By Smt. C.S. Sulekha Beevi, President,

This is a complaint preferred by a social worker who aims to bring out the grievance of a group of mobile phone users.

1. Complainant holds an airtel post paid mobile phone connection and is a consumer under opposite party. The grievance put forward by him is that when an airtel consumer makes a call to another airtel number or if more calls are continuously repeated, to the same airtel number within a very short time of the first call, the caller fails to get connected even if the airtel cal recipient is within the airtel coverage area. Instead of getting connected a recorded/computerized message informs the caller that the call recipient is out of coverage area or has switched off and that the caller can utilize the voice message facility. In continuation to this the recorded message explains the mode of sending a voice message. Complainant states that the charges for voice message is 75 ps and is higher than ordinary call charges. He alleges that opposite party is cheating consumers by not connecting the number even if the call recipient is within coverage area and is thus impelling the consumer to use voice message facility for which charges are higher.

2. In support of the above allegation, complainant has narrated two incidents in the complaint. It is his say that on 14-8-2008 between 9am and 10am he called one U.K. Damodaran (airtel number 9895150493) in regard to a real estate dealing. That it was decided between him and U.K. Damodaran that complainant should call him between 10am and 11am to finalize the deal. Complainant says that though he tried several times to call U.K. Damodaran, he was not able to get connected. Instead the recorded message of the service provider informed him that the call recipient is outside coverage area and that complainant could use the voice message facility. Complainant states that he was sure that U.K. Damodaran was not outside the coverage area and was expecting his call. Due to his inability to call Sri.U.K. Damodaran he lost the deal and incurred financial loss of Rs.1,00,000/-. Thereafter when he repeated call to another airtel subscriber Sri.A.Sirajudeen (9895116050) he experienced the same inconvenience. He submits that this difficulty has occurred in several other instances also. Complainant alleges that opposite party is making illegal gain by such imperfect service and that this act of opposite party amounts to deficiency in service and unfair trade practice. He issued a registered notice to opposite party stating these facts. There was no response. Hence this complaint seeking direction against opposite party to stop such deceptive practice and also claims for compensation which has not been quantified by him.

3. Opposite party filed version and raised preliminary objection of non-jointer. It is stated that in pursuance to a scheme of arrangement sanctioned by Hon'ble High Court of Delhi vide order dated, 26-11-2007, opposite party is presently known as Bharti Infratel Ltd. and that this complaint is bad for non-jointer of Bharti Infratel Ltd. Opposite party has admitted the complainant to be a subscriber of airtel connection. It is submitted that a recipient of call would be able to receive the call only if the sim card is within the coverage area of the service provider. That if the call recipient is beyond the coverage area or has switched off his hand set, the caller would receive a message that the subscriber is out of coverage area or is switched off. That it is impossible for any service provider to give such a message to the caller when the recipient is within coverage area. It is further submitted that even at places immediately beyond the range of transmission tower, occasionally, subscribers would receive feeble signals and then also they may be able to use their mobile phones. The reception of such feeble signals is dependent upon numerous factors and hence it cannot be contended that since he could use his phone at a place, at a particular time, he should be able to use it at any time. That the calls made by complainant could not be received by Sri.U.K. Damodaran and Sri.A.Sirajudeen because they were not within the coverage area. That these call recipients have active missed call alerts and that if the complainant had made calls as alleged by him, Damodaran and Sirajudeen would have received miss call alert as soon as they entered the coverage area. The allegation that even if the recipient is within coverage area it is not possible to repeat the call to the same number or get connected is denied as false. It is submitted that opposite party has replied to the notice issued by complainant. That there is no unfair trade practice or deficiency in service.

4. Evidence consists of the oral evidence of PW1 to PW4 who are witnesses examined on behalf of complainant. The complainant was examined as PW5. Exts.A1 to A4 marked on the side of complainant. Counter affidavit was filed by opposite party. No documents marked for opposite party.

5. Points for consideration:-

(i) Whether complaint is bad for non-jointer?

(ii) Whether opposite party has committed any unfair trade practice and deficiency in service?

(iii) If so, reliefs and costs.

6. Point (i):-

Opposite party has raised the contention that at present it is known as Bharti Infratel Ltd. and that the complaint is bad for non-jointer. Complainant has refuted this submission stating that the mobile phone bills issued to him does not show any change of address. The address of opposite party in Ext.A1 to A3 bills are as under:

'Circle office : Bharti Airtel Limited. SL Avenue, NH – Bye pass, Kundanoor, Maradu(P.O.), Cochin 682 304.'

In the complaint opposite party has been impleaded with the very same address. Opposite party has received the notice from Forum issued in the above address and has entered appearance. Therefore opposite party is estopped from raising such flimsy technical grounds. We find that proper party is in the party array. Point found in favour of complainant.

7. Point (ii):-

At the cost of repetition the main grievance of the complainant as submitted by him is narrated again. It is his case that when a call is made from an airtel number to another airtel number or when calls are repeated to the same number within a short time span of the first call, the caller is not able to get connected to the call recipient even if the recipient is within the airtel coverage area. Instead the recorded voice message of the service provider informs the caller that the subscriber (recipient) is outside coverage area and advises to use the voice message facility. That the charge for voice message is 75 ps which is higher than ordinary call charges.

8. In order to prove the above allegation complainant has quot4ed two incidents in the complaint, the facts of which are not being restated again. It was submitted by him that he has experienced such inconvenience several times and stated that to his knowledge several other airtel customers are suffering the same difficulty. Complainant placed reliance on Ext.A2 bill and the evidence of PW1 to PW4 who are fellow airtel customers,. Much challenge was made on behalf of opposite party while cross examining complainant (PW5) basing upon the details of calls in Ext.A2 bill. It was argued by learned counsel Sri.Zainul Abideen appearing for opposite party that the call details in Ext.A2 bill would contradict the case put forward by complainant regarding the calls made by him to Sri.U.K.Damodaran. The incident is explained by complainant such that, he called Sri.U.K.Damodaran at first between 9am and 10am on 14-8-2008 and decided that complainant should call him between 10am to 11am to finalize the deal. It is the case of complainant that though he tried to call U.K.Damodaran, several times between 10am and 11am he could not be connected. That complainant was pretty sure that U.K.damodaran was within the coverage area and was expecting his call. But the recorded voice message informed him that U.K. Damodaran is out of coverage area and advised to use the voice message facility instead of trying to call. Counsel for opposite party drew our attention to the call details in Ext.A2 which is the itemized bill for the period 11-8-2008 to 10-9-2008. The relevant call details are as under:

Sl.No. Date of outgoing call Time Number to which dialed

H: M: S:

25 14-8-2008 9: 44: 57: 9895150493

26 14-8-2008 10: 07: 55: 9895150493

31 14-8-2008 17: 56: 51: 9895150493

(U.K.Damodaran's number)

It is seen from the above readings that on 14-8-2008 complainant has made the first call at about 9.45am and a second call to the same number at about 10 past 8. In cross examination complainant has explained that this maybe due to incorrect call recording and stated that he has called Damodaran only once on the said day, and that thereafter he could not get connected. It is also deposed by him that only when he met Damodaran on the same evening did he realise that he had lost the property deal, due to his inability to call him. As per Ext.A2 call details no calls are made to Sirajudeen on the said day. But several calls are made on several other days intermittently. It is true that there are some contradictions as to the time of call made to Damodaran as pleaded and as seen recorded in Ext.A2. The gist of the complaint is the effort of the complainant to bring out the imperfection in the quality of the service provided by opposite party. He is an aged man and has preferred the complaint directly. It can be inferred that when complainant and several others have experienced the same difficulty, the quoting of two incidents specifically in the complaint was only intended to bring to light the allegation, and to pin down before the Forum that the call recipients were within the coverage area at the relevant time. He has also stated by these incidents the loss suffered by him. So the absence of meticulous pleadings is not a ground to discard his evidence which is otherwise credit worthy. Moreover complainant has issued a notice immediately on 16-8-2008 to opposite party stating and quoting these incidents and also his grievance. Opposite party admits receiving the notice. Though it is contended by opposite party that a reply was send it is not supported by any documentary evidence. Thus if there was any discrepancy as to the time of the calls averred by complainant opposite party ought to have issued reply challenging the allegation, in the first instance itself.

9. The complainant in proof of his case has examined Damodaran and Sirajudeen as PW1 and PW3. These witnesses have categorically supported the case put forward by complainant and have deposed that being airtel customers they too have suffered such difficulty of not getting connected to another airtel number and while repeating calls to the same airtel number. PW1 Damodaran, has stated that on 14-8-2008 between 9am and 11am he was at his house expecting the call of complainant to finalize the property deal and also that his phone was not switched off. He stated that he did not receive the call from complainant and later when they met on the same evening complainant had told him that he had tried to call him several times, but could not get connected. PW2 and PW3 who are also airtel consumers have supported the allegation raised by complainant and submitted that they too have experienced difficulty in getting connected while calling to another airtel number even if the call recipient is within coverage area. It is deposed by PW1 to PW4 that instead of getting connected they are given false information by the service provider through recorded voice message that 'the subscriber you are calling is out of coverage area or switched off and that the caller can instead use the voice message.' PW2 has stated that his call charges are only 30ps and without connecting the number he was advised to use the voice message facility of which the charge is 75 ps and is higher.

10. Ext.A4 is yet another document relied by complainant. It is a letter addressed to this Forum by a group of airtel mobile phone connection holders. In Ext.A4, 101 subscribers have signed with their names and airtel mobile phone numbers. In this letter they have confirmed the allegation raised by complainant. Opposite party does not deny these persons to be airtel subscribers. Opposite party has not challenged Ext.A4. Thus several aggrieved persons have tried to reach the Forum, through the complainant to have their grievance redressed. What more can a complainant do to reveal such kind of unfair trade practice other than to bring similarly aggrieved consumers to speak about their grievance? We have to say that complainant has tried his level best to put forward evidence necessary to prove the allegation levelled against opposite party. He has brought to light that such unfair trade practice and imperfect quality in service does not only affect him alone, but several airtel consumers. For this reason, we are of the view that the minor contradictions in regard to the time of calls stated by him while pleading and narrating the incidents quoted by him is only to be disregarded. The defense raised by opposite party is that it is impossible for any service provider to give such message when the intended recipient is within the coverage area. Opposite party does not disptue that the charges for the voice message facility offered to the consumer when not getting connected is higher than the ordinary call charges. Numerous consumers have come forward with the same grievance. Also taking note of the fact that the charges for voice message facility is higher than ordinary call charges, the only probable inference that can be drawn is that the case put forward by the complainant and other consumers is true. The case illustrates how mobile phone service providers make illegal gain by cheating the consumers. To the submission made by opposite party that it is impossible for the service provider to give such message when the call recipient is within coverage area' we can only say that a mighty company like opposite party may be well equipped technically for practicing such deception. Another argument was that the call recipients would receive missed call alert and absence of such missed call record would indicate that no such call was made. We cannot fall for such argument. When insidious method is practiced definitely, opposite party will have taken all precautions to make it fool-proof from being easily exposed. On the overall assessment of evidence and fully bearing in mind the limitation on the part of a consumer to adduce evidence to prove such kind of unfair trade practice, we cannot but hold that complainant has successfully established a case in his favour.

11. Under sec.2(1)r of the consumer Protection Act, unfair trade practice means, a trade practice, which, for the promoting of sale, use or supply of any goods or for the provision of any service, adopts any unfair method or deceptive practice. Sub clause (i), (vi) of the said section states that the making of a false or misleading representation concerning the need for, or the usefulness of, any goods or services would amount to unfair trade practice. It is vehemently proved and established that the act of opposite party in not connecting the subscriber to the call recipient even if the recipient is within the coverage area and impelling the consumer to use voice message facility and thus collecting higher charges is definitely unfair trade practice. Not connecting tot he recipient is imperfect service which amounts to deficiency in service.

12. From the foregoing discussions we find that opposite party is guilty of committing unfair trade practice and deficiency in service. Point found in favour of complainant.

13. Point (iii):-

Next we have come to the question of relief that is to be granted to the complainant. Although complainant has stated that he incurred monetary loss of Rs.1 lakh due to the loss of the real estate dealing he has been righteous enough and has not quantified his claim leaving it to the full discretion of the Forum. Complainant seeks for a direction against opposite party to stop the deceptive practice. This prayer is definitely to be allowed. In our view, the complainant who has come forward to redress the grievance of a group of consumers should be adequately compensated also. Seldom do people take up the responsibility to fight such mighty giants like opposite party. In appreciation of the zeal and effort of the complainant we consider,t hat he is entitled to Rs.5,000/- as compensation for the inconveniences suffered and Rs.5,000/- towards mental agony.

14. It has to be stated that the unfair trade practice committed by opposite party as brought out in this case is highly deceptive. Instead of connecting the call, the consumer is put in circles by the service provider. It amounts to harassment, waste of time and mental tension besides monetary loss. Moreover, in this case of unfair trade practice a large number of consumers are affected. In our opinion, it is a fit case to impose punitive damages. Taking these facts into consideration, we hold that opposite party is to be directed to pay punitive damages of Rs.15,000/- which shall be deposited in the Consumer Legal-Aid account of this Forum. Awarding such damages will also serve as a message to perpetrators of unfair trade practice.

15. In the result we allow the complaint and order the following:-

(i) Opposite party shall pay tot he complainant, Rs.5,000/- (Rupees five thousand only)as compensation towards inconveniences and Rs.5,000/- (Rupees five thousand only) as compensation for mental agony along with cost of Rs.1,000/- (Rupees one thousand only) within one month from the date of receipt of copy of this order.

(ii) Opposite party shall deposit Rs.15,000/- (Rupees fifteen thousand only)as punitive damages to the consumer Legal-Aid account of this Forum within one month from the date of receipt o copy of this order.

(iii) Opposite party shall stop indulging in the unfair trade practice which is the issue in this complaint.

Dated this 27th day of July, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1 to PW5

PW1 : U. K. Damodaran, witness.

PW2 : K. Kunhava, witness.

PW3 : Sirajudeen, witness.

PW4 : P. Kunhikkoya, witness.

PW5 : V. Khader, complainant.

Documents marked on the side of the complainant : Ext.A1 to A4

Ext.A1 : Bill for Rs.248.05 dated, 12-8-2008 for the period from 11-9-2008

to 10-10-2008 from opposite party to complainant.

Ext.A2 : Bill for Rs.324.07 dated, 12-8-2008 for the period from 11-8-2008

to 10-9-2008 from opposite party to complainant.

Ext.A3 : Bill for Rs.279.25 dated, 12-8-2008 for the period from 11-7-2008

to 10-8-2008 from opposite party to complainant.

Ext.A4 : Letter addressed to this Forum by a group of airtel mobile phone

connection holders.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Nil

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER