BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    13^th DAY OF DECEMBER 2018

O R D E R

SRI. S.L PATIL, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against Opposite Parties (herein after referred as OPs) with a prayer to direct OPs to refund a sum of Rs.1,500/- along with interest @ 24% p.a from the date of filing till the payment, to pay a sum of Rs.1,00,000/- towards compensation for monetary towards damages for all the inconvenience, mental torture, financial loss, work loss and utter humiliation on account of demolishing reputation of the complainant and to pay sum of Rs.50,000/- with 24% interest p.a for deficiency in service and breach of contract and litigation cost.

2. The brief allegations made in the complaint are as under:

Complainant submits that, she is an old Airtel customer for over 10 years.  The complainant took the OP services for mobiles for self & family and friends were introduced by her as happy loyal customer.  Complainant states on or around 24.08.2013 OP sales team called, took appointment, came home, as one of loyal customer and gave information about 4G LTE Multi mode USB Stick at Rs.999/- unlimited usage post paid package.  The complainant agreed to try only because of their good services/connectivity in mobile network for past 7 years.  Complainant purchased this scheme of Airtel 4G LTE connection from 24.08.2013.  That since then she was in using their services of 4G LTE and was paying her bills regularly.  But sometime in the month of December 2014, the OP services and connectivity was bad throughout month.  As there was no network, the complainant called and complained to service centre (on phone 121).  At that stage they promised for immediate rectification but did not get any service and as a result there was no network.  That the complainant accepted AIRTEL 4G connections as they promised for unlimited usage throughout month i.e., 24x7 but after 20^th December 2014 their connection-network was zero.  As a result, the complainant called service centre once again and asked about complaint status but to the complainant surprise the OP informed that there is no such complaint registered.  The complainant immediately requested the OP service call centre staff to register complaint and since then till month of mid March 2015 there was no service/no network connection.  That the OP had promised for unlimited uninterrupted service but failed to give it as promised and on other hand they have send their representative only twice with his laptop to read signal, who informed the complainant that there is a tower connection problem in that area.  The complainant was shocked to hear his answer as she has three Airtel mobile connections, out of those one has unlimited 3G connection which work perfectly, except this Airtel 4G LTE.  Also all these years there was no problem.  That OP representative informer her that they have shifted the old tower and many customers in that area are having exactly the same problem, which will be rectified immediately within 1 or 2 days but failed to keep up their promise.  That OP officers words were just an eye wash, there was absolutely no service till mid March 2015.  This went on till March 2015 but their centre staff started calling the complainant for outstanding bill without providing any service/network.  The complainant informed them about no connectivity, no network, no bills.  Then sometime in mid March 2015 the complainant noticed that it started working suddenly but there was no call from the OP and then the complainant received a call from your collection team requesting to pay for period of 20 days prior to officially lodging complaint and that they will wave off wrong bill.  That complainant immediately agreed to pay for period of December 2014, 20 days even when they provided complainant interrupted services, it can be seen their record.  That sometime by 12.03.2015 the complainant paid Rs.750/- as suggested by their call centre collection team, who also ensured that they will update their record/computer and cancel all wrongly raised computer generated bills from January 2015 to 12^th March 2015 and that the complainant have to pay from month of 12^th March 2015.  That they also ensured for Unlimited Uninterrupted 4G connectivity 24x7 but to the complainant surprise again from month of April 2015 they disconnected 4G connectivity and when the complainant called, she was asked to pay from January till date with interest, which was unfair to cheat old customer as they had promised her that they will cancel those wrongfully raised computer generated bills.  That luckily every time complainant talked to their staff the complainant had asked them to record the conversation between them because of her past experience (December 2014 earlier they had not recorded and lodged my complaint).

That from the time this problem occurred she took up the aforesaid connection issue with the OP, there are several problems with connections and services, both were worst.  That there is no coordination between their collection team and service team, without seeing past record calling is harassment continued.  That complainant approached their Sanjay Nagar officer as suggested by call centre, on many occasions but they said they have no authority to discuss or settle this issue and the complainant must call “service centre number” only.  The complainant have called service centre several times and have made personal visits to Airtel Sanjay Nagar Office requesting to look into the matter but looks like no one has time to resolve issue.  The complainant also informed the OP that if this harassment goes on than she may shift all complainant mobile connection to other providers.  The OP has proved that they don’t value for loyal customers.  That complainant is unable to use said 4G connection and the services of internet facility since early mid April 2015.  That complainant could use this 4G LTE only for short period during March 2015 so complainant was agreeing to pay for such period only after they rectify the whole wrongful outstanding bill problem and once they give break up/account details and bills from December to till date.  That due to no connection, the complainant’s daughter’s studies have suffered gravely as she used this connection for her school projects as 10^th CBSE student.  Hence the OP has failed to render the service efficiently and there has been continues deficiency in the services and the services rendered by OP leading to dissatisfaction, discontent, mental trauma and agony to the complainant.  That the complainant is regularly getting calls from OP office and also once threatening that they will disconnect her all mobile connection if she does not submit to their demands within next 2 hours, this call was made by one Ms.Jennifer who introduced herself as their in-house-lawyer.  That the complainant has lodged complaint against staff of OP for threatening her, disconnecting all her mobile connections within next 2 hours arbitrarily without sending any written notice or following any legal procedure, if she is lawyer she must know that different connection taken at different time and they are all independent contracts under law, she cannot mix up the mess up this issue.  2^nd time caller staff introduced himself as manager and promised that they will look into this issue and resolve whole issue within few hours.  But no result.  Most of time the OP staff agreed with complainant points but express their inability to act but promise to record same.  Sometimes they just keep on calling many time in few hours may be from same or different locations and demanding payments of all wrongly raised bills in sometime back she got a call claiming to be from Airtel Chennai office informing her that they have filed a case, the complainant must remain present before Lok Adalat on 27.06.2015 at 11 a.m at City Civil Court, Bangalore.  If she did not want any such case, she must pay immediately or appear personally with cheque before court.  When the complainant visited Lok Adalat office in City Civil Court on 27.06.2015 she came to know that call was a fake call and one of their staff members was trying to misrepresent her by playing this trick.  This is real harassment and mental torture as the complainant went to court with expectation that Airtel Law Officer will be there whom she can explain her case and get the wrong bill cancelled and settle this issue once for all.  Complainant has always shown willingness to pay legitimate bills which were raised by Airtel after providing services but it looks like their staff feels that by these gimmick, they can fool the customer/consumer/complainant and force her to pay wrong bills.  The OP is fully aware, it is against law.  That inspite of repeated calls and assurance to settle/rectify the OP records, the OP did not rectify but in turn send letter dated 23.06.2015.  That in spite of her calls for asking them to send detail bills from December 2014 till date they have failed to supply same.  That on 29^th June 2015 complainant received two calls from one Mr.Srikanth claiming to be calling from Chennai who assured that within next half an hour the complainant would receive complete statement from December 2014 till date on her email.  Complainant submits that days have passed but email not reached.  That Airtel has the complainant’s email ID on record as they send her mobile bills by mail as she had opted for ‘to save paper’ but complainant not getting 4G LTE bills either by paper (as there was not save paper mail) or by email which is on record.  That the OPs are deliberately not supplying the records/statement, for reason best known to them.  That complainant received their bills in past till November 2014 and it is very surprising that suddenly after December 2014 they are unable to reach her bills on same address either by post or by email, this act of harassment of the OP amounts to deficiency of service, hoped they rectify but failed miserably.  That without correct bills issued and/or reaching them to complainant and/or making these claims are illegal and unjust on the part of OP.  That inspite of no connection service from April 2015, she still continued to receive calls for outstanding bills of high amounts without service from OP.  OP has also failed to rectify their wrongly raised bills till date.  That complainant communicated with OP and their customer care services to look into the matter and has requested number of times to restart connection and update bill however they have failed to do so.  That the complainant has paid Rs.1,500/- towards deposit amount.  Complainant spent hours from her precious work time to clarify her stand, made several calls explaining the matter however the OP has failed to look into the matter efficiently and provide service.  There has been deficiency, defect and inefficiency in the services provided and rendered by the OP.  That the OP has provided insufficient service they have faulted from their end by not rendering the services of 4G connectivity to complainant effectively and efficiently and also they have falsely called to attend Lok Adalat on 27.06.2015 which is invalid and untenable in law.

That OPs have harassed and mentally tortured the complainant with false exceeding bill amounts, improper instruments, no connection and illegitimate demands.  That the complainant therefore called upon OP and gave choice under legal notice dated 30.06.2015 as follows:

1) to come forward and refund the deposit/compensate the complainant for total amount of Rs.1,500/-.

2) pay sum of Rs.50,000/- with 24% interest p.a for deficiency in service and breach of contract.

3) also pay sum of Rs.1,00,000/- towards damages for all the inconvenience, mental torture, financial loss, work loss and utter humiliation on account of demolishing reputation.  May pay within 7 working days from the receipt of the legal notice dated 30.06.2015 failing which the complainant will be compelled to initiate legal proceeding against this OP under the consumer protection Act in the appropriate Forum for which the OP shall be solely responsible for the costs and consequences thereof.  That if wish to settle may reconnect 4G LTE and may confirm corrections of wrongful bills and may issue email or letter to that effect.

That the complainant has undergone immense mental stress and trauma dealing with various obstacles and hurdles with respect to the OP for no fault of the complainant.  Complainant felt deficiency in service on the part of OPs.  Hence complainant approached this Forum for seeking relief.

3. In response to the notice issued, OPs appeared through their advocate and filed their version denying the allegations made in complaint. The sum and substance of the version of the OPs are that, the complaint filed by the complainant is not maintainable either in law or on facts, hence liable to be dismissed.  OPs further submits that, as per the judgment rendered by Hon’ble Supreme Court of India in Civil Appeal No.7687/2004 dated 01.09.2009 in the matter between General Manager, Telecom V/s. M.Krishnan & another reported in 2009 AIR SCW-5631, followed by the Hon’ble National Commission in the order dated 18.07.2012 passed in Revision Petition No.398/2011 (Ziyauddin Alvi V/s. Bharti Airtel Ltd.,) this complaint is not maintainable, since the dispute raised by the complainant is between the subscriber and telecom service provider, the remedy available for the complainant is u/s.7-B of the Indian Telegraph Act which provides for adjudication of dispute under the provisions of Arbitration Act, on this count itself the complaint is liable to be dismissed at the threshold.  Further relying on the judgment the various State Commissions have also disposed off the complaints holding that any dispute concerning any telegraph line, appliances or apparatus shall be determined by the arbitrators.  The complainant has not approached this Forum with clean hands.  OPs further submit that, complainant is the subscriber of OP and had opted/purchased 4G dongle and the same was activated on 27.08.2013.  The complainant has used the facility provided by OPs.  OPs have issued the bills in accordance to the usage and as per the tariff as well as terms and conditions agreed upon between the complainant and the OP.

That clause 1B of the application forms states that, “all services are subject to network availability.  Airtel’s wireless telecommunication used for providing services (network) is made available on as-is-as-available basis and Airtel makes no representation, guarantee or warrantee regarding the availability, fitness, quality or reliability of the network whatsoever.  Network availability may be adversely be affected due to fore majeure circumstances, any acts of god and due to limitations caused by topographical/geographic/demographic factors.  Network and services may also be affected in cases where interconnection with other networks may not be available or for routine maintenance works including any updates/upgrades/repairs, etc”.

That the grievance of the complainant as could be gathered from the averments of the complaint is that, from December 2014 till March 2015 complainant was not having proper connectivity so as to used the services of 4G dongle despite which OPs have demanded the charges.  In fact, it is submitted that, there may be some instances where for a temporary period the connectivity would be up to optimum however it cannot be said that, there was no connectivity and complainant did not use the services at all.  As stated above a subscriber cannot find fault with the OP for any interruption in the network/connectivity, as it is subscriber who opt for the services and the OP never assure the subscriber about the optimum connectivity for ever.  Even in the instant case also during tele verification since the complainant expressed interest of availing the 4G service, the staff of the OP have visited the complainant and appraised all the terms and conditions including the usage, tariff, payment of bills, chances of fluctuation in the connectivity etc.  Only upon complainant understanding all the aforesaid aspects has availed the services.  The OPs have issued the bills as per the usage made by the complainant but complainant has not paid the bills as such the complainant is due a sum of Rs.4,813-13 even as on May 2015.  Since the complainant did not clear the outstanding dues even after repeated reminders the OP was compelled to suspend the services on 23.05.2015 and finally disconnected the services on 22.06.2015.  All the enquires made by the complainant are duly examined and was appraised about the correctness of the bills.  There is no willful default or negligence on the part of OPs.  Complainant is not entitled for any of the reliefs as sought for in the complaint against OP.

OPs have also given para wise reply to the contents of the complaint, which appears to be denial in nature.

For the reasons mentioned above, OPs pray for dismissal of the complaint with exemplary cost.

4. The complainant in support of her case tendered her affidavit evidence reiterating the allegations made in the complaint.  On behalf of OPs authorized signatory Sri.Siddaveer Chakki tendered his evidence by way of affidavit.  Both the parties have produced certain documents.  Written arguments have been filed.  We have also heard oral arguments.

5. The points that arise for our consideration are:

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

REASONS

7. Point No.1:-   We have briefly stated the contents of the complaint as well as the version filed by OPs.  The main contention taken by the OPs is that, the present complaint filed by the complainant before this Forum is not maintainable by virtue of sec.7-B of the Indian Telegraph Act i.e., to get redress the remedy by way of invoking the arbitration clause.  Without exhausting the said remedy the complaint is not maintainable.  In support of this contention, OPs placed reliance on the decision of the Hon’ble Supreme Court in Civil Appeal No.7687/2004 dated 01.09.2009 in the matter between General Manager, Telecom V/s. M.Krishnan & Anr. reported in 2009 AIR SCW 5631.

8. We place reliance on para.10 and 14 of the complaint, which reads thus:

Para-10:- The complainant states she is unable to use said 4G connection and the services of internet facility since early mid April 2015.  That complainant states that she could use this 4G LTE only for short period during March 2015 so I was agreeing to pay for such period only after you rectify the whole wrongful outstanding BILL problem and once they give break up/account details and Bills from December to till date.  The Complainant states that due to no connection, the complainant’s daughter’s studies have suffered gravely as she used this connection for her school projects as 10^th CBSE student.  Hence the opp. party has failed to render the service efficiently and there has been continues deficiency in the services and the services rendered by the opp. party leading to dissatisfaction, discontent, mental trauma and agony to the complainant. 

Para-14:- The Complainant submits that without correct bills issued and/or reaching them to complainant and/or making these claims are illegal and unjust on the part of opp.party.  Further the Complainant submits that in spite of no connection service from April 2015, she still continued to receive calls for outstanding bills of high amounts without service from opp.party.  The opp.party has also failed to rectify their wrongly raised bills till date.  The complainant states and submits that she has communicated with the opp.party and their customer care services to look in to the matter and has requested n number of times to restart connection and update bill, however they have failed to do so, The complainant has paid Rs.1,500/- towards deposit amount.  The Complainant spent hours from her precious work time to clarify her stand, made several calls explaining the matter however the opp. party has failed to look into the matter efficiently and provide service.  There has been deficiency, defect and inefficiency in the services provided and rendered by the opp. party.

9. If the above two paragraphs are strictly construed the issue in question in the present complaint is with regard to the disputed bill raised till filing of the complaint.  When such being the fact, the only option left open to the complainant to get redress the remedy by invoking sec.7-B of the Indian Telegraph Act, referring to the matter to the arbitration.  Hence, we come to the conclusion that, the complaint filed by the complainant before this Forum is not maintainable and is liable to be dismissed, keeping an option to the complainant to get redress the remedy by invoking section 7-B of the Indian Telegraph Act, by taking the assistance in a case of Laxmi Engineering Works V/s. P.S.G Industrial Institute (1995) 3 SCC 583 on the point of limitation.  Accordingly we answered point No.1.

  10. Point No.2: In view of our findings on point No.1, as the complaint filed complainant is not maintainable, hence this issue does survive for our consideration.

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

  O R D E R

The complaint filed by the complainant is dismissed as not maintainable.  Any how an option is left open to the complainant to get redress the remedy by invoking sec.7-B of the Indian Telegraph Act.  Parties to bear their own costs.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 13^th day of December 2018)

MEMBER                                                              PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 15.12.2015.

Mrs.Shilpa Sharad Shrikhande

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party/s dated 22.02.2016.

Sri.Siddaveer Chakki.  

Document produced by the Opposite party/s.

MEMBER                                                               PRESIDENT

Vln*