The instant appeal under Section 15 of the Consumer Protection act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of opposite party Vodafone Mobile Service Limited to impeach the final order/judgment being Order No. 16 dated 5th July, 2017 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit – II (in short ‘Ld. District Forum’) in Consumer Complaint No. 04 of 2017. By the impugned order, the Ld. District Forum allowed the complaint lodged by respondent Mr. Shashi Kant Khetan under Section 12 of the Act with direction upon opposite party/appellant to raise a corrected bill for the period from 15.09.2016 to 14.10.2016 up to the credit limit of Rs. 91,200/- showing deduction of Rs. 53,200/- which has already been paid by the complainant to the opposite party within one month from the date of order and to pay litigation cost of Rs. 10,000/-.
The respondent herein being complainant lodged the complaint before the Ld. District Forum stating that he is a consumer/subscriber under the opposite party having Mobile No. 9830024678 and a Relationship No. 154311242 was allotted to the complainant. The complainant being consumer of opposite party regularly going on paying the monthly usage charges on the basis of bills charged against his name from time to time. All on a sudden, complainant astonished and shocked on receipt of a bill amounting to Rs. 1,41,007.82 paise for Bill No. 97551800 dated 15.11.2016 for billing period from 15.09.2016 to 14.10.2016. The complainant immediately raised protest with regard to excessive bill to the Customer Care Executive of the opposite party but the opposite party did not pay any heed to such complaint. The complainant being a Managing Director of a real estate company, and the mobile phone number being only number in circulation to the public, was compelled to make part payment of Rs. 35,000 on 15.11.2016, Rs. 10,000/- on 05.11.2016 and Rs. 8,000/- on 10.11.2016 aggregating Rs. 53,000/- to prevent disconnection. The complainant has alleged that he had a credit limit of Rs. 91,200/- by the opposite party and it is not clear as to how the credit limit exceeded without any prior intimation to him and despite computerised checking which is under control of staff/representatives of opposite party. Hence, the respondent approached the Ld. District Forum on the allegation of deficiency in services on the part of appellant (Telecom Service Provider) with prayer for following reliefs, viz.- (a) an order directing the opposite party to raise a monthly bill for the period from 15.09.2016 to 14.10.2016; (b) an order directing the opposite party to raise a corrected bill for the period from 15.09.2016 to 14.10.2016 after giving credit Rs. 53,000/- to the complainant which have been paid by the complainant under compulsion or alternatively pass an order referred the dispute under Section 7B of Indian Telegraph Act before the arbitrator for adjudication; (c) an order directing the opposite party to reconnect the service of Mobile No. 9830024678 forthwith and not to disconnect it till the pending before the Ld. Forum and/or arbitrator for adjudication of the dispute; (d) cost of Rs. 2,000/- for litigation etc.
The appellant being opposite party by filing a written version resisted the allegations made by the complainant and has stated that based on data usage and calling facilities used by the complainant a bill was raised on the complainant for the period from 15.09.2016 to 14.10.2016 for an amount of Rs. 1,41,017.51 paise and there is no defect in the monthly bill or any deficiency in services on the part of opposite party.
After evaluation of materials on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the opposite party, as indicated above. To assail the said order, the opposite party has come up in this Commission with the present appeal.
Ld. Advocate for the appellant has submitted that the Ld. District Forum has failed to appreciate that the credit limit assigned to the respondent was only indicative based on his prior payment history and the payments required to be made by him as per the data used and/or consumed during the billing period from 15.09.2016 to 14.10.2016. Ld. Advocate for the appellant has further submitted that the Ld. District Forum has erred in holding that the respondent is not liable to pay for the data used and/or consumed and the assigned credit limit of Rs. 91,200/-. At the time of hearing, Ld. Advocate for the appellant has placed reliance to a decision passed by a Single Bench of Calcutta High Court dated 16.05.2017 in WP No. 1380 (w) of 2017 [Vodafone Mobile Service Limited – vs. – State of West Bengal] and Paragraph-22 of a decision of Bombay High Court reported in 2011 SCC Online Bom 1503 [Vodafone Essar Limited – vs. – Raju Sud] and has submitted that the impugned order being bad in law should be set aside.
Per contra, Ld. Advocate for the respondent supporting the decision has contended that when the agreed credit limit was Rs. 91,200/- the appellant company should have intimated whether the respondent was ready and willing to accept excess bill than the agreed credit limit of Rs. 91,200/-. He has further contended that the Ld. District Forum has rightly passed the order basing upon the materials on record and as such the impugned order should not be interfered with.
I have given due consideration to the submission made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.
Undisputedly, complainant being a Managing Director of a real estate company viz. M/s. Saket Promoters Limited was a consumer and/or subscriber of Vodafone Mobile Service Limited having Mobile No. 9830024678 with Relationship No. 154311242. The appellant company is the service provider of services relating to telecommunications and the respondent being consumer of the appellant regularly paid the monthly usage charges of the aforesaid communication on the basis of bills raised against his name from time to time.
However, the whole dispute cropped up relating to a bill being Bill No. 97551800 dated 15.11.2016 amounting to Rs. 1,41,007.82 paise for the period from 15.09.2016 to 14.10.2016. It may be pertinent to record here that the respondent was assigned to a credit limit of Rs. 91,200/- by the appellant company. However, in order to prevent disconnection, the respondent has paid Rs. 35,000/- on 15.11.2016, Rs. 10,000/- on 05.11.2016 and Rs. 8,000/- on 10.11.2016 a total excess payment of Rs. 53,000/- has been made by the respondent.
Therefore, the question comes up whether in spite of dynamic credit limit of Rs. 91,200/- a bill of Rs. 1,41,017.51 paise can be raised?
Admittedly, the respondent had an international roaming pack activated on his phone meaning thereby he would be able to receive and make calls, messages and would also be able to enjoy internet data usage service. In turn, it means that the respondent is liable to pay the tariff depending upon the usage and also on the country where such services were being enjoyed. It would reveal that the respondent has not denied or disputed the applicable monthly charge of Rs. 1,888/-, Call charge of Rs. 171/-, SMS charge of Rs. 8/-, National Roaming charge of Rs. 233.99 paise, Incoming and Outgoing Calls during international roaming amount to Rs. 5,046/-, International Outgoing SMS Charge of Rs. 15/-, Value Added Service of Rs. 465/-, all totalling Rs. 7126.99 paise. However, the respondent has denied and disputed the billing with regard to mobile charges amounting to Rs. 1,15,494.50 paise during international roaming.
The Ld. District Forum on perusal of call details including usage details and itemised call for the period of question has observed that the data on which the usage have taken place from 05.10.2016 to 12.10.2016 are not congruence to the data when Vodafone Mobile connection access from respondent’s handset.
However, regarding the excess bill over the dynamic credit limit the observation of the Ld. District Forum appears to be based on proper reasoning which is quoted below:
“Nevertheless, it is an established practice prevailing in the present market scenario that all service provider of telecommunications fix an assigned credit limit with regard to its post-paid customers in order to check the excessive usage and to avoid default by its customers. In the event, the assigned credit limit to its customers/consumers exceeds, the computer surveyor of the service provider automatically blocks the over use of its customer. We find from the bill in question that the complainant was assigned in this case agreed limit of Rs. 91,200/- by the opposite party and we failed to understand in all respect as to why his credit limit was exceeded than any prior intimation to the complainant and despite computerised checking which is under the control of the staff/representatives of the opposite party. Moreover, we observe that it is strange that even after existing credit limit of the complainant the billing of the complainant kept on increasing which clearly indicates deficiency in service of the relevant staff and/or representative of the opposite party to continue with such exceeding bill”.
I do not find any reasons to differ with the view of the Ld. District Forum because unless there is credit limit for usage of such post-paid mobile connection, there is every possibility for inviting disputes and differences resulting to litigations. Moreover, if any service provider raises the bill exceeding dynamic credit limit amount, then the object of dynamic credit limit will be frustrated. Therefore, I find no reason to hold anything contrary to the observation made by the Ld. District Forum in this regard.
Now, the question is whether the Ld. District Forum has authority to exercise the jurisdiction in a case like this. In Paragraph-22 in the decision of Vodafone Essar Limited (supra), the Bombay High Court has observed-
“22. I am inclined to observe that itemized bills/printouts are authenticated documents and reliable to accept the case of the Plaintiff with regard to the usage of Mobile services by the Plaintiff and the mathematical calculation of the charges so derived at, based upon the agreed tariff plan, as per the binding contract. This falls within the concept of the acknowledgment or receipt of liability and data. The Summary Suit as filed, therefore, maintainable and so also the Summons for Judgment”.
Ld. Advocate for the appellant has submitted that itemized computer generated bills are presumed to be valid and reliable and as such the Ld. District Forum should not have pass the order regarding anomaly of the bill. The Hon’ble Bombay High Court has observed that bills are presumed to be valid but a mere presumption does not take place of proof. When there was a credit limit of Rs. 91,200/- certainly, in case of exceeding such limit, the Service Provider must inform the customer whether he is agreed to pay the excess amount than the agreed credit limit. Therefore, the referred decision cannot help the appellant in any way.
So far maintainability of the proceeding is concerned, the Larger-Bench of Hon’ble National Commission in MA/264/2014 in RP/12228/2013 [Bharti Hexacom Ltd. – vs. – Komal Prapkash & Anr.] has observed thus-
“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 judgment 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 judgment 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 entertain the dispute between individual telecom consumer and from service providers”.
Relying upon the authority as mentioned above, it is quite apparent that Ld. District Forum has rightly entertained the instant complaint.
Therefore, it is abundantly clear that the respondent being a consumer of post-paid connection has availed the services of appellant company for his post-paid Mobile connection with a dynamic credit limit of Rs. 91,200/- but when the appellant company has raised a bill of Rs. 1,41,017.51 paise without any intimation to the respondent, certainly the appellant company was deficient in rendering services and as such I concur the view of the Ld. District Forum in holding that the opposite party/appellant as deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.
For the reasons aforesaid, the appeal is dismissed on contest. However, there will be no order as to costs.
The impugned judgment/final order passed by the Ld. District Forum is hereby affirmed.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit – II for information.
