Date of Filing – 03.02.2017
Date of Hearing – 26.10.2017
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Complainant to assail the Order No.17 dated 05.01.2017 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in Consumer Complaint No. 235/2016 whereby the complaint lodged by the Appellants before the Ld. District Forum under Section 12 of the Act was dismissed on contest without any order as to costs.
The Appellant herein being Complainant lodged the complaint asserting that he had a mobile connection of M/s. Vodafone Mobile Services Ltd. being Mobile No.9051063311. Being impressed by the explanation of sales executive, the complainant changed his pre-paid connection to post paid connection. However, after obtaining post paid connection, he became shocked to see that a bill being No.37749862 dated 10.01.2016 for the period between 10.12.2015 and 09.01.2016 amounting to Rs.2,137.34P was raised. The complainant alleged that the OPs have wilfully added exorbitant mobile internet charges of Rs.1,414.02P for extra usage of mobile interest merely of 345.38 MB which is not acceptable. On several occasions, the complainant went to the office of OP No.1 at Chandannagar and also at Serampore, Dist- Hooghly for the alleged bill but the same turned a deaf ear. The complainant has alleged that finding no other alternative, on 23.02.2016 he sent a letter to the OPs through registered post with A/D but it also yield no result. Hence, the appellant approached the Ld. District Forum with prayer for several reliefs including a direction upon the OP to avail pre-paid mobile connection in place of post paid connection etc.
The Respondents being opposite parties by filing a joint written version have stated that the instant complaint is barred for want of jurisdiction as the Forum has got no jurisdiction to entertain the complaint in view of provisions of Section 7-B of the Indian Telegraph Act. The OPs have also stated that as per plan of the complainant, the complainant was eligible to use 1024 MB data as pre usage within one month billing cycle and in the present case he used 1369.38 MB as data usages and therefore, the excess of 35.38 MB data usage was charged in the bill beyond the pre usage quota and as such the charge of Rs.1,414.02P was raised for the extra data usage made by the complainant.
After assessing the materials on record, the Ld. District Forum by the impugned order dismissed the complaint with an observation that the OP was not deficient in rendering services or OP has not indulged in unfair trade practice. Challenging the said order, the complainant has come up in this Commission with the present appeal.
Ld. Advocate for the Complainant/Appellant has submitted that the Ld. District Forum has failed to consider the market rate of mobile 3G internet facility which would certainly disentitled the respondents to charge with the amount of Rs.1,414.02P for usage of merely 345.38 MB in the disputed mobile bill and as such the impugned order is liable to be set aside.
Per contra, Ld. Advocate for the respondent has contended that in view of the provision of Section 7-B of the Indian Telegraph Act and the decision of Hon’ble Supreme Court reported in (2009) 8 SCC 481 (General Manager Telecom – Vs. – M. Krishnan & Anr.) the Ld. District Forum should have dismissed the complaint on that ground alone. However, he has submitted that the appellant company has claimed excess amount of Rs.1,414.02P for excess usage of 345.38 MB data and as such the impugned order should not be interfered with.
I have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates appearing for the parties.
It is not in dispute that the appellant had a pre paid mobile connection with the respondent no.1 M/s. Vodafone Mobile Services Ltd. being Mobile No.9051063311. Subsequently, on consent of the appellant, the pre paid mobile connection was changed to post paid connection only. The grievances of the appellant was surfaced when he found that Rs.1,414.02P was charged for extra usage of mobile internet of 345.38 MB. In this regard, the observation of the Ld. District Forum appears to be relevant and acceptable – “...... complainant was eligible to use 1024 MB data as pre usage within one month billing cycle. In the present cycle, the complainant had used 1369.38 MB as data usage and therefore, the excess of 345.38 MB data usage was charged in the bill beyond the pre usage quota. We find that the charge of Rs.1,414.02P was raised for the extra data usage made by the complainant. So, we find no substance in the allegation of the complainant that the data usage was wrongly charged”. I do not find any reason to differ with the view adopted by the Ld. District Forum in arriving at a decision.
On the threshold of his submission, Ld. Advocate for the respondent 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 respondents 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 respondents 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. ). 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.
The factual matrix of the case, however make its abundantly clear that the appellant being a consumer of post paid connection has availed more data usage than he entitled to do and as such the Ld. District Forum has rightly dismissed the complaint as there was no deficiency in services on the part of the respondents.
Consequently, the appeal being devoid of merit is dismissed on contest. However, I do not make any order as to costs.
The impugned Order dated 05.01.2017 passed by the Ld. District Forum is hereby affirmed.
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.
