Date of filing : 26.04.2016
Date of hearing : 23.11.2016
PER HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The present appeal under Section 15 of the Consumer Protection Act, 1986 ( for brevity, “the Act” ) is at the instance of Opposite Party to impeach the judgement /final order dated 28.03.2016 passed by the District Consumer Dispute Redressal Forum, Kolkata, Unit – II ( in sort, Ld. District Forum ) in Consumer Complaint No. 539 /2015 whereby the complaint initiated by the respondent U/s. 12 of the Act was allowed on contest with cost of Rs. 5000/- with certain direction upon the OP/Appellant line to rectify the bill for the period of September, 2015 and October, 2015, to restore the mobile connection or to pay penal damages of Rs. 1000/- p.m. and to pay compensation of Rs. 10,000/- , failing which to pay penal interest @ 100/- per day till full satisfaction.
The respondent herein being complainant lodged the complaint asserting that he has a post paid mobile of Vodafone Co.Ltd. being Mobile No.9874832770. In the month of September and October, 2015, the bill consisting of ISD usage as 109 minutes have been shown, call charges of which normally @ 13.30 paise as Rs.1453/- though he had been provided promotional offer Rs. 199/- for getting relief from normal i.e. charge from 13.30 paise to 6.99 paise. Inspite of such promotional offer, the OP did not make any attempt to rectify the amount of bill. In this regard, all the correspondences or persuasions went in vain. Ultimately, the mobile connection of the complainant was disconnected. Hence, the respondent approached the Ld. District Forum with a prayer for Rs. 2,00,000/- as compensation on account of deficiency in providing service by the Appellant/OP.
The appellant being OP by filing a written version has disputed and denied the material allegations levelled by the complainant contending, inter alia that it is a fact that the complainant availed tariff plan “ISD UAE(11) @6.999 RC 199 Y1” with pack offering call rates to UAE at Rs.6.99 instead of Rs.11/- against monthly rental of Rs.199/- but the said promotional facility was only available for the United Arab Emirates and not for other countries like Saudi Arabia or Jordan etc. and the bill issued to the complainant showing the actual usage 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 OP, as indicated above, which prompted the OP has come up before this Commission with the present appeal.
We have scrutinised the materials on record and considered the submission advanced by Ld.Advocate appearing for the appellant and the respondent in person.
On the threshold of his submission, Ld. Advocate for the appellant has submitted that in view of the provision of Section 7-B of the Telegraph Act,the complaint was not maintainable.Expanding his argument, Ld. Advocate for the appellant has submitted that 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 Act is by implication barred. In support of his submission, Ld. Advocate for the appellant has placed reliance to a decision of Hon’ble Supreme Court dated 01.01.2009 in Civil Appeal No. 7687 of 2004 ( General Manager,Telecom – vs. – M. Krishnan & Anr.) and also a decision of Hon’ble National Consumer Commission dated 20.04.2012 in RP No.3780/2011 ( Lokesh Parashar –vs. – M/s. Idea Cellular Ltd.& Anr. ). The respondent being not acquainted with the latest position, could not contradict the same. 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”.
Therefore, we are not in agreement with the Ld. Advocate for the appellant that the complaint was not maintainable.
After hearing both sides, it reveals that a promotional offer with regard to ISD calling was given by the appellant company to the respondent at a monthly rental of Rs.199/- which was bonus monthly pack for the United Arab Emirates @ 6.999 per minute. The materials on record indicate that the ISD Code of UAE countries starts with (+ 971) whereas the country code for Saudi Arabia is (+966) and the calling code for Jordan is ( +962). The bills for the month of September and October, 2015 issued in favour of the appellant clearly demonstrates that the appellant had used those calls for the countries like Saudi Arabia or Jordan which have no similarity with ISD Code of UAE. The UAE countries comprises of the following emirates, viz – (1) Abu Dhabi (2) Ajman, (3) Dubai, (4) Fujairah, (5) Ras al Khaimah, (6) Sharjah and (7) Umm al Quwain which does not include Saudi Arabia and Jordan.
The Ld. District Forum has observed that the respondent used the Vodafone for Jordan and Jordan is part of Saudi Arabia then why the appellant did not give such relief when promotional pack of Rs. 199/- was given to the respondent. In this regard, Ld. Advocate for the appellant has placed all the relevant documents with ISD Codes and call rates of the appellant company and when as per uniform Resource Locator ( URL) it was found that calls were made to Saudi Arabia and Jordan which have different international calling codes, the Ld. District Forum has committed an error in arriving at a right decision.
The respondent, who is professor and Head,Department of Arabic and Persian, University of Calcutta has submitted that the appellant company adopted deceitful conduct of their business and cleverly providing him the bill in the month of Post October, 2015and as such the Ld. District Forum has rightly passed the order impugned.
After giving due consideration to the submission of both sides, we are of the view that the Ld. District Forum has exceeded its jurisdiction at the time of passing the order impugned. The ISD code of UAE was quite different with the ISD code of Saudi Arabia and Jordan, as noted above and in such a situation it cannot be said that the respondent was entitled to have benefit of per calls @ 6.99 per minute instead of @ Rs. 13.30 per minute. Therefore, as the appellant company was not found deficient in rendering service to the respondent, the impugned order is liable to be set aside.
For the reasons aforesaid, appeal is allowed on contest. However, we do not make any order as to costs in this appeal.
Consequently, the complaint is dismissed and judgement/final order passed by the Ld. District Forum in CC/539/2015 is hereby set aside.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit – II for information.
