Date of Filing: 08/08/2011

        Date of Order:22/10/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  22^th DAY OF OCTOBER 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO.1470 OF 2011

Delara Damania,

33 Benson Cross Road,

Bangalore-560 046.

(Rep. by In.person)                                                                   ….  Complainant.

V/s

Reliance Communications

Infrastructure Limited,

12, Subramania Arcade, Tower B,

Bannerghatta Road,

Bangalore-560 029.

Rep. by its Managing Director.

(Rep. by Advocate Sri.Madhukar M.Deshpande)                    …. Opposite Party.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to pay Rs.1,50,000/-, are necessary:-

          The complainant has bought Broad band USB Stick for Rs.3,500/- from the opposite party.  In the first bill dated: 08.04.2009 the opposite party has added Rs.428/- under “Value Added services”.  The complainant ran between the two branches of the opposite party to get explanation and rectification in this regard, they did not know what is this amount was for, but later it was informed that the complainant has exceeded the limit, which is incorrect since the complainant’s usage was minimal.  Finally the opposite party has apologized and said it was their billing error.  But the opposite party said that the complainant has to pay the amount which they will settle in the next bill.  The complainant called the opposite party for four months, but it was not rectified.  Hence the complainant objected to payment of the bill since the problem was not settled.  The opposite party disconnected the broadband causing inconvenience to the complainant.  The complainant went from pillar to post of the opposite party several times.  Hence in August-2009 the complainant wanted the plan from limited to unlimited.  It was discussed by the opposite party.  Even then the opposite party has over billed again asking the complainant to pay now and they will fix the problem on the next cycle.  Even though there was a problem in the internal computer system.  At the time of purchase the complainant had 1 Mbps, but the opposite party sold it as 3 Mbps, but the connection was disconnected.  On 10.12.2009 the complainant went to the opposite party and asked them in the matter and on discussion the opposite party said that they have disconnected the services and no new bill will come to the complainant and the amount paid by the complainant i.e., Rs.3,500/- can be used on a weekly basis and further promised that no new bill will be generated from that day.  The representatives of the opposite party said that they will not call the complainant.  Even then there were threatening calls.  Complainant was called to Lok Adalath who had no authority to grant compensation to the complainant; Even minimum compensation will not reach the opposite party.

2.       In brief the version of the opposite party are:-

This Forum has no jurisdiction to entertain the complaint in view of the Section 7(b) of the Telegraph Act and as per the judgment of the Apex Court in 2009.  The complaint is full of confusion and lacks clarity.  The complainant is liable to pay the amount up to the effective date of termination of service.  Reading the bill is no deficiency is service.  During March-April-2009 the complainant approached the opposite party to hire broadband service.  After knowing the various plans the complainant opted for broad band 1 GB_650 plan and plan Name: RNJ149DATA and she purchased the net connection broad band USB Stick and she was using the same.  For two years she has used this plan.  The complainant while terminating the service of the opposite party did not follow the procedure.  According to the practice the customer has to call the service center of the opposite party or send a letter by e-mail.  The complainant instead of following that, obtained a written confirmation from the person who is not authorized to issue the same.  All the allegations to the contrary are denied.

3.       To substantiate their respective cases the complainant has stated that her complaint and documents be read as their evidence.  The opposite party has filed their affidavits.  At their instance the matter was referred to the Mediation Centre, there also it did not materialize.  Hence the arguments were heard.

4.       The points that arise for our consideration are:-

:- POINTS:-

1. Whether this Forum has no jurisdiction to entertain the complaint?
2. Whether there is deficiency in service?
3. What Order?

5.       Our findings are:-

Point (A) to (C)        :           As per the final Order

                                       for the following:- 

-:REASONS:-

Point A to C:-

6.       Reading the pleadings in conjunction with the documents on record it is an admitted fact that the complainant has obtained Broad band facility from the opposite party by paying certain amount.  The complainant was not satisfied with the services of the opposite party with respect to the broad band.  Hence on 10.12.2010 the complainant paid the bill amount of Rs.1922/- and terminated the service of broad band and the concerned personnel of the opposite party received the amount and given a letter that the services has been terminated and no bill will be generated further.  The said receipt reads thus:-

That means one Rame Gowda of the opposite party has received the amount in full and nothing was due and one Sathya of the opposite party of Reliance World No.1/3, Batra Chamber Cunningham Road, Bangalore-560 052, of I.D. No.142805949 has clearly stated the service has been terminated and no bill will be generated in future.  There is no dispute about these persons receiving money on behalf of opposite party and issuing bill.  Then how can opposite party ignore their certificate or avoid the certificate/undertaking?  That means from 10.12.2010 onwards no bill will be generated and sent to the complainant.  It is seen even the opposite party has accepted the said amount of Rs.1,922/- in the bill of the due date dated: 27.01.2011.  That means from 10.12.2010 no bill will be generated and the amount is accepted in full and final settlement of all the claim.  But the opposite party has issued further bills in this regard dated: 22.06.2010, 03.05.2011 raised a dispute before the LA in the matter subsequently.  When once the service has been terminated and agreed that no bill will be generated on and from 10.12.2010 but generating the bill subsequently and demanding money is nothing but an unfair trade practice as rightly contended.

7.       In this regard When the complainant has approached the opposite party several times and sent e-mails to the opposite party contacting Mr. Biju Kumar of the opposite party and several other personnel did not yield but making her to travel from one pillar to another pillar by the opposite party is nothing but an unfair trade practice and deficiency in service.

8.       Further what the complainant wanted from the opposite party was why the opposite party has added Rs.428/- in the bill dated: 08.04.2009 under the head “Value Added Services”.  The opposite party could have rectified it could have told her what is the meaning of that.  Even that has not been done.  It went on adding money.  Ultimately the complainant paid the money and closed the service.  Even then the opposite party has demanded money again and again causing untold mental agony and hardship.  She has wasted her time in coming to the Lok Adalat and to the Mediation Center.  All this is due to the reason, the unfair trade practice committed by the opposite party.  Hence the complainant is entitled to the compensation.  The opposite party being the service provider of a Multinational in nature, if we direct the opposite party to pay Rs.30,000/- as compensation and costs of litigation of Rs.2,000/- we think that will meet the ends of justice.

9.       In this case the opposite party has contended that in view of Section 7(b) of the Telegraph Act and the judgments of the Apex Court 2009(8) SC 481 this forum has no jurisdiction in the matter.  Considering the judgments of the Apex Court and Section 7(b) in 2011 CTJ 237 it has been ruled thus:-

“Mobile phone-Jurisdiction-Consumer Protection Act, 1986-Section 3-Indian Telegraph Act, 1885-Section 7-B-Complainant’s dispute pertained to the two mobile phone bills received by her from the opposite party-Complaint allowed by the District Forum-Both the bills struck off-Compensation awarded to the complainant-Appeal-Whether the dispute of a mobile phone covered by the judgment of the Supreme Court in the case of General Manager, Telecom v. M.Krishnan and another ? – Held, no-Provisions of Section 7-B of the Indian Telegraph Act come into play only if there is some agreement between the parties that any dispute arising between them shall be referred to an arbitrator for its resolution-No such agreement brought on record-A careful perusal of the apex Court’s judgment shows that Section 7-B covered only the disputes concerning the landline apparatus and appliances and not the wireless service like the service being rendered by the mobile phone companies-Accordingly held : the mobile phone disputes are neither covered by the judgment of the apex Court nor by the Indian Telegraph Act-Consequently held : the Consumer Forums are competent to take cognizance of the disputes of mobile phones-Complainant having used the mobile phone service, liable to pay the mobile phone service charges of the last bill but not the late fee charges as the appellant itself sent the bill after two months’ delay-Appeal allowed.”

Further in 2011 CTJ 439 it has been ruled thus:-

“Mobile phone-Jurisdiction-Consumer Protection Act, 1986-Indian Telegraph Act, 1885-Section 7-B-Complainant’s mobile phone disconnected-Subsequently restored-complaint to the District Forum alleging that he suffered personal losses due to the disconnection-Compensation of Rs.5,000/- awarded-Appeal-Jurisdiction of the Consumer Forum disputed-Contended that in view of the Supreme Court’s decision in General Manager, Telecom v. M.Krishnan and another, the parties be directed to the remedy of arbitration under Section 7-B of the Telegraph Act-Held: that the said provision is for the disputes between the telegraph authority and the individual concerned-Nothing in the above order to the effect that it applies to the private service providers-Appeal dismissed.”

Further in 2010 CTJ 688 it has been ruled thus:-

“Mobile phones’ complaints-Private telecom operators-Consumer Protection Act, 1986-Indian Telegraph Act, 1885-Section 7-B-Telecom Regulatory Authority of India Act, 1997 (TRAI Act)-Section 14-Alleged deficiency in service of the private mobile service provider-Contention raised by the service provider that following the judgment of the Supreme Court in General Manager, Telecom v. M. Krishnan and another, 2009 CTJ 1062 (SC)(CP), the parties are to be relegated to avail of the remedy available to them under Section 7-B of the Telegraph Act-In the cited judgment the Court held : 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-In the same context the Court also observed that the special law overrides the general law-Section 7-B comes in to play in the event of a dispute arising between the telegraph authority and the person who had obtained the line/appliance or apparatus for his use-Telegraph authority as defined in the said Act means the Director General of (Posts and Telegraphs) and includes and officer empowered by him to perform all or any of the functions of the telegraph authority under it-Private service providers are licencees to operate private mobile lines under Section 4(f) of the Telegraph Act-They cannot be equated with the Director General, Posts and Telegraphs nor be termed as designated officers-Therefore, the dispute between a licencee and its customer not to be covered by Section 7-B-Functioning of the private mobile operators is regulated by the Telecom Regulatory Authority of India Act-Its Section 14 makes it amply clear that the private service providers are not governed by Section 7-B-It also makes it clear that the Consumer Forums can proceed to exercise jurisdiction over them-This being the position, the private service providers cannot take advantage of the judgment of the Supreme Court in the cited case.”

That means Section 7(b) of the Telegraph Act or the judgments of the Apex Court is not applicable to the private service providers of the telephone and the said act is not applicable.  When that is the pronouncement of the law how can it be said that this Forum has no jurisdiction.

10.     The opposite party has relied on certain unreported judgments of Union territory of Chandigarh in Appeal No.671/2009 and 668/2005.  These are not applicable to the facts and circumstances of this case as rightly contended.  Hence under these circumstances we hold the above points accordingly and proceed to pass the following:-

ORDER

1.        The complaint is Allowed-in-part.

2.        The opposite party is directed to pay to the complainant the sum of Rs.30,000/- within 30 days from the date of this order, failing which it shall pay the said amount along with interest thereon at the rate of 12% per annum from 10.12.2009 until payment within 60 days from the date of this order.

3.        The opposite party is also directed to pay to the complainant a sum of Rs.2,000/- as costs of this litigation.

4.        The opposite party is directed to send the amounts as ordered at Serial Nos. 2 & 3 above to the complainant through DD by registered post acknowledgment due and submit the compliance report to this Forum with necessary documents within 75 days from the date of this order.

5.       Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.

6.       Send a copy of this order to both the parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 22^nd Day of October 2011)

MEMBER                                               MEMBER                                         PRESIDENT