Karnataka

Bangalore 4th Additional

CC/15/1905

Sri. Rajendra Nadagouda, S/o Krishna Rao, - Complainant(s)

Versus

The General Manager (Operations), BSNL Mobile Service, - Opp.Party(s)

Sri. Subhas Patil, Smt. Sujatha, Dattatray.M. Joshi and Vijayendra D Joshi.,

27 Jun 2018

ORDER

Complaint filed on: 23.11.2015

                                                      Disposed on: 27.06.2018

 

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.1905/2015

DATED THIS THE 27^th JUNE OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Sri.Rajendra Nadagouda

S/o Krishna Rao,

Aged about 63 years,

R/at no.55/B, 2^nd main,

1^st cross, Lakshminagara, Bengaluru-79.

 

By Adv.Sri.Subhas Patil

   

 

V/s

Opposite party/s

Respondent/s:-

 

The General Manager (Operations) BSNL

Mobile Service Amenity

block, Palace Road,

Bengaluru-01.

 

By Adv.Sri.Prakash Rao K

 

 

MEMBER: SMT.ROOPA.N.R

 

 

            This complaint is filed by the Complainant against the Opposite party (herein after referred as Op) seeking issuance of direction to pay damages by way of compensation and loss of huge expenses incurred, interest and mental torture etc., a sum of Rs.2 lakhs with interest and cost and to grant such other reliefs deem fit for which the Complainant is entitled to.

 

          2. The brief facts of the case of the Complainant are that, he is one of the customer of Op and using the services since from many years. He has been allotted and using the mobile no.9448044232 (hereinafter referred as the said mobile number). He is making payment regularly without any default. He wants to go to out of the country and he was in need of roaming facility. He was opted roaming facility from Op by paying requisite payment. At the time of taking the above said roaming facility, the Op has agreed and undertaken that the said roaming facility available in India as well as international roaming facility in respect of Complainant mobile. The Complainant further submits that, he wants to meet his son in Finland for a period of 22.06.15 to 04.08.15. Now a days mobile phone is a device not to only for talking device but also it is usefull to access email and internet facility. During his visit to Finland when he reached Islamabad International Airport where he could not get any connection from his mobile and he could not speak with his son from his mobile. He has no option to purchase pre-paid calling card for 10 Euro. The Complainant further submits that, the health insurance from Oriental insurance co., where he could not call toll free number of other countries of insurance company due to health problem of his wife in Finland. As the mobile which the roaming facility was not activated due to which the Complainant and Complainant wife has suffered heavy loss; and Complainant could not intimate to the said insurance company to cover the insurance. He has suffered for not calling through mobile to his relatives and friends as well as well-wishers who were staying in India. The Complainant further submits that, the bill no.859128540 dtd.05.07.15 for the month of June 2015 for a sum of Rs.1148/-. Wherein the Op has claimed international roaming from 01.07.15 to 31.07.15 for Rs.99/- and international roaming from 16.06.15 to 30.06.15 for Rs.49.50/-.  Further bill no.861730643 dtd.05.08.15 for the billing period from 01.07.15 to 31.07.15, bill amount was raised a sum of Rs.1310/-. Wherein international roaming charges charged Rs.99/- from 01.08.15 to 31.08.15. The Complainant further submits that, the Op has not given international roaming facility having collected the amount and having charged the international roaming charges and without extending the roaming facility and there was a lapse on the part of the Op due to which Complainant has suffered heavy loss and lot of inconvenience and mental agony and loss of monetary benefits due to the deficiency of service of the Op for a period of 45 days during stay in abroad by the Complainant. In this context, he issued legal notice dtd.29.09.15. The said notice was acknowledged by the Op but not replied. Hence prays to allow the complaint.

 

3. On receipt of the notice, Op did appear through their counsel and filed version denying the allegations made in complaint. The sum and substance of the version of the Op are that, the complaint filed by the Complainant is not maintainable either in law or on facts, hence liable to be dismissed. The Op further submits that, the form has no jurisdiction to entertain such an illegal and frivolous complaint. Even otherwise, the complaint is liable to be dismissed as per the order of the Hon’ble Supreme Court in CA.7687/2004 in the case of General Manager vs. M.Krishna and anr, wherein it is observed that complaint pertaining to the phone bills, apparatus etc., will have to be settled by an arbitration and the consumer forum has no jurisdiction.  The Op further submits that, complaint is also liable to be dismissed as per the order of the Hon’ble National Commission in R.P.no.2910/18 in the case of Tapas Kumar Roy vs. General Manager BSNL, Jharkhand and anr., wherein it is observed that in the light of the aforesaid pronouncement of Apex court, District Forum had no jurisdiction to entertain the complaint and learned State Commission has not committed any error in allowing the appeal and dismissing the complaint, though on other grounds. Consequently, RP filed by the petitioner is dismissed with nor order to costs.  The Op further submits that, Complainant is a subscriber under the Op having mobile bearing no.9448044232. On representation by the Complainant, roaming to customer abroad to make use of available network by selection of the network available was provided. Roaming facility was activated during the period from 16.06.15 to 29.08.15 as per the HLR logs, INR SIM was activated on 19.06.15, IR was provided on 16.06.15, ISD on 16.06.15. Accordingly roaming charges have been collected for the period between 16.06.15 to 30.06.15 for Rs.49.50 and for the period 01.07.15 to 31.07.15 for Rs.99/-. Bill was raised towards roaming charges for which roaming facility was provided. In such circumstances, there is no lapse on the part of BSNL and BSNL is not responsible for the loss and inconvenience, if any, caused by the Complainant as alleged in the complaint. The Op further submits that, Complainant averments that bill for the month of July and August reflects international roaming charges. It is pertinent to note that bill was raised according to consumption made. Further using of Alotel International calling card does not require any traverse. Further Complainant averments that Op failed to provide international roaming facility even after collecting international roaming charges and this caused heavy loss to the Complainant is put to strict proof of the same. Non-providing of the roaming facility is a deficiency of service on the part of the Op – these averments are hereby denied as false. It is further to submit that the Op already provided the roaming facility for the Complainant but due to lack of knowledge in operating the service by the customer, he might have failed to access the roaming facility. Hence on these grounds and other grounds prays for dismissal of the complaint.

         

          4. The Complainant to substantiate his case filed affidavit evidence and got marked the documents as Ex-A1 to A7. Deputy General Manager (NW & A-CM) of Op filed affidavit evidence and got marked the documents as Ex-B1 to B4. Both have filed written arguments. Heard both side.

   5. The points that arise for our consideration are:

1. Whether the present complaint is maintainable before this forum in view of bar u/s.7B of Indian Telegraph Act ?
2. Whether the Complainant proves deficiency of service on the part of Op, if so, whether he 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:  We have briefly stated the contents of the complaint as well as the version filed by the Op. The issue in question in this case is, the Complainant was opted roaming facility from BSNL mobile service to the mobile no.9448044232. After obtaining the said roaming facility by paying requisite amount, due to non-availability of network on abroad, the Complainant has suffered mental agony and monetary loss. Hence, he requested to pay damages by way of compensation from Op. But Op submit that the present complaint filed by the Complainant is not maintainable, will have to be settled by an arbitration and consumer forum has no jurisdiction. 

 

8. Recently we come across that the decisions of the Apex court as well as the different Hon’ble State Commissions including Hon'ble Karnataka State Commission in respect of referring the matter to the arbitration u/s.7B of IT Act. One of the decision reported in AIR 2010 SC 90 in the case of General Manager, Telecom vs. M.Krishnan & Anr, wherein it is specifically held that, special law overrides general law, wherein it is held in the said decision as:

Consumer Protection Act (68 of 1986) Ss.11, 17, 21 – Telegraph Act (13 of 1885), S.7B- Consumer for a – jurisdiction –disputes about telephone bills – beyond jurisdiction – Telegraph Act being special Act overrides 1986 Act.

 

9. The said judgment has been subsequently followed by Hon’ble National Commission in RP.no.398/2011, Hon'ble Karnataka State Commission in appeal no.226/2009 and also by Hon'ble Madhya Pradesh State Commission in appeal no.669/2008. In the light of the decisions cited supra, this complaint filed by the Complainant before this forum has no legs to stand as the Complainant ought to have invoke the arbitration clause to get redress his remedy. In this view of the matter complaint filed by the Complainant is liable to be dismissed. Accordingly we answered the point no.1 in the negative.

 

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

 

 

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

ORDER

 

          The complaint filed by the Complainant is dismissed.

 

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

 

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 27^th June 2018).

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

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

 

Sri.Rajendra Nadagouda, who being the complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Receipt dtd.11.06.15
Ex-A2	Bill for the month of June 2015
Ex-A3	Bill for the month of July 2015
Ex-A4	Complainant’s passport and visa
Ex-A5	Call logs, message details along with CD
Ex-A6	Legal notice
Ex-A7	Original postal receipt and postal acknowledgement

 

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

 

Sri.M.V.Raghavendra Rao, who being the Deputy General Manager (NW & A-CM) of Op was examined.

 

Copies of Documents produced on behalf of Opposite party/s

 

Ex-B1	Application
Ex-B2	Letter dtd.10.06.15
Ex-B3	Passport
Ex-B4	Tariff plans

 

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT