Date of Filing – 11.08.2016
Date of Hearing – 06.11.2017
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 Parties to assail the Order No.14 dated 15.07.2016 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in Consumer Complaint No. 94/2016. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent Mrs. Tanuka Roy under Section 12 of the Act with the direction upon the Opposite Parties/Appellants to refund Rs.12,837/-, to pay compensation of Rs.20,000/- and litigation cost of Rs.5,000/- and failure to comply with the order will entitle the complainant/respondent to put the order in execution and in that case OPs will be liable to pay penalty at Rs.100/- per diem.
The Respondent herein being Complainant lodged the complaint before the Ld. District Forum asserting that she is a post-paid mobile telephone holder of Vodafone East Ltd. being Mobile No.9830260706 and she was paying regularly the bill provided to her till the bill generated on 10.11.2015. The complainant visited Shillong from 07.10.2015 to 11.10.2015. On returning, she got her monthly bill generated on 10.11.2015 for the period of 10.10.2015 to 09.11.2015 amounting to Rs.17,103.88 P which includes international roaming charges of Rs.12,837/-. The complainant has stated that during that period, she did not go to abroad and in this regard all her requests and complaints turned a deaf ear. Hence, the appellant approached the Ld. District Forum with a prayer for direction upon the OPs to pay a sum of Rs.5,00,000/- to her as compensation for harassment and mental agony suffered by her.
The appellants being OPs by filing written version have stated that the complaint is not maintainable in view of the decision of Hon’ble Supreme Court in the case of General Manager, Telecom – Vs. M. Krishnan & Anr. reported in (2009) 8 SCC 481. The OPs have also stated that the internet usage was done on the alleged mobile on 10.10.2015 and during that period, it was availing the roaming area of ‘Bangladesh Grameen’ as a result the complainant was charged with international roaming charges amounting to Rs.12,837/-.
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 has found deficiency in services on the part of OPs/Appellants and by the impugned order passed an Award, as indicated above, which prompted the OPs to prefer this appeal.
I have scrutinised the materials on record including the Brief Notes of Arguments filed by the parties and also considered the submission advanced by the Ld. Advocate appearing for the parties.
On the threshold of his submission, Mr. Bivas Chtterjee, Ld. Advocate for the appellants 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 appellants has submitted that when there is a special remedy provided in Section 7- B of the Indian Telegraph Act, then the remedy under the Act is by implication barred. In support of his submission, Ld. Advocate for the appellants 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.
Undisputedly, the respondent was an user of Vodafone Post-paid Mobile connection No.9830260706. She had been to Shillong from 07.10.2015 to 11.10.2015 on account of her official tour. It is also not in dispute that the said mobile connection is provided by the Vodafone for about five years back and there is no outstanding in payment of bills till 10.11.2015. Now, after returning to Kolkata, she got a monthly bill generated on 10.11.2015 for the period of 10.10.2015 to 09.11.2015 amounting to Rs.17,103.88 P which includes international roaming charges of Rs.12,837/-. Admittedly, at the relevant point of time, the respondent did not visit Bangladesh.
Ld. Advocate for the appellants has submitted that the Ld. District Forum could not appreciate that the bills are generated automatically and there is no scope of mis-calculation and the respondent being provided with chargeable calls, data usage has tried to suppress this fact by not attaching the said invoice in the complaint. Expanding his submission, Ld. Advocate for the appellants has contended that respondent while in roaming near border area of north-east, instead of setting the handset phone, setting for network selection in manual mode with her parent Vodafone network erroneously switched her handset to automatic mode which led to her handset latching on to the stronger signal of Grameen Phone network of the neighbouring country of Bangladesh for which the respondent was built on her actual usage with grameen phone network of Bangladesh which she is now disputed. She has further submitted that as per arrangement between the operators, Vodafone has already been billed by grameen phone network of Bangladesh for the usage incurred by the respondent and paid on her behalf as per bilateral roaming agreements between the mobile operators. Referring to the clauses of 41.9 of Unified Access Services (UAS) and Clause No.39.2 of UAS she has finally submitted that the bill has been rightly raised by the service provider and as such the Ld. District Forum should have dismissed the complaint.
Per contra, Ms. Kakoli Ghosh, Ld. Advocate for the respondent has contended that the respondent never visited in any foreign country including Bangladesh during the billing period between 10.10.2015 and 09.11.2015 and as such the appellants being service provider has unlawfully levied such a huge amount of Rs.12,837/- under the head ‘International Roaming Charges’ on the bill. She has also contended that the respondent being a ‘consumer’ within the meaning of Section 2(1)(d) of the Act should receive protection from a Consumer Forum in accordance with the object and intent behind the legislation of the Act.
I have given due consideration to the submission advanced by the Ld. Advocates appearing for the parties and scrutinised the materials on record including the brief notes argument filed on behalf of the parties.
It is nobody’s case that in between 07.10.2015 to 11.10.2015 the respondent visited Bangladesh and as such usually she should not get any connection from any international roaming services like Bangladesh Grameen. However, it is equally true that the bill raised by the appellants indicate that on 10.10.2015 the respondent had availed international roaming internet from Bangladesh Grameen amounting to Rs.12,837/-.
The appellants tried to impress that while the respondent was near border area in north-east she erroneously switched her handset to automatic mode which resulted in receiving stronger signal of grameen phone network of Bangladesh. In this regard, the Clause 41.9 of UAS License provides – “The licensee shall ensure that the radio transmitters used while deploying wireless system(s) are located and established at a distance of 10KM from the International Border of India, and such radio transmitters will work in such a fashion that any signal or signals, emanating therefrom, fade out when nearing or about to cross international border and also become unusable within a reasonable distance across such border”. The Clause 39.2 of UAS License also provides – “The licensee shall take all necessary step to safeguard the privacy and confidentiality of any information about a 3rd parties and its business to whom it provides the service and from whom it has acquired such information by virtue of the service provided and shall use its best endeavours to secure that (i) no person acting on behalf of the licensee divulges or uses any such service to the third party and (ii) no such person seeks such information other than is necessary for the purpose of providing service to the third party”.
Now, the question comes up whether the Ld. District Forum has committed any error by passing the impugned order keeping in view of the fact that at the relevant time, the respondent did not visit Bangladesh. The respondent being a ‘consumer’ approached the Ld. District Forum for redressal of her pain about roaming charges of Rs.12,837/- claiming herself as ‘consumer’ against the service provider.
It is manifest from the statement of objects and reasons and the scheme of the Act that its main objective is to provide for better protection of the interest of the consumer. To achieve that purpose and for effective redressal, the Act has come into force and the rigors of Indian Evidence Act, 1872 and the Code of Civil Procedure, 1908 are not applicable to the proceedings before a Consumer Forum. Therefore, having due regard to the scheme and the purpose sought to be achieved, viz. better protection of the interest of the consumers, the provisions of the Act have to be given purposive, broad and positive construction. The appellants have raised a bill of Rs.12,837/- from the respondent claiming that they have already being billed by Grameen Phone network of Bangladesh for usage of mobile by the respondent. It is equally important that without visiting Bangladesh, the respondent should not be burdened with international roaming charges, which she did not avail at all. Therefore, unless a consumer is protected under the scheme of the Act, the object and intent behind the legislation of the Act will totally be frustrated. It is true that in view of Rule 419A(i) of Indian Telegraph Rules, 1951 directions for interception of any message of class of messages under Section 5(2) of Indian Telegraph Act, 1885 shall not be issued by an order made by the Secretary to the Govt. of India but at the same time a person who does not enjoy the service cannot be liable to pay for the same.
Considering the rival contention of the parties, I do not find any reason to differ with the view of the Ld. District Forum that OPs/appellants had drawn extra charges fraudulently to the tune of Rs.12,837/- under the head of International Roaming Charges on the disputed bill. Therefore, since I do not find any illegality or impropriety in passing the order impugned, the impugned order should not be interfered with so far as refund of Rs.12,837/- and payment of litigation cost of Rs.5,000/- is concerned.
However, the Ld. District Forum should not have awarded any amount as compensation since the appellants/OPs had no fault in clamming the amount on their part as the bill was raised by Bangladesh Grameen through their International Roaming charges and as such the order of compensation of Rs.20,000/- is liable to be set aside. Equally, the Ld. District Forum had no occasion to impose penalty of Rs.100/- per diem and in this regard the Ld. District Forum could have imposed interest for non-payment in accordance with Section 3(1) of Interest Act which should be in accordance with normal accretion on capital. Therefore, the said part of order is also liable to be set aside.
In view of the above, the impugned order is modified only to the extent that the appellants/OPs to refund Rs.12,837/- and litigation cost of Rs.5,000/- aggregating Rs.17,837/- as ordered by the Ld. District Forum 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.
