Karnataka

Bangalore 4th Additional

CC/322/2018

Srirangarajan.N.S, - Complainant(s)

Versus

Vodafone South Ltd., - Opp.Party(s)

14 Sep 2018

ORDER

Complaint filed on: 26.02.2018

                                                      Disposed on: 14.09.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.322/2018

DATED THIS THE 14^th SEPETEMBER OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Srirangarajan.N.S,

Aged about 63 years,

No.64/5, GF, 4^th main

road, 3^rd block,

Tyagarajanagar,

Bengaluru-70.

 

Inperson

 

V/s

Opposite party/s

Respondent/s:-

 

Vodafone South ltd.,

Maruthi Infotech Cent,

11/1, 12/1, KMIR Road, Bengaluru-71.

 

By Advocates

M/s.Eesh & Eesh Associates

 

 

MEMBER: SMT.ROOPA.N.R

 

 

            This complaint is filed by the Complainant against the Opposite party (herein after referred as Op) seeking issuance of direction to refund the correct amount of the data deleted by them within 15 days along with damages of Rs.4 lakhs and costs for wasting time, causing unnecessary pain due to their indifference and callousness in brazenly stating that they done nothing wrong.

 

          2. The brief facts of the case of the Complainant are that, he had 3 vodafone mobile numbers till June 2017, when the Op’s dedicated sincere and continuous indifferent service, forced him to port 9886039743 to airtel after 10 years. He has downloaded the Op’s My Vodaphone Application and has been using it for recharging through his credit card. The Complainant further submits that, the last recharge of 9742086977 made on 23.10.17 for Rs.144/- was successful and the account showed a balance of 39GB with validity ending on 23.11.17. He took a screenshot at 3.30a.m. and it showed a balance of 39.21GB. on 23.11.17, Complainant recharged with Rs.144/- voucher at 12.07pm. and was surprised to find 39GB balance not carried forward. Instead of 41.21GB the application showed a balance of only 2GB data after timely recharge. He thought it was a minor issue.  This was brought to the notice of the customer care and was shocked to get a reply from them stating that validity expired on 23.11.17 and hence 39.21 GB deleted. The Complainant also received a call from one Lakshmi from 044 number on 26.05.17 and told him that his payment was in time and data will be restored. The validity of data plan on 9886437274 was till 27.11.17. The Complainant recharged on 27.11.17 at 0707 hrs and immediately the old balance of 6.18GB was deleted instead of being carried forward.  On 27.11.17 a written complaint to Op with screenshot of payment made in time was sent. The Complainant further submits that, he was told that the matter is brought to the notice of the technical team on 29.11.17.  On 30.11.17, the Complainant was told that the matter has been referred to the technical team and would be resolved. On 07.12.17, Complainant was informed that as the validity has ended on 23.12.17 for 9742086977, the data balance lapsed. He recharged on 23.12.17 at 1207 hrs. The validity of this pack was upto 23.59.59hrs on 23.12.17. In return, the Op has stated on 18.12.17 that the Complainant recharged 9742086977 on 23.12.17 at 1206pm after the expiry of the pack. Similarly the recharge of 9886437274 on 27.12.17 at 07 on 27.12.17 was also after the expiry of the pack. On 20.12.17 the Op has stated that the validity period for data pack on 9742086977 ending on 23.12.17 was 23.59.59 hrs on 22.12.17. And the validity period for data pack on 9886437274 ending on 27.12.17 was 23.59.59 hrs on 26.12.17. The Complainant further submits that, in that case, the data balance on 9886437274 should have lapsed on 23.12.17 at 23.59.59hrs whereas as per history there was a consumption of 253.96MB on 24.12.17 at 12.26pm. He deliberately did not recharge as had decided to seek refund due to their lies. Because of all these petty lies and chicanery, it is clear that this was a deliberate method to defraud customers and the Op was aware of all these facts. Hence, prays to allow the complaint.

 

3. On receipt of the notice, Op did appear through their counsel and filed common version denying the allegations made in complaint. The sum and substance of the version of the Ops are that, the complaint filed by the Complainant is not maintainable either in law or on facts, hence liable to be dismissed. Ops further submit that, the present dispute raised by the Complainant is not maintainable before this forum in view of the judgment rendered by the Hon’ble Supreme Court in Civil appeal no.7687/2004 dtd.01.09.09 in the matter between General Manager, Telecom vs. M.Krishnan & anr., reported in 2009 AIR SCW 5631, followed by the Hon’ble National Commission in the order dtd.18.07.12 passed in R.P.No.398/2011 in the case of Ziyauddin Alvi vs. Bharti Airtel ltd., As per the judgments, since the dispute raised by the Complainant is between the subscriber and telecom service provider, the remedy available for the Complainant is u/s.7B of the Indian Telegraph Act which provides for adjudication of dispute under the provisions of Arbitration Act, on this count itself, the present complaint is liable to be dismissed at the threshold. Further relying on the said judgment the various state commissions have also disposed off the complaints holding that any dispute concerning any telegraph line, appliances or apparatus shall be determined by the arbitrators. The Op further submits that, the grievance of the Complainant, as could be gathered from the averments of the complaint is that, the two pre-paid mobile numbers are provided by Op and held by the Complainant vix.9742086977 & 9886437274 (mobile numbers). According to the Complainant he had the facility provided by Op that, any balance residue of data remains unused for a particular month should carry forward to the next month once he recharges the number and the Complainant has contended that when he recharged the said numbers during Nov 17, the residue of unused data available for the previous months did not get carried for the next month, due to which Complainant alleged to have suffered loss.  The Op further submits that, at the outset it is pertinent to note that, the number 9742086977 as per the records of Op stands in the name of Sri.Nanjangud Srikantaiah and the Complainant herein is not the subscriber of Op with respect to the said number. Hence there is no relationship of consumer and service provider between the Complainant and the Op with respect to the said number. As such on this count itself the complaint is liable to be dismissed. Without prejudice to the above contentions, it is submitted by Op that for availing carry forwarding of previous  unused data of the preceding validity periods to the succeeding validity period is subject to condition that, the subscriber is required to recharge the number before the expiry of the previous validity. In the instant case, the Complainant had recharged the numbers prior to the recharge done in Nov 17 when the residue data got deleted, with the plan of Rs.144/- with validity period of 28 days and the plan expires at 23.59.59hours of the 28^th day of unless the subscriber recharge before the expiry at 23.5959 hrs of the 28^th day he would not get the residue data carried forward to the next month. The Op further submits that, with respect to number 9742086977 (though the Complainant is not the subscriber of Op) the plan expired at 23.59.59hrs on 22.11.17 i.e. expiry of 28^th day from the date of last recharge but the Complainant recharged the said number only on 23.11.17 at 12.06.09 hrs. Hence the previous residue of 39.21GB data got deleted and did not get carried forward for the next month. Similarly the plan for the number 9886437274 expired at 23.5959hrs on 26.11.17 and the Complainant recharged the said number on 27.11.17 at 07.07a.m once again after expiry of 28 days, hence the balance of 6.18GB data got deleted and did not get carried forward to the next month. When the Complainant made enquiry, these aspects were clearly explained to the Complainant. In fact even on earlier occasions when the same thing happened, only as a goodwill gesture, taking in to account the considerable long period relationship between the subscriber and the Op and also taking in to account perhaps it is the bonafide error on the part of the subscriber in not recharging before expiry of plan, however, the same quantity of residue data which the subscriber had lost at that time was restored to the account of the Complainant. Nevertheless, it is specifically submitted that, the balance data cannot be carried forward automatically even when a subscriber recharge after the expiry of plan. Hence there is no wilful negligence or default on the part of Op and prays for dismissal of the complaint.

 

          4. The Complainant to substantiate his case filed affidavit evidence and got marked the documents as Ex-A1 to A6. The authorized person of Op filed affidavit evidence. Both filed written arguments. Heard both side.

  

   5. The points that arise for our consideration are:

1. Whether the present complaint is maintainable before this forum in view of bar u/s.7B of Indian Telegraph

Act ?

2. Whether the Complainant proves deficiency of service on the part of Op, if so, whether he entitled for the relief sought for ?    
3. What order ?

                  

           

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Negative 

Point no.2: Does not survive for consideration 

Point no.3: As per the final order for the following

 

 

REASONS

 

          7. Point no.1:  We have briefly stated the contents of the complaint as well as the version filed by the Op. The issue in question in this case is, the Complainant had 3 vodafone mobile numbers till June 2017. The Complainant has downloaded the Op’s My Vodaphone Application and has been using it for recharging through his credit card. The Complainant recharged his two mobile numbers on different dates for Rs.144/- each. It was successful and the account showed the balance. After a month, he recharged within expiry date, but he was surprised to find data balance not carried forward. After two months also, he recharged within expiry date, but data balance not carried forward.  The Complainant deliberately did not recharge as had decided to seek refund due to their lies. Hence, he requested to refund the correct amount of data deleted by them and to pay damages by way of compensation. The Op further submits that, the present complaint filed by the Complainant is not maintainable, will have to be settled by an arbitration and consumer forum has no jurisdiction.

 

8. Recently we come across that the decisions of the Apex court as well as the different Hon’ble State Commissions including Hon'ble Karnataka State Commission in respect of referring the matter to the arbitration u/s.7B of IT Act. One of the decision reported in AIR 2010 SC 90 in the case of General Manager, Telecom vs. M.Krishnan & Anr, wherein it is specifically held that, special law overrides general law, wherein it is held in the said decision as:

Consumer Protection Act (68 of 1986) Ss.11, 17, 21 – Telegraph Act (13 of 1885), S.7B- Consumer for a – jurisdiction –disputes about telephone bills – beyond jurisdiction – Telegraph Act being special Act overrides 1986 Act.

 

9. The said judgment has been subsequently followed by Hon’ble National Commission in RP.no.398/2011, Hon'ble Karnataka State Commission in appeal no.226/2009 and also by Hon'ble Madhya Pradesh State Commission in appeal no.669/2008. To nullify the order passed by Hon’ble Supreme Court in Krishnan case, the Telecom Authorities issued the clarification letter holding that consumer forum has got jurisdiction. We are of the considered view that, law laid down by the Hon’ble Supreme Court is binding Under Article 141 of the Constitution of all the sub-ordinates courts including statutory authority. Hence the order passed by the Hon’ble Supreme Court cannot be nullified by way of passing any kind of ordinance or else to interpret the law in the light of the reportable judgment of the Hon’ble Supreme Court in WP (C) no.231/2018 dtd.12.10.18 in the case of Medical Council of India vs. State of Kerala & Ors. Hence the said letter dtd.24.01.14 issued by Telecom authorities is of no avail. Hence this forum has no jurisdiction to try and dispose the complaint. In this view of the matter complaint filed by the Complainant is liable to be dismissed. Accordingly we answered the point no.1 in the negative.

 

10. Point no.2: In view of our findings on point no.1, this issue does not survive for consideration. Accordingly it is answered.

 

11. Point no.3: In the result, we passed the following

 

ORDER

 

          The complaint filed by the Complainant is dismissed.

 

          2. Looking to the circumstances of the case, we direct both the parties to bear their own cost.   

 

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 14^th September 2018).

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

Sri.Srirangarajan.N.S, who being the complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

Ex-A1 & A2	Emails
Ex-A3	Recharge history
Ex-A4	Notice to Op
Ex-A5	Letter from Ministry of consumer affairs to Hon’ble National Commission and Hon'ble State Commissions dtd.07.03.14
Ex-A6	Usage, explore packs, conversations

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

Sri.Prashanth.N, who being the authorized person of Op was examined.

 

Copies of Documents produced on behalf of Opposite party/s

-nil -

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT