District Consumer Dispute Redressal Forum,
SAS Nagar, mohali
Complaint No. 417 of 2016
Dated of institute 08.07.2016
Decided On 24.01.2018
Parveen Kumar Son of Sh. Munshi Ram, R/O H.No. 2183, Sector 41-C, Chandigarh
Complainant………
Vs
- Tata Teleservices Limited, C-125, Industrial Area, Phase-8, Mohali , Punjab-160071 through its authorized signatory.
- General Manager, Tata Teleservices Limited, C-125, Industrial Area, Phase-8, Mohali , Punjab -160071
Opposite Parties…..
Complaint under Section 12 of the
Consumer Protection Act, 1986
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member
Present:- Sh. Manoj Kumar Rohilla, cl for the complainant.
Sh.Angraze Singh, cl for the OPs.
Order by :- Sh. G.K. Dhir, President.
Order
The complainant, working as Central Government Officer is using TATA Docomo Post Paid number 7837615200, as a consumer. An amount of Rs.2,008/- sought to be charged from the complainant in the bill for the period 20.04.2016 to 19.05.2016. The complainant called upon Tata Docomo to disclose the reason of this huge bill, on which they disclosed, as if the usage of data utilized by the complainant exceeded the limit of 1GB data package and Rs. 1,500/- alleged to be charged in excess for this reason. However, the complainant earlier was never alerted regarding this excess data usage limit at any time through email or SMS, albeit, it is mandatory for service provider to inform the user at 50%, 90% and 100% of data usage utilized. If OP would have alerted as per TRAI’s orders, then the complainant may have stopped further usage of data. The complainant called upon the OPs to waive off the charges of excess data usage for the fault of non compliance of TRAI’s orders and on the basis of that request, Rs. 800/- were refunded/deducted and the complainant had to pay Rs. 700/- for excess data usage. Non refund of total excess paid amount considered as deficiency in service on the part of the OPs compensation for harassment of Rs. 40,000/- but litigation expenses of Rs. 7,000/- more claimed.
2. In joint reply submitted by the OPs, it is claimed that the complaint is not maintainable, being filed for extraneous reasons. The amount claimed through bill alleged to be due and valid one. Unnecessary dispute alleged to be raised by the complainant regarding levied charges. Details of charges levied against data usage also alleged to be annexed with the bill. The complainant raised dispute regarding bill amount of Rs.2,008/- and with a view to settle the matter amicably, the OP company franted goodwill waiver for an amount of Rs.800/- , on which the complainant paid balance amount as per promise. After that settlement this complaint has been filed for the reasons best known to the complainant. The complainant cannot avoid the liability of bill payment. Any customer of the OP has the option to check data balance/date usage by sending SMS free of cost on “bill data” to 121. The OP Company has already implemented TRAI guidelines by giving alarm to customers regarding data usage. Moreover all the customers have option to check data balance/data usage through SMS, free of cost as referred above and as such this complaint alleged to be filed without any cause and prayer made for dismissal of the complaint.
3 The complainant to prove his case tendered in evidence his affidavit Ex CW1/1 along with computer generated bill Ex C-1 and thereafter closed the evidence.
4. On the other hand, counsel for the OPs tendered in evidence affidavit Ex OP1/1 of Ms. Amandeep Kaur, Deputy Manager along with bill Ex OP/1 and thereafter closed the evidence.
5. Written arguments submitted by the complainant and not by the OP. Oral arguments heard and records gone through.
6. From the contents of the complaint, reply and bills Ex OP1 and C-1, it is made out that bill of Rs. 2,008/- was sent to the complainant for the period 20.04.2016 to 19.05.2016. Rs. 1,500/- was charged for extra data usage, but Rs.800/- were waived off there from as per the case of te complainant , but as as per the case of the OP, Rs.800/- were waived off as a good will gesture but that fact not admitted by the complainant. Even if assuming for arguments sake that the amount of Rs. 800/- was waived off out of the claimed/paid amount of Rs. 1,500/-, then inference drawable is that there was deficiency in service on the part of the OP and that is why they waived off Rs.800/- from the claimed amount of Rs. 1,500/-. In holding this view we are fortified by the law laid down by the Hon’ble National Consumer Disputes Redressal Commission in case titled as Halda Office Systems Pvt Ltd versus Bapuji Institute of Engineering and Technology 2012 (3) CLT690. As per the ratio of this case, the chairs were purchased for the use of students in an educational institution and the seller admitted replacement of 15 chairs out of 300 defective chairs and the same itself found to be the deficiency on the part of the seller. Same is the position in the case before us because if really amount of Rs. 1500/- would have been claimable as per Telecom Consumers Protection (Eighth Amendment) Regulations, 2015 (5 of 2015), then certainly the OPs would not have waived off any part of that amount.
7. Regulation 10 A contained in Chapter III of the Telecom Consumers Protection Regulations, 2012 (2 of 2012) provides that every service provider through SMS or USSD will provide to all the consumers of the Cellular Mobile Telephone Service, who have availed the data service through special tariff vouchers or combo vouchers or add-on pack or under a tariff plan ,the free or discounted tariff for usage of data upto a certain limit, and an alert each time immediately on the consumption of fifty percent of the data, ninety percent of the date and one hundred percent of the data available in the account of the consumer will be sent . However, when the quantum of data available in the account of the consumer reaches on five hundred megabytes, one hundred megabytes and ten megabytes, even then an alert has to be given by the service provider to the consumer. Such alert not shown to be given to the complainant any time and as such virtually in view of non giving of alert to the complainant, on consumption of fifty percent or ninety percent or hundred percent of the date usage, the complainant virtually availed the excess usage data on his post paid mobile service. Non giving of alert by the OPs as per regulation 10A is deficiency in service on the part of the OPs and that is why they waived off the amount of Rs.800/-, which itself shows deficiency in service on the part of the OPs. After acceptance of the waiver of amount of Rs 800/-, the OPs cannot charge the balance amount of Rs. 700/- more because wrong doer cannot claim benefit of his own wrong. On account of the wrong committed by the OPs in not sending alert message, they are debarred from claiming the amount of Rs. 1,500/- alleged to be claimable on account of excess data usage. So, certainly the complainant is entitled to refund of excess paid amount of Rs. 700/- with interest from the date of filing of the complaint till payment.
7. It is contended by Ld. Counsel for the OPs that the complainant himself could have sent SMS to call No. 121 of bill data for checking the data balance/data usage but the same has not been done and as such fault lies with the complainant in using the data usage in excess of the permissible limits under the package availed by him. Even if facility of knowing data balance or data usage available to the consumer, despite that regulation 10A referred above is enough to establish that service provider is under obligation to send alert messages each time, the consumption goes in the limits mentioned in that regulation. The OPs have not claimed about the sending of the alert message on consumption of fifty percent or ninety percent or hundred percent of the data used by the complainant and as such violation of the rules and regulations committed by the OPs and not by the complainant because non doing of an optional act does not amount to deficiency in service, but the non doing of mandatory act, as per statutory rules and regulations entails consequences of deficiency in service. Copy of notification No. 308-1/2015-QoS dated 07.08.2015 published in the Gazette of India Extraordinary, Part III, Section 4 of Telecom Regulatory Authority of India containing regulation 10A (IBID) is placed on record by the complainant. So in view of all this, it is obvious that deficiency in service is on the part of the OPs and not on the part of the complainant.
8. Due to providing of those deficient services, the complainant had to suffer mental tension, agony and harassment, resulting in seeking of waiver by way of approach to the OPs as well as for filing of this complaint and as such the complainant is certainly entitled for the refund of the excess paid amount of Rs.700/- with interest @ 6% P.A. ( the rate of interest nowadays paid by the Bank on FDRs for one year) with compensation for mental harassment and agony . As unfair trade practice followed by the OPs and as such they should be saddled with additional cost of Rs. 5,000/- more, which would go to the Consumer Welfare Fund.
9. As a sequel of the above discussion, the complaint is allowed in terms that the OPs will refund the excess charged amount of Rs. 700/- with interst @ 6% P.A from the date of complaint namely 08.07.2016 till payment. Compensation for mental agony and harassment of Rs. 2,500/- and litigation expenses of Rs. 2,500/- more allowed in favour of the complainant and against the OPs. Besides these amounts, the OPs also required to pay Rs. 5,000/- more in the account of the Consumer Welfare Fund. Payment of these amounts of litigation expenses, harassment and Consumer Welfare Fund amount be made within 30 days from the date of receipt of certified copy of this order. Certified copy of the order be supplied to the parties free of cost and thereafter the file be consigned to the record room.
Announced
January 24 2018
(G.K. Dhir)
President
(Ms. Natasha Chopra)
Member
