BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

O R D E R

SRI.P.V.SINGRI, PRESIDENT

This complaint is filed by the complainant under Section 12 of Consumer Protection Act, 1986 against Opposite Parties (herein after referred as OPs) claiming compensation Rs.75,000/- towards business loss, Rs.7,000/- towards cost of litigation and to issue modified bill in accordance with unlimited plan etc.

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

The complainant TR consultants is engaged in the business of Digital Signatures and dealing with E-Procurement for the past more than 5 years.  In order to run the aforesaid nature of business the complainant has adhered and installed internet and Broad Band facilities and availed “unlimited plan” having maximum usage and accordingly monthly billing not exceeding to Rs.2,099/- to 3,000/-.  The complainant also have another private internet and Broad Band connection of Airtel and the said connection also having unlimited plan wherein the average and maximum billing is around Rs.3,000/- only, every month.

3. The complainant received his bill for the usage period of 01.08.2013 to 31.08.2013 in a sum of Rs.21,582/- from the OPs  which is exorbitant and abnormal.  Immediately, after receiving the said bill the complainant caused a notice dated 28.10.2013 to the OPs and the same is served on both the OPs.  The OPs gave untenable reply to the said notice on 29.10.2013.  The complainant directed the OPs to lock and disconnect the Broad Band services  in view of the exorbitant bill of Rs.21,580/- and accordingly the OPs have disconnected the service immediately on 28.10.2013.  The complainant never received any bill exceeding Rs.2,799/- similarly, the complainant have not received any bill excessive of Rs.2,810/- from Airtel services.  The complainant never used the said Broad Band services provided by the OPs to the maximum extent since they have another Broad Band connection of Airtel Broad Band services. This clearly demonstrates that the complainant have been issued with demand notice of Rs.21,582/-  for a particular month which is illegal and arbitrary.  When the earlier bills produced by the complainant are compared, it is evident that the maximum usage with a unlimited plan, the bill should not exceed a sum of Rs.2,799/-  and the telephone calls charges should not exceed more than Rs.1,000/-, since the complainant has not availed STD and ISD facilities.  The conduct of OPs in issuing demand notice of Rs.21,582/- amounts to deficiency of services on the part of the OPs.  The OPs are not at all served any demand for exorbitant amount of Rs.21,582/- for the month of August-2013,  subsequent to disconnection of the Broad Band facilities availed by OPs.  The complainant has incurred huge business loss amounting to Rs.75,000/-.

4. For the aforesaid reasons the complainant prays for an order directing the OPs to pay them a sum of Rs.75,000/- and further direction to the OPs only to collect the unlimited plan of                 Rs.2,799/- + taxes and local telephone call charges, if any, restricting the bill amount to Rs.4,300/- at maximum and any other reliefs  deemed fit in the given circumstances of the case. 

5. In response to the notice issued, OPs appeared through their Advocate and filed their version contending in brief as under:-

The claims made by the complainant against the OPs are not maintainable.  The claim is speculative, bereft of merits, lacks bonfide and requires to be dismissed as there is no cause of action against the OPs.  This Forum has no jurisdiction to entertain such an illegal and frivolous complaint.  That in view of judgement rendered by Hon’ble Supreme Court in CA No.7687/2004 the dispute pertaining to telephone will have to be settled by an arbitration and the consumer forum has no jurisdiction.

The complainant is a subscriber under the OPs having telephone bearing No.23130036 and in addition to that the complainant was provided with Broad Band connection with 2799 Limited Combo Plan with 8MBPS speed and 60GB free usage and 500 free calls per month.  The said Limited Combo Plan was provided to the complainant on his own request.  In the said Combo Plan opted by the complainant if the consumption is beyond 60 GB additional usage will be charged at 15 paise/MB, if calls are beyond 500 free calls they will be charged at Rs.1.20ps per call.  As per the tariff the Combo Plan is a limited plan and it is not a unlimited plan, question of comparing tariff with BSNL with other private(Airtel) as alleged in the complaint has no legal relevancy.  The complainant fell due for the month of August and used 068872931 KBs equal to 161.049GB out of which free usage are only 60GB.  The additional usage of 101.05GB equal to 103474.17MB is charged at 15 paise  per MB, totalling to the tune of Rs.15,522/84ps.  Hence, the question of deficiency in service as alleged does not arise for consideration.  Since, the complainant failed to pay the dues a notice came to be issued and even thereafter complainant failed to pay the dues and therefore the services was disconnected for non-payment of dues.  Now, there is due to the tune of Rs.21,582/-.  The complainant without paying dues and by filing this complaint is trying to escape from civil liability.  However, the OPs reserve liberty to initiate legal proceedings for recovery of the dues, since, it is considered as the government dues.  The Broad Band usage bill from 06.02.2013 to 06.10.2013 excluding the bill dated 06.09.2013 i.e., for the month of August-2013, are verified and found to be within limit of 60 GB.  Hence, question of comparing bill of August-2013 has no legal relevancy, since combo plan of tariff is limited Broad Band plan and not an unlimited plan.  After the receipt of the complaint a detailed investigation was conducted by obtaining a report from NIB and it is found that usage session are established from the same MAC –ID and PORT.  PORT BINDING EXIST and no docket booked during the complaint period.  Hence, the question of mis-using as alleged has no legal relevancy.  It is pertinent to note that on reading the averments in the complaint it is clear that complainant is not a true consumer and the Broad Band connection was obtained for commercial purpose and on this ground alone the complaint is liable to be dismissed.  There is no deficiency on the part of the OPs.  The complainant is not entitled to any compensation much less than the compensation claimed in the complaint.

6. For the aforesaid reasons the OPs prays for dismissal of the complaint.

7. On the rival contention of both the parties, the points that arises for our determination in this complaint are as under:

1. Whether the OPs proves that this Forum as no jurisdiction to entertain the present complaint?

2. If the answer to Point No.1 is in negative, then whether, the complainant proves the deficiency in service on the part of the OPs as alleged in the complaint?
3. If So, to what order/relief the complainant is entitled to?

8. The complainant to substantiate the allegations made in the complaint, filed his affidavit by way of evidence.  The OPs also filed the affidavit evidence of their AGM Legal BSNL, Bangalore in support of the averments made in the version.  The OPs filed written arguments.  The complainant failed to submit either their written arguments or advanced oral arguments.

9. Our answer to the above points:

10. Perused the allegation made in the complaint, averments made in the version, the affidavit evidence filed by both the parties and various documents relied upon by both sides and also citations.

11. POINT No.1:  The complainant is a subscriber under the OPs having telephone bearing No.23130036 and in addition to that the complainant was provided with Broad Band connection.  Though, the complainant claims that he availed “unlimited plan” having maximum usage and accordingly the monthly bill shall not exceed Rs.3,000/-.  However the copy of the BSNL Broad Band application form submitted by the complainant to the OP goes to show that the complainant has availed Broad Band connection with 2799 Limited Combo Plan with 8 MBPS speed and 60 GB free usage and 500 free calls per month.  The complainant in his affidavit evidence did not deny the correctness of the Broad Band application form produced by the OPs.  The OPs have also produced the copy of usage report of the complainant to substantiate the amount of usage made by him and also produced the corresponding bill for the said usage. 

12. Before entering into the merits of the case let me examine as to whether this Forum has jurisdiction to entertain the present complaint.  The OPs in para 7 of their version contended that in view of the principle laid down in CA.7687/2004 by Hon’ble Supreme Court of India, this Forum does not have jurisdiction to entertain the complaint, therefore the complaint is liable to be dismissed.  The learned advocate for the OP submitted that the dispute is in regard to excess meter reading/inflated bill.  Therefore, the same is to be referred to arbitrator as provided under Section 7-B of Telegraph Act 1985.  Therefore, he argued that this Forum cannot entertain the present complaint.  Section 7-B of Telegraph Act reads as under:-

S.7-B. Arbitration of Disputes:-

1.  Except as otherwise expressly provided in the Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this Section.
2.  The award of the arbitrator appointed under       sub-s (1) shall be conclusive between the parties to the dispute and shall not be questioned in any court. 

13. As provided under Section 7-B of the Telegraph Act in a dispute pertaining to any telephone line, appliance or apparatus arise between the telegraph authority and the subscriber the same shall be determined by arbitration and for the purpose of such determination the said dispute shall have to be referred to the arbitrator appointed by the Central Government either specifically for the determination of such dispute or generally for the determination of disputes under this Section.

14. In the case on hand, the dispute is in regard to the alleged excessive bill for the usage of Broad Band connection obtained by the complainant.  In view of the provision contained in Section 7-B, in our opinion such disputes has to be determined by arbitrator and this Forum does not get jurisdiction to determine such dispute.  The learned advocate for the OPs placed reliance on the judgement rendered before Hon’ble Supreme Court of India, in case between the General Manager, Telecom vs. Mr.Krishnan and others reported in 2009 AIR SCW 5631.  Perused, the said judgement.  The facts of the case involved in the said authority are almost similar to the facts on hand. The Hon’ble Supreme Court  referring to the provision contained in Section 7-B of Telegraph Act has opined as under:- 

6. In our opinion when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred. 

7. It is well settled that the special law overrides the general law.  Hence, in our opinion the High Court was not correct in its approach. 

15. The Hon’ble Supreme Court while dealing with similar issue has clearly opined that when there is a specific remedy in Section   7-B of the Indian Telegraph Act to resolve the dispute in respect of telephone bills the remedy under the C.P.Act is by implication barred.  Thus, in view of the provisions contained in Section 7-B of the Telegraph Act 1985 and in view of the principle laid down in the above said authority we are of the firm opinion that this Forum as no jurisdiction to determine the dispute between the parties herein.  Accordingly, we answer Point No.1 in affirmative.

16. POINT NO.2:  In view of the findings given on Point No.1, Point No.2 does not survive for determination.

17. POINT NO.3: Since, the present dispute cannot be determined by this Forum, the complainant is at liberty to approach the proper Forum to resolve the dispute.  In the result, we proceed to pass the following:-

ORDER

1.  The complaint filed by complainant under section 12 of  

    the C.P. Act 1986 is dismissed. 

2.  There is no order as to costs.

3. Furnish free copy of this order to both the parties.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 22^nd day of September 2015)

MEMBER                               MEMBER                              PRESIDENT

NRS* 

2437/2013

Complainant                          -       T R Consultants,

-vs-

Opposite Parties                    _        BSNL   

Witness examined on behalf of the complainant dated 05.06.2014

1. Sri.M.V.Chinna Reddappa, Partner of the complainant firm

Witnesses examined on behalf of the OPs

1. Sri.M.S.Hiremugadur-AGM-Legal BSNL, Bangalore

MEMBER                               MEMBER                              PRESIDENT