Judgment:
R. Lakshminarasimha Rao, Member:
Oral:
1. The opposite parties are the appellants.
2. The brief facts of the case as set out in the complaint are that the complainant Nos. 1 and 2 applied for four Air Tel connections under the category of (Plan 249 CORP/Retail/CUG) by paying Rs. 2,046 each. The opposite party No. 1 had assigned connection Nos. 9849335819 and 9866667548 to the complainant No. 1 and connection Nos. 9866667546 and 9866668547 to the complainant No. 2. As per the terms and conditions of the scheme, the second complainant along with the complainant Nos. 3 to 5 had filed request forms on 20.10.2005 opting to travel from Hyderabad to Delhi with the first option departure schedule on 22.11.2005. They had paid Rs. 442 through Demand Draft dated 8.10.2005. The opposite parties had not given any response despite several calls made and e-mails sent and reminder dated 14.11.2005 followed by the notice dated 6.12.2005.
3. The opposite parties resisted the claim contending that the complaint is not maintainable as it was filed by group of persons. As per Sections 14 and 15 of Telecommunications Regulatory Authority of India Act, no dispute between a group persons and service provider can be adjudicated under the provisions of C.P. Act and it is exclusively triable by the appellate authority constituted under the TRAI Act. TLC Marketing PIC is the offer supplying and administering company as provided by the terms and condition No. 25 of the offer brochure. The TLC marketing is necessary party to the proceedings. The opposite party Nos. 1 and 2 are the employees of the opposite party No. 3 and the complaint is bad for misjoinder of the opposite party Nos. 1 and 2. As per condition No. 17 of the brochure, the offer is open to the subscriber the opposite party No. 3. The complainant Nos. 3 to 5 are not the subscribers. The complaint is not maintainable.
4. As per condition No. 5 of the brochure, additional passengers may travel with the subscribers by paying Rs. 5,500 for each person. The complainant Nos. 3 to 5 had not made any payment. After receiving the booking request form of the complainant Nos. 1 and 2 the opposite party No. 3 advised to pay additional charge of Rs. 5,500 per person in terms of condition No. 5 of the brochure. The complainant Nos. 1 and 2 had not made the payment. The amount paid by the complainant Nos. 1 and 2 was towards airport taxes and it was refunded. Rs. 999 paid by the complainant No. 1 was adjusted against the outstanding amount of Rs. 1,101 in respect of mobile phone connection No. 9849335819 of the complainant No. 1. Rs. 1020 was refunded after adjusting the dues to the complainant No. 1. Rs. 1,002 was refunded to the complainant No. 2 through cheque dated 18.4.2006 after deducting the dues pertaining to the mobile phone connection. No. 9866667546. The complainants have suppressed the facts.
5. The complainant No. 1 has filed his affidavit and the documents marked Exs. A1 to A14. On behalf of the opposite party No. 1 filed affidavit but no documents.
6. The District Forum has allowed the complaint by awarding Rs. 25,000 towards compensation and refund of Rs. 1,768.
7. Aggrieved by the order of the District Forum, the opposite parties filed the appeal contending that the complaint is not maintainable and that the complainant Nos. 3 to 5 have not paid any amount as also that the TLC Marketing PIC was not impleaded as party to the proceedings.
8. The points for consideration are:
(1)Â Whether the District Forum has jurisdiction to entertain the complaint?
(2)Â Whether the complainants entitled to the amount of Rs. 25,000 each towards compensation?
(3)Â To what relief?
Point No. 1
9. The opposite parties offered Airtel Connection coupled with the offer of free flight. The complainants No. 1 and 2 obtained four Airtel connections under the category of (Plan 249 CORP) CUG by paying Rs. 2,046 each. The complainant No. 1 had obtained Airtel connection Nos. 9849335819 and 9366667548 and the second complainant had obtained the connection Nos. 9866667546 and 9866667547. The opposite parties had raised objection as to the jurisdiction of the District Forum in entertaining the complaint in view of Sections 14 and 15 of TRAI Act. For better understanding the law, we extract Sections 14 and 15 of the TRAI Act, below:
14. (1) If a dispute arises, in respect of matters referred to in Sub-section (2), among service providers or between service providers and a group of consumers, such disputes shall be adjudicated by a Bench constituted by the Chairperson and such Bench shall consist of two members:
Provided that if the members of the bench differ on any point or points they shall state the point or points on which they differ and refer the same to a third member for hearing on such point or points and such point or points shall be decided according to the opinion of that member.
(2) The bench constituted under Sub-section (1) shall exercise, on and from the appointed day all such jurisdiction, powers and authority as were exercisable immediately before that date by any civil Court on any matter relating toâ
(i) technical compatibility and inter-connections between service providers;
(ii)Â revenue sharing arrangements between different service providers;
(iii)Â quality of telecommunication services and interest of consumers;
Provided that nothing in sub-section shall apply in respect of matters relating toâ
(a)Â the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under Sub-section (1) of Section 5 of the Monopolies and Restrictive Trade Practices Act, 1969;
(b)Â the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under Section 9 of the Consumer Protection Act, 1986;
disputebetween telegraph authority and any other person referred to in Sub-section (1) of Section 7B of the Indian Telegraph Act, 1885.
15(1) An aggrieved person may make an application in respect of matters referred to in Sub-section (2) of Section 14 within such period as may be prescribed.
Filing of application to Authority and procedure for passing order by it.
ExplanationâFor the purpose of this Sub-section, the expression âaggrieved personâ meansâ
(i)Â any service provider who has a dispute in respect of matters referred to in Clauses (1) and (ii) of Sub-section (2) of Section 14;
(ii)Â where any loss or damage is caused to a group of consumers, any member representing such group of consumers.
(2) On receipt of an application made under Sub-section (1), the Authority may, after giving the parties an opportunity of being heard, pass such orders as it thinks fit preferably within a period of six months from the date of filing of such application and shall record reasons in writing if final order cannot be passed within the said period.
(3) While arriving at a decision, the Authority shall record in writing the reasons for such decision.
(4) Every decision of the Authority shall be published in the annual report of the Authority.
(5) The orders and directions of the Authority shall be binding on the service providers, Government and all other persons concerned.
10. Sections 14 and 15 of the TRAI Act would show that any dispute among the service providers or between the service provider and group of consumers can only be tried by the TRAI Act. These sections have to be read in harmony with Section 14(2)(b) of TRAI Act which provides for settlement of dispute between an individual consumer and service provider. Before adverting to the concept of group of consumers, it is essential to consider the nature of the dispute to be redressed by the forum concerned, whether it is TRAI or Consumer Forum. The dispute in question is in regard to non-providing of the free air flight offered by the opposite parties to the complainants. The dispute is not in relation to any telecommunication aspect. The complainant Nos. 1 and 2 are the couple and the complainant Nos. 3 to 5 are their children. The complainants questioned the proprietary of non-providing free air flight as promised by the opposite parties to those subscribers who availed two mobile connections each. The contention of the complainants that they cannot be considered as a group of consumers in the light of free air flight offer extended by the opposite parties is held tenable. The dispute is not in regard to any of the telecommunication matter as provided under the TRAI Act. Therefore application of Sections 14 and 15 of the TRAI Act to the facts of the case does not arise. The point is answered in favour of the complainants.
Point No. 2
11. The grievance of the complainants is that the opposite parties collected Rs. 442 as airport tax and surcharge on 20.10.2005 for the purpose of free flight to them and the complainant Nos. 3 to 5 and that the opposite parties failed to provide the free air flight to them. The opposite parties refuted the charge on the premise that as per condition No. 17 of the scheme offer was open only to the subscribers of Air Tel in Andhra Pradesh. The booking request form was submitted by the complainant Nos. 3 to 5 who are not Airtel subscribers and as per the Condition No. 5 an additional passenger may travel with the subscribers of the opposite parties by paying the amount of Rs. 5,500 for the return flight. The complainant No. 1 and the complainant No. 2 had not paid an additional amount of Rs. 5,500 per person for the complainant Nos. 3 to 5.
12. A perusal of the brochure relating to the Airtel free flight offer shows that the offer can be availed of, by the subscribers by paying Rs. 442 each towards airport tax and surcharge and an additional passenger is required to pay Rs. 5,500. The subscriber has to provide three destination choices and three date choices for to and fro flights and submit the Airtel Free Flight booking request form and Airtel relationship centre within 10 day of receipt of the form from the opposite parties and on the complainants confirmation, within 21 days of receipt of Airtel free flight booking request form, the opposite party would take steps in this regard.
13. Condition No. 17 of the brochure reads as under:
âThe offer is only open to subscribers of Airtel in Andhra Pradesh, aged 18 or above, conforming the eligibility criteria set by Airtel periodicallyâ.
14. Basing on the condition No. 17 of the brochure it was contended on behalf of the opposite parties that the complainant No. 5 has submitted Airtel free flight offer booking request form and the complainant No. 5 not being the subscriber of the opposite parties has no locus standi to opt for the offer. Admittedly, an amount of Rs. 442 was paid by each of the complainant towards the airport taxes and surcharge. It is not the case of the opposite parties that the complainant No. 5 has submitted the booking request form without taking consent from the complainant No. 1 or complainant No. 2. A perusal of the averments of the complaint and the email sent by the complainant Nos. 1 and 2 amply prove that the booking form was submitted on their behalf and with their consent, by the complainant No. 5. In the circumstances, the contention of the opposite parties is held not tenable.
15. The complainant No. 4 had sent email on 14th November, 2005 complaining that she had sent a mail earlier on 10.11.2005 and failed to receive any reply from the opposite parties in regard to their free air flight whereof they had given their destination as âNew Delhi from Hyderabadâ and three choice dates, â22nd, 23rd and 24th November, 2005â. The complainants in order to avail the benefit of free flight offer, had the obligation of making payment of Rs. 5,500 per person for the complainant Nos. 3 to 5 for return flight, airport and other taxes, passenger service charges, airline failure insurance and other surcharges levelled by the airline, of Rs. 442 per person. The complainant Nos. 3 and 5 had paid Rs. 442 each. The complainant Nos. 3 to 5 had not paid the amount of Rs. 5,500 each towards their return flight as required by the condition No. 5 of the brochure. The condition No. 17 does also find place on the overleaf of the booking request form.
16. The complainants cannot plead ignorance of the condition No. 17 of the brochure and booking request form requiring them to pay Rs. 5,500 for return flight of each of the complainant Nos. 3 to 5. The condition No. 17 requires for payment of Rs. 442 towards air port tax, surcharge charge, and Rs. 5,500 for return ticket. Without making payment of the return ticket fare, the complainants left their part of contract unfulfilled. The opposite parties contended that the complainants had not shown any interest to avail offer by complying with the terms and conditions by way of making payment of Rs. 5,500 for the return ticket of the complainant Nos. 3 and 5, the complainants had suppressed the fact that the amount paid them was returned to them by the opposite parties. The statement of the opposite parties that the amount paid through demand drafts, the complainant Nos. 3 to 5 was refunded to them as also by adjusting an amount of Rs. 999 paid by the complainant No. 1 against the outstanding due of Rs. 1,101 towards mobile telephone services availed by him and refunded an amount of Rs. 1,020 after deducting the dues against the mobile service connection No. 9866667548 has not been denied nor disputed by the complainant No. 1. The statement of the opposite party No. 3 that a sum of Rs. 1,002 after deducting the dues against the mobile connection No. 9866667546 was refunded through cheque dated 18.4.2006 to the complainant No. 2 and the amount paid against the mobile connection No. 9866667547 was adjusted against the dues payable by him towards service availed by him. Hence, it can be said that the amount was returned to the complainants. The complainants had received the amount without raising any protest or objection thereto. Except the emails and notice dated 14.11.2005 the complainants had not filed any document to show that they had not established that they have case to claim compensation against the opposite parties and that the opposite parties rendered deficient service. For the aforesaid reasons, we do not find the recordings of the District Forum sustainable. The appeal deserves to be allowed.
17. In the result, the appeal is allowed and the order of the District Forum is set aside. Consequently, the complaint is dismissed. In the circumstances of the case there shall be no order as to costs.
Appeal allowed.