Date of Filing – 08.08.2016

Date of Hearing – 18.10.2017

            The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Opposite Party M/s. Vodafone East Ltd. to assail Order No.16 dated 08.07.2016 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in Consumer Complaint No. 03/2016.   By the impugned order, the Ld. District Forum allowed the complaint lodged by Respondent under Section 12 of the Act with the direction upon the Opposite Party/Appellant to refund Rs.39,500/- to the complainant along with litigation cost of Rs.5,000/- within one month otherwise to pay penalty of Rs.100/- per diem till full payment.

          The Respondent herein being Complainant lodged the complaint before the Ld. District Forum asserting that on 23.10.2015 she along with her family went to Sri Lanka for vacation and returned on 28.10.2015 and on returning she was surprised to note the SMS about immediate payment of Rs.33,273/- although the credit limit was Rs.13,500/-.  The complainant alleged that the opposite party should have barred the outgoing calls and data services from the mobile phone immediately when the maximum limit of Rs.13,500/- was crossed and should not have allowed the data usage or outgoing calls after exceeding the limit of Rs.13,500/-.  The complainant has made repeated requests over emails to the OP to review the matter and to restore the outgoing calls facilities but it yielded no result.  On 16.11.2015 the complainant had to pay full and final payment of Rs.39,500/- to the OP to restore the outgoing the call service.  On the allegation of deficiency on the part of the opposite party, the respondent/complainant approached the Ld. District Forum with prayer for refund of Rs.39,500/-, compensation of Rs.2,00,000/- and litigation cost.

          The appellant being OP by filing written version has stated that the complaint is not maintainable in view of the provisions of Section 7-B of Indian Telegraph Act.  The OP has stated that the complainant erred in understanding that the concept of ‘Dynamic Credit Limit’ which is calculated on the basis of average usage of the customer, the amount of security deposit paid, payment track report and duration of association and thus the billing may in certain situations like excessive usage exceed the credit limit.

          On evaluation of the materials on record and after considering the submission advanced by the Ld. Advocates appearing for the parties, the Ld. District Forum found deficiency in services on the part of OP /Appellant and by the impugned order passed an Award, as indicated above, which prompted the OP to prefer this appeal.

          I have scrutinised the materials on record and considered the submission advanced by the Ld. Advocate appearing for the Appellant.  As none appears for the Respondent /complainant, finding no other option, I proceeded to hear and dispose of the appeal in absence of the respondent.

          Having heard the Ld. Advocates for the Appellant and on going through the materials on record, it would reveal that the Respondent/Complainant is a post paid customer of the appellant/OP and her mobile No is 9830056735.  Undisputedly, on 23.10.2015 the respondent along with her family members went to Sri Lanka to enjoy vacation and returned therefrom on 28.10.2015.  On returning, the respondent received one SMS in her cell phone informing her that the cell number crossed the credit limit of Rs.13,500/- and the respondent was directed to make immediate payment of Rs.33,273/-.  On enquiry with customer care, the respondent was informed that during her stay at Sri Lanka she used data usage as a result of which the said amount of Rs.33,273/- has been generated.  It is not in dispute that the credit limit allowed for her data usage or outgoing calls was Rs.13,500/-. 

          Therefore, it is apparent that the maximum limit of outgoing calls and data services of the respondent was limited to Rs.13,500/-.  The appellant/service provider took a plea that under Dynamic Credit Limit which is calculated on the basis of average usage of the customer may exceed the credit limit.  The Ld. District Forum has observed that the OP/appellant has failed to provide any document that the complainant/respondent sent any request to them for availing of data services abroad or to enhance the credit limit of Rs.13,500/-.  Whether the credit facility of the respondent was normal credit limit or dynamic credit limit is not at all important but the fact remains that when the credit limit exceeded Rs.13,500/-, the appellant company should have given a message/warning asking the respondent about the usage of such data limit.  The respondent cannot unilaterally exceed the credit limit without consent of a customer/consumer.  In that perspective, I do not find any fault in the observation made by the Ld. District Forum.

          On the threshold of his submission, Ld. Advocate for the appellant 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 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 of 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 make its abundantly clear that the respondent being a consumer visited Sri Lanka with a credit facility of Rs.13,500/- and therefore, without the consent of the customer, the service provider cannot unilaterally enhance the bill taking the advantage of Dynamic Credit Limit.  In that perspective, the Ld. District Forum was justified in directing to refund Rs.39,500/- but a deduction of Rs.13,500/- should have been taken into account.  The compelling circumstances led the respondent to lodge the complaint for which the Ld. District Forum has rightly awarded litigation cost of Rs.5,000/-.

          However, the Ld. District Forum had no occasion to impose penalty of Rs.100/- per diem till final payment and in this regard the Ld. District Forum could have invoked the provisions of Section 3(1) of the Interest Act, 1978 which provides – “In any proceeding for the recovery of any debt or damages or in any proceeding in which a claim for interest in respect of any debt or damages already paid is made, the Court may, if it thinks fit, allow interest to the person entitled to the debt or damage or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, for the whole or part”.

          In a case reported in 2013 (1) CCC 129 (Smt. Sheela Wanti & Anr. – Vs. – State Bank of India & Anr.) it has been held – “imposition of interest is not a penalty or punishment at all but is the normal accretion on capital; that in equity a person keeping the money is required to pay the interest being normal accretion on the principal amount”.

          Therefore, relying upon the relevant provisions contained in the Act and the decision referred above, I have no hesitation to hold that imposition of penal interest of Rs.100/- per diem is beyond the scope of law and as such that part of the order is liable to be set aside.

          In view of the above, the impugned Judgement/Final Order is modified only to the extent that the appellant/OP is directed to refund Rs.39,500/- - Rs.13,500/- = Rs.26,000/- + Rs.5,000/- as litigation cost awarded by the Ld. District Forum aggregating Rs.31,000/- within 30 days from date otherwise the amount shall carry interest @ 8% p.a. from date till its realisation.

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

          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.