Karnataka

Bangalore 4th Additional

CC/14/505

Mr.Parag Guthane - Complainant(s)

Versus

The Managing Director,Bharti Airtel Limited - Opp.Party(s)

21 May 2018

ORDER

Complaint filed on: 17.03.2015

                                                      Disposed on: 21.05.2018

 

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.505/2014

DATED THIS THE21^stMAY OF2018

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

	Complainant/s	V/s	Opposite party/s
	ParagGulhane, Aged 36 203, Saideep Homes, 5th Cross, Church Road, New Thippasandra, Bangalore-560 075.   In person	1	The Managing Director, BhartiAirtel Limited., VasantKunj, Phase II, New Delhi-110070   By Sri.Adv.B.J.Mahesh
		2	The Managing Director, S.S. Distributers, No.25, 7th Cross, 2nd Main, Indiranagar 1st Stage, Bangalore.   Exparte

 

 

MEMBER: SMT.N.R.ROOPA

1.       This complaint has been filed by the complainant as against the opposite parties directing topay compensation of Rs.2,00,000/- for causing inconvenience, losses, mental agony and harassment, to pay cost of Rs.50,000/-  and 12% interest on above amounts from 5.2.2013.

2.       The brief facts of the case of the complainant are that the Complainant paid Rs.3000/- using credit card on 30.1.2013 as security deposit to avail the international roaming service for his cell No.9886994970. The service was activated and he utilized it during his travel in China.  As per his request, service was deactivated after a week. Two weeks after that, for his travel to US, the Opposite Party declined to enable international roaming service. He had to suffer huge losses and inconvenience. The same issue happened during his travel to Taiwan during June 2013. The Complainant submits that he has complained to the Opposite Party several times via email and phone calls from February to November 2013. The Opposite Party did not resolve the issue but asked to pay security deposit again which was already paid on 30.1.2013. He provided every detail about the transaction to the Opposite Party. Even after providing all the details, the Opposite Party declined to confirm his payment of Rs.3000/- towards the international roaming service. He had to suffer with same inconvenience during his travel to Taiwan during June 2013. He complained to International Consumer Rights Protection Council, an NGO that helps consumers. They sent a notice dt.26.1.2014 to the Opposite Party, but the Opposite Party did not reply. The Opposite Party has conducted Unfair Trade Practice u/s 2 (1) (r) of the Consumer Protection Act by misleading him with wrong information that after payment of Rs.3000/-, his international roaming will be activated. There is severe deficiency of service as the Opposite Party activated the international roaming just for a week and never reactivated.Hence, this complaint.

3.       Notices were ordered issue to the Opposite Parties. The 1^st Opposite Party did appear and filed the version. Though notice was served on the 2^nd Opposite Party, did not appear, hence, placed exparte.

4.       The sum and substance of the version filed by the 1^st Opposite Party are that the complaint is not maintainable either in law or on facts and the same is liable to be dismissed.The Opposite Party submits that the present dispute raised by the Complainant is not maintainable before this Forum in view of the Judgment rendered by the Hon’ble Supreme Court of India in Civil Appeal No.7687/2004 dt.1.9.2009 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 dt..18.7.2012 passed in Revision Petition No.398/2011 (ZiyauddinAlvi V/s BhartiAirtel Ltd.,) As per the said judgments, 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 present complaint is liable to be dismissed at the threshold. Further, relying on the said 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 grievance of the Complainant is that, despite making payment of the security deposit of Rs.3,000/- by using the credit card on 30.1.2013, for availing the international roaming on his mobile No.9886994970, the same was not activated. If any subscriber intends to avail the roaming facility, shall require to make the security deposit before the Opposite Party and only upon such payment being notified in the records of the Opposite Party, the roaming service would be activated. In the instant case, initially Complainant deposited Rs.3,000/- and roaming facility was activated and later at his option, the same was deactivated. On 17.2.2013, the Complainant sought for activation of the roaming facility, for which the Opposite Party has informed the Complainant to make the refundable security deposit payment enabling them to activate the roaming service, as after deactivation of the roaming service, subsequently the payment details were not shown in the records of the Opposite Party. Hence, Complainant was also requested to furnish the details of the payment, but the Opposite Party did not get any details of the payment made by the Complainant, as such roaming service was not activated. On 5.3.2013, Complainant made a request to stop international roaming service. Once again on 15.6.2013, the Complainant sought for activation of the international roaming service and as per the procedure, the Complainant was requested to make the payment of the security deposit. However, the Complainant did not furnish any details to the Opposite Party till 23.9.2013. Immediately after Complainant furnishing the details, the Opposite Party has examined the issue and though there was no willful default on its part, only as a goodwill gesture has offered the Complainant to give waiver of Rs.2,000/- as onetime benefit, in his bill, on 18.11.2013. Nevertheless the Complainant did not agree for the same, but has demanded exorbitant amount from the Opposite Party. Since the Complainant did not furnish the payment particular, which is the condition precedent for activation of the international roaming facility, the Opposite Party was unable to activate the same. Hence, there is no willful negligence or default on the part of the Opposite Party. On this ground and other grounds, prays for dismissal of the complaint.

          5.       The Complainant to substantiate his case filed his affidavit evidence and got marked Ex-A1 to A11. The authorized representative of the 1^stOpposite Party has alsofiled affidavit. None of the documents produced by the Opposite Party. We noticed that the written arguments filed by the Complainant did not sign and the Opposite Party has filed written arguments. Heard both sides.

 

          6.       The points that arise for our consideration are:

          1) Whether the complaint filed by the Complainant is maintainable?

2) Whether the complainant proves the deficiency in service on the 

part of the OPs, if so, whether he isentitled for the relief sought

for?

 

          2) What Order?

 

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

 

Point No.1 :Negative

Point No.2 :Does not survive for consideration

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

 

REASONS

          8.POINT NO.1:     We have breiefly stated the contents of the complaint and also the version filed by the Opposite Party. In the instant case, the issue in question is with regard to international roaming service. In this context, as per the case of the Complainant, he paid Rs.3000/- using

 

 

credit card on 30.1.2013 as security deposit to avail the international roaming service to his cell No.9886994970. The service was activated and he utilized it during his travel in China.  As per his request, service was deactivated after a week. Two weeks after that, for his travel to US, the Opposite Party declined to enable international roaming service. Hence, he had to suffer huge losses and inconvenience and the same issue happened during his travel to Taiwan during June 2013. In this context, he has complained to the Opposite Party. The allegations made by the Complainant is denied by the Opposite Party stating that the complaint is not maintainable in the light of the decision rendered by the Hon’ble Supreme Court of India in Civil Appeal No.7687/2004 dt.1.9.2009 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 dt..18.7.2012 passed in Revision Petition No.398/2011 (ZiyauddinAlvi V/s BhartiAirtel Ltd.,) As per the said judgments, 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. In this context, the Opposite Party further submits that the grievance of the Complainant is that, despite making payment of the security deposit of Rs.3,000/- by using the credit card on 30.1.2013, for availing the international roaming on Complainant’s mobile number as stated above.It is also submittedif any subscriber intends to avail the roaming facility, shall require to make the security deposit before the Opposite Party and only upon such payment being notified in the records of the Opposite Party, the roaming service would be activated. But initially the Complainant deposited Rs.3,000/- and roaming facility was activated and later at his option, the same was deactivated. It is also the case of the Opposite Party that on 17.2.2013, the Complainant sought for activation of the roaming facility, for which the Opposite Party has informed the Complainant to make the refundable security deposit payment enabling them to activate the roaming service, as after deactivation of the roaming service.Subsequently the payment details were not shown in the records of the Opposite Party. Hence, Complainant was also requested to furnish the details of the payment, but the Opposite Party did not get any details of the payment made by the Complainant as such roaming service was not activated. Hence on 5.3.2013, the Complainant made a request to stop international roaming service. Once again on 15.6.2013, the Complainant sought for activation of the international roaming service and as per the procedure, the Complainant was requested to make the payment of the security deposit. However, the Complainant did not furnish any details to the Opposite Party till 23.9.2013. Immediately after Complainant furnishing the details, the Opposite Party has examined the issue and though there was no willful default on its part, only as a goodwill gesture has offered the Complainant to give waiver of Rs.2,000/- as onetime benefit, in his bill, on 18.11.2013. Nevertheless the Complainant did not agree for the same, but has demanded exorbitant amount from the Opposite Party. In our considered view, these issues are to be sort out by invokingthe arbitration Clause7-B of the Indian Telegraph Act. In this context, we have placed reliance on the following decisions read thus:

1. I (1993) CPJ 88 (NC) in the case of N.ShivajiRao vs. M/s.Daman Motor company &ors.,

Consumer Protection Act, 1986 – Sec.2(1)(c) - complaint – fraud and cheating – State Commission declined to adjudicate the complaint because of complicated questions including fraud and cheating – hence appeal.

Held: It is evident from above that it is not a case of supply of defective goods or of deficiency in rendering service. Prima facie it is a case of fraud and cheating as alleged by the appellant – Complainant himself. Consequently, the factum of fraud and cheating would have to be established first before a consumer forum can arrive at a finding of deficiency of service. We agree with the view expressed by the State Commission that the Consumer Protection Act and the machinery there under cannot be effectively utilized for determining complicated questions of the fraud and cheating. The appeal is rejected and the order of the State Commission is confirmed.

 

2. I (1996) CPJ 283 in the case of Dr.Sudhir G Rao vs. Kokila&Ors

Consumer Protection Act, 1986 – Section 2(1)(c) – complaint – fraud – complaint filed – allegations of fraud and cheating – whether investigation can be done by the Redressal forum ? – No

Held: As per the averments made in the complaint, the case set up by the Complainant is of fraud regarding which no investigation can be done by the Redressal forums.

Held further: In the present case, as referred above, deficiency of service on the part of the Ops is only incidental to the act of fraud and cheating alleged to have been committed by the Ops.

So, having regard to these facts, we are constrained to hold that this complaint is untenable.

 

3. Hon'ble Karnataka State Commission, Appeal no.1109/2011 dtd.02.08.12 in the case of M/s.Praveen Gift centre vs. Smt.Jyothi Jain, wherein it is held that:

5. The LC for the appellant has submitted that the complaint filed by the Complainant is not maintainable. The DF has no jurisdiction to entertain the complaint as the respondent/Complainant has alleges fraud and cheating played by the appellant in selling the goods for wrongful gain and to cause wrongful loss to him. He further submitted that the order passed by the DF is against the documents that have been produced by the appellant before it as the invoices were prepared in the name of a third person.

6. Admittedly, the Complainant/respondent has purchased four mobile handsets from the appellant/Op in all for Rs.94,150/- on 07.11.09. Admittedly, the invoices were raised in the name of Mr.Sandeep. If at all, the respondent was unaware of Mr.Sandeep she should not have accepted the bills. Moreover, both the parties agrees that the respondent has purchased the mobile sets in the name of third person. That means it creates a doubt that the Complainant/respondent has purchased 4 mobile handsets for commercial purpose and not for her own use. It is not the case of the respondent that the mobile handsets which were purchased by her are suffering from any manufacturing defects. The only grievance is that the Op/appellant has duped and cheated her. If at all, there is fraud and cheating played by the appellant as alleged by the respondent/Complainant for which she is at liberty to approach appropriate court for relief. DF has no jurisdiction to entertain the complaint. In the result, we pass the following:

ORDER

Appeal is allowed. The impugned order is set aside. The complaint filed by the Complainant is dismissed with a liberty to approach appropriate court for relief.

9. 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. The decisions cited by the learned counsel for the Op, 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.

10. 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.

11.     POINT NO.2:  In view of our finding on Point No.1, this issue does not arise for our consideration.

12.     POINT NO.3:In the result, we proceed to pass the following:

ORDER

        The complaint filed by the Complainant is dismissed.

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 21^stMay2018).

 

(ROOPA.N.R)     MEMBER	(S.L.PATIL)  PRESIDENT

 

         

 

 

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

 

ParagGulhane., who being the Complainant was examined.

 

Copies of Documents produced on behalf of Complainant/s:

Ex-A1	Copy of Citibank credit card statement payment of Rs.3000/- to S.S.Distributors as deposit
Ex-A2	Copy of E-mail intimation to Airtel with payment confirmation from bank
Ex-A3	Copy of bill stating (airtel bill) first travel roaming was enabled
Ex-A4	E-Mail To Airtel that depart of Rs.3000/- was made with attachment that shows payment was made using credit card
Ex-A5	Copy of requested Citibank” approval code” of payment made & provided to Airtel as they wanted for confiring payment
Ex-A6	Copy of E-mail from Airtel accepting their mistake
Ex-A7	Copy of full credit card statement
Ex-A8	Copy of E-mail received from bank when Rs.3000/- payment was made
Ex-A9	Copy of bill showing international calls made/received during international roaming
Ex-A10	Copy of salary slip indicating possible loss of income for time invested in case
Ex-A11	Copy of e-mails exchange with Airtel providing explanation of payment

 

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

Mohammed AnasRiyaz, Officer-legal.,who being the Opposite Party-1 was examined.

 

Copies of Documents produced on behalf of OPs

 

 

NIL

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL) PRESIDENT