Order-14.
Date-24/08/2017.
Shri RabidebMukhopadhyay, Member.
This is an application u/s.12 of the C.P. Act, 1986. It is stated that the complainant was initially a customer of BSNL and hearing of better service of the OP, he ported from BSNL to the OP’s mobile service and has been using such service through mobile no. 9433421262 by way of recharging/top up against hard earned money. The OP always offers, as stated by the complainant, plans and schemes to its customer through flash message or through SMS and the complainant avails of plans that suit him. The complainant is stated to use internet for various professional purpose against 500 MB/1GB data plan paying Rs 147/-/Rs 252/- respectively.
On 13th March, 2017 a lucrative plan was declared/offered by the OP and the complainant purchased the said plan from “Goyel Store” at 96, Ashutosh Mukherjee Road, Bhowanipur, Kolkata-700025 by paying Rs 354/- in cash and OP confirmed through SMS that the said plan has been activated in complainant’s phone no. 9433421262 for unlimited local+STD calls + 28 GB 4G/3G Data(1 GB daily) and the benefit would be auto renewed and would continue for total 56 days.
It is stated that the complainant found during use of the said plan, 1GB data for a day internet service used to stop and on two occasions, Rs 24/- and Rs 23/- had been deducted from the main balance and due to zero balance, the complainant could not use the phone and suffered and faced huge inconvenience. After taking up the matter with customer care number 198 19th March,(11.36 pm) and talking to one Executive, the complainant was reportedly happy to learn that after expiry of said 1 GB data the net service would be automatically stopped and the main balance would not be
deducted but at 11.44 pm on the same day, the complainant received SMS from OP that the net service has been permanently stopped in the mobile phone of the complainant who never instructed the OP to stop internet service, as stated at para-12 of the complaint and the OP, who never took any confirmation from the complainant, voluntarily and unilaterally violated Terms and Conditions of the said plan by withdrawing internet services illegally. It is mentioned that the complainant suffered much for such disconnection of internet service as he failed to see cause list of Consumer Forums and other works.
When the complainant contacted OP on 20/03/2017 through Toll Free number 198 and requested one executive, Shyamali to verify through recorded voice whether he asked last night to stop internet service, OP’s executive told she had nothing to do. On 20/03/17 the complainant again contacted at 11.39 am, on 21/3/17 and on 22/3/17 at 03.25 pm but in vain and all his schedule of work was devastated. On 20/3/2017 the complainant sent email to to solve the problem but in reply mail the OP intimated couldn’t do any help. On 21/3/17, complainant sent another email and OP replied through mail that they had checked from complainant’s account to see that complainant was receiving 1GB data every day which was not true as per the complaint para-17 by checking through dialing *111*2*2# showing there was no data balance.
In reply to complainant’s mail dated 22/3/17, OP replied through mail dated 23/3/17 intimating that complainant instructed OP to stop the internet service which was termed by the complainant as false , baseless and harassing in nature. On request of complainant through SMS to port to another number, OP called complainant and asked him to send SMS writing “START” to solve the problem. But even after doing so, the problem remained as it was.
The complainant stated that the OP intentionally and knowingly the importance of internet service put him into troubles, having no sense of responsibility. The complainant prayed for refund of Rs 354/- with 18 percent interest, restore of 1.6 GB 3G/4G data along with main balance having existed prior to receing of the offer/plan and a compensation of Rs 80000/- for gross deficiency in service.
Written Version
The OP contested the case by filing Written Version.For a small case the OP travelled through a number of facts and information, most of which are not necessary or irrelevant to case under dispute. The OP filed WV in 3 parts, Part A relating to composition, statement and objects, functions of authority with a number of regulations of TRAI, Part B relating to efforts of the OP to substantiate that the complaint is not
maintainable in the light of various case references that the special law overrides the general law and the Part C giving reply to the complaint.
At para-42, Part C of WV, OP claims that there is no genuineness that the complainant is totally dependent on mobile internet services as there are other medium to access the internet. At para-43 of WV the OP stated that deduction of amounts of Rs
24/- and Rs 23/- is denied. It is stated that deduction from the main balance is done only when subscriber’s usage exceeds the prescribed limit under the pack.The OP confirmed that the package included unlimited local and STD calls with 1 GB data per day for 28 days. On activation of the new package, subsisting plan was deactivated and data balance, if any was forfeited. It is further submitted that the OP stopped internet services on request of the complainant which was also confirmed by OP to complainant through SMS. That the complainant never instructed OP to stop has been vehemently denied by OP.
At para-16 and 17 of WV, OP stated that relying on the TRAI Act, Rules and regulations as applicable, as the complainant subscribed to new plan, the existing plan is deactivated and the data balance gets forfeited.
It is stated that the complainant did not suffer for stop of internet service and he does not deserve any compensation and litigation cost.
DECISION WITH REASONS
We have perused copies of the emails, SMSs, Evidence and questionnaire filed by both parties. In the light of these we have to determine the maintainability of the case first, as has been challenged in Part B of WV by the OP.
MAINTAINABILITY OF THE CASE.
In respect of the points stated entirely in Part B of WV by the OP challenging the maintainability of the case,Department of Telecommunication, Govt. of India letter no.2-17/2013-Policy-1 dated 24 Jan, 2014 read with letter dated 07/3/2014 of Department of Consumer Affairs, GOI may be referred to, wherein it is written, inter alia, that threadbare examination of Hon’ble Supreme Court’s order dated 1st sept, 2009 in General Manager, Telecom-vs-M. Krishnan has been done informing that district Fora are competent to entertain consumer complaint and it has been decided that now-a-days existing telecom service providers—BSNL, Reliance etc. are the licensee and not vested with any authority. Therefore, implication of Hon’ble Supreme Court’s Judgement dated 1st September, 2009 does not extend to the disputes between Telecom Service Providers and the Consumers. Therefore, it is within the competence of Consumer Fora to entertain such cases of disputes. Para-4 of the DOT’s letter states, inter alia, that powers of Telegraph Authority have neither been vested nor are available to PrivateTelecom Service Providers and BSNL.
It may also be noted that copy of the Notificationfor vesting power of Telegraph Authority in terms of sec 19(B) of the Indian Telegraph Act, 1885 has not been filed by OP.
The case is, therefore, maintainable.
In Part A, para-16 and 17 of WV, it is stated that when a new plan is subscribed to a user, existing plan is deactivated and existing data balance is forfeited. This cannot be the logical conclusion of discussions in Part A of the WV. OPs could not submit any evidence in support of such conclusion and the existing data balance.
As per para-45(page 16) of WV, internet services was stopped on the request of complainant but such version has been challenged by the complainant and OP has been asked to produce the transcription of voice records of conversation. But OP failed to produce such evidence of transcription. OP claimed that internet services was stopped on the request of complainant but failed to prove it. In the Reply to Questionnery of OP at serial 14, complainant insisted on voice recording. Customer details atannexure “B” filed with BNA by OP does not show conversation details on 19/3/2017 between the complainant and the dealing executive of the OP.
Moreover, when a plan is running, sudden stopping in the internet service under the plan is unwarranted. When after taking payment, a plan is granted and executed, its stopping cannot take place only on request. OP failed to produce evidence of request in this regard from the complainant. In addition, complainant in his reply to questionnaire of OP at serial 20 cleared that he never requested to stop internet service.
It goes beyond common sense that a customer who depends on internet service for his profession ( he filed with a petition dated 06/6/17 under affidavit with copies of two cause lists, one of this Forum dated 20 March, 2017 and the other of Hon’ble State Commission dated 20 March, 2017) and purchases the package under OP’s plan/scheme against payment, then why he should make request to stop the internet service. Complainant’s submission that such stopping of internet service by OP affected his profession and it led to mental agony seems justified.
As per copy of SMS sent to mobile phone number 9433421262 of the complainant by stating, inter alia, this benefit(unlimited local + STD calls+ 28 GB 4G/3G Data i.e. 1 GB daily) will be auto renewed for FREE for another 28 days on expiry. Then why should it be intervened and/or deactivated by the OP on the plea of unsupported telephonic request? OP did not provide statement with supporting document, of data usage charges.
OP filed a copy of Judgement dated 21 Dec, 2016 of this Forum where OP-1 is identical with the instant OP and the complaint was dismissed. In the case no. CC/309/2016 under discussion, there was changing over of Plans/Schemes (from Plan Red 899 to Super Talk 199) through service requests with Add on Packages. But the instant case is different and there was no change of plans. So, the case under discussion has no ratio with the instant complaint.
The case is civil in nature and not a criminal one where more than 99 percentproof is required. The complainant proved his case much more than 50 percent and considering the balance of probabilities, benefit of doubt must go to the complainant, particularly in the situation where OP failed to substantiate its stopping of internet service to the complainant and the OP, therefore, is deficient leading to loss and agony of the complainant. The complainant purchased the package on 13/3/2017 and reported its stopping of service on 19/3/2017, so, he could enjoy the internet service for 7 days, i.e. one-fourth of package value.
Hence
That the complaint be and the same is allowed on contest against the OP,
That the OP is directed to refund 3/4thof Rs 354, say Rs 266/- with 9 percent interest from 19/3/2017 till realization, to the complainant within 30 days from the date of this order.
The OP is further directed to pay Rs 5000/- as compensation and Rs 5000/- as litigation cost to the complainant within 30 days from the date of this order.
That on failure to carry out the above orders by the OP within the stipulated time, the complainant shall have the liberty to execute the same in terms of section 27 of the C. P. Act, 1986 as amended so far read with section 25 of the Act ibid.
Parties be handed over copies of the Judgement free of cost when applied for as per rule.
