Order No. - 14                                                                                       Dated-  26.3.2018.

                                        F I N A L   O R D E R /JUDGEMENT

Sri Sibasis Sarkar, Ld. President

            The complainant Shri Pritam Chowdhury has filed the present petition of complaint u/s. 12 of the Consumer Protection Act, 1986, wherein he has stated that he is a consumer of Vodafone Pre-paid Mobile, vide no. 8101471829. The complainant often found fictitious bill charged for calling ISD calls from his Mobile phone number. The complainant made verbal complaint to the O.P, but the O.P did not take any measure. Subsequently the complainant received one phone bill from the O.P which shows that the O.P has charged an amount of Rs.120/- for call charge on 27.6.2017 and again Rs. 60/- as call charge on 30.6.2017. So, the complainant sent one written complaint to the O.P by registered post on 7.7.2017. But the O.P did not reply to that letter, so the complainant again sent one written complaint on 25.7.2017 by registered post.  Unfortunately, the O.P did not care to give any reply to that letter also, which has compelled the complainant to file the present case against the O.P as per prayer mentioned in the petition of complaint.

            The O.P/the Store Manager, Vodafone Store is contesting the case by filing written version denying all the material allegations contending, inter alia, that the case is not maintainable in its present form and prayer. There is no cause of action for the present case.  The present case is also barred by the provisions of section 7B of the Indian Telegraph Act, read with section 3 of the Consumer Protection Act and Rules.  The specific case of the O.P is that the complainant is a customer of Vodafone Pre-paid Mobile vide no.8101471829.  The call-list of the complainant goes to show that the complainant  dialed the same number 21621225232 on 27^th June, 2017 and on 30^th June, 2017 respectively. The said code ‘216’ belongs to Tunisia, which is a sovereign State in  North Africa.  As the call was made from the Mobile number of the complainant, as such the O.P. had no other alternative, but to take call charge for the same.  The opposite party duly informed about the itemized billing by VMSL, vide its letter dated 10^th July, 2017.  The O.P also from time to time intimated his customers about the fraudulent calls and about missed calls from unknown international persons.  So, the O.P has nothing to do in this matter. There is no deficiency in service on the part of the O.P. Accordingly, the present case is not maintainable and is liable to be dismissed with cost.

            Considering the rival pleadings of both the parties the following points have been framed.

                                                POINTS FOR CONSIDERATION :-

         1)    Is the case maintainable in its present form and prayer ?

         2)    Was there any deficiency in service on the part of the opposite party ?

         3)    Is the complainant entitled to get any relief, as prayed for ?

         4)    To what other relief or reliefs is the complainant entitled ?

                                       DECISION WITH REASONSTo

         IIn the instant case neither the complainant nor the opposite party adduced any oral evidence. They also did not file any affidavit-in-chief. However, both parties submitted before the Forum to pass final order/judgment on the basis of the petition of complaint supported by affidavit along with the documents annexed therein and the written version supported by affidavit along with the documents annexed therein treating them as their respective evidence on affidavit. Accordingly, as the present case is a summary procedure case, we accepted the petition of complaint  along with the documents annexed therein and the written version along with the documents annexed therein as the respective evidence on affidavit of both the parties. We have carefully perused the B.N.A filed by both parties. We have also heard arguments of both sides in full and at length.

 POINT NO. 1  :-

            The Ld. Lawyer for the O.P argued that the present case against the O.P/Vodafone Store is barred by section 7B of the Indian Telegraph Act, 1885. According to the said section 7B of the Indian Telegraph Act,all disputes concerning any telegraph line, appliance or apparatus arises between the Telegraph Authority and the person in whose benefit the line, appliance or apparatus is or has been provided, the dispute shall be determined by arbitration and shall for the purposes of such determination, be referred to an Arbitrator appointed by the Central Government either specially or for the determination of that dispute or generally for the determination of dispute under this section.

            According to the ld. Lawyer for the O.P, this section has created a bar upon the jurisdiction of the Consumer Forum to entertain any dispute between the Telegraph Authority and the customer.  The ld. Lawyer also cited the decision of the Hon’ble Supreme Court of India passed on 1^st September, 2009, in Civil Appeal No.7687 of  2004(General Manager, Telecom –Vs- M. Krishnan & another).  The ld. Lawyer also cited the decision of the Hon’ble National Commission, passed on 21^st May, 2010 in Revision Petition No. 1703 of 2010(Prakash Varma-Vs-IDEA Cellular Limited & another) which had followed the decision of the Hon’ble Supreme Court passed in General Manager, Telecom-Vs-M.Krishnan & another.

            It has also been decided by the subsequent judgment of the Hon’ble National Commission on 2^nd May, 2014, in Revision Petition No. 1228 of 2013(Bharti Hexacom Ltd-Vs-Komal Prakash) that the decision of the Hon’ble Supreme Court reported in General Manager, Telecom-Vs-M. Krishnan & another is not applicable in case of private telecom service provider.  It has been mentioned by the Hon’ble National Commission that subsequently, vide letter dated 24.1.2014, the Government of India/Ministry of Communication & IT while responding to the communication received from the Secretary, Department of Consumer Affairs, Government of West Bengal on 7.10.2013 in relation to the Hon’ble Supreme Court’s judgment in M. Krishnan(supra), has clarified that the said decision involved a dispute between the department of Telecommunications(DoT), which was a “Telegraph Authority” under the Indian Telegraph Act, as a service provider prior to the hiving off of telecom services into a separate company viz., Bharat Sanchar Nigam Limited(BSNL). However, as the powers of a “Telegraph Authority” are now not vested in the private telecom service providers, as is the case here, and also in the BSNL, section 7B of the said Act will have no application and, therefore, the Forums constituted under the Consumer Protection Act, 1986, are competent to entertain the dispute between individual telecom consumers and telecom service providers. Besides that, it has also been decided by the Hon’ble State Commission, Meghalaya, on 25^th February, 2014, in first appeal no. FA/04/2009(BSNL-Vs-Smti Betty Sebastian) that the Consumer Forum has every jurisdiction to decide a dispute in between telecom services and customer. There are specific rule and regulation mentioned in The Telecom Regulatory Authority of India(Amendment) Ordinance, 2000 & Telecom Consumers Protection And Redressal of Grievances Regulations, 2017, that the complaint of an individual consumer is maintainable before a Consumer Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under section 9 of the Consumer Protection Act, 1986. 

            Thus, in view of the above discussions we find that there is no force in the argument advanced by the ld. Lawyer for the O.P.  We have got no hesitation to hold that section 7B of the Indian Telegraph Act has not created any bar upon the Consumer Forum to entertain a dispute between telegram services and its customer.  Therefore, the present case is maintainable. This point is thus decided in favour of the complainant.

Point no.2 :-                        

It is the case of the complainant that he is a customer of Vodafone Pre-paid Mobile, vide no.8101471829 since long.  He was receiving fictitious phone bill from the O.P for calling ISD calls  from his Cell-Phone. He made complaint to the O.P several times, but

in spite of that the O.P has charged false bill from the complainant for calling ISD on 27.6.2017 amounting to Rs.120/- and again on 30.6.2017 amounting to Rs.60/-.  So, the complainant sent one written complaint by registered post to the O.P on 7.7.2017intimating that the phone bill charged by the O.P is fictitious. He never made any ISD call from his cell-phone, but the O.P did not give any reply. So, the complainant again sent one written complaint through registered post on 25.7.2017.  But the O.P did not give any reply to the said letter.

            From the written version filed by the O.P and from the Xerox copy of the call charges of Vodafone Pre-paid Mobile No. 8101471829 issued by Vodafone Mobile Services Limited on 10^th July, 2017, we find that it is the admitted fact that the complainant is a customer of Vodafone pre-paid mobile, vide no.8101471829. From serial no. 236 of the call charges we find that the O.P has charged Rs.120/- and from serial no.260 we find that the O.P has charged Rs.60/- for calling from the mobile number of the complainant. Therefore, there is no doubt that the O.P has charged Rs.120/- and Rs.60/- from the complainant.  Now, the question is whether the said bill charged by the O.P was fictitious.

            It is well known to us that the call details of cell-phone are gathered/obtained from the automatic electric devices and computer.  So, it is not possible to raise any fictitious bill, as alleged by the complainant. From the call charges of the Mobile Phone number of the complainant during the period from 1^st June, 2017 to 30^th June, 2017 sent by the O.P to the complainant, vide letter dated 10^th July, 2017, we find that one ISD call was made from the cell-phone of the complainant on 27.6.2017 to phone no. 21621225232. The duration of the said call was 97 seconds.  So, the O.P. charged Rs.120/- for the said call. We also find that on 30.6.2017 one call was made from the cell-phone of the complainant to the same number i.e. to Mobile No.21621225232 and the duration of the said call was 60 seconds. So, the  O.P has charged Rs.60/- for the said call.

            The O.P in their written version has stated that the code ‘216’ belongs to Tunisia which is a sovereign State in North Africa.  It is known to us that several missed calls are coming from foreign countries and as a result the customers are trapped in the said calls. So, there is every possibility that  something wrong was done with the complainant by some frauds. In that case the O.P has nothing to do.  The matter exclusively relates to investigation by police.  As the O.P found that, calls have been made from the cell-phone of the complainant, then they had no other alternative but to charge the call. Therefore, we think that the bills for call charges cannot be treated as fictitious.  The O.P has rightly charged the price of the calls.

            Now the question is whether the O.P had  any deficiency in service.  From the Xerox copy of the letter dated 7.7.2017 we find that the complainant made one written complaint to the O.P/Store  Manager, Vodafone Store, D.B.C Road, Jalpaiguri, intimating about the alleged fictitious ISD call charges. From the Xerox copy of the postal receipt and the track report, we find that the said letter was duly delivered to the O.P on 8.7.2017.  But the O.P did not give any reply to that letter. However, the O.P. by a letter dated 10^th July, 2017 issued the summary of call charges for the bill period from 1.6.2017 to 30.6.2017for the Vodafone Pre-paid mobile of the complainant being no. 8101471829.  In the letter dated 10^th July, 2017 the O.P informed the complainant to contact with them for further help regarding this matter and also for other enquiries and for complaints/request.  Accordingly, the complainant again issued one written complaint by a letter dated 25.7.2017 intimating about the fictitious ISD call charges and about his previous letter dt. 8.7.2017.  From the Xerox copy of postal receipt and from the track report, we find that the said letter dated 25.7.2017 was duly delivered to the O.P on 26.7.2017. In spite of receiving the said letter, the O.P did not think it necessary to give a reply to the said letter of the complainant. It was a part of duty of the O.P as service provider to give proper advice and guidance to the complainant about his grievance. The O.P ought to have advised the complainant to lodge complaint before the Police for investigation about the fictitious calls.  But the O.P did not care to give any advice and guidance to the complainant. We think that this is a negligence on the part of the O.P.  The complainant being a customer naturally can expect help from the O.P by lodging complaint before him.  But the O.P did not care to pay heed to the said complaint lodged by the complainant. We think that such type of negligence on the part of the O.P tantamounts to deficiency in service. Thus, we hold that there was deficiency in service on the part of the O.P.  This point is thus decided in favour of the complainant.

POINT NOS. 3 AND 4 :-

            From the discussions made above and in the light of our observations we find that the complainant is a customer of Vodafone Pre-paid mobile, vide no. 8101471829. We have also found from the phone bill that a sum of Rs.120/- has been charged by the O.P for ISD call charge from the mobile phone of the complainant on 27.6.2017 and Rs.60/- on 30.6.2017. We have also found that both the calls were made from the cell-phone of the complainant to a particular foreign Mobile number. It is not possible for the O.P to know  how the Mobile Phone of the complainant was used for calling to the said foreign Mobile phone number.  Therefore, the O.P has rightly charged the usage of the complainant  from  his Mobile phone. As such the complainant is not entitled to get back the said amount of Rs.120/- and Rs.60/- from the O.P.  However, we have found that the O.P did not give proper advice and guidance to the complainant relating to the grievance of the complainant.  This is a clear negligence on the part of the O.P which tantamounts to deficiency in service.  So, the O.P is liable to compensate the complainant regarding his pain, agony, harassment etc.  According to the Hon’ble National Commission, reported in 2017(4), CPR, page 555(Maruti Suzuki India Limited & others-Vs-Jaswinder Singh & another) compensation must be passed on sound reasoning and logic. In the instant case, according to the complainant, he has lost Rs.120 + Rs.60/- i.e. Rs. 180/- only. Considering the said loss of the complainant and other pecuniary and non-pecuniary damages, we think that a sum of Rs.3,000/- towards compensation will be just and proper.

            Both these points are thus decided in favour of the complainant.

            As a result, the case succeeds.

            Hence, it is

                                                                  O R D E R E D :

              that the Consumer Case No. 57 of 2017 be and the same is allowed on contest against the O.P with a litigation cost of Rs.2,000/-. The complainant is also entitled to get Rs.3,000/- towards compensation. As such the O.P is directed to pay Rs.2,000/- + Rs.3,000/- i.e. Rs.5,000/- in total by A/C payee cheque in the name of the complainant Shri Pritam Chowdhury within one month from this day, failing which the amount shall carry interest @ 9% per annum from the date of filing of this case i.e on and from 21.11.2017 and deposit a sum of Rs.100/- per day in the bank account of the Consumer State Welfare Fund, West Bengal, from this day till realization.

Let the original documents, if any, filed by the parties be returned on proper receipt. 

Let a plain copy of this order be supplied free of  cost forthwith to the parties on proper acknowledgement or be sent by speed post, in terms of Rule-5(10) of the West Bengal Consumer Protection Rules, 1987 and the extra sets be returned to the parties on proper receipt.