COMPLAINT FILED: 04.01.2010<br /> DISPOSED ON: 08.09.2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 8th SEPTEMBER 2010<br /> <br /> PRESENT:- SRI. B.S. REDDY PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER<br /> <br /> COMPLAINT NO.14/2010<br /> <br /> COMPLAINANT S.I. Saravana Rajendran,<br /> 614, Maruthi Street,<br /> (OPP. Florence School),<br /> Subbannapalaya,<br /> Banaswadi Road,<br /> Bangalore-560 033.<br /> <br /> In person<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES Mr. Venkatesh,<br /> C E O- Services Bharati Airtel,<br /> 55, Divyasree Towers,<br /> Bannerghatta Road,<br /> Bangalore-560 029.<br /> <br /> Advocate: Sri. B.J.Mahesh <br /> <br /> <br /> <br /> <br /> O R D E R<br /> <br /> SMT. M. YASHODHAMMA, MEMBER<br /> <br /> 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 credit back Rs.220+Rs.68=288/- as it was on 22.09.2009 and to pay compensation of Rs.5000/- on the allegations of deficiency in service on the part of OP. <br /> <br /> 2. The brief averments made in the complaint are as follows:<br /> <br /> Complainant is a Senior citizen and subscriber of OP Airtel No.9880913023 since 5 years. On 22.09.2009 complainant was out of Karnataka and using his Mobile for ROAMING. Complainant received SMS from OP at 6.30 p.m as “HAPPY ROAMING” recharge for Rs.220/- and get Full talk time”. Based on that message complainant recharged his mobile as usual without even slightest doubt about the SMS message (of the hidden conditions). In previous recharging occasions based on similar messages he got the full amount credited to the previous balance without any conditions and restrictions. To the shock of the complainant he got an immediate SMS from Airtel as only Rs.50/- is credited to his account. Thus the balance was Rs.68/- (previous balance) + Rs.50 (for the new recharge) total Rs. 118/- which OP called it main account which account will expire on 22.10.2009. The entire Rs.118/- for only roaming purpose. This conditions and restrictions were never imagined by the complainant all these years. On enquiry he was told that Rs.220=Rs.50+170/- had gone to some dedicated account which account also expired on 22.11.2009. This sort of main and dedicated accounts were new to the complainant. Complainant contacted some Airtel person for clarification and they were also not aware of such terms. When OP has sent SMS to the complainant on 22.09.2009 could have openly given details of the conditions by adding few lines extra as in the other case of SMS. If OP had mentioned about the split account and expiry conditions, complainant would not have opted for such recharge. In the absence of such conditions and restrictions how OP can expect the complainant to doubt the hidden conditions then to go for recharge. The grievance of the complainant is that if he had continued his roaming for longer period the balance currency of Rs.50/- would not have been sufficient. Then again he would have recharge where again he would have got only a partial amount. Thus the balance of Rs.170/- would have gone to so called dedicated account accumulating to a very large amount. This again to use the amount only when he is in Karnataka. Otherwise that also would expire without any real use to the complainant. If he used in one account the other one will expire. Now that is what happened. The so called main account expired. Complainant should be allow to use the way he want as per his planning either for local or Roaming STD or SMS. Hence it is unfriendly option. Only for the sake of using complainant forced to make unwanted calls with the fear of expiry. Few months back OP deducted Rs.1 daily without complainant using the Mobile and without any valid reason. Later OP regretted and stopped that deduction. Rs.25/- was deducted as roaming charges when complainant was not at all roaming and when demanded a proof again OP regretted and credited back Rs.25/- to his account. On 22.09.2009 complainant took up the matter to OP’s accounts department for which OP gave the complaint Nos.1001065412, 1005235680, 1010306988, 1014357481 and also unique No.71020092402 for which OP committed to respond within 24 hours for email date 12.10.2009. But till date complainant is yet to get any response. On 07.12.2009 without any out going calls OP deducted Rs.1/- when complainant contacted again on complaint No.1207171641, 1207155530, 1207155528 and when complainant demanded a proof, OP regretted and credited back the amount. Complainant expect perfection, credibility and reliability. Complainant tried to contact their Nodal and Appellate officers but unable to get contact. Thus complainant felt deficiency in service. Under the circumstances he is advised to file this complaint for the necessary relief’s.<br /> <br /> 3. On appearance, OP filed version mainly contending that complaint is not maintainable before this forum in view of the judgment rendered by the Hon’ble Supreme court of India in Civil Appeal No.7687/2004 dated 01.09.2009 in the matter between General Manager, Telecom V/s. M.Krishnan and another reported in 2009 AIR SCW-5631. As per the said judgment since the dispute raised by the complainant between the subscriber and the Telecom service provider the remedy available to the complainant u/s. 7–B of the Indian Telegraph Act. OP admitted that complainant is a subscriber of the OP with respect to pre-paid connection. Complainant has recharged with an amount Rs.220/- and get the message that if he get recharged with Rs.220/- he would get full talk time is admitted by OP; upon recharging Rs.220/- the subscriber when actually get talk time of worth Rs.220/-. However in case of recharge being made when a subscriber is in roaming the currency would be bifurcated into 2 accounts called as dedicated account and the main account; The dedicated account means the amount remained thereof shall be utilized for calls between Airtel to Airtel only whereas the amount remained at main can be utilized by calling the number of other service providers also; This information was very much available in the recharge coupon, the website of the OP and also by calling customer care center of the OP; Hence assertion of the complainant that there is no information to the customer in this regard is not correct. Further confusion regarding usages of the amount available on the different accounts is due to the misconception on the part of the complainant; The amount available on both the account can be utilized by subscriber either when he is roaming or not subject to the mode of usage mentioned earlier. Hence Scheme floated by OP could only upon intimation to the Telecom Regulatory Authority of India. If at all any such scheme is opposed to any public policy and also if it is not customer friendly, it is for the said authority to direct the OP to withdraw the said scheme; There is no willful negligence or deficiency of service on the part of OP. Among other grounds OP prayed for dismissal of the complaint.<br /> <br /> 4. In order to substantiate the complaint averments, complainant filed his affidavit evidence and produced copy of email letters. On behalf of OP Sri N. Prasanth, Legal Officer and authorized person filed his affidavit evidence. Both the parties submitted written arguments. Heard the complainant. Taken as heard on OP side. <br /> <br /> 5. In view of the above said facts the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No.1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No.2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No.3 :- To what Order?<br /> <br /> 6. We have gone through the pleadings of the parties both affidavit and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on the above points are:<br /> <br /> Point No.1:- In Affirmative.<br /> Point No.2:- Affirmative in part. <br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 7. At the out set it is not at dispute that complainant is a subscriber of OP having Mobile No. 9880913023 since five years. It is also not at dispute that on 22.09.2009 complainant was on touring and using his mobile for roaming. At around 6.30 PM complainant received SMS message from OP as ‘‘HAPPY ROAMING’ recharge for Rs.220/- and get full talk time”. Based on that SMS complainant recharged his mobile for Rs.220/- to the shock of the complainant he got on immediate SMS message from OP stating Rs.50/- credited to his account. Thus the balance came to Rs.118/- only i.e. previous balance Rs.68/- plus new recharge Rs.50/-. Which OP called it main account which account will expire on 22.10.2009. The grievance of the complainant is that he was not aware of the terms and conditions. OP could have given details of terms and conditions along with the SMS. If OP would have mentioned about the splitting of accounts complainant would not have opted for recharge. Since complainant is on roaming he felt that balance of Rs.50/- would not be sufficient. If complainant recharges again he would have got only partial amount again and would have gone to dedicated account. Complainant should be allowed to use the currency in the way he wants.<br /> <br /> 8. As against the case of the complainant the defence of the OP that the complaint is not maintainable in view of the judgement rendered by Hon’ble Supreme Court of India in Civil Appeal No.7687/04 dated 01.09.2009 in the matter between General Manager, Telecom V/s. M. Kirishnan and another. As per the said Judgement the remedy is available to the complainant u/s 7-B of Telegraph Act. This contention of the OP cannot accepted because under Telegraph Act dispute between the Telegraph authority and the Consumer can be referred to arbitration. In the present complaint OP is not the telegraph authority but a licensee under the authority. Hence the said order is not applicable to this case. In 2010 CTJ 688 (CP) SCDRC page 688 Spice Communication Private Ltd., V/s Gurinder Kaur and Another it is held that private service providers cannot avail the benefit of the above judgement. <br /> <br /> 9. Further it is contended by the OP that upon recharging for Rs.220/- the subscriber will actually get talk time worth Rs.220/- but when subscriber is in roaming, the currency would be bifurcated into two accounts called dedicated account and the main account. The dedicated account means the amount remained thereof shall be utilized for calls between Airtel to Airtel only whereas the amount remained can be utilized by calling of the other service providers also. This contention of the OP cannot be accepted. How can OP expect a common man like complainant to know that upon recharging for Rs.220/- Subscriber’s currency will be bifurcated into two accounts. As soon as complainant saw the flash SMS of OP to Recharge for Rs.220/- and get full talk time, immediately complainant recharged his mobile for Rs.220/-. But to his shock he got an immediate message from OP stating only Rs.50/- is credited to his account. Thus balance came to only Rs.118/-. If complainant recharged the currency again OP might have bifurcated the same towards main account and dedicated account. On enquiry there has been no proper response. OP knows that subscriber was in roaming. OP could have given bifurcation terms along with SMS Message. Subscriber should be at liberty to use his currency as per his convenience not at the option of OP. Suppressing the same amounts to deficiency in service on the part of the OP. <br /> <br /> 10. Further grievances of the complainant is that an earlier occasions also OP deducted Rs.1/- daily without any reason though complainant not used his mobile. Later Op regretted and stopped deduction. OP used to deduct Rs.25/- as roaming charges when complainant was not in roaming on demand OP regretted and credited back Rs.25/- to the complainant account. On 07.12.2009 without there being any outgoing calls made by the complainant OP deducted Rs.1/- when complainant demanded proof OP regrets and credited back the amount. There is nothing to discard the sworn testimony of the complainant. We are satisfied that the complainant is able to prove the deficiency in service on the part of the OP. Hence complainant is entitled for refund of Rs.220/- towards currency recharged on 22.09.2009 and litigation cost of Rs.500/- compensation of Rs.2,280/-. In all complainant is entitled for Rs.3,000/-. Accordingly we proceed to pass the following:<br /> <br /> ORDER<br /> <br /> The complaint is allowed in part. OP is directed to pay Rs.3,000/- to the complainant. This order is to be complied within four weeks from the date of its communication. <br /> <br /> Send copy of this order to both the parties free of costs. <br /> <br /> (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 8th day of September 2010.) <br /> <br /> <br /> PRESIDENT<br /> <br /> <br /> MEMBER MEMBER <br /> <br /> Gm/snm<br />