Vodafone India Limited V/S Vishal Vinayak - Consumer Court Case

Punjab

Ludhiana

CC/19/586

Vishal Vinayak - Complainant(s)

Versus

Vodafone India Limited - Opp.Party(s)

Yogesh Dhawan

03 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

Complaint No: 586 dated 19.12.2019. Date of decision: 03.04.2023.

Vishal Vinayak, aged 53 years son of Shri Jit Kumar Vinayak, H. No.38, Ayali Kalan, Sunview Enclave, Ludhiana, Also at: Nano Tech Chemical Brothers Pvt. Ltd., 3583, Backside Post Office Jamalpur Awana, Chandigarh Road, Ludhiana. ..…Complainant

Versus

Vodafone Idea Limited, having its Registered Office at Suman Tower, Plot No.18, Sector 11, Gandhinagar-382011, Gujarat, Regional Office at C-131, Industrial Area, Phase-8, Mohali, Punjab-160071 & Branch Office at: SCO: 21, First Floor, Feroze Gandhi Market, Ludhiana, through its Director. …..Opposite party

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

COUNSEL FOR THE PARTIES:

For complainant : Sh. Yogesh Dewan, Advocate.

For OP : Sh. Harvinder Pal Singh, Advocate.

ORDER

PER SANJEEV BATRA, PRESIDENT

1. Briefly stated, the facts of the case are that the complainant subscribed the service of the opposite party for consideration on his mobile phone No.9988204713 by depositing security of Rs.500/-. The complainant was having International Roaming facility on his mobile number. The complainant submitted that he travelled to Maldives from 08.04.2019 to 13.04.2019 and during that period he neither made any outgoing call nor received any incoming call and even no data was received or sent during his stay at Maldives. The further submitted that even there was no use of internet data during International Roaming and no calling took place on his mobile number, opposite party imposed charges of Rs.33,322.50 for international roaming in its bill dated 21.04.2019 bearing No.181PB04909494308 for the period 21.03.2019 to 20.04.2019 having total billed amount of Rs.40,699.68. The charges of Rs.33,322.50 imposed for alleged usage of International Roaming facility were totally arbitrary and capricious as during billing period 21.03.2019 to 20.04.2019, the complainant travelled only Maldives for 6 days and during that period he neither used internet data nor any calling took place on his mobile number. The complainant further submitted that a Dynamic Credit Limit is provided by mobile service providers to their customers, which is provided depending upon the security deposit of customer and average monthly usage of customer. When dynamic credit limit of the customer reach its end point then the customer is not allowed usage beyond that limit and he is asked to make an interim payment to continue using services beyond the credit limit. In the case of the complainant the security deposit is of Rs.500/- and dynamic credit limit was Rs.12,500/- and despite his not availing any data usage or calling from his mobile number, the complainant has unjustifiably, arbitrarily & capriciously been charged Rs.33,322.50 as international roaming charges and served with a bill amounting to Rs.40,699.68 which is much beyond the dynamic credit limit of Rs.12,500/-. The complainant further submitted that he was shocked to know that he has arbitrarily been charged with Rs.33,322.50 for data usage/calling during his visit to Maldives when actually there was no such usage and in this regard, protest was lodged by him through emails but to no avail. Even Appellate Authority of opposite party did not take care of his complaint No.239135831 and disposed it in a casual manner. Despite withdrawing the unjustifiable demand, the opposite party disconnected the mobile services of the complainant which were resumed after deposit of a partial payment of Rs.20,000/- by the complainant on 26.06.2019 under protest. Thereafter, the complainant sent emails to the opposite party with request that there was no usage of service by him during his visit to Maldives in the billing cycle 21.03.2019 to 20.04.2019 and also to provide details of usage to the complainant.

The complainant further submitted that the mobile service providers have their roaming partners in other countries, who provide roaming services in their own country to the customers of mobile service providers of the other countries. Foreign Telecom Partners make available full details to the mobile service provider regarding the usage of services (if any) by customer. The opposite parties has failed to provide any details of the falsely alleged usage despite requests of the complainant which substantives the claims of the complainant that there has been no calling or usage of data by him during his visit to Maldives during the billing period 21.03.2019 to 20.04.2019. Rather the opposite party has disconnected the mobile services to the number of the complainant. The international roaming charges of Rs.33,322.50 has been levied by the opposite party is not genuine and the complainant was forced to deposit Rs.20,000/- which amounts to deficiency in service and unfair trade practices on the part of the opposite party by raising an arbitrary and capricious demand of Rs.33,322.50 as international roaming charges and forcing him to deposit Rs.20,000/- as part payment. In the end, the complainant has prayed for issuing direction to the opposite party to refund the amount of Rs.20,000/- got deposited by it forcibly from the complainant with interest @9% per annum along with compensation of Rs.50,000/- for mental agony and harassment and Rs.20,000/- for cost of litigation.

2. Upon notice, the opposite party appeared and filed written statement and took preliminary objections by assailing the complaint on the ground of lack of jurisdiction; lack of cause of action, mis-joinder and non-joinder of necessary parties. The opposite party stated that it is not dispute that the complainant went to Maldives in the month of April 2019 and took the mobile number 9988204713 with him on which international roaming facility was active/available when he was travelling to Maldives. The complainant did not avail any international roaming pack when he went to Maldives. The complainant used the GPRS and calling services in the international roaming due to which he was charged and the bill in dispute was generated. The said bill is legal and the complainant is liable to pay the amount of the services used by him during his stay abroad. The opposite party further alleged that in case of international roaming, the customer is not availing services on the network of IDEA, the bill is generated purely on the basis of usage of customer as latched on foreign/international telecom service provider with roaming tie-ups all across and anywhere in the world with international roaming rates as applicable in the said country wherein he customer is roaming as such. At the time when the number 9988204713 was used in International Roaming the dynamic credit limit of the said number was Rs.12,500/-. The salient features of concept of credit limit are reproduced as under:-

(a) Credit limit is a dynamic feature and depends upon number of factors such as the constant good credit worthiness of the customer, usage of subscriber, regular payment of bills in time, etc.

(b) The credit limit is the credit worthiness of the customers and is fixed by the service providers by seeing the history and usage pattern of the customer.

(c) The bill is generated entirely on the basis of usage of services and not on the basis of the credit limit fixed. Rather the credit limit is fixed as per the bills generated of the subscriber from time to time.

(d) Credit limit is always enhanced and/or reduced as per the amount of each invoice raised in one billing cycle.

(e) The credit limit is updated on the bill received by the customer every month. Alternatively, it is available on the post-paid self-care section by logging on to the Vodafone Idea website.

The opposite party further alleged that the complainant used the internet/GPRS services while on international roaming and he was duly charged for the same. The complainant was duly sent numerous messages vide which he was informed that his credit limit had exceeded and he was requested to make the interim payment to avoid barring of services. The complainant was duly informed that his usage amount of Rs.34,659/- had crossed the credit limit and his services will be interrupted. He was further intimated that “Alert! You have used 100% of your credit limit of Rs.12,500/- till date. Your current outstanding is Rs.34,659. Your services will be stopped soon. To enjoy uninterrupted services, manage credit limit & clear all dues visit…” The opposite party further alleged that perusal of bill shows that the complainant is extensive user of internet facility within India/Punjab circle and did the same in Maldives. The said internet usage of 43.3MB/4442KB in international roaming was charged @ Rs.770/- per MB (which is a predefined/default rate for the usage in the Maldives), if customer uses his internet without activating any international roaming pack. Moreover, the complainant being educated and well versed with the features of credit limit has misrepresented the facts and fraudulently chosen to file this frivolous compliant. Once the GPRS/internet usage is started on a mobile, it cannot be discontinued by the service provider, in between, even if the assigned credit limit of the number is crossed. As such, once the complainant started using the GPRS/internet facility while in Maldives, then the volume of usage/airtime charges of the said session was generated only after he stopped using the internet facility and information regarding high usage of GPRS services was given and the services of the number were barred after giving due intimation vide SMSs to the complainant. Therefore, even if the assigned credit limit of the mobile number of the complainant was exceeded, the opposite party came aware of this fact only after he stopped using the internet facility. Thus, the complainant is liable to clear his current outstanding dues amounting to Rs.22,262.34.

On merits, the opposite party reiterated the crux mentioned in the preliminary objections. The opposite party denied any deficiency in service on its part and in the end, a prayer for dismissal of the complaint has been made.

3. The complainants filed replication to the written statement denying the allegations of the written statement and reiterated the allegations made in the complaint. However, the complainant submitted that the opposite party is making its own rules and regulations, whereas it is bound to follow the Rules, Regulations and Guidelines of Department of Telecom and Telecom Regulatory Authority of India. The complainant further submitted that as per TRAI’S Response to DOT Back reference dated 19.04.2018, New Delhi, 25^th June 2018 it is mentioned in Chapter-II, Page No.3, Point No.4.1 “In respect of a post paid connection, there shall be a credit limit which may be fixed as per the customer requirement and transparently informed. The customer shall be informed through SMS/USSD message upon reaching 70% of the Credit Limit. If the credit limit is breached the services should be barred till such time the customer deposits the necessary amount with the operator.”

Point No.4.2 “In respect of a post paid connection, there shall be a credit limit as provisioned by the foreign partner and transparently informed in advance through SMS/USSD message prior to reaching the credit limit. If the Credit Limit is breached the services should be barred till such time the customer deposits the necessary amount with the operator. In view of this, the TRAI is requested for its reconsidered recommendation.”

The complainant further submitted that a news item was also published in a reputed national daily The Hindu Businessline in its web edition www.thehindubusinessline.com dated 20.01.2018 whereby it has been mentioned that “TRAI today recommended that data services of Indians travelling abroad should be stopped upon reaching the credit limit and activated further only after they deposit the required amount.” “If the credit limit is breached the services should be barred till such time the customer deposits the necessary amount with the operator.” “A close scrutiny of the complaints reveal that majority of complaints are related to hefty charges levied on customers for accessing data services in foreign land. In all such cases, customers had refuted the claims made by the operator and denied having assessed the data services, TRAI said”

The complainant further submitted that TRAI’s Consumer Handbook dated 04.05.2018, page No.24 under the heading Credit Limit for Post Paid Consumers reads as under:-

A credit limit is set for every post-paid subscriber and the same ahs to be intimated to him in advance. The initial credit limit ahs to be intimated within 7 days of activation of the service.

i. Consequences of usage and other applicable charges exceeding the credit limit as well as the manner in which the credit limit could be enhanced, also has to be informed to the subscriber in advance.

ii. When the usage and other applicable charges reaches 80% of the credit limit, an intimation to this effect should be provided to the subscriber.

iii. On receipt of the intimation, the subscriber has the option to make interim payments in whole or in part or to restrict his further usage so that the credit set for him is not exceeded.

iv. Services to the subscriber cannot be disrupted until and unless the credit limit fixed for a consumer is exceeded, despite adequate intimation about the same.

v. Irrespective of the level of credit limit, the services of a subscriber cannot be disrupted as long as the amounts due is below the amount of his security deposit.

vi. The credit limit set for a post-paid customer has to be included in his monthly statement/bill.

The complainant prayed that the complaint be allowed.

4. In evidence, the complainant tendered his affidavit as Ex. CX and reiterated her averments of the complaint. The complainant also placed on record documents i.e. Ex. C1 is the copy of bill dated 21.04.2019, Ex. C2 is the copy of text message, Ex. C3 to Ex. C9 are the copies of emails, Ex. C10 is the copy of guidelines of Telecom Regulatory Authority of India, Ex. C11 is the copy of online news item of The Hindu BusinessLine, Ex. C12 is the copy of Consumer Handbook on Telecommunications of Telecom Regulatory Authority of India, Ex. C13 is the copy of directions dated 27.06.2005 issued by TRAI to all Telecom Access Providers, Ex. C14 is the copy of certificate of the complainant and closed the evidence.

5. On the other hand, the counsel for the opposite party tendered affidavit Ex. OPA of Sh. Manoj Madan, Authorized signatory, Vodafone Idea Limited, C-105, Industrial Area, Phase 7, Mohali (Punjab) along with document i.e. Ex. OP1 is the copy of detail of SMS message, Ex. OP2 is the copy of bill dated 21.04.2019, Ex. OP3 is the copy of outstanding of bill amount, Ex. OP4 is the copy of judgment dated 26.04.2016 of Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh and closed the evidence.

6. We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statement produced on record by both the parties. We have also gone through the written arguments submitted by the complainant.

7. Undisputedly, the complainant is a subscriber of mobile No.9988204713 with opposite party having dynamic credit limit of Rs.12,500/- and a security deposit of Rs.500/-. The complainant had availed international roaming facility when he remained on sojourn in Maldives from 08.04.2019 to 13.04.2019. The opposite party issued bill dated 21.04.2019 of Rs.40,699.68 for the bill period w.e.f. 21.03.2019 to 20.04.2019 out of which Rs.33,322.50 was international roaming charges. The complainant lodged protest against the bill of Rs.40,699.68 through emails Ex. C3 to Ex. C5, Ex. C7 to Ex. C9 dated 02.05.2019, 13.05.2019, 25.05.2019, 25.06.2019, 16.07.2019 and 04.09.2019 respectively to the opposite party. Vide email dated 26.05.2019 Ex. C6 of the opposite party responded and mentioned therein that the usage was found to be genuine, the relevant part of which is reproduced as under:-

“As per our telephonic conversation dated 26/05/2019 on your Alternate Mobile Number 6280036194, we would like to inform you that your concern regarding Billing Payment Amount of your Vodafone Mobile Number 9988204713, we would like to inform you that as we have checked charges are genuine, so we are unable to give reversal amount in your account.”

8. The complainant raised grievances and assailed the bill mainly on two counts that he was not intimated in time as and when his dynamic credit limit was breached. Secondly, though belated, the complainant raised an issue that no detail of usage of data was provided to him along with the bill.

9. The opposite party submitted Ex. OP1 vide which text messages were sent to the complainant on 11.04.2019, which are reproduced as under:-

11/04/2019

08:29:41

batch_vel 1

80533

SMS has been initiated with message: “Alert! You have used 100% of your credit limit of Rs.12500 till date. Your current outstanding is Rs.34659. Your services will be stopped soon. To enjoy uninterrupted services, manage credit limit & clear all dues visit MyVodafone App. www.vodafone.in.mvvf4 OR click

11/04/2019

18:08:57

batch_vel 1

80533

SMS has been initiated with message: “Alert! You have used 100% of your credit limit for mobile number and your current outstanding is Rs.34659. All services will be stopped soon. manage credit limit & clear all dues visit MyVodafone App. www.vodafone.in.mvvf4 OR click

11/04/2019

17:10:38

Manual memo

SMS&EMAIL Sent to Customer: Hello! Your services will be interrupted as your usage amount of Rs.34659 (approx.) has crossed the Credit Limit. Pay on

10. Perusal of bill Ex. C1=Ex. OP2 shows that 43.38MB data was used by the complainant. However, the complainant raised a plea that he has never used the roaming data during the entire period of his stay at Maldives. It can be seen that firstly on 11.04.2019, the complainant was intimated with regard to exceeding of dynamic credit limit. Had the complainant not used the international roaming, he must have raised protest immediately that how limit has crossed when he has not used international roaming data at all during his stay. The first denial came on 02.05.2019 i.e. after a lapse of 20 days from the receipt of messages on 11.04.2019. So the act and conduct of the complainant shows that as and when he received the bill, he labeled it to be inflated and decided to raise issue with the opposite party by making bald statements. Moreover, the complainant has failed to discharge his initial burden of proving deficiency in service on the part of the opposite party.

11. In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

12. As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.