Karnataka

Bangalore 4th Additional

CC/14/1361

M/s. Bhuruka Gases Limited - Complainant(s)

Versus

The Customer Support Manager Bharti Airtel Limited - Opp.Party(s)

30 Dec 2017

ORDER

Complaint filed on: 02.08.2014

                                                      Disposed on: 30.12.2017

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1361/2014

DATED THIS THE 30^th DECEMBER OF 2017

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

M/s.Bhuruka Gases Ltd.,

A company incorporated

under the Provisions of the Companies Act, 1956,

Having its Registered office

and Factory at

Whitefield road,

Mahadevapura,

Bengaluru-48.

 

Rep by its Authorized

Signatory & Executive Mr.Rajan.C.O

 

By Adv.Sri.S.B.MohanKumar     

 

V/s

Opposite party/s

Respondent/s:-

 

1. The Customer Support Manager Bharti Airtel Ltd.,

(Regional head office)

55, Divyashree Towers,

Ground floor,

Opposite – Jayadeva hospital, Bannerghatta road,

Bengaluru-76.

 

2. M/s.Bandwidth

Franchisee of Bharti Airtel Ltd., no.63/A, 1^st floor,

13^th cross, 3^rd phase,

J.P.Nagar,

Bengaluru-78.

 

By Adv.Sri.B.J.Mahesh

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party no.1 & 2 (herein after referred as Op.no.1 & 2 or Ops) seeking issuance of direction to pay a sum of Rs.37,928/- with interest at the rate of 18% p.a. for discrepancy in the bills and deficiency of service for the harassment and wasted time and not being able to use any alternative mobile number and direct to pay the cost of the proceedings.

 

          2. The brief facts of the case of the Complainant are that it is a public limited company registered under Companies Act, 1956. It is engaged in manufacture of liquid oxygen and other gases at its factory. It is the case of the Complainant that it had purchased the Airtel mobile connection (sim card) for their employees and executives. The company has been using the Airtel corporate connection for last 16 years and more than 30 connections. The company has been paying bills of Rs.50,000/- to Rs.70,000/- in every month to Bharthi Airtel ltd., The complained mobile no.9845049024 (herein after referred as the said mobile number) is being used by the President of the company (Complainant). The Complainant received bill from Bharti Airtel vide bill no.396261010 dtd.24.04.2014 for Rs.23,666.72 and another bill no.427347162 dtd.24.05.2014 for Rs.14,261/- towards usage of the said mobile number for the month of April and May 2014. On verification of the bill no.396261010 Complainant found discrepancy that the roaming charges and internet charges of Rs.18,765/- has been charged in the bill for the month of April 2014.  On verification of another bill no.427347162, the Complainant found discrepancy that the roaming charges and internet charges of Rs.10278.25 has been charged in the bill for the month of May 2014 and these charges are not incurred and not payable. The Complainant further submits that the said mobile number has been provided to President and she has been visiting the foreign counters frequently on official work and has been using the above mobile for long time. On receipt of bill from Airtel for the month of April 2014 & May 2014, the Complainant requested the Op.no.1 customer care center, Bengaluru and Delhi to rectify the discrepancy of the above said bills. In spite of several requests and e-mail proper explanation has not been furnished for the discrepancy of the above said bill and without any intimation has barred the outgoing calls. The Complainant further submits that due to barring of outgoing calls and for restoration of the service, the Complainant paid the entire outstanding amount of Rs.37928/- vide cheque no.503576 dtd.24.06.2014 payable at SBI, Mahadevapura branch, Bengaluru. Despite the receipt of the said email, and reminders, the Op failed and neglected to respond and rectify the above said bills to the Complainant. Finding no other alternative, the Complainant is constrained to approached this forum for refund of Rs.37,928/- along with interest at 18% p.a. from the Op. The Complainant further submits that the said mobile number provided to President of the company not used any voice SMS or any internet data or any other facility from the above mobile number. Hence on these grounds and other grounds prays for allowing the complaint.

 

3. On receipt of the notice, Ops did appear before this forum. Amongst them Op.no.1 filed version.  The sum and substance of the version are that the complaint filed by the Complainant is not maintainable, since there is an arbitration clause u/s 7B of Indian Telegraph Act which provides for adjudication of dispute under the provision of Arbitration Act. Hence he cannot approach this forum. It is also the contention of the Op that the Complainant is a company indulged in the business activity and the services of the Op availed by the Complainant under corporate connection (CUG) i.e. more than 30 connections, being put to use by the Complainant in furtherance to its business activities. Hence the service availed by the Complainant is commercial in nature, as such the Complainant herein does not fit in to the ambit of the definition ‘consumer’ as envisaged under the provisions of CP Act. On these ground also the complaint is not maintainable and liable to be dismissed. It is also the case of the Op that the Complainant has disputed the bill dtd.24.04.2014 for Rs.23666.72 and bill dtd.24.05.2014 for Rs.14,261/- with respect to mobile number 9845049024 which is alleged to be used by Vice President of the company of the Complainant. The Complainant has disputed the said bills alleging that, discrepancy is existed in the said bills more particularly with respect to roaming charges and internet charges mentioned thereon. Op further submitted that, the bills are issued strictly in accordance to the usage made by the user. The user has regularly travelled in international roaming wherein the data services were put to use which resulted in the charges being levied in the bills. It is pertinent to note that, since the user was using Samsung smart phone and there is chance that, the data has pinged (synchronization) unknowlely behind the screens (mobile to server) due to which data usage has happened. Op further submitted that upon receipt of the complaint made by the Complainant about the alleged discrepancy crept in the bills, the Op have examined the same and found that the usage is genuine and same was clearly appraised to the representative of the Complainant one Miss.Shreelatha who interacted over phone vide no.080-28524240 along with in depth calculation based on conversion of the data from KB to MB and charges charged against the same which also found matching and interalia requested the Complainant to make the payment of the bill amount. However the Complainant without disclosing these facts has approached this forum. Op further submits that the averment made at para 3 may be true. Further the averments made para 4 of the complaint about the receipt of the bills by the Complainant are admitted to be true. However it is denied that, there was any discrepancy in the said bill and charges are not incurred and not payable. Further the averments that in spite of several request proper explanation has not been furnished by the Op for the discrepancy of the bills and without any intimation has barred the outgoing calls are denied as false. In fact since the Complainant did not make the payment of the bills despite repeated reminders, the Op was compelled to bar the outgoing calls as provided under rules 443 & 444 Indian Telegraph rules. It is further denied that, the Op failed and neglected to respond and rectify the bills to the Complainant. Since there was no mistake in the bills, question of rectification of the same does not arise for consideration. Since the Complainant has not paid the bills, inspite of the repeated reminders, the Op was compelled to bar outgoing calls as provided under rule 444 of IT Act. Hence on these grounds and other grounds prays for dismissal of the complaint.

         

          4. To substantiate the case, Executive of the Complainant filed affidavit evidence and produced 10 documents but not marked. Authorized signatory of the Op.no.1 filed affidavit evidence & none of documents got marked. Both filed written arguments. Heard both side.

  

5. The points that arise for our consideration are:

1. Whether the complaint filed by the Complainant is maintainable ?
2. Whether there is any deficiency of service on the part of Op, if so, whether the Complainant entitled for the relief sought for ?  
3. What order ?

                   

           

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Negative.  

Point no.2: Does not survive for consideration

Point no.3: As per the final order for the following

 

REASONS

 

          7. Point no.1:  The main contention taken by the Op is that the complaint filed by the Complainant is not maintainable in view of Sec.7B of IT Act which provides for adjudication of dispute under the provisions of Arbitration Act. In this context he placed reliance on the Hon’ble Supreme Court in Civil appeal no.7687/2004 dtd.01.09.2009 in the matter between General Manger, Telecom V/s M.Krishnan & another reported in 2009 AIR SCW 5631, followed by the Hon’ble National Commission in the order dtd.18.07.2012 passed in Revision petition no.398/2011 in the case of Ziyauddin Alvi Vs Bharti Airtel ltd., It is also the specific contention taken by the Op that Complainant is a company indulged in the business activity and the services of the Op availed by the Complainant under corporate connection (CUG) i.e. more than 30 connections, being put to use by the Complainant in furtherance to its business activities. Hence the service availed by the Complainant is commercial in nature, as such the Complainant herein does not fit in to the ambit of the definition ‘consumer’ as envisaged under the provisions of CP Act. As such on this count also the complaint filed by the Complainant is not maintainable. Referring to this aspect, the learned counsel for the Op draw our attention to the para 3 of the complaint which reads thus:

The Complainant is a public limited company registered under Companies Act, 1956. The plaintiff company has its Registered office and factory situated at Whitefield Road, Mahadevapura, Bengaluru-48, within the jurisdiction of this forum. The Complainant company is engaged in manufacture of liquid oxygen and other gases at its factory. The Complainant company is represented by its Authorized representative Mr.Rajan.C.O of the plaintiff company as per the Board resolution dtd.29.11.2011.

 

So also in the para 4 sub para 1 of the complaint which reads thus:

The Complainant submits that the mobile number 9845049024 has been provided to President and she has been visiting the foreign counters frequently on official work and has been using the above mobile for long time. On receipt of bill from Airtel for the month of April 2014 & May 2014, the Complainant requested the Op viz., M/s.Bharti Airtel ltd., customer care center, Bengaluru and Delhi to rectify the discrepancy of the above said bills. In spite of several requests and e-mail proper explanation has not been furnished for the discrepancy of the above said bill and without any intimation has barred the outgoing calls.

 

8. Referring to these facts submit that the very pleading of the Complainant goes to show that the Complainant under corporate connection has taken more than 30 connections which is purely commercial in nature. We find there is considerable force in the arguments advanced by the learned counsel for the Op for the simple reasons that, so called connections are with regard to the commercial transactions, more particularly the mobile no.9845049024 has been provided to the President i.e. the Complainant and she has been visiting the foreign counters frequently on official work and has been using the above mobile for long time. Under such circumstances, we are of the opinion that the present complaint filed by the Complainant is not maintainable. With regard to the another contention taken by the Op that the present complaint is not maintainable in view of Sec.7B of IT Act with regard to the decision cited supra. We cannot touch this issue as we already come to the conclusion that the very CUG connection is for the commercial purpose, under such circumstances, it is needless to discuss with regard to the Sec.7B of the IT Act. Accordingly we answered point no.1 in the negative, holding that the complaint filed by the Complainant is not maintainable as the complaint is not a consumer.

 

9. Point no.2: In view of our findings on point no.1, this issue does not survive for consideration, accordingly point no.2 is answered.

 

10. Point no.3: In the result, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant is hereby dismissed as not maintainable.

 

          2. Looking to the circumstances of the case, we directed both the parties to bear their own cost.   

         

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer and pronounced in the Open Forum on 30^th December of 2017).

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.Rajan.C.O, who being the Executive of the complainant was examined. 

 

 

Copies of Documents produced on behalf of Complainant/s:

 

	Board Resolution dtd.29.11.2011
Doc.no.1 & 2	Bill dtd.24.05.14 & 24.04.14
Doc.no.3 to 9	Email communications
Doc.no.10	Proof of payment made letter dtd.24.06.14

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.D.PradeepReddy, who being the authorized signatory of Op.no.1 was examined.

 

Copies of Documents produced on behalf of Opposite party no.1 & 2

 

-NIL-

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT