DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.161 of 07-04-2010

Decided on 12-08-2010

Dr. Gaurav Singla son of Dr. Parshotam Dass Singla, R/o H.No.16992, Gali No.1-B, Aggarwal Colony, Bhatti Road, Bathinda.

.......Complainant

Versus

1. M/s Gee Gee Telelcom, (Authorized Dealer of Bharti Airtel Ltd.), 5704, The Mall, Bathinda, through its Owner.

2. Bharti Airtel Ltd., Aravali Crescent, 1, Nelson Mandela Road, Vasant Kunj, Phase-II, New Delhi 110070, through its MD/Director.

3. Bharti Airtel Ltd., C-25, Phase-II, Industrial Area, Mohali, through its Circle/General Manager.

4. Bharti Airtel Ltd., Regional Office, Liberty Chownk, through its Regional Manager.

......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President.

Dr. Phulinder Preet, Member.

Sh. Amarjeet Paul, Member.

Present:-

For the Complainant: Sh.Naresh Garg, counsel for the complainant.

For Opposite parties: Sh.Naveen Goyal, counsel for opposite party No.1.

Sh.Sunder Gupta, counsel for opposite party Nos.2to 4.

ORDER

VIKRAMJIT KAUR SONI, PRESIDENT:-

1. In brief, the facts of the complaint are that the complainant purchased Prepaid Mobile Connection No.98789 01443 from opposite party No.1 in 2009 by paying Rs.500/- after giving his ID proof. The opposite parties assured the complainant that this is 'Life Time' prepaid card connection and the incoming would never be stopped. The opposite party No.1 also assured the complainant that he has been getting re-charged his connection for outgoing purposes as per his convenience but the incoming would be totally life time facility. The complainant alleged that he has been using the said connection for his personal use. He got printed his mobile number on his Visiting Cards. The opposite party No.1 took the signatures of the complainant on the small printed Form which is not readable in the ordinary way and the complainant signed the same under good faith on the assurance of life time free incoming facility. On 26.03.2010, the complainant's Mobile started displaying “No Service” without issuing any notice to the complainant. The complainant made several requests to start his connection but the opposite parties refused to start the connection of the complainant under the pretext that he had not paid Rs.200/- in six months and due to this none payment, his connection is permanently disconnected. The complainant alleged that due to this act of opposite parties, the complainant being a professional doctor has suffered loss of Rs.One lac besides mental harassment and agony as his contact was cut off with his patients and friends.

2. The opposite party No.1 filed separate written statement whereas the opposite party Nos.2 to 4 have filed their joint written statement. The opposite party No.1 pleaded that according to the conditions of life time connection, the complainant is bound to recharge his life time connection with recharge of Rs.200/- after every six months i.e. 180 days. In this case, the complainant has failed to recharge the said connection with recharge Rs.200/- within 180 days. So, his connection was disconnected. It is further pleaded that services are provided by the opposite party Nos.2 to 4 and the opposite party No.1 is retailer only. It is further pleaded that the complainant is bound by the terms and conditions mentioned in the application form which was duly signed by the complainant.

The opposite party Nos.2 to 4 have submitted in their joint written statement the definition of Life Time Validity (LTV) Plan: The Telecommunication Tariff (Forty third amendment) Order (TTO), 2006 dated 21.03.2006 issued by TRAI defines LTV as under:-

“A tariff plan once offered by an access provider shall be available to a subscriber for a minimum period of six months from the date of enrollment of the subscriber to that tariff plan. However, any tariff plan presented, marketed or offered as valid for any prescribed period exceeding six months or as having life time or unlimited validity in lieu of an upfront payment shall continue to be available to the subscriber for the duration of the period as prescribed in the plan and in the case of life time or unlimited validity plans, as long as the Service Provider is permitted to provide such telecom service under the current license or renewed license.........”

A plan with Life Time Validity means that validity till the validity period of License or renewed License read as under:-

“Where the terms and conditions of any tariff plan with life time validity or unlimited validity include and condition or stipulation which requires any subscriber to recharge for any specified minimum amount within specified time periods or intervals during such validity so as to keep the said tariff plan valid, such specified time period or interval, shall, in no case, be less than six months.”

The opposite party Nos.2 to 4 further pleaded that complicated and complex question of law is involved. So, an elaborate evidence is required which can be decided only in the Civil Court. For this, the opposite parties have also taken support of Hon'ble Supreme Court in Oriental Insurance Co. Ltd. Vs. Munimahesh Patel 2006 (IV) CPJ (1) (SC) wherein, it is held that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission. They have further pleaded that Mobile number 98789 01443 can not be allotted to the complainant as the same is active in the name of some other subscriber. The opposite parties have also submitted that the Consumer Forum has no jurisdiction to try and adjudicate the present complaint. For this, they have put reliance the law laid down by the Hon'ble Supreme Court in General Manager, Telecom Vs. M.Krishnan and Another” (Civil Appeal No.7687 of 2004) wherein, it is held that special law overrides the general law and this Forum has no jurisdiction to try this case.

3. Parties have led their evidence in support of their respective pleadings.

4. Arguments heard. Record alongwith written submissions submitted by both the parties perused.

5. The complainant purchased Prepaid Mobile Connection number 9878901443 form the opposite party No.1 in which the complainant was given life time incoming facility. The mobile connection of the complainant was disconnected on 26.03.2010 and mobile started displaying “No Service”. Without issuing any notice the opposite parties disconnected mobile connection of the complainant. Moreover, the opposite parties submitted that Telecom Regulatory Authority of India (TRAI) is the Telecom Department and the opposite parties can issue such directions from time to time to the Service Providers as it made necessary for the discharge of its functions. All the service providers are under obligation to launch only such tariff plans/schemes which are complied to the directions and Tariff Orders issued by TRAI from time to time. The opposite parties have also given the definition as under:-

“A tariff plan once offered by an access provider shall be available to a subscriber for a minimum period of six months from the date of enrollment of the subscriber to that tariff plan. However, any tariff plan presented, marketed or offered as valid for any prescribed period exceeding six months or as having life time or unlimited validity in lieu of an upfront payment shall continue to be available to the subscriber for the duration of the period as prescribed in the plan and in the case of life time or unlimited validity plans, as long as the Service Provider is permitted to provide such telecom service under the current license or renewed license.........”

Moreover, the opposite parties defined the meaning of Life Time validity (LTV) as validity period of License or renewed License and submitted the various Life Time Validity plans from time to time by reducing the prices and all such plans have been reported to Telecom Regulatory Authority of India. The opposite parties have nowhere in their pleadings or on file proved that at the time of issuing the connection to the complainant, they have ever supplied terms and conditions for life time validity. They have also not made it clear for what specific period/time this validity is valid. No such evidence has been placed on file by the complainant as well as the opposite parties for the perusal of the Forum which tentamounts to unfair trade practice. The opposite parties took the signatures of the complainant on small printed form which is not legible in the ordinary way and the complainant signed the same under good faith of assurance life time free incoming facility. The support can be sought by the precedent laid down by Hon'ble National Commission in case titled Sudir Deshpande Vs. Eibee Services Ltd. Bomaby 1994 (1) CPJ 140 NC held that whether the mention of limited liability in very small print at the back of the consignment is a part of negotiation between the parties(NC) and the same is again held by Hon'ble National Commission in case titled Osuri Devendra Vs. Dest to Sesk couriers and cargo 2003(III) CPJ 160 NC and the law laid down by the Hon'ble Supreme Court in case titled H.N.Shankar Shastry Vs. Asstt. Director 2004(3) RCR (Civil) 177 wherein, it is held that the very objects of the Act is to protect the Consumer Forum clever traders and manufacturers. It is beneficial Legislation and to be given liberal interpretations in favour of the consumer. Moreover, the terms and conditions of the agreement can not be imposed which were not supplied to him at the time of agreement.

The complainant is consumer to the opposite parties under Section 2(1)(d) of the Consumer Protection Act, 1986. The law laid down by the Hon'ble Supreme Court in General Manager, Telecom Vs. M. Krishnan & another's (2009) III CPJ 71 (SC) is only applicable in cases under Section 7-B of the Indian Telegraph Act, 1885. The explanation of this section has been clearly provided by the Hon'ble State Consumer Disputes Redressal Commission, Punjab in case titled Spice Communication Pvt. Ltd Vs. Gurinder Kaur and another in First Appeal No.1172 of 2009 wherein, it is held:-

“If any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an Arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this section.”

So this section 7-B of the Indian Telegraph Act, 1885 is not applicable to the private service providers. It is further explained in para Nos.26 and 27 of Spice Communication Pvt. Ltd.Vs. Gurinder Kaur and another (supra) which are reproduced as under:-

“Since the dispute of the private service providers with their individual consumer does not fall in the scope of Section 7-B of the Indian Telegraph Act, 1885, therefore, the private service providers cannot avail the benefit of the judgment of the Hon'ble Supreme Court in M.Krishnan & another's case (supra).

In view of the discussion held above, it is held that the private service providers are not covered by the judgment of the Hon'ble Supreme Court in M.Krishnan & another's case (supra) and the consumers/customers have the right to challenge the actions of the private service providers by filing complaints under the Consumer Protection Act, 1986.”

6. Hence, the complainant is consumer to the opposite parties. The complainant is doctor by his profession. He has supplied his mobile no. to all his patients, friends etc. being get it printed on his visiting cards. As a doctor, whose duty is for 24 hours towards his patients was deprived of his duty, as the patients were unable to contact him. He was also unable to attend the emergencies outside his hospital which created a lot of inconvenience to the complainant and loss of business as well as reputation and has undergone mental harassment and agony. Hence, this complaint is accepted with Rs.10,000/- as compensation for mental harassment and Rs.5,000/- as cost of litigation expenses. The opposite parties will jointly and severally pay this awarded amount to the complainant. The opposite parties are further directed to restore the connection of the complainant, if not issued to any other person till date. Compliance of this order be made within 30 days from the date of receipt of copy of this order. In case, the opposite parties fails to pay this awarded amount within stipulated period, then interest @ 6% P.A. will be yield till realization on the compensation amount.

7. A copy of this order be sent to the parties concerned free of cost and file be consigned for record. '

Pronounced (Vikramjit Kaur Soni)

12.08.2010 President

(Dr. Phulinder Preet)

Member

(Amarjeet Paul)

Member