BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 04^th DAY OF OCTOBER 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to immediately stop deducting any amount against his HDFC Bank credit card No.5520884000098571, pay him a sum of Rs.23,972-84 having illegally charged to his credit card, to pay him a compensation of Rs.50,000/- towards deficiency of service together with cost etc.

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

That the complainant had taken six mobile connections from Vodafone on 5^th September 2013 and at the time of obtaining these connections, he was asked by OP to give a security deposit of Rs.500/- per connection and was also asked to provide standing instructions for charging the monthly bills to his credit card.  Accordingly, the complainant deposited Rs.3,000/- as security deposit and also authorized the OP to deduct the monthly bill from his credit card.  The six mobile numbers were allotted to complainant in a sequence from 9538887364 to 9538887369.  In addition to the above mentioned six connections the complainant had another connection vide mobile No.9742022569 since 2011.  That there were functional problems in the usage of said Vodafone numbers and therefore the complainant decided to terminate all the seven connections.  That the complainant requested to terminate the connections to the Customer Relationship Manager of OP but was asked to put in written request at the store from where the connections were obtained.  That the complainant accordingly approached R.T Nagar Vodafone Store from where he had obtained the said connections on 30^th September 2013 and requested them to terminate the connection forthwith.  The Vodafone Store at R.T Nagar accepted the written request of the complainant and acknowledged the same vide their customer acknowledgment copy number RFC No.307969 dated 30^th September 2013.  That the said store also informed the complainant that termination of the connection will be effected within a few hours.

That the billing cycle for all the six connections was from 05^th of the month to 4^th of next month.  That since the request for termination of these connections was given on 30^th September the OP was entitled to only one month’s charges i.e., from 5^th September to 4^th October 2013.  The charges for the period from 5^th September to 4^th October 2013 were charged to complainant’s credit card on 22^nd October 2013 and a amount of Rs.7,270.16 was deducted from the complainant’s HDFC Bank credit card.  That the complainant has no issues with this charge dated 22^nd October 2013 as this was for the period from 05^th September to 4^th October 2013.  That due to willful neglect of OP and in order to make wrongful gain for themselves OP did not terminate the connection and continued to charge the complainant.  In the process they have deducted an excess amount of Rs.21,836.84 from the complainant credit card account.  All this inspite of the fact that a number of telephonic requests by the complainant.  That the request of the complainant for cancellation of all the seven connections was made on 30^th September 2013 vide the same Consumer Request Form.  That it was followed up with another written letter dated 19^th October 2013.  The receipt of the said letter is acknowledged by the R.T Nagar store of OP.  That the OP instead of disconnecting of the connections at a time took action in a staggered manger.

OP terminated only three connections i.e., mobile No.9742022569, 9538887364 and 9538887369 on 31^st October 2013 i.e., 61 days after receiving the written request from the complainant.  OP terminated another three connections i.e., mobile nos.9538887365, 9538887367 and 9538887368 in the month of January 2014 (almost four months after receiving the written request from the complainant).  That the seventh connection i.e., 9538887366 has not been terminated by OP even today and they continued to charge the complainant.  For this connection OP generated a bill for the month from 5^th January 2014 to 4^th February 2014 for Rs.515.92 and deducted the said amount from the complainant credit card account on 22^nd February 2014.  That the OP again deducted an amount of Rs.1,346.08 on 22^nd March 2014 on account of this connection.  That the OP did not provide any bill for this deduction and what is surprising is that monthly bills vary from one month to another when the connection is not in use.  That although OP had confirmed vide their e-mail dated 06^th December 2013 that they have cancelled the connections with effect from 31^st October 2013 i.e., exactly one month after the request was made but the OP continued to charge the complainant for these terminated connections for months thereafter.  That in the month of November 2013 OP had even refunded security deposits of two of the six connections and also refunded complainant’s dues for the mobile number 9742022569.  In this refund also OP did not refund the complete amount and charged for an additional one month.

From the above said conduct of OP, it is very clear that OP failed to act on complainant’s written request to terminate the connections in a reasonable time so that they can make illegal gains and continued to make wrongful gains even today.  That the total amount deducted or not paid by the OP comes to Rs.23,972.84.  The details of these excess deductions/unpaid amount are given in the following table.

In addition to above deductions from the credit card of the complainant the following additional amounts are also payable by the OP to the complainant on account of refund of security deposit.

That during the complainant’s interactions with Vodafone staff he was harassed by their officials/agents.  That the complainant is respectable law abiding and is physically disabled Army Officer.  That the behavior and conduct of OP has caused him deep mental agony, harassment and shocked him as to what low level commercial organizations can stoop down to hurt his self respect and pride as a retired soldier.  That OP has failed to respond to written request, telephonic request, e-mails and even legal notice caused by the complainant.  For one of the connections OP continue to charge even today.  This amounts to deficiency of service.

For the reasons stated above, the complainant prays for allowing the complaint as prayed for.

3. In response to the notice issued OP entered their appearance through their advocate but filed their version only after the affidavit evidence of complainant was filed together with their affidavit evidence.  The brief averments made in the version are as under:

That the complainant is not a ‘consumer’ as defined under Consumer Protection Act.  That in view of the judgment referred by the Hon’ble Supreme Court of India in a case between General Manager, Telecom Vs. M.Krishnan and another reported in (2009) 8 SCC 481 this Forum has no jurisdiction to decide the dispute between the consumer and telephone company.  In view of the ratio laid down in the above cited authority, the complaint is liable to be dismissed as not maintainable.  That the averments made in the complaint are all baseless and contrary to the true facts of the case.  That the complainant has filed this complaint with ulterior motive for wrongful enrichment.  That no loss has been sustained by the complainant due to any act of the OP.  Therefore, OP prays for dismissal of the complaint with exemplary cost.

The complainant tendered his evidence by way of affidavit reiterating the allegations made in the complaint.  The complainant also submitted his written arguments.  Affidavit evidence was also filed on behalf of OP by their Deputy Manager, Legal.  Perused the materials placed on record including the pleadings of both the parties, sworn testimony of both sides, including the written arguments of the complainant etc.

4. The points that arise for our determination in this case are as under:

        5. Our answer to the above points are as under:

REASONS

6.  It is pertinent to note that OP either in their version or in their affidavit evidence did not deny any of the specific allegations made by the complainant in the complaint.  OP disputed the jurisdiction of this court on the basis of judgment rendered by the Hon’ble Supreme Court of India reported in (2009) 8 SCC 481 in a case between General Manager, Telecom Vs. M.Krishnan and another.  On the basis of the ratio laid down in the said judgment, it is contended by the OP that, the Hon’ble National Consumer Disputes Redressal Commission as well as various Hon’ble State Commissions and District Forums dismissed similar complaints for want of jurisdiction.  According to OP a dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and a person, the dispute shall be determined by the arbitration and for the purpose of such determination the same shall be referred an arbitrator appointed by the Central Government.

7. The learned advocate for the complainant brought to our notice an Office Memorandum dated 04^th February 2014 issued by Government of India, Ministry of Communications and IT, Department of Telecommunications (policy-I Section).  Perused the said office memorandum, which has been issued by the Ministry of Communications and IT, Department of Telecommunications, New Delhi subsequent to the judgment rendered by the Hon’ble Supreme Court of India referred supra.  The relevant paragraphs of the said Office Memorandum are as under:

“References are being received regarding Telecom Consumers’ agitation throughout the country against ousting the jurisdiction of Consumer Fora since 2009 as a consequence to the judgment passed by Hon’ble Supreme Court of India, decided on 1.9.2009, wherein it has been inter-alia observed “….In our opinion, where there is a special remedy provided in S.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 …. ” ..

 2.    The matter has been examined in this Department.  It is mentioned that the matter referred to in the Hon’ble Supreme Court involved a dispute between Department of Telecommunications (DoT) as a service provider prior to the hiving off of telecom services into a separate company namely Bharat Sanchar Nigam Limited (BSNL).  Since DoT was also the telegraph authority, reference was made by the Hon’ble Supreme Court to the provisions of section 7B.  However, powers of the telegraph authority have neither been vested nor are available to private telecom service providers and BSNL.  Therefore, recourse to section 7B in case of disputes between consumers and private service providers and BSNL would not be available.  The Hon’ble Supreme Court’s judgment is sui generis in its application and has to be read with reference to the particular facts and circumstances of the case before it.

3.     Further, while commenting on the implementation of provisions of National Telecom Policy-2012, related to amendment of Indian Telegraph Act to bring disputes between telecom consumers and service providers within the jurisdiction of District Consumer Dispute Redressal Forum (District Forum) established under Consumer Protection Act, Legal Advisor, DoT opined that District Forums are already having jurisdiction and promulgation of ordinance is apparently not required.

4.     The District Consumer Forums are competent to deal with the disputes between individual telecom consumers and telecom service providers”.

8. The above extracted Office Memorandum makes it abundantly clear that a dispute of this nature between individual consumer and private service provider is very well maintainable on the file of District Consumer Forum.  On the basis of the said memorandum the Hon’ble Apex Consumer Court as well as various State Commissions have entertained disputes like the one on hand.  On the basis of the above referred memorandum we have also entertained several similar complaints in the past.  Therefore, we are of the clear opinion that, this Forum has jurisdiction to entertain the present complaint.

9. Now coming to the merits of the case, as stated above OP in their version did not specifically deny any of the allegations made by the complainant in his entire complaint.  The complainant to substantiate the allegations made in the complaint has produced the relevant documents such as copy of customer acknowledgement dated 30^th September 2013 under which he requested for disconnection of all the seven mobile connections, photocopy of his reminder to OP to terminate the connection vide his letter dated 19^th October 2013, photocopy of e-mail dated 23^rd October 2013 requesting OP to terminate the connection as per the date of initial request and not to charge beyond that date, photocopy of e-mail from OP dated 06^th December 2013 in which they acknowledged that they have processed the termination of the connections on 31^st October 2013, photocopy of complainant’s e-mail dated 22^nd December 2013 requesting OP not to charge beyond 30^th September 2013, photocopy of his credit card bill showing deduction of Rs.9,328.88 on 22.11.2013, photocopy of his credit bill showing deduction of Rs.10,645.96 on 22.01.2014, another photocopy of his credit bill showing deduction of Rs.515.92 on 22.02.2014.  The allegations made in the complaint coupled with documents mentioned above establishes that despite a written request by the complainant on 30^th September 2013 to the R.T Nagar Store of OP and despite the fact that all the seven mobile connections were not used OP started raising false bills and deducted the same from the complainant credit card.  Absolutely there is no justification for the OP in not disconnecting the said mobile connections and raising bills though the said seven mobile connections were not in use subsequent to 23^rd September 2013.  Furthermore the OP has continued to charge the complainant for mobile No.953887366 even subsequent to filing of this complaint.  The complainant submitted his additional inputs regarding this illegal conduct of OP.  It is evident from the material placed on record by the complainant including his credit card statement, that OP has charged a sum of Rs.1,346.08 on 22^nd April 2014, Rs.1,346.08 on 22^nd May 2014 and Rs.1,346.08 on 22^nd June 2014 despite the fact that the said mobile number was not in use since after 30^th September 2013.  Thus the OP has deducted a sum of Rs.26,664.85 from the credit card of the complainant illegally.  As already stated above, OP in their version did not deny any one of these allegations made by the complainant in his complaint and in his additional inputs as well as his sworn testimony.  OP has no justification at all to raise bills for above said seven connections after a written request made by the complainant to cause disconnections of the said mobile numbers with effect from 30^th September 2013.  The said conduct of OP must have put the complainant to great inconvenience, hardship and mental agony.  The OP has made the complainant to approach them time and again requesting for disconnecting the said mobile connections even after causing legal notice.  OP continued to raise false bills and deduct amount from the credit card account of the complainant.  The above said conduct of the complainant is certainly unbecoming of the so called multinational service provider of wireless mobile sets.

10. For the discussions made above, we are of the opinion that, the OP has to be directed to refund a sum of Rs.26,664.84 illegally charged from credit card account of the complainant together with interest @ 18% p.a.  Further OP has to be directed to pay compensation of Rs.25,000/- to the complainant for deficiency of service resulting in huge mental agony, hardship and inconvenience to the complainant who is a retired and disabled soldier of Indian Armed Forces.

11. The order could not be passed within the stipulated time due to heavy pendency. 

12. In the result, we proceed to pass the following:

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed.  OP is directed to refund a sum of Rs.26,664-84 to the complainant together with interest @ 18% p.a from June 2014 till the date of realization.  Further OP shall pay compensation of Rs.25,000/- for deficiency of service resulting in great hardship, inconvenience and mental agony to complainant together with litigation cost of Rs.10,000/-.

OP shall comply the said order within four weeks from the date of communication of this order.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 04^th day of October 2016)

MEMBER                            MEMBER                    PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 19.09.2014.

1. Lt Col Rakesh Choudhary

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 23.01.2015.

1. Sri.Prashanth.  

Document produced by the Opposite Party:

  MEMBER                           MEMBER                     PRESIDENT

   Vln*