12
Doc.no.8	PLC no.256264/13 dtd.04.02.13
Doc.no.9	Bill dtd.28.01.13
Doc.no.10 to 12	Emails dtd.05.02.13, 06.02.13, 09.02.13
Doc.no.13	Legal notice dtd.01.03.13
Doc.no.14 & 15	Postal receipts and postal acknowledgements

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.Mohammed Anas Riyaz, who being the Assistant Manager – Legal of Op company was examined.

 

Copies of Documents produced on behalf of Opposite party/s

 

- NIL -

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT