Date of Filing – 16.05.2016

Date of Hearing – 17.10.2017

            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 Part Nos. 1 & 2 to impeach the Judgement/Final Order dated 11.03.2016 passed by the Ld. District Consumer Disputes Redressal Forum, Uttar Dinajpur at Raiganj (for short, Ld. District Forum) in Consumer Complaint No. 106/2014.   By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent No.1 Sri Deep Saha under Section 12 of the Act with the direction upon the Opposite Party Nos. 1 & 2/Appellants to provide the Respondent No.1 recharging the remaining of the net data, to pay compensation of Rs.5,000/-. 

          The Respondent No.1 herein being Complainant lodged the complaint before the Ld. District Forum asserting that following the offer on 29.08.2014 at 08:32 P.M., he took offer by recharging Rs.155/- for 1.5 GB (2G).  On that day at about 08:34 P.M. he received a message that recharge successful on 29.08.2014 at 09:04 P.M., MRO: Rs.155/-, S Tax Rs. 17.05/-, Trans Id.162024606, validity 28 days benefit: 525 MB 2G data ..... .  He immediately contacted the customer care and was assured that the remaining date will be provided within one day.  He waited for four days but he has not received any further message.  Hence, the complainant approached the Ld. District Forum on the allegation of deficiency on the part of the OP Nos. 1 & 2/Appellants.

          The appellants being OP Nos. 1 & 2 by filing written version denied and disputed the allegations levelled by the complainant and further stated that the complaint is not maintainable in view of the decision of Hon’ble Supreme Court in the case of General Manager, Telecom – Vs. M. Krishnan & Anr. reported in (2009) 8 SCC 481.

          The Respondent No.2 being OP No.3 did not contest.

          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 OP Nos. 1 & 2/Appellants and by the impugned order passed an award, as indicated above, which prompted the OP Nos. 1 & 2 to prefer this appeal.

          I have scrutinised the materials on record and considered the submission advanced by the Ld. Advocate appearing for the Appellants.  As none appears for the Respondent No.1/complainant, finding no other option, I proceeded to hear and dispose of the appeal in absence of the respondent no.1.

          Having heard the Ld. Advocates appearing for the parties and on going through the materials on record, it would reveal that the Respondent No.1/Complainant has alleged the he accepted an offer by recharging of Rs.155/- for 1.5 GB (2G).  In his petition of complaint, the Respondent No.1 did not mention whether the connection was availed from Bharti Airtel Ltd.  In his cross examination, the respondent no.1 has stated that it was a prepaid scheme mobile connection but he failed to show any document that the SIM card was issued in his name.  The respondent no.1 did not take any pain to implead the retailer as a party to the case.  In his cross examination, the respondent no.1/complainant has stated that he has document to show that he has received an offer of 2G for 28 days in internet at Rs.155/-.

          Ld. Advocate appearing for the appellants has drawn my attention to the recharge scheme of Airtel and submitted that there was no such scheme.  But on perusal of the said offer, I find that there was a scheme of prepaid recharge of Rs.155/- for 28 days for 2G data as alleged by the respondent no.1.  Therefore, it cannot be said that there was no such scheme floated by Bharti Airtel Ltd.  So, the contention of Paragraph-11B that they have never offered 2G internet date on recharge of Rs.155/- does not appear to be correct. 

          Whatever may be the statement of respondent no.1, but it reveals that OP No.3 is a retailer of Uttar Dinajpur and the retailer has nothing to do regarding the dispute between the respondent no.1 and the appellant company.  In fact, when the recharge was successful, the appellant company was under obligation to provide remaining portion of net data.

          On the threshold of his submission, Ld. Advocate for the appellants has submitted that in view of the provision of Section 7B of the Telegraph Act, the complaint was not maintainable. Expanding his argument, Ld. Advocate for the appellants have submitted that when there is a special remedy provided in Section 7- B of the Indian Telegraph Act, then the remedy under the Act is by implication barred. In support of his submission, Ld. Advocate for the appellants has placed reliance to a decision of Hon’ble Supreme Court dated 01.01.2009 in Civil Appeal No. 7687 of 2004 ( General Manager,Telecom – vs. – M. Krishnan & Anr.) and also a decision of Hon’ble National Consumer Commission dated 20.04.2012 in RP No.3780/2011 ( Lokesh Parashar –vs. – M/s. Idea Cellular Ltd.& Anr. ). 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 entertained the instant consumer complaint. 

          The factual matrix of the case make its abundantly clear that the respondent no.1 being a consumer purchased one 1.5 GB (2G) net data on payment of Rs.155/- but he was not given the benefit as assured and as such the appellant company was deficient in rendering services to a consumer like respondent no.1.  In that perspective, the Ld. District Forum was quite justified in imposing a compensation of Rs.5,000/-  for harassment and mental agony and also a direction to provide to the respondent no.1/complainant for recharging the remaining portion of the net date so that he can get total 1.5GB (2G) data as per the offer dated 29.08.2014.

          Consequently, the appeal being devoid of merit is dismissed.

          The impugned Judgement/Final Order dated 11.03.2016 passed by the Ld. District Forum is hereby affirmed.

          The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Uttar Dinajpur at Raiganj for information.