Karnataka

Bangalore 4th Additional

CC/2656/2017

Sudipto Chakraborty, - Complainant(s)

Versus

M/s Vodafone Mobile Services Limited, - Opp.Party(s)

10 Aug 2018

ORDER

Complaint filed on: 28.09.2017

                                                      Disposed on: 10.08.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.2656/2017

DATED THIS THE 10^th AUGUST OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Sudidpto Chakraborty,

Aged about 41 years,

R/at No.Daddy’s Roost,

Daddys South Bourgh

Layout, Hebbagodi,

Bengaluru-100.

 

By Advocates

M/s.Hammurabi & Solomon     

 

V/s

Opposite party/s

Respondent/s:-

 

1. M/s.Vodafone Mobile

Services ltd.,

Maruthi Infotech Centre,

3^rd floor, Amarjyothi

layout, Koramangala,

Bengaluru-71.

Rep. by Branch Executive

 

2. M/s.Vodafone Mobile

Services ltd.,

C48, Okhla Industrial

Area, Phase II,

New Delhi-110020.

Rep. by Managing Director

 

By Advocates

M/s.Eesh & Eesh Associates

 

 

MEMBER: SMT.ROOPA.N.R

 

 

            This complaint is filed by the Complainant against the Opposite party no.1 & 2 (herein after referred as Op.no.1 & 2 or Ops) seeking issuance of direction to rectify their billing statement to the mobile no.9886004078; to pay damages of Rs.50,000/- towards mental torture and to grant such other reliefs deem fit for which the Complainant is entitled to.

 

          2. The brief facts of the case of the Complainant are that, Complainant was a loyal customer of Op.no.2 since 2009 by possessing mobile number 9886004078 and since from obtaining connection in the year 2009, Complainant was not activated the connection of international roaming at any point of time till 15.05.17. The Complainant further submits that, due to his travel plan to USA between 15.05.17 to 22.05.17 was looking for international roaming packages. On 11.05.17, he visited Op.no.1 to change his voice and data plan to 4G and also got a nano sim card for his new phone and there he enquired about the international roaming charges and the Executive of Op.no.1 shared the details with the Complainant about the iRoamFee plan, which was costing Rs.2,500/- which consisted of unlimited calls and data in USA, UAE, Singapore and for other countries at the rate of call at Rs.1/- per minute, data at Rs.1/-per Mb, SMS facility at Rs.1/- per SMS. Since iRoamFee plan was most suitable to the Complainant’s budget and travel plan. He decided to opt for the same and completed the formalities for enabling the connection. The Complainant further submits that, at 2.28am. on 15.05.17 he received an sms informing him that his iRoamFee pack was activated on 15.05.17 on 2-16-09am for 7 days i.e. from 15.05.17 at 2.16am. to 22.05.17 00.00IST. The Complainant further submits that on 21.05.17 at 10.15am. he received a message informing him about the time and date of deactivation of the pack at 16.01 on 22.05.17. He received one more message on 22.05.17 at 5.21am. informing him of deactivation of the plan on 22.05.17 at 00.00 IST but due to shortage of time he did not notice it at the time of receipt.  The Complainant further submits that, all the above messages was not noticed by him as he was travelling and the mails from his out-look were downloading automatically even after deactivation of the data plan. The Complainant further submits that, on 23.05.17 the Ops barred all his outgoing calls stating that his bill was Rs.36,719/- which had over shooted the credit limit of Rs.5,000/-. When he visited Op.no.1 on 23.05.17 enquiring about barring his outgoing calls, for which the executive of the Op.no.1 told the Complainant that they cannot help him till the bill is generated and gave the Complainant a hint about crossing the credit limit. Upon request of the Complainant, the Op.no.1 executive sent email to reactivate the services of the Complainant. Op.no.1 in spite of being aware that the Complainant has crossed his credit limit of Rs.5,000/- did not bar his services but instead to gain a profit for themselves allowed the credit limit of the Complainant shoot up to Rs.36,719/- which he is not liable to pay to the Ops.  The Complainant further submits that, when the services were not reactivated, on 24.05.17 the Complainant sent an email stating the problem but there was no reply from the Ops. That on 25.05.17, the Complainant sent a number of reminders and subsequently the Op.no.1 reactivated the services. The Complainant further submits that, when the bill was generated he was shocked to see that there was no change and it showed the bill at Rs.49,510/- and he made all attempts to resolve the issue by sending emails to the concerned officials of the Ops but they were of no use. The Complainant further submits that, since the iRoamFee pack was opted for by him was only for 7 days and after deactivation of the same, the Ops had to restore the connection to its original status instead have activated to international roaming which was not Complainant’s original status. So, the Ops with an intention to make quick money had falsely connected to international roaming instead of restoring to its original status and raised the bill to the tune of Rs.55,129.33 on the Complainant. The Complainant further submits that, Ops have harassed the Complainant and his family by calling every day and demanding money which the Complainant is not liable to pay. The entire issue narrated above has been explained a couple of times to the representatives of the Ops but it was in vain, left with no other alternative Complainant is filing the instant complaint for damages.

 

3. On receipt of the notice, Op.no.1 & 2 did appear through their counsel and filed common version denying the allegations made in complaint. The sum and substance of the version of the Ops are that, the complaint filed by the Complainant is not maintainable either in law or on facts, hence liable to be dismissed. Ops further submit that, the present dispute raised by the Complainant is not maintainable before this forum in view of the judgment rendered by the Hon’ble Supreme Court in Civil appeal no.7687/2004 dtd.01.09.09 in the matter between General Manager, Telecom vs. M.Krishnan & anr., reported in 2009 AIR SCW 5631, followed by the Hon’ble National Commission in the order dtd.18.07.12 passed in R.P.No.398/2011 in the case of Ziyauddin Alvi vs. Bharti Airtel ltd., As per the judgments, since the dispute raised by the Complainant is between the subscriber and telecom service provider, the remedy available for the Complainant is u/s.7B of the Indian Telegraph Act which provides for adjudication of dispute under the provisions of Arbitration Act, on this count itself, the present complaint is liable to be dismissed at the threshold. Further relying on the said judgment the various state commissions have also disposed off the complaints holding that any dispute concerning any telegraph line, appliances or apparatus shall be determined by the arbitrators. Ops further submit that, Complainant has approached Op.no.1 and has enquired about the international roaming charges and the Executive of Op.no.1 had shared the details of international roaming pack costing Rs.2,500/- which allows unlimited calls and data in USA, UAE, Singapore and for other countries at the rate of call at Rs.1/- per minute, at Rs.1/- per MBand SMS at Rs.1/- per SMS. Accordingly, the Complainant had requested for activation of said international roaming pack and the same was activated on the Complainant’s number on 15.05.17, which had validity only for 7 days as such it was deactivated on 22.05.17 at 00.00 IST. Any usage of international roaming done after deactivation of the pack, would be charged as per the standard charges of international roaming partner. In the instant case, the Complainant was specifically informed that, international roaming pack would be deactivated by end of 21.05.17 i.e. by 00.00hrs IST of 22.05.17 through an SMS and the Complainant was also informed that, in the event of Complainant willing to activate another international roaming pack the procedure has to be followed as mentioned in the SMS sent to the Complainant. However, since the Complainant did not opt for reactivation of the international roaming pack the same was deactivated and subsequent period after deactivation was charged as per the regular tariff of international roaming partner and accordingly the Complainant was charged. Therefore, the bill dtd.25.05.17 covering the period from 25.04.17 to 24.05.17 is issued for Rs.49,510/- inclusive of international roaming charges of Rs.39,923/-. Also the international roaming charges amounting to Rs.7,196.50 has been charged in the bill dtd.25.06.17 for the reason that the bills are generated as per call data records sent by international roaming partner which can be sent within 30 days from the usage done. The reason being which, the international roaming charges are being reflected in both the bills i.e.25.05.17 & 25.06.17. Ops further submit that, Complainant has been charged as per the usage made by him and there is no discrepancy in the bill. Though the Complainant was informed about the correctness of the bill, the Complainant has failed to clear the bill amount. As on 25.07.17, the Complainant has owed a sum of Rs.55,129.93. In fact the Complainant was informed through email dtd.30.05.17 that the Op is ready and willing to provide 10% discount on international roaming data charges only as a goodwill measure considering the long term relationship and sought for his confirmation. However, the Complainant has refused to avail the same. Ops further submit that, there is no deficiency of service or wilful default on the part of Ops. Hence, Complainant is not entitled for any of the reliefs as sought for in the complaint.

         

          4. The Complainant to substantiate his case filed affidavit evidence and got marked the documents as Ex-A1 to A5. The Senior Manager – Legal and authorized person of Op filed affidavit evidence and got marked the documents as Ex-B1 to B5. Op.no.1 & 2 filed written arguments. We have gone through the available materials on record. Heard both side.

  

   5. The points that arise for our consideration are:

1. Whether the present complaint is maintainable before this forum in view of bar u/s.7B of Indian Telegraph

Act ?

2. Whether the Complainant proves deficiency of service on the part of Ops, if so, whether he entitled for the relief sought for ?    
3. What order ?

                  

           

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Negative 

Point no.2: Does not survive for consideration 

Point no.3: As per the final order for the following

 

REASONS

 

          7. Point no.1:  We have briefly stated the contents of the complaint as well as the version filed by the Ops. The issue in question in this case is, the Complainant was opted international roaming facility from Vodafone mobile service to his mobile no.9886004078. The Complainant was opted international roaming package for 7 days and after deactivation of the same, the Ops had to restore the connection and raised the bill to the tune of Rs.55,129.93 on the Complainant. The Complainant suffered mental harassment and mental agony. Hence, he requested to rectify billing statement of Ops and to pay damages by way of compensation. But Ops submit that the present complaint filed by the Complainant is not maintainable, will have to be settled by an arbitration and consumer forum has no jurisdiction.

 

8. Recently we come across that the decisions of the Apex court as well as the different Hon’ble State Commissions including Hon'ble Karnataka State Commission in respect of referring the matter to the arbitration u/s.7B of IT Act. One of the decision reported in AIR 2010 SC 90 in the case of General Manager, Telecom vs. M.Krishnan & Anr, wherein it is specifically held that, special law overrides general law, wherein it is held in the said decision as:

Consumer Protection Act (68 of 1986) Ss.11, 17, 21 – Telegraph Act (13 of 1885), S.7B- Consumer for a – jurisdiction –disputes about telephone bills – beyond jurisdiction – Telegraph Act being special Act overrides 1986 Act.

 

9. The said judgment has been subsequently followed by Hon’ble National Commission in RP.no.398/2011, Hon'ble Karnataka State Commission in appeal no.226/2009 and also by Hon'ble Madhya Pradesh State Commission in appeal no.669/2008. In the light of the decisions cited supra, this complaint filed by the Complainant before this forum has no legs to stand as the Complainant ought to have invoke the arbitration clause to get redress his remedy. In this view of the matter complaint filed by the Complainant is liable to be dismissed. Accordingly we answered the point no.1 in the negative.

 

10. Point no.2: In view of our findings on point no.1, this issue does not survive for consideration. Accordingly it is answered.

 

 

11. Point no.3: In the result, we passed the following

 

ORDER

 

          The complaint filed by the Complainant is dismissed.

 

          2. Looking to the circumstances of the case, we direct both the parties to bear their own cost.   

 

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 10^th August 2018).

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.Sudipto Chakraborthy, who being the complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Passport
Ex-A2	SMS from Op
Ex-A3	Live chat and email correspondence between the parties from 24.05.17 to 02.06.17
Ex-A4	Monthly bill statements from 25.04.17 to 24.07.17
Ex-A5	Legal notice dtd.21.08.17 with postal acknowledgement

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.Prashanth, who being the Senior Manager-Legal and authorized person of Ops was examined.

 

Copies of Documents produced on behalf of Opposite party/s

 

Ex-B1	Itemized bill dtd.25.05.17
Ex-B2	Itemized bill dtd.25.06.17
Ex-B3	Bill dtd.25.06.17
Ex-B4	Bill dtd.25.05.17
Ex-B5	Bill dtd.25.07.17

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT