Date of filing: 20.02.2021

                                                               Date of Disposal:06.01.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 6^th DAY OF JANUARY, 2023

CONSUMER COMPLAINT NO.235/2021

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

R.Prasanna Lakshmi

D/o R.Ramanathan,

Aged about 39 years,

313, III Floor, I Main,

Radiant Celesta Apartment,

In person

The Branch Manager,

Airtel Store,

55 Divyashree Towers,

Bannerghatta Main Road.……     OPPOSITE PARTY

Rep by Sri.Sunil P.Prasad, Advocate

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant has filed this complaint under Section-35 of Consumer Protection Act, 2019 seeking for a direction to the opposite party for refund of excess amount paid by the complainant of Rs.94,282/- in the broad band account 08072818048_kk and such other reliefs as this commission deems fit in the circumstances of the case.

2. It is not in dispute that the complainant was a customer of opposite party and Airtel broad band service was given to the complainant.  Further, it is not in dispute that the complainant had paid excess amount of Rs.94,282/- on 22.11.2018 by mistake on her part and she had initiated for the refund of the same after lapse of 2 years.    Further, it is not in dispute that in the month of October-2021 a sum of Rs.81,552.94/- has been refunded to the complainant.

3. It is the further case of the complainant that the complainant has been using Airtel Internet (08072818048_kk) of 40 Mbps speed connection and one fixed landline 08042174313 since from 2017 or even before.  Further, the complainant visited the store on 18^th September 2020 on the account of porting her mobile number and had raised query in respect of the excess amount in her Airtel Broadband account.  Further, on 18.09.2020 the complainant approached the Airtel store in person to enquire about the excess amount paid by mistake. Further instead of paying the bill of Rs.942.82/- she had remitted a sum of Rs.94,282/- and the same went unnoticed.  Further, the sales person of opposite party has advised the complainant to upgrade the internet speed from 40 Mbps to 200 Mbps Fibber Optics and no extra modem switch had to be purchased and the infrastructure setup at her home and location was sufficient.  Accordingly, the complainant had changed the plan of internet to Rs.1499/-.  Upon purchase of specific internet it was found that there was no Fibber optics wiring done in her residence area and some copper wiring of 40 Mbps Internet was there, even then the opposite party had charged extra every month.

4. It is the further case of the complainant that she noticed the excess amount accidentally paid on 22.11.2018.  Further, even though the complainant had huge amount on her account from November 2018 she had been charged late fee.  Even though she has sent mails for refund of the amount she did not receive any response from the opposite party.   Further, she was given false promise with regard to the refund of the amount.  Further, even though copper wiring was there in her area and no Fibber optical wiring was done, the opposite party had been charged extra every month and only 40 Mbps speed internet was given.  Further, after the complainant raised the speed issue with 121 customer care, where on 40 Mbps been received and charged for 200 Mbps speed, the opposite party agreed to apply discount of Rs.350/- from the month of January.  But whatever the amount paid from September 2020 to December 2020 for Fibber Optics been rejected as for the past date they can’t give refund.   Hence, there is deficiency of service on the part of the opposite party.

5. It is the further case of the opposite party that the complainant did not produce any documents to substantiate the alleged damages caused for which she claimed compensation.  Further, since the complainant did not produce the required document, the refund could not be made immediately. Further, the complainant had made unreasonable and unrealistic demands. Hence, it is sought to dismiss the complaint.

6. To prove the case, the complainant (PW1) has filed affidavit in the form of her evidence in chief and got marked EX.P1 to P6 documents.   The authorized Signatory/GPA holder of the opposite party (RW1) has filed affidavit in the form of his evidence in chief and got marked EX.R1 to R3 documents. 

7. Counsel for the opposite party has filed written arguments.

8. Heard the complainant and the counsel for the opposite party.

         9. The points that would arise for consideration are as under:

i) Whether the complainant proves unfair trade practice on the part of the opposite party ?

ii) Whether there is deficiency of service on the part of the opposite party ?

   iii) Whether the complainant is entitled for the 

    compensation as sought ?

    iv) What order ?

   10.   Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  In affirmative

Point No.3 :  Partly in affirmative

Point No.4 :  As per the final order for the following;

REASONS

11.POINT NO.1 & 2:- The complainant(PW1) and authorized signatory/GPA holder of opposite party(RW1) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.  It is the contention of the learned counsel for the opposite party that the speed test document submitted by the complainant has no evidentiary value at all.  The certificate under Section 65B with regard to the said document has not been filed.  On perusal of the document produced by the complainant, it appears that the complainant has filed EX.P3 certificate under Section-65B of Evidence Act, in which it is stated that the complainant had produced the printouts of e-mails with regard to exchange of conversation in between the complainant and opposite party and the same were taken from the computer owned, maintained, managed and operated by the complainant and she had given the computer device number in EX.P3.  Hence, I feel there is no merit in the contention of the learned counsel for the opposite party in that aspect. 

12. It is the contention of the complainant that on 22.11.2018 by accidentally she had paid Rs.94,282/- instead of Rs.942.82/-.  There is no dispute with regard to the payment of said amount.  It is the further contention of the complainant that after following up long procedure and formalities, the opposite party had refunded only a sum of Rs.81,552.94/-. 

13. It is the further contention of the complainant that as per the assurance been given, the complainant obtained the internet service of “one Airtel Rs.1499 plan”.  As per the said plan, the speed of internet shall be upto 200 Mbps and the same can only be the possible through FIBBER wire connection.  According to PW1, there was no FIBBER wire connection line in the area where the connection was given to the complainant.  The complainant has produced the xerox copy of the bill dt.09.10.2020, in which it is stated that “Congratulations! You are on One Airtel 1499 Plan”.  Hence, it is certain that the complainant had purchased one Airtel 1499 plan.  In the affidavit filed on 08.11.2021 by the complainant, it is stated that since due to continuous roping of the internet to her work from home it was getting affected, thereby she had raised concern with Airtel in the month of October.  Thereafter, the opposite party asked permission to change Fibber wire by removing copper wire which was already done at home and it is told by the opposite party that the complainant would be getting 200 Mbps as promised at the time of sale if change was done.  Hence, as the complainant had no option as the internet was completely stopped working she got changed on 22.10.2021.  Even though the internet scheme was 50 megabits only, this change of copper wire has not been seriously disputed by the opposite party.  Hence, one thing is certain that there was only copper cable wire in the beginning in the house of the complainant. 

14. It is the further contention of the learned counsel for the opposite party that the opposite party company for giving any internet connection at first it checks out with regard to the feasibility of the network, then only if feasible provides the connection, in the case of the complainant also the opposite party had checked verified and had given the connection.  Further on a wrong assumption, the complainant had filed the complaint.  It is further contended that broad band internet connection with 40 Mbps speed is for Rs.499/- both for wire and copper with unlimited internet and call on landline.  Further, the complainant was charged for speed and not on whether it was Fibber or copper.  The complainant has produced the xerox copy of the speed test vide document No.2 in connection with the broad band connected with her home.  In which it appears that on the said day the unlimited internet + prepaid 40 Mbps.  In the bills issued by the opposite party, it is mentioned that the complainant is on “one Airtel Rs.1499 plan”.  As per the said plan, the speed shall be up to 200 Mbps.  Hence, the opposite party had supplied a wrong advertisement that she would get speed of 200 Mbps and since the line was only copper line the complainant was not able to get 200 Mbps.  Hence, the act of the opposite party is an unfair trade practice within the meaning of Section-2(47) of Consumer Protection Act, 2019 and there is deficiency of service on the part of the opposite party as contemplated under Section-2(11) of Consumer Protection Act, 2019. Accordingly, I answer this point in affirmative.

15.POINT No.3:- It is the further contention of the learned counsel for the opposite party that even though an excess amount was paid in the year 2018, the complainant had noticed the same in the year 2020 after two years.  Thereafter, the opposite party requested to submit documents for refund of the same.  EX.P6 is the email dt.18.09.2020 sent by the complainant along with the cancelled cheque as sought by the opposite party for the refund of the excess amount paid. 

16. The complainant claimed refund of the excess amount paid by her of Rs.94,282/- in the broad band connection.  The opposite party has produced EX.R2 the copy of payment receipt, in which it appears that on 20.10.2021 repayment was made to the complainant a sum of Rs.81,552.94/-.  In the bill produced by the complainant dt.09.01.2021 it appears that the opposite party had adjusted the same on the excess amount paid towards the bill by deducting the bill amount on it.  Since, there was delay in submitting the document from the side of the complainant for the refund of the excess amount paid, the opposite party cannot be blamed for the delay in refunding the amount, as recently it was noticed by the complainant. Since the amount has been refunded, the complainant is not entitled for refund of the amount paid as sought.

17. Further, the complainant claimed the excess amount charged in the internet in 3 years 5 months period.  It is not specifically stated by the complainant as to how much excess amount been charged in each bill issued by the opposite party.  Hence, it cannot be calculated with regard to the excess amount charged by the opposite party.  Further, the complainant claimed a sum of Rs.5,00,000/- for financial loss as she could not get the money at the time of her accident health emergency of her own son and she had spent day and night to chase Airtel complains and walked to store for the same and lots of time been sent to Airtel Customer Care Executives.  It is the contention of the complainant that upto 6 months she has paid 300 excess amount from September 2020 i.e., from the date of connection and there was no speed of internet upto April-2022.  On perusal of EX.P4 and P6, it appears that several correspondences been made with opposite party with regard to the refund of the amount.  Further, even though copper wire was installed in the area wherein the complainant got connected the Airtel connection, the opposite party had assured to provide 200 Mbps speed of internet.  Hence, the opposite party made to believe the complainant on false promise.  Thereby the complainant had faced lot of problem in her work from home and other incidents stated above.  Therefore, over all the complainant is entitled for a sum of Rs.20,000/- as compensation.  Further, the complainant is entitled for a sum of Rs.10,000/- towards litigation cost.  Accordingly, I answer this point partly in affirmative.

18.POINT NO.4:- In view of the discussion made above, I  proceed to pass the following;

The complaint is allowed in part.

The opposite party is directed to pay a sum of Rs.20,000/- towards damages, mental agony caused to the complainant and a sum of Rs.10,000/- towards litigation cost. 

The opposite party shall comply the order within 30 days. In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 6^th day of January, 2023)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

Witness examined for the complainants side:

Sri.R.Prasanna Lakshmi, the complainant has filed her affidavit.

Documents marked for the complainant side:

1. True copy of the statement of account.
2. True copy of the speed test.
3. Certificate u/s 65b of Evidence Act.
4. Notarized copies of twitter messages.
5. Notarized copy of grievance bearing No.2463272.
6. Email communication between complainant and opposite party. 

Witness examined for the opposite party side: 

Sri.Harsh Mishra, Authorized Signatory/GPA Holder of the opposite party has filed his affidavit.

Documents marked for the Opposite Party side:

1. Xerox copy of Power of attorney.

2. Computer generated Airtel payment receipt dt.20.10.2020.

3. Computer generated account statement.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•