BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 08^th DAY OF JANUARY 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

One Mr.Dipanjan Bhattacharjee, has filed this complaint U/s.12 of the C.P Act, 1986 against the Opposite Parties (herein after referred as OPs) with a prayer to direct the OPs to refund him a sum of Rs.2,346-45 together with interest, compensation to the tune of Rs.50,000/- and cost of litigation.

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

        The complainant is a software engineer by profession and he purchased a mobile connection from OP-1 for his personal use.  The said connection was given relationship No.2296634488 and telephone No.9341307557.  The complainant was regularly using the said connection for his personal use.  When the complainant wanted to avail ISD facility for his connection, he was asked by the OP-1 to deposit a refundable sum of Rs.2,400/-.  Accordingly, the complainant deposited the said amount and availed the ISD service.  The complainant did not have any problem till 2011.  A service known as ‘Mobitv’ was activated on the connection of complaint without any authorization or request.  The complainant did not make use of the said service, however the OPs charged him a sum of Rs.150/-.  The conduct of OPs in charging him Rs.150/- amounts to unfair trade practice.  The said act of OPs came to the notice of complainant only when he received his monthly bill.  Despite repeated pleas by the complainant the said service was not deactivated and after making hectic efforts the complainant was able to get the ‘Mobitv’ service deactivated.  Due to the continuous harassment meted, the complainant decided to port out of the network on 26.12.2011.  After, he ported out of the network, the OPs were to refund him a sum of Rs.2,400/- as this was a refundable deposit.  The complainant was surprised to receive a bill for the period of December 2011 and January 2012 wherein the OPs had yet again charged the complainant for the service ‘Mobitv’.  That the period for which the OPs have charged the complainant he was not using their services as he had ported out the network on 26.12.2011.  The said act of OPs amounts to deficiency in service and negligence on the part of OPs.

          The OPs charged him a sum of Rs.218-65 which included an authorized sum of Rs.150/- towards ‘Mobitv’ for the month of December 2011 and January 2012.  The OPs have charged the complainant even after the service was deactivated and which was come from text message sent by OP.  The complainant went on protesting the conduct of the OPs by sending mails to the representatives and demanded to withdraw the unauthorized deduction and refund him the security deposit.  The complainant was made to run from pillar to post to resolve the issue.  The complainant was made to make multiple visits to the various offices of the OPs including their Nodal Officer as well as Appellate Authority.  The Appellate Authority replied on 27.02.2012 to the mail of the complainant stating that there was indeed an error in the bill of the complainant and the said service charge that was unauthorizedly charged would be waived off and that there are no dues payable by the complainant.  Despite conceding their mistake the OPs have not refunded the security deposit by withdrawing the unauthorized charges for ‘Mobitv’ service.

          The online record of the complainant account maintained by the OPs is still active and it reflects an amount of Rs.2,190-92 being refundable.  Further, the OPs have not yet credited the unauthorized deduction of Rs.165-45 which had been promised.  When the OPs failed to refund the security deposit and failed to credit the unauthorized deduction of Rs.165-45 despite admitting lapses on their part the complainant got issued a legal notice which was duly served upon them.  The OPs failed to respond to the said notice till date.  The OPs without there being any valid reasons have with held the security deposit refundable to the complainant and also have not yet credited the unauthorized deduction despite legal notice.

          Therefore, the complainant prays for an order directing the OPs to refund him a sum of Rs.2,346-45 together with interest @ 18% p.a from 01.01.2012 till the date of realization and a sum of Rs.50,000/- towards deficiency in service and cost of this litigation.

          3. The OPs appeared in the case through their advocate and filed their version contending in brief as under:

That this Forum has no jurisdiction to entertain the present complaint in view of judgment rendered by Hon’ble Supreme Court in a case between General Manager V/s. M.K Krishnan & another reported in (2009) 8 SCC 481.  The complainant gave request for termination of services of mobile no.9341307557 on 26.12.2011.  After the calculations by the OPs, the complainant is entitled to Rs.2,190-92 only.  Accordingly, the OPs have sent a cheque bearing No.79556 dated 22.08.2013 drawn on HDFC Bank, Richmond Circle Branch, Bangalore through Professional Courier to the address of the complainant.  The Courier has been delivered to the complainant on 24.08.2013.  Therefore, the complaint stands infructuous as the claim of the complainant do not survive there being no negligence in the service on the part OPs.  The complainant is not entitled to any compensation as claimed by him and the present complaint is nothing to an abuse of process of law.  The complainant has received satisfactory services from the OPs for several years without any objections.  The complainant is now making false allegations against the OPs without there being any valid cause.

The entire case of the complainant revolves around using of ‘Mobitv’ services.  That ‘Mobitv’ is Value Added Service (VAS) which service may be availed by any mobile subscriber by subscribing to this service.  It is an optional service opted by the complainant.  The ‘Mobitv’ services will not get activated unless the subscriber opts for it.  The complainant or any person who uses his handset might have subscribed for the ‘Mobitv’ services.  Therefore, the allegation that the ‘Mobitv’ service was activated on the complainant’s mobile connection without any authorization or request is false and misconceived.  The complainant deactivated the mobile service as well as ‘Mobitv’ during the end of December 2011.  The process of deactivating the services and mobile services takes minimum 10 working days.  The OPs as soon as the request of complainant was received deactivated the mobile services as well as ‘Mobitv’ services promptly.  That the charges between the last bill and deactivating the services as well as mobile services need to be paid by the subscriber.  No charges were charged to the complainant after the services were deactivated.  The allegation that the OP charged a sum of Rs.218-65 for the month of December 2011 and January 2012 is false and baseless.  There is no deficiency in service on the part of the OPs.

For the aforesaid reasons, the OPs pray for rejection of the complaint.

4. The complainant to substantiate the allegations made in the complaint filed his affidavit evidence in lieu of oral evidence and produced relevant documents referred to in his complaint including the email communications between himself and the OPs.  The OPs in support of averments made in their version filed affidavit evidence of one Sri.Seetharam Handanahal, the General Power of Attorney Holder and authorized signatory.  The OPs have also produced certain documents as well as certain authorities.  Both parties have submitted their written arguments.

5. In view of rival contention of both parties, the question that arises is as to whether this Forum has jurisdiction to entertain the complaint.  If so, whether the complainant is entitled to relief as prayed for in the complaint.  The complainant in his affidavit evidence reiterated the allegations made in the complaint so also the OPs.

6. The preliminary objection raised by the OPs is regarding the jurisdiction of this Forum in entertaining the present complaint.  It is contended by the OPs that in view of principles laid down by the Hon’ble Supreme Court of India in a case between General Manager, Telecom V/s M.Krishnan & another reported in (2009) 8 Supreme Court Cases 481, this Forum has no jurisdiction to entertain the present complaint in view of special remedy provided in sec.7-B of Telegraph Act.  It is argued on behalf of the OPs that in view of the provisions contained in 7-B of Telegraph Act, the complainant shall approach the Arbitrator appointed by the Central Government for redressal.

7. Against this argument of the OPs, the learned advocate for the complainant took us through the Gazette Notification published in the Gazette of India.  The said Gazette Notification relates to Telecom Regulatory Authority of India Act, 1997.  Sec.14 (1) deals with authority to settle dispute between the service providers and group of consumers.  The relevant proviso to sub clause (1) of sec.14 which is relevant for the purpose of this case, reads as under:

Provided that nothing in sub-section shall apply in respect of matters relating to-

1. the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of section 5 of the Monopolies and Restrictive Trade Practices Act, 1969;

2. THE COMPLAINT OF AN INDIVIDUAL CONSUMER MAINTAINABLE BEFORE A CONSUMER DISPUTES REDRESSAL FORUM OR A CONSUMER DISPUTES REDRESSAL COMMISSION OR THE NATIONAL CONSUMER REDRESSAL COMMISSION ESTABLISHED UNDER SECTION 9 OF THE CONSUMER PROTECTION ACT, 1986.
3. ……..

8. As could be seen from the proviso to sec.14 (1) of Telecom Regulatory Authority of India Act, 1997 a complaint filed by an individual customer is maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under section 9 of the Consumer Protection Act, 1986.  Further, the learned advocate took us through the copies of Office Memorandum dated 04^th February 2014 issued by the Government of India, Ministry of Communications & IT Department of Telecommunications (Policy-I Section).  The Ministry of Communications and IT in reply to the references being received by them regarding Telecom Regulatory throughout the country, in view of the ratio laid down in case between General Manager, Telecom V/s. M.Krishnan & another referred supra issued an Office Memorandum.  For better understanding the relevant portion of the memorandum is extracted below:

References are being received regarding Telecom Consumers’ agitation throughout the country against ousting the jurisdiction of Consumer Fora since 2009 as a consequence to the judgment passed by Hon’ble Supreme Court of India, decided on 01.09.2009, wherein it has been inter-alia observed “ …In our opinion, where there is a special remedy provided in S.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…”

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 judgement 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.

9. The above extracted Office Memorandum issued by Ministry of Communications and IT, Government of India has made it abundantly clear that the powers of the Telegraph Authority have neither been vested nor available to private telecom service providers and BSNL.  Therefore, recourse to section 7B in case of disputes between consumer and private service providers and BSNL would not be available.  The said Memorandum further makes it clear that the judgement of Hon’ble Supreme Court in the case of M.Krishnan & another’s is sui generis in its application and has to be read with reference to the particular facts and circumstances of the case.  From the above mentioned Office Memorandum issued by Ministry of Communications of IT, Government of India subsequent to judgement referred by Hon’ble Supreme Court in case of M.Krishnan and another has clarified the applicability Sec.7-B of Indian Telegraph Act.  In view of this, OPs cannot invoke the provisions contained in 7-B of Indian Telegraph Act and contended that this Forum has no jurisdiction to entertain the present complaint.

10. The Hon’ble State Consumer Disputes Redressal Commission, Maharashtra, Mumbai in Appeal No.185/1999, Appeal No.1743/2003, Appeal No.101/2009, Appeal No.692/2007, Appeal No.162/2012, Revision Petition Nos.11/2011 to Revision Petition Nos.13/2011 & Miscellaneous Application No.MA-155/2011 in Appeal No.266/2011 dated 06.11.2012, while dealing with a similar issue and section.7-B of Telegraph Act and the judgement rendered by Hon’ble Supreme Court in the case between General Manager, Telecom and M.Krishnan & Another, referred supra have held that the Consumer Forums have jurisdiction to entertain the Consumer Complaints as against the service providers as defined in the Post and Telegraph Act and the Telecom Regulatory Authority of India Act, 1997 so far as individual consumer/complainant are concerned.  In view of the discussions made above, we are of the clear opinion that the provisions contained in sec.7-B of the Telegraph Act cannot be applied to the case on hand and the complainant cannot be directed to approach any Arbitrator for redressal.  Therefore, we are not able to accept the contention of the OPs that the Forum has no jurisdiction to entertain the present complaint.

11. The complainant in his affidavit evidence reiterated that he never authorized or requested ‘Mobitv’ services to his telephone connection and without his authorization and request, the said ‘Mobitv’ service was provided since which he never used.  He further contended that though he never used ‘Mobitv’ the OPs unauthorizedly charged him a sum of Rs.150/- per month.  The OPs contended that the said ‘Mobitv’ service was provided to telephone connection of the complainant only at his request.  However, they did not produce any credible evidence to substantiate that the complainant ever requested for ‘Mobitv’ services to his telephone connection.  In absence of any such request on behalf of the complainant, the OPs were certainly not justified in activating the ‘Mobitv’ services to the telephone connection of the complainant.  Further, the OPs are certainly not justified in charging for the said ‘Mobitv’ services though the complainant never made use of the same.  Therefore, we are of the opinion that the OPs are liable to refund whatever the charges they have collected from the complaint for the ‘Mobitv’ services.

12. It is not in dispute that a sum of Rs.2,400/- deposited by the complainant for obtaining the ISD facility is a refundable deposit.  Admittedly, the OPs have not refunded the said sum after he ported out of the network on 26.12.2011.  No explanation is coming forth from the OPs either in their version or in the affidavit evidence for their failure in refunding the said sum of Rs.2,400/- to the complainant, immediately after he deactivated the services.  The OPs are certainly liable to refund the said deposit of Rs.2,400/- to the complainant.  The OPs are certainly not justified in retaining the said amount in their custody without any justifiable cause.

13. It is contended by the OPs that they have sent a cheque dated 22.08.2013 drawn on HDFC Bank for a sum of Rs.2,190-92 to the complainant through Professional Courier and the said Courier has been delivered to the complainant on 24.08.2013.  Therefore, it is contended that the claim of the complainant has become infructuous.  The present complaint has been filed by the complainant on 08.08.2013, whereas the said cheque alleged to have been sent on 24.08.2013.  Thus, the alleged cheque has been sent subsequent to filing of the complaint and not immediately after the receipt of the legal notice from the complainant.  The complainant in his affidavit contended that he has not at all received the cheque alleged to have been sent through Courier as contended by the OPs in para-7 of their version.  Despite denial by the complainant regarding receipt of any cheque, the OPs did not produce any credible, documentary or oral evidence to substantiate that the complainant has received the said cheque and encashed it.  In absence of any credible or documentary evidence, we are unable to accept that the OPs have paid a sum of Rs.2,190-92 to the complainant through a cheque dated 22.08.2013 drawn on HDFC Bank, Richmond Circle Branch, Bangalore.

14. The OPs have admitted their liability to pay the amount claimed by the complainant.  The OPs without there being any valid reasons have failed to refund the unauthorized charges collected towards ‘Mobitv’ services and also refundable deposit of Rs.2,400/-.  Thus, the conduct of OPs amounts to deficiency in service and also unfair trade practice.  The conduct of OPs must have caused hardship, inconvenience and mental agony to the complainant.  Therefore, we are of the opinion that apart from directing the OPs to pay a sum of Rs.2,346-45 to the complainant with interest also direct them to pay compensation of Rs.10,000/- towards deficiency in service together with litigation cost of Rs.4,000/-. 

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

16. 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 allowed in part.  OPs are directed to refund a sum of Rs.2,346-45 to the complainant together with interest @ 18% p.a from 05.01.2012 till the date of realization.  Further OPs are directed to pay compensation of Rs.10,000/- to the complainant towards deficiency in service and unfair trade practice together with litigation cost of Rs.4,000/-.

OPs shall comply the order passed by this Forum within four weeks from the date of communication of this order.

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

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 08^th day of January 2016)

MEMBER                           MEMBER                      RESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 27.11.2013.

1. Mr.Dipanjan Bhattacharjee.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 14.02.2014.

1. Sri.Seetharam Handanahal.    

Document produced by the Opposite parties:

MEMBER                          MEMBER                      PRESIDENT

Vln*