Date of Filing – 06.09.2017

Date of Hearing – 18.01.2018

            The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Opposite Party Nos. 1 to 3 to impeach the Order No.13 dated 07.08.2017 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in Consumer Complaint No. 111/2017.   By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent Smt. Seema Mitra under Section 12 of the Act on contest with cost of Rs.10,000/- with a direction upon the Opposite Parties/Appellants to return/refund Rs.43,749/- being held by OPs as on 27.04.2017 with 9% interest thereon from 27.01.2017 till payment.

          The Respondent herein being Complainant lodged the complaint before the Ld. District Forum asserting that she is a bonafide customer of OP No.1 i.e. Bharti Airtel Limited through a post-paid connection being No.9831129385 and going on paying monthly bills regularly.  In the month of January, 2016 she visited Andaman for 15 days and after returning to Kolkata received a bill of Rs.48,000/-.  When she enquired with the customer service department, she was asked to pay the bill amount for uninterrupted service and to avoid recovery proceedings.  After payment of the said excess bill, the complainant received a bill in the month of March, 2016 showing monthly user charges of Rs.423/- whereby an amount of Rs.49,082/- has been mentioned as previous balance and further mentioned that the due on or before 14.04.2016 is of Rs.48,660/-.  The complainant has stated that as per advice of one Mr. Amit Kumar Singh, Manager she submitted a letter with a cancelled cheque of Axis Bank but the OPs did not refund the excess amount and in this regard all her requests and persuasions went in vain.  Hence, the respondent approached the Ld. District Forum with prayer for refund amount of Rs.45,056/-, compensation of Rs.50,000/- and litigation cost of Rs.10,000/-.

          The Appellants being OPs by filing written version have stated that a customer can deposit any amount for his/her post-paid connection and if any such deposit is made, the same will be considered as advanced payment but OPs/Company cannot refund the deposited amount but can adjust the advanced deposit with the successive bill amount.

          On evaluation of the materials on record and after considering the submission advanced by the Ld. Advocates appearing for the parties, the Ld. District Forum has found deficiency in services on the part of OPs/Appellants and by the impugned order passed an award, as indicated above, which prompted the OPs to prefer this appeal.

          Mr. Rajesh Kumar Biswas, Ld. Advocate for the appellants with the assistance of recorded Advocate for the Appellant has submitted that keeping in view the provisions of Section 7-B of the Indian Telegraph Act, 1885 and the rules framed there under and keeping in view the decision reported in AIR 2010 SC 90 [General Manager, Telecom – Vs. – M. Krishnan & Anr.], the Ld. District Forum should not have proceeded with the case as it was a billing dispute.  He has further drawn my attention to another decision of Hon’ble Apex Court reported in 1997 (4) Supreme 66 [Ms. Raag Rang & Anr. – Vs. -The General Manager, Delhi Telephones & Ors.]

Having heard the Ld. Advocates appearing for the parties on this point in this regard, the order dated 02.05.2014 made by a larger Bench of the Hon’ble National Commission in MA/ 264/2014 in RP/12228/2013 ( Bharti Hexacom Ltd. – vs. – Komal Prapkash & Anr.) appears to be a pointer. In the said decision, it has been observed –

          “We may also note that the main point on which notice in this revision petition was issued was with regard to the maintainability of the complainant, in view of the judgement of the Hon’ble Supreme Court in General Manager, Telecom -  vs. – M. Krishnan & Anr. (2009) 8 SCC 481). However, subsequently, vide a letter dated 24.01.2014 , the Government of India, Ministry of Communication and I.T. While responding to the communication received from the Secretary, Department of Consumer Affairs, Government of West Bengal on 07.10.2013, in relation to the Hon’ble Supreme Court’s judgement in M. Krishnan ( Supra ), has clarified that the said decision involved a dispute between the Department of Telecommunications ( DoT), which was a “ Telegraph Authority “ under the Indian Telegraph Act, as a service provider prior to hiving off telecom services into a separate company, viz Bharat Sanchar Nigam Limited ( (BSNL ). However, as the powers of a “Telegraph Authority” are now vested in the private telecom service providers, as in the case here, and also in the BSNL, Section 7B of the said Act will have no application and therefore, the Forum’s constituted under the Consumer Protection Act, 1986 are competent to entertained the dispute between individual telecom consumer and from service providers”.

          Relying upon the authority as mentioned above, it is quite apparent that the Ld. District Forum has rightly observed that the dispute is amenable before a Forum constituted under the Act. 

          With regard to merits of the case, Ld. Advocate for the Appellant has submitted that the Ld. District Forum has failed to appreciate that the entire amount of Rs.48,000/- was paid by the respondent voluntarily and there was no pressure and/or undue influence on her.  She paid the amount as advanced payment with the presumption that on account of her visit at Andaman for 15 days, she might be billed for a huge amount, however, in reality proper and genuine bill was issued by the appellant.  He has also contended that the appellants are Telecom Service provider and its men and agents are not bank or financial institution, where anyone can invest his/her money and can earn handsome interest for the same.  Summarising his argument, Ld. Advocate for the appellants has finally submitted that the appellants were not deficient in rendering services and keeping in view of the same, the Ld. District Forum should have dismissed the complaint.

          Per contra, Ld. Advocate for the respondent has contended that the respondent is an old aged widow/senior citizen and when the appellants have admitted that they have received Rs.48,000/- from the respondent and the respondent claimed the same on account of his illness, in all fairness, the appellants being service provider should have refunded the same.  On the contrary, when the appellants without refunding the same enjoyed the amount and earned interest there from, the Ld. District Forum was perfectly justified in passing the order impugned which should not be interfered with.

          Having heard the Ld. Advocates appearing for the parties and on perusal on materials on record, it would reveal that the respondent is a ‘consumer’ of appellant company having post-paid Airtel connection being No.9831129385.  In the month of January, 2016 she visited Andaman for  a tour for 15 days and under the assumption of high billing, she has deposited the amount at her own will and volition without any pressure or undue influence from the respondent company.  Needless to say, the appellant company is not a banking institution and does not keep money to provide interest to its customer.  

          The statement of account available with the record indicates that in between 27.06.2012 and 27.04.2017 a total bill amount of Rs.24,058.64P had been raised by the appellant company and on the other hand in between 14.08.2012 and 01.12.2015 the respondent has deposited Rs.67,808/- with the appellant company.  Therefore, the appellant company was payable of Rs.43,749.36P to the respondent as on 23.05.2017.  In this regard the statement of the complainant appears to be noteworthy.  In a specific question – “Did the opposite party ever raised any bill of Rs.48,000/- to you”? to which the complainant replied – “No”.  In another question – “Why did the complainant make such huge transaction of Rs.2,000/-, Rs.3,000/- and Rs.5,000/- and Rs. 8,000/- for less invoice of Rs.261/-, Rs.738/-, Rs.274/-, Rs.320/- respectively in the year 2015”. to which complainant replied that she has been asked to deposit the same by OPs.  However, the respondent has failed to show any scrap of paper or document that the appellant company had ever asked the respondent to deposit the said amount.  On the contrary, what is apparent that should be treated as real.  The statement of accounts does not show that the appellant company had ever raised the bill as noted above but the respondent on her own will and volition deposited the same.  Since the appellant company is not a banking organisation or financial institution, question of imposition of interest does not arise and in this regard the Ld. District Forum has committed a serious error and as such that part of the order should be modified.

          In view of the above, the appeal is disposed of on contest with an observation that the appellant no.1/Bharti Airtel Ltd. to refund the respondent her outstanding balance in respect of her post-paid mobile service No.9831129385 (without any interest or cost as imposed by the Ld. District Forum) within 30 days from date otherwise the amount shall carry interest @ 9% p.a. from date till its full realisation.

          With the above observations and directions, the instant appeal stands disposed of.

          The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information.