Date of Filing – 20.05.2016

Date of Hearing – 28.11.2016

PER HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER

            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 Parties to impeach the Judgement and Final Order dated 26.04.2016 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (for short, Ld. District Forum) in Consumer Complaint no. 615/2015 whereby the consumer complaint initiated by the Respondent Sri Sumanta Kumar Banerjee under  Section 12 of the Act was allowed on contest with certain directions upon the Opposite Parties/Appellants to pay compensation of Rs.25,000/- and litigation cost of Rs.10,000/- to be paid within one month from the date of order otherwise, the OPs shall have to pay a sum of Rs.100/- per day from the date of the order till its realisation as punitive damages which shall be deposited by the OPs in the State Consumer Welfare Fund.

          The Respondent herein being Complainant lodged the complaint asserting that being a Chartered Accountant he has to travel in different parts of the country on account of his professional works.  In order to facilitate his professional works, the Complainant became the user of Airtel Data Card being No.8585883690 since February, 2015.  The Complainant has been paid monthly charges to the OPs regularly as per bills raised from time to time.  On 26.06.2015, the Complainant was at Siliguri for his professional assignment and there he found low speed of the data card causing him unable to download the attachments in his e-mail etc.  On 03.07.2015, the Complainant had been at Bhopal in connection with his profession where again he was facing very low speed of his data card.  On 03.07.2015 at about 09:34 A.M., Complainant lodged a complaint from Bhopal at the Customer Care but without taking any steps, they disclosed the name of different officials of Bharati Airtel Ltd.   Accordingly, Complainant had a talk with the officials namely Mr. Suvojit Dutta, Mr. Raja who advised him to go to Court.  The Complainant had also talked with Mr. Sarnendu Chatterjee and narrated all of them the entire issue including the problem which he had been facing since 26.06.2015 but all his problems remained unattended.  Thereafter, Complainant took up the matter to the level of Nodal Officer i.e. OP no.2 and OP no.1 but did not receive any response.  On 09.07.2015 when the Complainant tried to use the data card, he found that there was no signal against his Airtel Data Card and ultimately came to know that his services have been suspended w.e.f. 08.07.2015 without any notice or communications.  Thereafter, the Complainant has made communications including a legal notices but it turned a deaf ear.  Hence, the Complainant approached the Ld. District Forum with prayer for compensation of Rs.5,00,000/- and litigation cost of Rs.25,000/- etc.

The Appellants being Opposite Parties by filing a written version have stated that in view of the provisions of Indian Telegraph Act, 1885, Indian Wireless Telegraphy Act, 1993 and Telecom Regulatory Authority of India (TRAI) Act, 1997 and the rules framed thereunder, the Consumer Forum has no jurisdiction to entertain the complaint.  The specific case of the Complainant is that the complaint made by the Complainant was duly attended and the Complainant should have impleaded the employees with whom he has made contact.  The OPs have stated that the interactions between the Complainant and Customer Care Executive of the OPs are the proofs that OPs have provided every possible assistance to the Complainant.  Therefore, the complaint should be dismissed with cost.

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.

          We have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates appearing for the parties.

          Having heard the Ld. Advocates appearing for the parties and on going through the materials on record, it would reveal that the Respondent/Complainant was user of Airtel Data Card being No.8585883690 which he took in the month of February, 2015.  The Respondent is a Chartered Accountant in profession and as such on account of his professional works, he has to go in different parts of the state as well as country and in order to facilitate his professional works and frequent communications with his clients/customers, the Respondent became the user of the said Airtel Data Card. 

          It is evident from the record that on 26.06.2015 while the Respondent was at Siliguri on account of his professional works, he had to face problem due to very low speed of the said data card which unable him to download the attachments in e-mail.  On 03.07.2015, the Respondent was at Bhopal in connection with another professional assignment where he faced similar problem.  The Respondent has specified the name of the Executives of the Airtel Ltd. with whom he had made contact for redressal of his grievances but the complaint made by the Respondent remained unattended. 

It is certainly a deficiency in services on the part of the Appellants because being a professional person, the Respondent had to suffer much on account of failure of the Bharati Airtel Ltd. in providing proper service when the Respondent was at Siliguri or at Bhopal in connection with his professional works being a Chartered Accountant.

          On the threshold of his submission, Ld. Advocate for the appellant 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 appellant has submitted that 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 Act is by implication barred. In support of his submission, Ld. Advocate for the appellant has placed reliance of 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. ). The respondent being not acquainted with the latest position, could not contradict  the same. 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 entertain the instant consumer complaint. 

          Ld. Advocate for the Appellants has further submitted that the impugned order is a non-speaking order and as such the said order should be set aside.  On the other hand, Ld. Advocate for the Respondent has submitted that the Respondent being a professional man had suffered much on account of very low speed of data card and when inspite of specific complaint, there is no document whatsoever to show that any positive step was taken and further suspended the service connection without any consent of the Respondent, it amounts to deficiency in services on the part of the Appellants and the Ld. District Forum has rightly passed the order impugned. 

          After giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties, we find that the allegation made by the Respondent in Para-7 of the petition of the complaint was not controverted by the Appellants in their written version.  Further when the Appellants have stated that the Respondent should have impleaded the said executives as parties, it simply signifies that the Respondent for redressal of his grievances approached different corners of the service providers to overcome the situation but the Appellants did not extend their cooperation.  In that perspective, the Ld. District Forum was quite justified in imposing a compensation of Rs.25,000/- and litigation cost of Rs.10,000/-.        

          However, the imposition of punitive damages of Rs.100/- per day does not appear to us acceptable.  Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered.  Such a claim has to be specially pleaded.  But there is no averment in the complaint about the sufferings of punitive damages by the other consumers nor was the Appellant aware that any such claim to be met by him.  In (2015) 1 SCC 429 (General Motors (India) Pvt. Ltd. – vs. – Ashok Ramniklal Tolat & Anr.) the Hon’ble Apex Court has observed that unless the claim of punitive damages is made in the complaint, no relief can be granted on that count.  Therefore, the order of punitive damages is liable to be set aside.

          In view of the above, we modify the order to the extent that the Appellants/OPs to pay Rs.25,000/- as compensation and Rs.10,000/- as litigation cost aggregating Rs.35,000/- within one month from the date of this order, otherwise the amount shall carry an interest @ 9% p.a. till its full realisation.

          With the above observations, the appeal is disposed of on contest in part but without any order as to costs.

          The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information.