Date of Filing – 03.04.2017

Date of Hearing – 09.01.2018

            The challenge in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is to the Order No.14 dated 17.02.2017 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-II (in short, Ld. District Forum) in Consumer Complaint No. 376/2016.  By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent under Section 12 of the Act on contest with the direction upon the Opposite Parties/Appellants to rectify the erroneous bill within one month and to pay litigation cost of Rs.10,000/- and in the event of failure to comply within the stipulated period, OPs shall be liable to pay penal damage @ Rs.5,000/- per month.

          The Respondent herein being Complainant lodged the complaint asserting that  he has a mobile connection of Vodafone being No.9830516492 provided by the Opposite Parties for a monthly rental of Rs.199/-.  The monthly bills usually come to below of Rs.1,500/- per month with only exception in December, 2015 when it was billed for Rs.2,168.89P and in May, 2016 for Rs.2,090/- and in the both the occasions, the complainant has travelled out for a long vacation.  On 30.04.206 the complainant visited Dhaka (Bangladesh) with his father in the evening and came back by the same flight on 05.05.2016.  The complainant has stated that he never asked for international roaming facility, even though initially it was noticed that he could communicate through his mobile mentioned above to his residence at Salt Lake at Kolkata.  However, such facility was disconnected by the OPs since 02.05.2016.  The OPs raised a bill on 01.06.2016 for the billing period from 01.05.2016 to 31.05.2016 for Rs.1,11,432/- which includes monthly charges of Rs.849/- and usage charges 95949 together with service tax of Rs.14,534/- etc. comes to Rs.1,11,432/-.  The complainant alleged that all the charges for usage was only for the period between 00-00.25 of 01.05.2016 to 15:33:17 of 01.05.2016 which, according to complainant was practically impossible.  In this regard, all the communications including legal notice for rectification of the bill turned a deaf ear.  Hence, the respondent approached the Ld. District Forum with the allegation of deficiency in services on the part of appellants and prayed for a direction upon the OPs/appellants to rectify the erroneous bill, to pay compensation of Rs.50,000/- and litigation cost of Rs.30,000/-.

          The appellants being OP Nos. 1 & 2 by filing a written version have stated that the bills are generated automatically and there is no scope of mis-calculation of inflation.  It has also been stated that the complainant’s phone has continuously using data service and hence, genuine usage charge of Rs.89,089/- for the same day has arisen and as per arrangement between the operators, Vodafone has already been billed by the Grameen Phone Net Work of Bangladesh for the usage incurred by the complainant and duly paid on his behalf as per bilateral roaming arrangements between mobile operator.  It has also been stated that complainant has not suffered any financial loss or mental agony and as such the complaint should be dismissed.

          After assessing the materials on record, the Ld. District Forum by the impugned order allowed the consumer complaint with certain directions upon the opposite parties, as indicated above. To assail the said order, the OPs have come up in this Commission with the instant appeal.

          Ld. Advocate appearing for the appellants, at the outset of his argument has submitted that in view of the provision of Section 7B of the Telegraph Act, the complaint was not maintainable. Expanding his argument, Ld. Advocate for the appellants has submitted that when there is a special remedy provided in Section 7- B of the Indian Telegraph Act, then the remedy under the Act is by implication barred. In support of his submission, Ld. Advocate for the appellants has placed reliance to a decision of Hon’ble Supreme Court reported in AIR 2010 SC 90 (General Manager,Telecom – vs. – M. Krishnan & Anr.). In this regard, the order dated 02.05.2014 made by a larger Bench of the Hon’ble National Commission in MA/ 264/2014 in RP/12228/2013 (Bharti Hexacom Ltd. – vs. – Komal Prapkash & Anr.) appears to be a pointer. In the said decision, it has been observed –

          “We may also note that the main point on which notice in this revision petition was issued was with regard to the maintainability of the complainant, in view of the judgement of the Hon’ble Supreme Court in General Manager, Telecom -  vs. – M. Krishnan & Anr. (2009) 8 SCC 481). However, subsequently, vide a letter dated 24.01.2014 , the Government of India, Ministry of Communication and I.T. While responding to the communication received from the Secretary, Department of Consumer Affairs, Government of West Bengal on 07.10.2013, in relation to the Hon’ble Supreme Court’s judgement 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 hiving off telecom services into a separate company, viz Bharat Sanchar Nigam Limited ( (BSNL ). However, as the powers of a “Telegraph Authority” are now vested in the private telecom service providers, as in the case here, and also in the BSNL, Section 7B of the said Act will have no application and therefore, the Forum’s constituted under the Consumer Protection Act, 1986 are competent to entertained the dispute between individual telecom consumer and from service providers”.

          Relying upon the authority as mentioned above, it is quite apparent that the Ld. District Forum has rightly entertained the instant consumer complaint. 

          Undisputedly, on 30.04.2016 in the evening, the respondent along with his father visited Dhaka by a flight of Air India and came back by the same flight on 05.05.2016.  The respondent was user of a mobile connection No.9830516492 provided by M/s. Vodafone Mobile Services Ltd.  The said connection was a post-paid connection for the monthly rental of Rs.199/-. 

          The fact remains that during his stay at Dhaka, respondent has used international roaming service through the Grameen Phone Net Work of Bangladesh, the mobile operator of Vodafone as per bilateral roaming agreements between the mobile operator.  The bill raised by the appellants company indicates that the entire bill was raised in between 00-00.25 A.M. to 3.33.17 P.M. of the same day i.e. on 01.05.2016.  As per the bill, the amount claimed of Rs.1,11,432/- which includes monthly charges of Rs.849/- and usage charges 95949 together with service tax of Rs.14,534/- .  In fact, from the details of usage annexed with the bill, it would appear that only on 01.05.2016 at 03:22:23 P.M. an amount of Rs.82,862.99P was charged.

          It is contended by the Ld. Advocate for the appellant that the respondent has only raised bill dispute regarding the specific usage of internet during the roaming period and when the respondent had not denied whatsoever regarding the specific calls (incoming and outgoing) made an receipt during the period when international roaming facility was very much active in the said connection, the Ld. District Forum ought to have dismissed the complaint.

          The factual matrix indicates that the bills raised by a third party i.e. Grameen Phone Net Work of Bangladesh and due to legal embargo or regulation of TRAI, the appellants are not liable to disclose the same.  But at the same time, it should be taken into consideration that for use of mobile net work/internet/in international roaming facility for about only 15 hours a bill should not be raised at Rs.82,000/- plus.  Judicial notice may be drawn to the fact that if a person used landline or mobile phone at Dhaka from Kolkata through Call Centre an amount of Rs.1.50P is usually charged.  If a person visits Bangladesh after obtaining a connection from Matrix or interface or like that else, the amount for about 15 days would not exceed Rs.2,500/- in any circumstances subject to limitation in calls.  It is quite impossible for a person to enjoy the internet facility or the roaming facility continuously for about 15 hours after spending sleepless night.  The service provider should have been taken up the matter with its roaming partner i.e. Grameen Phone Net Work of Bangladesh to ascertain the actual state of affairs.  Merely, showing the regulation of TRAI, the appellants/service-provider cannot absolve their responsibility to protect a consumer.  The statement of objects and reasons and the scheme of the Act make it quite clear that the main objective is to provide for better protection of the interests of the consumer.  In the case beforehand, it becomes quite clear that the appellants are claiming the amount basing upon the bill provided by the third party i.e. Grameen Phone Net Work of Bangladesh without ascertaining whether the said bill was correct or erroneous.  Simply as there was bilateral roaming arrangement between the mobile operators, a consumer should not suffer.

          The fact remains that there is possibility of erroneous bill because within a span of only 15 hours (including the period of entire night) it is quite difficult for a person to enjoy the roaming facilities or internet service amounting to Rs.82,000/- plus in a neighbouring country like Bangladesh which is only 300 kilometers away from Kolkata.

          Considering all the above and having heard the Ld. Advocates appearing for the parties, I do not find any shortcoming or loophole in passing the order directing the appellants to rectify the bill and as such that part of the order should not be interfered with.

          However, I do not find any reason for imposition of punitive damages of Rs.5000/- per month.  In a decision reported in (2015) 1 SCC 429 (General Motor (India) Pvt. Ltd. – Vs. – Ashok Ramnik Lal Tolat & Anr.) a question came up for consideration before the Hon’ble Supreme Court whether in absence of any prayer made in the complaint and without evidence of any loss suffered, the award of punitive damages/penal damages is permissible?.   In answering to the question – the Hon’ble Apex Court has observed – “Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered.  Such a claim has to be specifically pleaded”.

          Neither there is any averment in the complaint about suffering of punitive damages/penal damages by the other consumers nor the appellants were aware that any such claim is to be met by it and the appellants having no notice of such a claim, the said order is contrary to the principles of fair procedure and natural justice.  Therefore, the order of penal damage imposed by the Ld. District Forum is not sustainable in the eye of law.

          In view of the above, the impugned Judgement/Final Order is modified to the extent that the appellants/OPs to rectify the disputed bill within one month from the date of the order and to pay the litigation cost of Rs.10,000/- imposed by the Ld. District Forum, in default the said amount shall carry interest @ 8% p.a. from date till its recovery.

          With the above observations and directions, the instant appeal stands disposed of.

          The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information.