f. It is bewildering that on 10/11/2016 the two no’s were barred from incoming calls and outgoing calls hence the complainant had no other option but to pay the said charges on 12/11/2016. Such billing per forced on the Complainant and his representative is nothing but Unfair Trade Practice by the opposite Party by not informing the available packages and charges relating to data roaming which amounts to deficiency of service. Hence the Complainant was constrained to file the Complaint before this forum.
3 Brief averment of the Opposite Party
a. The Opposite party submits that before passing of the order on merits first the preliminary issue has to be decided whether the complaint filed by the complainant can be entertained before this forum and whether the Complainant comes under the definition of Consumer, since the complainant is running a Legal firm of advocates with big practice hence it is a commercial enterprise and not an ordinary consumer. The service availed was for doing commercial activity not for their livelihood, Hence on this ground the complaint ought to be dismissed. Regarding going into the merits of the case the Opposite Party submits that the complainant’s connection is a corporate connection, wherein 35 users avail the services .The opposite parties denies all the allegations as averred in the Complaint. It is admitted that on 06/05/2016 one of the representative of complainant visited the opposite party showroom and activated the International roaming for the two numbers 9340054477 and 9340011031 and it was informed by the customer service staff that Rs. 149/- is the activation charges for International Roaming for Post Paid customers in order to use the services of incoming and outgoing, SMS, DATA etc., The representative was clearly guided to avail the benefits of IR pack at Rs.999/- to reduce the data charges on bill, however the Representative neglected and informed that the billing part would be taken care by the complainant. And paid for activation charge alone. Therefore the activation of International Roaming for both the numbers was activated on 06/05/2016. The Opposite party submits that the complainant did not opt for additional packs for any additional benefits like RATE CUTTER OR DATA PACK. In spite of briefing about the benefits the Complainant did not activate any packs before going abroad. The Complainant was intimated vide SMS on regular basis about their usage including data, which the complainant has acknowledged in their complaint. It is pertinent to mention that the Complainant activated Rs.149/- Plan which was just given as an entry to International roaming.
b. The opposite parties admit that the complainant was intimated regarding the usage of Data on 11.05.2016 at 17.25 despite several intimations sent, the complainant did not switch off the mobile data, and the charges were reflected in the bill as per the normal rates.
c. The opposite parties on 11.05.2016, 12.05.2016.13.05.2016.14.05.2016 sent IR SMS to the Complainant in respect of the usage of IR and had given detailed particulars about Usage Breakup in respect of Voice Usage, Data usage and informed that the amount may vary in the bill as it is dependent on the International Operator for both the No’s. As the bills are system generated they can’t be tampered manually for charging exorbitantly.
d .The opposite party submits that if additional packs for any additional benefits are availed like Rate Cutter or data Pack charges will be 0.39 per 10 kb and that benefit is applicable only for customers who have recharged with the Data Pack, wherein the complainant failed to do so. It is pertinent to state that to know the Standard Rates in the invoice for ISD Country’s Specific tariff the Customers have to visit Opposite Party’s website.
e. The Opposite party giving sufficient time to pay the bill henceforth terminated the service of the complainant in both the no’s. For nonpayment of bill. The Complainant had visited the showroom enquiring the Charge details of 0.39 /10 Kb and the customer executive briefed the Complainant by briefing through their Website the details of charges applicable to Particular Country for the Post Paid service. It is submitted that the Complainant got convinced and paid the invoices after knowing in detail the charges on International Roaming services. Hence it is clear that the Opposite Parties have not committed any deficiency of service on their part towards the Complainant. Hence, the complaint is not maintainable and it is liable to be dismissed.
Answer to the Preliminary Issue
Regarding the Preliminary Issue raised by the Opposite party that the complaint is not maintainable as the complainant do not come under the category of consumer. we observe that the Complainant is running a law firm which deals with the activities of rendering services to its clientele. It has been observed by the Supreme Court of India in;
Chairman, M.P.Electricity Board and others.
Vs
Shiv Narayan and Another
It was held that Legal Profession is not a Commercial Activity. Running of office by an Advocate in a building cannot be termed as commercial Activity.
In L.M.Chitala
Vs
Commissioner of Labour
(AIR 1964 Madras 131pg 133)
constitution of India Article 19(6) has laid that “Profession as distinguished with “Commercial “ means a person who enters into a profession, It involves certain amount of skill as against commercial activity where it is more of a matter of things or business activity, In profession, it is purely use of skill activity. Therefore, two are distinct concepts in commercial activity one works for gain or profit and as against this, in profession, one works for his livelihood.
In Arup Sarkar vs CESC Ltd.,and others it is held that Legal Profession is not a commercial activity . It was held that there is a distinction between professional activity and activity of a commercial character, and therefore it is crystal clear that the legal profesion would not fall un der the category of “Commercial “.
Hence we opine that the: Law firm does not come under the purview of Commercial Activity as overlooked by the opposite Party. Hence, the Preliminary issue has been answered, accordingly. Therefore the Complaint is maintainable under the Consumer Protection Act.
4. Points for Consideration
a. Whether the opposite Party has Committed Deficiency of Service?
b. .Whether the Complainant is entitled for the Relief as Prayed for?
On the side of complainant no proof affidavit was filed and no exhibits were marked. On the side of opposite parties Exhibits B1 to B2 marked along with Proof affidavit filed.
Point No 1
a. It is an admitted fact that the Complainant is a post paid customer of the Opposite Party for the two Mobile phone no.’s 9340054477 and 9340011031. It is learnt that the Complainant has availed the service of Closed Usage Group plan whereby there are 35 users of the Plan. The Complainant and his wife had to visit Thailand from 10/05/2016 to 15/05/2016 and approached the Service Provider through their staff on 06/05/2016 to the nearby outlet of the opposite Party for the International roaming activation. The activation charges of Rs.149 were paid by the staff of the Complainant to the customer service executive of the service provider. And then onwards the Complainant has been using it in travel.
b. From the Plea of Complainant it is presumed that the Opposite Party executive of customer care had not briefed the staff about the Packages and benefits of the International Roaming, however, no evidence is produced before the commission as stated by the Complainant. It is submitted by the opposite Party that the complainant has not taken initiative to know about the benefits and packages of International Roaming. It is clearly envisaged that the Complainant being a Law Firm consisting of 35 members have been using the service for long time under the CLOSED USAGE GROUP which is admitted by both the complainant and the Opposite Party for the purpose of rendering legal service to litigants under the Name “Swami Associates”. It is cited in the complainant’s complaint that after receiving the Bill invoice he sent an email raising query about the bill amount for which the Opposite Party has replied the query by split of usage and charges of the complainant account.
c. The invoice issued by the Opposite party is marked as exhibit B1 and B2. The Opposite Party in their Proof affidavit has submitted the various date and time of usage of the services along with charges in respect of two mobile no.’s dated 11/05/2016,12/05/2016/.13/05/2016,14/05/2016.
d .It is surprising to note that the complainant wanted only International roaming calls i.e., making and receiving calls to be active but had not turned off the mobile data on both handsets in the first place. In spite of seeing the first SMS regarding the Data Usage on 11/05/2016 at 5.25 in respect of No.9340054477, and on 13/05/2016 at 11.25 for the No. 9340011031, the complainant had not disabled the data service, and the follow up SMS Messages confirms that the complainants have not disabled the data service. In every SMS messages, the opposite Party have clearly mentioned that as it is International Roaming usage the amount may vary in the Bill as it is dependent on the International Operator, which is implied that the Opposite Party have a tie up with International Operators in each country. It is seen from the evidence of the opposite Party in their affidavit stating that the Complainant had to opt for additional packs for any additional benefits required like Rate Cutter or IR data roaming pack, but the complainant has not activated any such pack before going abroad.
e. The complainant in their version alleged that the opposite party has charged exorbitantly at Rs.6.5/10 KB as against 0.39/10 KB, for which the Opposite party has given explanation that 0.39/10KB is one such benefit applicable to additional IR data Pack and is applicable only for customers who have recharged with the IR data pack which the complainant failed to do so. The complainant requesting the opposite party to bill at subsidized rate goes on to clearly show that the data access in Roaming was intentional. As per the opposite Party version, the complainant was shown their official Website and has clearly mentioned the details of International Roaming charges.
f. The complainant had alleged that as the mobile services were disconnected the complainant had to pay the Bills, for which the complainant had not filed any proof, but contra to the statement the opposite party elucidates that on seeing the official website of the opposite party and on being satisfied, the complainant came forward to pay the bills. It is pertinent to note that the complainant has not enquired properly the procedure of enabling International Roaming packages and benefits which has led to this issue. From the evidence of opposite party it is analysed that they have followed the procedure properly and followed the Principle of natural Justice. Moreover the Complainant has not filed any document to prove their case ,hence failed to prove their case by adducing any evidence.
g. Hence we opine that the Complaint has to be dismissed. Hence Point No. 1 is answered as against the Complainant.
Point No. 2
Based on the decision arrived in Point No1. Point No.2. Is answered against the Complainant. Therefore the Complainant has not proved his case hence they are not entitled for any relief as prayed for.
In the result, the complaint is dismissed. No cost.
Corrected and Pronounced by us in the Open commission on this the 21st day of October 2022.
N. BALU V.LAVANYA V.RAMARAJ
MEMBER I MEMBER II PRESIDENT
Complainant’s Documents : NIL
Opposite Party’s Documents;-
