National Consumer Disputes Redressal
Anand Arya vs Bharti Airtel Limited & 2 Ors. on 10 May, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1295 OF 2015 1. ANAND ARYA 353, SECRTOR-15A, NOIDA201301 ...........Complainant(s) Versus 1. BHARTI AIRTEL LIMITED & 2 ORS. (THROUGH CHAIRMAN)
BHARTI CRESENT, 1, NELSON MANDELA ROAD,
VASANTKUNJ, PHASE-II, NEW DELHI-110001 2. UNION OF INDIA (THROUGH SECRETARY)
DEPARTMENT OF TELE COMMUNICATIONS,
GOVERNMENT OF INDIA,
SHASHTRI BHAVAN, ASHOKA ROAD, NEW DELHI-110001 3. TELECOM REGULATORY AUTHORITY OF INDIA (THROUGH CHAIRMAN)
MAHANAGAR DOORSANCHAR BHAVAN
(NEXT TO ZAKIR HUSSAIN COLLEGE)
JAWAHARLAL NEHRU MARG(OLD MINTO ROAD) NEW DELHI-110002 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE BHARATKUMAR PANDYA,MEMBER
FOR THE COMPLAINANT : ANAND ARYA (IN PERSON) FOR THE OPP. PARTY : FOR THE OPP. PARTY-1 : MR. ADITYA NARAIN, ADVOCATE
: MR. MISHRA RAJ SHEKHAR, ADVOCATE
FOR THE OPP. PARTY-2 : MR. SANJIB K. MOHANTY, ADVOCATE
FOR THE OPP. PARTY-3 : MR. ARJUN NATARAJAN, ADVOCATE
Dated : 10 May 2024 ORDER
1. Heard Mr. Anand Arya, the complainant (In person), Mr. Aditya Narain, Advocate, for OP-1, Mr. Sanjib K. Mohanty, Advocate, for OP-2 and Mr. Arjun Natarajan, Advocate, for OP-3. This Commission has issued notice in the complaint against OP-1 alone and requested the counsel appearing for OP-2 and 3 to assist this Commission at the time of final arguments by the order dated 17.08.2016.
2. Anand Arya has filed above complaint, for directing the Telecommunication Service Providers to bring the service to the level as required by law and opposite party-1 to pay (i) Rs.11734070/-, as compensation for providing deficient service; (ii) Rs.448220000/-, as liquidated damages, for call drops; and (iii) to deposit Rs.44373780000/- in Prime Minister's Relief Fund; and directing 10 top officers of opposite parties-2 and 3 posted from 2010 onward to pay by way of penalty (iv) 10% of their earning to the complainant and deposit 90% of their earning in Prime Minister's Relief Fund; (v) take appropriate action to ensure that all Telecommunication Service Providers to invest adequately in developing the infrastructure for an efficient service in line with quality standards as laid down by the law; and (vi) any other relief, which is deemed fit and proper in the facts and circumstance of the case.
3. The complainant has Airtel SIM-card connections No.9810092627 from 1998-1999, 9818261909 from October, 2002, 8826839417 from January, 2012 and 9818261066 from October, 2013 and stated as under:
(a) Airtel service was generally satisfactory till 2009. From 2010 onward, the quality of service is being gradually deteriorated in terms of network availability, lack of signal, weak signal while roaming, congestion of network, network being busy, call drops and so on. The complainant resides at 353, Sector 15-A, Noida with his family, where network connectivity completely disappeared on 02.03.2015. After a complaint to the senior officials of OP-1, the problems were resolved. Thereafter, at most of the times, there was no network connectivity at his home at 353, Sector 15-A, Noida, although three of his family members spend most of the time there. Sometime signal in 1 or 2 bars are seen in place of 4 bars. When signal is seen and number is dialled, the response most often is 'network busy' or "it is not possible to get through the desired number". In respect of incoming calls, the callers complaint that your numbers were 'either switched of' or 'out of network coverage' although the phones are always on and not very busy. The callers find it difficult to talk with the complainant or his family members.
(b) The complainant is a very active Bird Watcher, Photographer and is involved seriously in protection in environment. At least on two occasions, the calls could not be received in time and the complainant could not reach the spot and take action in time before the damage was done to environment. Out of 10 at least 9 times the phone is picked up to make a call but signal used to be missing and at three occasions, there had been medical emergency. The complainant had been sick with high fever due to a lung infection from 24.08.2015. On several occasions between 26th to 28th August, 2015, the temperature reached high level and there was immediate need to consult a doctor in midnight. With no signal on phone, one had to fish out the number and used the landline. The doctor did not respond on landline call due to unknown number. The consultation with the doctor was possible only when someone was sent. One of his staff, who uses telephone number 9810092627, met with an accident just outside the Sector at about 8:00 PM on 07.09.2015 and sustained extensive injury. He tried to call him from mobile number 9810092627 for help but could not connect due to 'no signal'. Fortunately, the security staff on the gate recognised him and brought him back to the house. He needed emergency hospitalisation and treatment by an orthopaedician. Due to "no signal' the complainant contacted the doctor on landline. Fortunately the doctor picked up call. With no signal or poor signal or 3G not available, it is not possible to use 'data services', especially when one is travelling and needs directions to reach the destination by using the online maps and directions. Recently he was going to Agra and during the way, there was no availability of 3G connectivity, it came only when he almost reached the destination. The quality of connection, when one can get through, is extremely bad and one cannot hear what the person on the other end is saying. This means connecting/dialling over and over again. Airtel records can show how many repeated calls were to and from the same number in a period of a half hour on 18.08.2015 around 4:30 PM when he was at Lucknow airport. The calls would drop at whim and hardly a call gets completed in one go. At one time, six consecutive call dropped in mid of the sentence.
(c) Airtel has added the customers beyond the maximum capacity of the connections that can operate on an efficient basis, on the resource it possesses for telecommunication-spectrum. It is common sense that a portion of the spectrum would be used as soon as a connection is made operational and is even in stand-by mode while no usage is taking pace. Every call, SMS, Text Audio, Video, email, voice mail, internet data service etc. would utilize a portion of the spectrum. In a given set of total connections and based on history/usage of each connection and time of the day/night, a specific occasion, causing extensive use and many such factors, it should be possible for the Telecommunication Service Provider (TSP), Department of Telecom (DoT) and Telecom Regulatory Authority of India (TRAI) to develop an algorithm that would provide the ideal number of connections or subscribers as TSP can have for a given spectrum. This is to be coupled with the fact that any system can only operate at a certain range of capacity utilization. Any system would break-down once the 'optimal capacity' is reached and particularly so if excessive capacity utilization is resorted to all the time. It is the root cause of 'call drops' 'network busy' and other problem.
(d) Due to delay in getting information, the complainant suffered on many occasions. The daughter of the complainant is in medical profession and needs to be available to the patients and colleagues for consultation at 24X7. With 'no signal' all through the day and night, it had been very frustrating and painful to complete 'online transactions since the message containing 'one time pass-ward' would not arrive in time. Most often, this resulted in going 20 years back in terms of technology as landline had to be used. Even this is possible only when one is at home. Monthly bills have continued to rise even though the usage pattern has remained more or less constant and in fact less to using landline to make call quite often. Credit must be given to Airtel for never failing to raise the bill in time. Shortcoming in service by Airtel raised his 'blood pressure' on constant basis and its consequence could be fatal.
(e) By providing over-subscription, Airtel is generating profit. The Airtel has approximately 307 million subscribers as per their website. On a single 'call drop' on each phone per day, additional revenue for one year is Rs.44822000000/-. Airtel is earning huge profit by providing deficient service to the customers. OP-1 has committed deficiency in service in not maintaining the standard and quality of service as provided in Standards of Quality of Service of Basic Telephone Service Regulations (Wire-line) and Cellular Mobile Telephone Service Regulations, 2009 (as amended time to time). With no signal, he used to suffer mental trauma in emergency situations, most of the times.
(f) Soon after noticing that the signal had disappeared, the complainant lodged a complaint with Airtel via-e-mail on 07.03.2015 and 09.03.2015. Other residents of Sector-15-A, also lodged complaints on emails. A very insipid reply came and with postscript that the matter could be taken up with the appellate authority, if the complainant is not satisfied with the resolution even though there was no resolution. The complainant utilised personal contact with some senior official so that the issue could be immediately resolved. One Mr. T.V. Rajesh of the office of Vice-Chairman was contacted on 09.03.2015 on email. Airtel did not send its personnel to find the strength of signal. The strength level as mentioned by the Technician would have poor level of connectivity on 2G and 3G would not work. This was followed by various correspondences from time to time but there had been no resolution and improvement. The complainant sent another email dated 11.05.2011 to Mr. T.V. Rajesh, which was replied on 13.05.2015 that "we regret for the inconvenience cause to you due to an admitted network issue in and around your premises". Thereafter, there were few more complaints through email, in which suggestions were also given to Airtel to use Micro-BTS & Repeaters to cover dark areas. But nothing was done. The complainant then gave notice dated 13.05.2015 to Airtel, which was not responded. Then another notice was given on 27.06.2015. The communications to Airtel were also copied to the DoT and the TRAI. TRAI just did not bother to even acknowledge the message and forget about an action to be taken against Airtel. DoT is callous. The Secretary to whom the communications were copied for action just simply forwarded the emails to ddgpg, who in turn just forwards to Airtel. Not even a comment like "resolve the issue' or 'take action', resolved and informed' and so on. The complainant gave a letter to Prime Minister of India on 29.06.2015 with copy to Minister of Telecom. Then a call was received on landline on 14.09.2015 that Mr. Dawar wanted to another 24 hours to find a solution but nothing was done. Then the complaint was filed on 26.10.2015.
4. Bharti Airtel Limited (OP-1) filed its written reply on 29.09.2016 and contested the complaint. In written reply and Affidavit of Evidence of Amit Bhatia, they stated that by virtue of Section 4(1) of the Telegraph Act, 1885, the Central Government has the exclusive privilege of establishing, maintaining and working of the telegraphs. Under First Proviso to Section 4(1), the Central Government may grant a licence on such terms and in consideration of such payments as it thinks fit, to any person to establish, maintain and work a telegraph within any part of India. Central Government framed National Telecom Policy, 1994. In pursuant to it, licenses were originally issued in 1994/1995 to private companies for providing telecom service. In furtherance of the Policy, license conditions, statutory regulation and rules were framed. Telecom Regulatory Authority of India has been constituted as the regulator under Telecom Regulatory Authority of India Act, 1997. National Telecom Policy was revised in 2009 and 2012. OP-1 was granted license "Unified Access Service License" dated 16.03.2005 (Amended on 10.02.2009) and "Unified Access Service License" dated 16.10.2014, in respect of Delhi Metro Service Area (i.e. local area served by Delhi, Ghaziabad, Faridabad, Noida and Gurgaon Telephone Exchanges). OP-1 is providing telecommunication services in terms of the license and Standards of Quality of Service of Basic Telephone Service Regulations (Wire-line) and Cellular Mobile Telephone Service Regulations, 2009 (as amended time to time). OP-1, being the Licensee under S. 4(1) of the Indian Telegraph Act, 1885, has been conferred with powers to place and maintain telegraph lines and posts, which the Telegraph Authority possesses under Part III, in terms of Section 19-B of the Indian Telegraph Act, 1885, thereby OP-1 was a 'telegraph authority' and not a mere service provider of telecommunication service. Section 2(1)(k) of the TRAI Act defines telecommunication services' to mean service of any description (including electronic mail, voice mail, data services, audio text services, video text services, radio paging and cellular mobile services) which is made available to users by means of any transmission or reception of sciences, signals, writing, images and sounds or intelligence of any nature, by wire, radio visual or other electro-magnetic means but shall not include broadcasting services. Section 2(2) also provides that words and expression used and not defined in this Act but defined in the Indian Telegraph Act, 1855 or the Indian Wireless Telegraphy Act, 1933 shall have the meanings respectively assigned to them in those Acts.
Over a period of time, OP-1 have made significant investments in latest technologies, network capacity and expansion of networks and are offering affordable telecommunication services at tariffs being amongst one of the lowest in the world. Indian mobile operators have invested significant amounts, which are in excess of INR 744139/- crores for expansion of service and coverage. The total number of MSC/ BSC / BTS across the country are around 19 Lakhs. The operators have made further massive investments in site up-gradations/ new site installations for coverage and capacity of cellular / mobile networks and have added appox. 5.7 Lakhs 2G BTS, 3.7 Lakhs 3G BTS and 9.6 Lakhs 4G BTS. The networks in India have been rolled out at a phenomenal speed and penetration of telecom services has moved from 5.4% in 2002 to 81% in 2015. Besides, to provide quality services, the operators have also entered into various infrastructure sharing agreements as well as inter and intra-circle roaming agreements, to leverage the available infrastructure in the best way possible. The total investment made by the telecom industries in FY 2014-2015 alone in India are to the tune of approximately Rs.50000/- crores. This includes investments in total assets-tangible (such as mobile switching centres, base + station controllers, base trans-receiver stations etc.) and intangible assets (such as radio spectrum and licenses) and capital work in progress. These investments are critical for expansion and improvement of telecome services in India and for the growth of the same. The growth of the telecom industry in India has also been spurred by fierce completion in the market place among telecom operators themselves and the service providers have been continuously investing to bring in the latest technologies to provide and ensure customer satisfaction, protection of their market share and give quality services.
The DoT issued notice inviting applications vide File No.: P-11014/13/2008-PP on 25.02.2010, and vide File No.: 1000/2/2013- W.F./Auction on 12.12.2013, for auction of Spectrum in 1800MHz and 900MHZ bands. The operators are required to rollout their network, covering 90% Service Area in Metro Licensed Service Area (LSA) at street level and 90% of the municipal LSA limits of District Head Quarters and Block Head Quarter in other LSA. The relevant terms read as follows:
NIA File No.: P-11014/13/2008-PP dated 25.02.2010:
The licensee to whom the spectrum is assigned shall have a network rollout obligation as detailed in this section. The obligation reflects the need both to ensure the efficient use of spectrum and provide a reasonable level of service to a wide cross-section of customers.
3.4.1 Roll-out obligations for 3G Spectrum Metro service area
The licensee to whom the spectrum is assigned shall be required to provide required street level coverage using the 3G Spectrum in at least 90% of the service area within five years of the Effective Date.
XXXX XXXX XXXX
3.4.2 Roll-out obligations for BWA Spectrum Metro service area:
The licensee to whom the spectrum is assigned shall be required to provide required street level coverage using the BWA Spectrum in at least 90% of the service area within five years of the Effective Date.
XXXX XXXX XXXXX
NIA-File No.: 1000/2/2013-W.F./Auction dated 12.12.2013
3.6.1 Roll-Out Obligations for Spectrum in 1800MHz Band in Service Areas other than Metro Service Areas:
XXX XXX XXX
(iv) The 'New Entrant' and the 'Existing Licensee' acquiring spectrum in the auction will have following roll out obligations:
(a) At least 10% of the Block Headquarters (BHQs) of the Licensed Service Area (LSA) shall be covered by the end of three years from the effective date of Licences or date of allotment of spectrum won in the auction process, whichever is later. Additional 10% of the Block Headquarters of the LSA shall be covered in each of two subsequent years ie. at least 20% and 30% coverage of the block headquarters of the LSA has to be achieved at the end of 4th and 5th year respectively. The list of Block Headquarters (BHQs) and its Map(s) will have to be obtained by the successful bidder from the respective State Governments/Administrations/local bodies. The boundary of the Block Headquarters will be as per map/definition given by the State Government/Administration/Local Body concerned. In cases where District Headquarter/Town (DHQ/ town) happens to be BHQ also, that particular DHQ/town or BHQ would be considered as part of compliance of any one phase of rollout obligation only, as per the choice of licensee.
(b) XXX XXX XXX.
(c) Coverage of Block Headquarters would mean that at least 90% of the area bounded by the local body limits should get the required street level coverage by mandatorily setting up of Base station(s) (for example a BTS/node B/e-node B) in the Block Headquarters.
XXXX XXXXX XXXXX
3.6.2 Roll-Out Obligations for 1800MHz and 900MHz bands in Metro Service Areas
(i) There will be no additional roll-out obligations in respect of Metro Service Areas for Licensees whose Licenses are due to expire in 2014. However, for other New Entrants, the roll-out obligations for coverage shall be same as prescribed in Unified License (UL) for Metro Service Areas.
(ii) Subject to the above and except for 3.6.1 (vii), all the terms and conditions given in Section 3.6.1 above shall apply. However, in the case of Metro Service Area, there will be no obligation relating to Block Headquarters for the 'New Entrant' as well as 'Existing Licensee'.
Other NIAs issued by the DoT from time to time also provide for similar roll-out obligations and are not being reproduced or annexed herewith for the sake of brevity. OP-1 has been strictly adhering to the said terms and conditions as are set out in the License Agreement and the amendment thereto as well as the NIAs. OP-1 is under no legal obligation to provide 100% service at 100% time. The obligation is to provide a reasonable level of service to a wide cross-section of customers in accordance with the license conditions read with the terms of the NIA issued by the DoT for allocation of spectrum from time to time and various Regulations framed by TRAI from time to time governing the telecommunications services in India. The telecom operators, accordingly, are not required to cover the entire Service Area. Said License and NIA only requires the service coverage to be met at the street level and not inside the buildings. These terms of license and NIA issued by the Central Government acknowledge that in the nature of things 100% service across the territory of the, service area and in-buildings is technically and practically not possible at all times.
Mobile cellular network infrastructure fundamentally comprises of Mobile Switching Centres (MSCs), Base Station Controllers (BSCs) and Base Transceiver Stations (BTSs) (commonly known as 'cell sites' or 'mobile towers). This network carries voice and data of subscribers from one point to another. The MSC, loosely speaking, is the brain of the network and carries out various functions, which includes call switching, data/information processing, subscriber verification etc. The MSC in turn is connected to BSCs, located across the service area, either through wireless signals emitted through the microwave antennas installed by various service providers at both the ends or through the optical fibers. These BSCs are then connected to BTSs located at different locations in the similar manner. These BTSs, where antennas are installed, which emit and receive wireless signals to and fro between a person availing Cellular Mobile Telephony Services through its Subscribers Identity Module Card (SIM Card) which is inserted/installed in the Handset by the Subscriber. The functioning of the systems/network, generally speaking, involves the following steps:
The subscriber originates/generates/produces his own voice by speaking in the handset;
The voice generated by the subscribers is transmitted through airwaves to the BTSs;
BTSs then transmit the said voice to BSC on airwaves/cables;
BSC in turn transmits the said voice to MSC on airwaves/cables;
MSC then verifies and validates the authenticity of the subscriber and upon such verification switches the voice of the subscriber to the called party. The voice is again carried from MSC to BSC to BTSs to the called party's handset/telephone instrument on airwaves.
A call may be made by a subscriber to another subscriber of telecommunication services either within the network of call originating telecom operator or to a subscriber in network of some other telecom operator. In the later case, the MSC switches the call to be handed over to the network of the other telecom operator where the call is intended to be terminated. The cellular towers are required to be strategically and scientifically located depending upon the Radio Frequency design, topography, telecom traffic and coverage in the given area, within the service area. The cellular signal is transmitted from cell to cell till the mobile subscriber is located and the call is terminated. If, however, the chain is broken, it creates a "Dark Spot", where call handover cannot take place. Once a subscriber moves from one location to other, the call is handed over from one cell to another cell. In case there is a black hole, the call gets dropped. The operators do not have much flexibility and have very limited choice as regards the location of the towers, which depends upon various factors like the density of subscribers /users of the mobile service at the given locations; frequency allocation by the Government of India; strength of radio signal, obstructions in the dispensation of signals viz. height of trees, high rise buildings, interferences of other signals, the topography of the area, etc.
Network planning involves a complex technical planning and requires installation of the cell sites/ mobile towers in a planned manner basis technical feasibility and ground position. Towers cannot be placed at any location in an arbitrarily fashion, as each tower is connected to the others around it through microwave connectivity or fiber. Wrong placement of any particular tower may affect the functioning of the others too, as cluttering or placement of more than optimum number of towers in a given area leads to interference and impact quality of service. Therefore, non-availability of any particular location for placement of towers, due to factors like restrictive policies of the local authorities or the owner of property not willing to provide space of installation or people in the vicinity objecting to the installation etc., lead to impact on the quality of service. Similarly, interference in the functioning of an installed tower, say due to local authorities sealing the towers or owner shutting down tower etc. due to misconceptions or otherwise, leads to the telecommunication network getting affected in the area and quality of service getting impacted. Several such factors are completely beyond the control of the telecom operator/ service provider.
Two fundamental inputs /resources are required to run a mobile network namely, Spectrum and cell sites / towers. Both are co- related to each other. Spectrum is a limited natural resource. Higher the allocation of spectrum, the capacity needs of the network can be met with a lesser number of towers. But in cases where the spectrum allocation is sub optimal the need to re-use that spectrum by setting up more and more towers increases. At the same time only a limited number of towers can be established in a given area depending upon topography etc. More than optimum number of towers in a given area will lead to interference and impact quality of service. Thus network establishment and operation involves a highly complex technical planning and any interference in the functioning of even a single tower established upon such planning leads to a chain effect of impacting quality in the whole area.
The lack of sites at critical locations accentuates the problem further causing coverage holes where a total absence of radio signal leads to customers not being able to make calls or their calls getting dropped when they move into such areas. As stated above, the cellular signal is transmitted from cell-to cell till the mobile subscriber is located and the call is terminated. If the chain is broken, it creates a "Dark Spot", where call handover cannot take place. Further, where the subscriber is mobile during an on going call, the call is handed over from one cell to another cell during the subscriber's movement. In case there is a black hole, the call gets dropped. If a site cannot be acquired to set up a cell site in a particular area because of restrictions put by the authorities or issues like sealing of sites by local authorities arbitrarily or objections of local residents, etc., it will cause a black spot, which will not only affect call set up in that area, but will also result in a call drop as seamless handover of a call in process may not be possible.
A call drop may occur in the network of both the call originating operator and the call terminating operator. Even if a call drop occurs in the network of the originating cellular mobile telecom service providers ('CMTSP') (as opposed to the network of the call terminating operator), it could be attributable to several factors, which have no connection with the quality of the network or service, such as:
Issues relating to the mobile handset itself nature of handset, battery running out etc;
ii. Location of the user in areas where the CMTSP is not required to provide coverage under its licence, say, inside buildings;
iii. Physical attributes of radio waves the strength and propagation of radio waves depends upon their frequency, atmospheric conditions and obstructions;
iv. Urbanisation -rapid growth of buildings, which obstruct signals;
v. Interference with signals caused by external interference in border areas, jammers, illegal boosters, repeaters etc.
The CMTSPs are constrained by other external factors such as:
i. Constraints imposed by Government/municipal bodies - restrictive policies not permitting installations in specific areas and buildings like residential areas and buildings, illegal sealing of towers, refusal to grant permissions for setting up towers, right of way issues etc.;
ii. Damage caused to optic fibre cables due to unsynchronised public works;
iii. Environmental concerns raised by residents over setting up of towers;
iv. Re-tuning of frequencies occasioned by spectrum renewal and auction policy or spectrum re-farming by the Government, which requires reconfiguration and re-planning of the running network.
Examples of several external factors affecting call drops are explained in EXHIBIT- RW1/4.The manner in which, certain external contributory factors affect call drops, as well as the ability of the CMTSPs to address the issue is explained in EXHIBIT- RW1/5. In a well-established cellular network, it is not possible to find a particular prevailing cause for call drop, and it is rather a result of a mix of heterogeneous and independent causes. I say that the physics of radio waves and their propagation characteristics limits the efficiency of a communication system to less than 100%, even if infinite resources are assigned. The very premise of the purported complaint is misconceived and cannot be entertained keeping in view the limitations faced globally by telecom service providers and the technical constrains associated with the telecommunication services. Despite the fact that India has high market competition (low market concentration, low HHI), the Regulations pertaining to call drops in India are much more stringent as compared to other countries. Most of the countries do not have any clause for penalty/compensation imposed upon a telecom service provider for call drops, as it is a phenomena beyond the control of the telecom service provider, in most cases. As per Clause 28.1 of the License Agreement, OP-1 is obligated to ensure quality of service (QoS) as specified by the Licensor or TRAI. OP-1 is obligated to adhere to such QoS standards and provide timely information as required therein.
The Standards of Quality of Service of Basic Telephone Service Regulations (Wire-line) and Cellular Mobile Telephone Service Regulation, 2009 dated 20.03.2009 (QoS Regulations') dated 20.03.2009 framed under Section 36 read with Section 11(1)(b)(i) & (v) of the TRAI Act and as amended from time to time, squarely govern the quality of service of the telecom service providers, including provision for imposition of financial liability in case of non-adherence of the set standards and are a complete code in themselves. The QoS Regulations of 2009 also specify parameters and benchmarks for network coverage and provides for monetary consequences in the event such benchmarks are not met. These Regulations form a complete code which regulate the quality of telecom services. Under different sections of the regulations are encapsulated the provisions for quality of services parameters, compliance regulations, customer perception of services, reporting etc.
Section 2(r) of the Regulations defines "quality of service" means with regard to telecom services. i.e. "Quality of Service" is the main indicator of the performance of a telecommunication network and of the degree to which such network conforms to the standards of such quality of service as specified in these regulations for specified parameters".
During the period relevant for the present complaint, the QoS Regulations of 2009 provided for a call drop benchmark of 2% and in case of failure to meet this benchmark, the QoS Regulations prescribed:
• for payment of financial disincentive of Rs.1.00 lac per parameter i.e. call drop benchmark for the first contravention on a quarterly basis; and
• for payment of financial disincentive not exceeding Rs.1.50 Lakhs for 2nd consecutive contravention and not exceeding Rs.2.00 Lakhs for each contravention thereafter.
The QoS Regulations pre-suppose a fault based liability in case the fault does not arise i.e. if call drops are within the said 2% limit, then no financial disincentive is payable. The liability of the telecom operator, even in case of any deficiency in complying with the QoS Regulations is thus provided in the Regulations itself and it is a complete code in itself. The parameters in the Quality of Service Regulations were fixed after extensive consultation and consideration of industry norms and also global practices across the world and are strictly regulated by the established Regulator i.e. TRAI, in light of the fact that it is technically impossible to have 100% network coverage at all times and there is no regulation mandating the telecom operators to provide 100% network coverage. OP-1 regularly filed reports with the TRAI to monitor that the Quality of Services are maintained in compliance to the QoS regulations and thus there is no deficiency of service.
TRAI, in exercise of its powers under Section 36 read with Section 11(1)(b)(i) & (v) of the TRAI Act notified the Telecom Consumer Protection (Ninth Amendment) Regulations, 2015 dated 16.10.2015 providing, inter-alia, that it would be mandatory for telecom operators to compensate subscribers for the first three calls dropped per day @ Rs.1/- per drop call w.e.f. 01.01.2016. OP-1 and several other operators filed a Writ Petition, being (Civil) No. 11596 of 2015, before the Delhi High Court challenging the Telecom Consumer Protection (Ninth Amendment) Regulations, 2015 and seeking issuance of an appropriate writ striking down and setting aside Telecom Consumer Protection (Ninth Amendment) Regulation, 2015 dated 16.10.2015 and to hold and declare that TRAI has no power to adjudicate and award compensation under the provisions of TRAI Act, 1997 (as amended). The validity of the Impugned Regulation was upheld and the Writ Petitions were dismissed vide Order dated 29.02.2016. OP-1 herein along with other telecom service providers filled Civil Appeal Nos. 5017 & 5018 of 2016 before the Supreme Court against the decision of the Delhi High Court. Supreme Court has allowed these appeals vide its judgment dated 11.05.2016, reported as Cellular Operators Association of India & Ors vs Telecom Regulatory Authority of India & Ors. (2016) 7 SCC 703, and held that the impugned Regulation i.e. Telecom Consumer Protection (Ninth Amendment) Regulation, 2015 (w.e.f. 01.01.2016) is plainly incorrect in assuming that 'every call drop is a deficiency of service on the part of the service provider'. The causes for call drops are many and are often beyond the control of service providers and attributable to the extent of 36.9% to the consumers themselves.
In light of categorical findings by the Supreme Court, the present complaint is liable to be dismissed as it falsely assumes that the telecom service providers like the present OP-1 are required by law to provide network "24/7/365", thereby ignoring the practical and technological realities and problems faced by the telecom sector. The complaint wrongly proceeds on an assumption of 100% call completion whereas the Quality of Service Regulations issued by the TRAI allowed for 2% call drops and does not stipulate 100% faultless coverage, which is impossible and contrary to the laws of physics. The relationship between the service provider and the subscriber is governed by the Subscriber Agreement. Clause 1(b) of the Subscriber Agreement provides that services are subject to network availability and that service providers have made no guarantee of a 100% call drop free service or the availability of the network throughout the service area and in fact expressly disclaimed the same. Relevant clauses read as follows:
"1(b) All services are subject to network availability, Airtel's wireless telecommunication network used for providing the services (network") is made available on an as-is-as- available basis and Airtel makes no representation, guarantee or warranty regarding the availability, fitness, 12 quality or reliability of the network whatsoever. Please note that Airtel's network availability may be adversely affected due to force majeure circumstances, any acts of God and also due to limitations caused by global graphical/geographic/demographic factors. Network and services may also be affected in cases where interconnection with other networks may not be available, or for routine maintenance works including any updates/upgrades/repairs etc. in no circumstance shall Airtel be responsible or liable, in any manner whatsoever, irrespective of the nature of damages, whether or not such damages could have been foreseen/prevented by Airtel and even if Airtel had been informed of the possibility of such damages for any loss of data, network unavailability, service unavailability or any other claim whatsoever related to the quality or availability or sufficiency of the network or services. The aforesaid limitation shall apply to the fullest extent permitted by law.
1(c) service will always be provided subject to applicable law as well as any applicable guidelines/instructions issued by any statutory or judicial authority (such as TRAI, DOT, Income Tax Department, CCI, TDSAT, COPRA, CERN etc) including, without limitation KYC requirements, legal interception requirements and any other applicable law, regulation, UASL licence conditions or similar binding provision........"
As per the express clauses thereof, the services provided by the service provider are subject to network availability and the service provider makes no representation, guarantee or warrantee regarding availability of network etc. A situation like call drops is already considered and built into the agreement and the subscriber has been pre-informed that the service provision would be subject to the network availability. This agreement also clarifies that the operator's network used for providing the services is made available on "as-is-as available basis" and further that the operator does not make any representation, guarantee availability, fitness, quality or reliability of network whatsoever. The Subscriber Agreement also provides that service provision is subject to, inter alia, the applicable law and regulations, which includes Quality of Service Regulations, which prescribed and allowed a call drops parameter of up to 2% and do not assume 100% coverage all the time. Thus, the provision of service is subject to this call drop parameter/ standard, which has been accepted by the subscriber at the time of procuring the service/signing the agreement. The license conditions, the statutory Regulations or the Service Contract do not provide for complete coverage/ 100% coverage or completely call-drop free service.
The physics of radio waves limits the efficiency of a communication system to less than 100%, even if infinite resources are assigned. Wireless Technology, by the science of physics, cannot provide 100% call retainability. Wireless mobile coverage is heavily technology driven, with best resources in the world being utilized to serve more than 7 billion customers worldwide (as per GSMA). No technology across the world provides for 100% network coverage or zero percent call drops. Call drop is a localized phenomena in some cells having extremely high traffic or due to poor/no coverage in that area which is generally on account of unavailability of sites to install equipment and antennas. In a mobile network the capacity of each site and consequently, the network is limited by the availability of spectrum that can be used to carry traffic. There has been an exponential growth of data traffic, which requires operators to deploy additional network capacity by way of augmenting spectrum resources and additional antennas/sites. The efforts to create the additional capacity for meeting the growing demand have hit a roadblock due to non-availability of sufficient spectrum, ceiling/Shut down of existing sites and inability to acquire new sites in many areas. There are a number of factors causing roadblocks in acquiring spectrum, site/towers and optimization. The same concerns had been presented by Op-1 in its response dated 21 September 2015 on the Consultation Paper on Compensation to the Consumers in the Event of Dropped Calls in reference to the TRAI Consultation Paper Number 4/2015 dated 4 September 2015.
In mobile telephony, call drops are unavoidable due to the very nature and physics of radio waves propagation. The signal received by the mobile from the BTS and vice versa will, most of the time, be an indirect signal received through vector addition of reflected/diffracted rays by multipath propagation. This will always be prone to fading dips. Also, very tight reuse of allocated frequencies will cause some amount of collisions especially into high traffic zones / cells resulting into call drops due to interference. The "Radio signal fading phenomenon" and "Interference probability" which are main causes of call drop, can at best be optimized but not eliminated. These can be very dominant factors in spectrum starved networks. Typically around 2-3% call drops are accepted in mobile networks worldwide even in well optimized networks.
2% call drops, accepted as a norm for telecommunication service is an outcome not of lack of resources or effort, but of the physics of radio wave propagation in free space. This further enhanced by other factors specific to India, like short and interference prone spectrum, restrictive policies of local authorities, indiscriminate sealing of towers, non-grant of permissions as well as the draconian conditions surrounding site and Right of Way permissions, EMF related concerns, only amplify terrain constraints like multiple walls, basements, forest or water.
Besides the reasons attributable to technological and other constraints, the TRAI in its Technical paper on call drop in Cellular Networks has attributed as much as 36.9% occurrences of call drops to the 'irregular user behaviour' (Mobile equipment failure, phones switched off after ringing, subscriber charging capacity exceeded during the call). Thus a large proportion of call drops is attributable to the subscribers themselves. This position is also endorsed in the judgment of the Supreme Court in the case of Cellular Operators Association of India Vs. TRAI (2016) 7 SCC 703. The issue of call drops is directly relatable to the availability of spectrum, which is an issue of policy decided by the Government. In this connection, reference may also be made to the National Telecom Policy, 2012, the National Numbering Policy, and the requirements of the Ministry of Defence which have to be given first and foremost consideration. After taking into account the requirement of the Ministry of Defence, the telecom operators including OP-1 have to restrict their requirements out of the balance spectrum available. There is a strain on the very availability of spectrum for the telecom operators including OP-1 and this, in turn, has an adverse impact on the call drops in the telecommunication service provided by OP-1. It is significant to note that during the period preceding the filing of the present complaint there was a maximum limit of 25% total available spectrum and no telecom service provider could hold more than this upper cap. Rule 5.3.1 of the Notice Inviting Applications (NIA) dated 28th September, 2012 for conduct of Spectrum auction provided that the Overall Cap for each telecom provider for each of the Service Areas is calculated as 25% of the Total Spectrum Assigned for Telecom services in above mentioned frequency bands (including the Spectrum put for these auctions).
One of the key factors contributing to call drops observed in the metropolitan cities of Delhi, Mumbai and Kolkata during later part of 2014 and earlier part of 2015 is that during that time the term of license issued by the DoT in respect of certain operators, including OP-1 was coming to an end and at the time of extension/renewal of licenses, the DoT imposed conditions of requiring the service providers to return spectrum, reacquire the same through auction and thereafter changeover of the frequencies on live networks and realign and optimise the network in the new frequencies within a short time (Spectrum Changeover).
This was unprecedented and nowhere in the world have such arbitrary conditions been imposed. The Spectrum Changeover exercise was required to be carried out on a live network which had its own technical and logistical challenges. It is well understood that to ensure networks perform to their optimum, there is reasonable amount of time required for them to be optimized and stabilized. The concerns with regard to the risk of deterioration of service was pointed out by the service providers. The TRAI also had in its recommendations suggested to the DoT to provide a period of at least six months, which in fact was not provided and the service providers were required to complete the Spectrum Changeover exercise within two months, that too in a live network. This was a huge and challenging task, yet was achieved by maintaining coverage and continuity of service within the QoS norms, through the changeover process with various measures and efforts undertaken by the service providers including OP-1 to improve the network quality.
OP-1, in any case, sought to address the grievance of call drops raised by the complainant by the installation of additional towers. The attempt of OP-1 in the installation of additional towers for boosting signals has been objected to by the Residents Welfare Association on a number of occasions, and the Local Authorities have also issued "show cause notices" for removal of certain towers. This has further hampered the attempt of OP-1 to boost signals and to minimize the grievance of call drops. OP-1 has made best endeavours to adhere with all the Regulations and laws regulating the telecom services, as also providing services to the best of their abilities in the given complex scenario. Reference may be made to Email dated 21.04.2015 from OP-1 to the complainant agreeing to install pole site if any resident provides space at roof top. The complainant by Email dated 21.04.2015 objected to doing anything illegal.
It is wrong to allege that the quality of service completely disappeared or there is complete loss of network in the beginning of March, 2015. OP-1 has always adhered to the terms of the License and the applicable regulations, including the QoS Regulations. In September 2015, at the request of the complainant and as a gesture of goodwill, OP-1, at its own cost installed a Repeater of around Rs.150000/- to boost the signal at the residence of the complainant. Repeater is an electronic device that receives a signal from long distance. This fact has not been disclosed by the complainant and is a concealment of material fact. The network problem faced by the complainant cannot be categorized as deficiency of service u/S. 2(1)(g) of the said Act.
OP-1 in its email dated 16.03.2015 intimated to the complainant that the network problem was due to the closing of telecom site in the vicinity of the complainant. Reference may be made to email dated 16.03.2015 which reads as under:
"This is to apprise you that the network problem in the mentioned locality has occurred due to closing down of site, which was serving the locality. The Infra service provider to airtel, namely, Indus Towers Ltd. has informed us that the cellular site installed at Noida Sector 15 A was sealed by NOIDA Authority which has led to an interruption in its functioning, leading to decline in coverage in the vicinity. The purported reason for sealing of the site is a policy decision by Noida Authority debarring installation of towers in residential areas. We are informed that Indus Towers is approaching the Honorable Court for seeking suitable judicial remedy against that action of NOIDA Authority, which is believed to be against law and the instructions issued by the Central Government."
The 6 photographs in Exhibit CW 1/8(Colly) are denied. The complainant has not disclosed the place, date and time, when these photographs were taken by him and the same are inadmissible in evidence. The photographs are irrelevant for the adjudication of the consumer complaint and do not indicate any deficiency in service on the part of OP-1. 5 photographs out of 6 photographs are new.
The TRAI Notification regarding signal strength in Ex CW 1/9 is an incomplete copy is of the Notification dated 20.03.2009 and fails to establish any deficiency in service on the part of OP-1 and is denied. The said document is objected to as being incomplete, irrelevant and denied.
From the above, it is clear that paragraph 16 wrongly asserts that the signal strength for in building coverage is < or to -75dBm at street level. The Notification dated 20.03.2009 provides the standards for street level coverage and not indoor coverage. Paragraph 4.6.3 of the said Notification reads as under:
"...The Authority feels that steel level coverage of 75dBm could provide good indoor coverage in normal conditions..."
Exhibit CW-1/12 (Colly.) are 2 newsletters which are inadmissible in evidence. Further, the said documents are third party documents, which are irrelevant for the present case and are denied. Further, the authenticity of the said 2 news letters cannot be vouched and these cannot be relied upon. Without prejudice to the above, the newsletters exhibited by the complainant is not relevant as the same cannot establish any deficiency in service on the part of OP-1. In both the said newsletters, it has been reported that OP-1 has been taking steps to resolve the problems being faced by its customers like the Petitioner in their area and that NOIDA Authority has issued NOC in favour of OP-1 to install 7 new mobile poles. The newspaper report stating that an "exclusive deal signed by Airtel with RWA of Sector 15A NOIDA" which is referred to in paragraph 20 of Affidavit of Evidence of the complainant and marked as Exhibit CW 1/12, is inadmissible in evidence.
Exhibit CW-1/13 is an independent report conducted on behalf of TRAI from 03.05.2016 to 06.05.2016 whereas the complaint has been filed on 26.10.2015. The same is objected to as being irrelevant and is hence denied. The said document is not relevant as the same cannot establish any deficiency in service on the part of OP-1 herein, as it does not deal with time period of the complaint under challenge.
Noida adopted a restrictive Policy in the year 2008, prohibiting the erection of mobile towers in residential areas. The Policy adopted by Noida authority was not only detrimental to public interest but also contrary to the Indian Telegraph Right of Way Rules, 2016, which provide that permission to erect a tower ought to be given by a local authority without any distinction on the basis of locality. The aforesaid restrictive policy hinders the mobile network in residential areas. Noida sent a notice to Mrs. Aruna Jaitley, the owner of the property where the site/BTS serving the area (where the complainant also resides) was installed at Plot No. 341, Sector 15A Noida. Pursuant to the said notice, the said party asked the Infrastructure Provider Indus Tower Ltd. to vacate the property and therefore the site/BTS in question became non-functional and network in residential areas had suffered and the same was beyond the control of OP-1, despite its best efforts. The restrictive policy adopted by Noida continued in the years 2013 and 2016 as well, and was contrary to public interest as the subscribers of the mobile network in such areas faced call drops and intermittent network.
The complainant has 4 Airtel numbers viz. 9810092627 from 1998- 1999, 9818261066 from October 2002, 8826839417 from January 2012 and 9818261066 from October 2013. In view of the above, I say that it appears that the complainant is using the 4 connections of OP-1 for commercial/business purpose and cannot be regarded as a consumer of services qua OP-1 within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. The complainant has neither pleaded nor proved that the mobile connections have been availed of exclusively for the purpose of earning his livelihood by means of self- employment. The definition of service under S. 2(1)(o) of the Consumer Protection Act, though an inclusive definition, does not include 'telecommunication services' thereby showing lack of subject-matter jurisdiction in the purported Complaint.
The complainant has filed a claim as Annexure CW1/14 to the affidavit of evidence, showing that the complainant was required to pay Rs 2862.49, Rs 371.32 and Rs 8500.26 for the period January to September 2015 total Rs11,734.07 for 3 mobile connections (not 4 mobile connections), which is well below the pecuniary jurisdiction of this Commission.
It has been denies that the complainant has been a victim of stress or trauma or agony or is entitled to exemplary damages or that OP-1 has not brought its services in line with standards of quality as alleged. The rest of the allegations relating to profiteering or earning unconscionable profits are also denied. It is significant to note that the complainant had filed calculation sheet Annexure 12, along with its complaint. Exhibit CW-1/14 consists of the calculation sheet, with the following addition:
"UNCONSCIONANLE PROFIT BY RESPONDENT
With 30.7 Subsribers (Per Website of Respondent in 2015); One Call Drop x 365 Days x 30.7 Crores Subscribers @ 40 Paise Per Call (An Estimate at the Lower Side) is equal to Rs. 448220000000 ог Rs.4482.2 Crores Per Annum.
Penalty: Rs.4482.2 Crores-1% to Complainant and 99% to PM Relief Fund."
The complainant has failed to establish any basis for the amount being claimed by him as provided in Exhibit CW-1/14, which is incorrect, baseless, highly exaggerated and atrocious and the complainant has failed to prove the same through these additional documents. OP-1 provides the service of mobile network across the country but is heavily reliant on a number of local authorities like the NOIDA, MCD etc. for permissions and sanctions for erection of mobile towers, technical installations etc. and without the cooperation of such authorities, it is not possible for OP-1 herein to provide services to its full potential.
OP-1 is duty bound to provide subscription to an applicant wanting to subscribe to the mobile service, in terms of the License Agreement. If a subscriber entitled in law to avail the telecommunication service, approaches OP-1 to avail a subscription for telecommunication service, OP-1 cannot deny grant of subscription. Further, OP-1 cannot arbitrarily terminate the subscription availed by any subscriber. There is no deficiency in service on the part of OP-1.
OP-1 raised preliminary issues that (i) Indian Telegraph Act, 1885 is a complete code and Section-7-B of the Act provides for resolution of the dispute by Arbitration. (ii) Telecom Regulatory Authority of India and Telecom Dispute Settlement of Appellate Tribunal have been constituted under Telecom Regulatory Authority of India Act, 1997, which are an expert body and provide effective mechanism for redressal of the grievance of the consumer. (iii) The complainant is not a consumer and the compliant is not maintainable. The present complaint is liable to be dismissed with cost on preliminary issues and on merit.
5. The complainant filed Rejoinder cum Affidavit of Evidence of Anand Arya and documentary evidence. Opposite party-1 filed Affidavit of Evidence of Amit Bhatia and documentary evidence. All the parties have filed their written synopsis.
6. We have considered the arguments of the counsel for the parties and examined the record. Supreme Court in Vodafone Idea Cellular Limited Vs. Ajay Kumar Agarwal, (2022) 6 SCC 496, held that Section 7-B of Indian Telegraph Act, 1885 does not oust jurisdiction consumer forum, who exercises jurisdiction in addition and not in derogation of the Act. As such the consumer complaint is maintainable.
7. The complainant alleged deficiencies in service i.e. (i) Disappearance of connectivity every now and then; (ii) Network 'not available' or 'network busy' often; (iii) Weak signal strength that is below the standard prescribed; (iv) When calling 'the called number is stated to be 'switched off' or 'out of network coverage'; (v) It takes inordinately long time- sometime as much as 60-90 seconds-before the connection is through or there is no response; (vi) "Call failed' 'Try another method; (vii) It takes several attempts to get through and quality connection is extreme poor such that no conversation is possible; (viii) Quality connection is extremely poor-internet usage is not possible-especially when a point of service instrument is used to make payment using a debit/credit card; (ix) Call dropped at whim. In order to prove these allegations, the complainant has filed some email communications of March, 2015 to May, 2015 and some photographs of mobile phones.
8. OP-1 has denied the photographs of mobile phone, on the ground that location, where it were taken, has not been proved. OP-1 has stated that later part of 2014 and earlier part of 2015 is that during that time the term of license of OP-1 issued by the DoT, including certain other operators, was coming to an end. At the time of renewal of licenses, the DoT imposed conditions of requiring the service providers to return spectrum, reacquire the same through auction and thereafter changeover of the frequencies on live networks and realign and optimise the network in the new frequencies within a short time (Spectrum Changeover). This was unprecedented and nowhere in the world have such arbitrary conditions been imposed. The Spectrum Changeover exercise was required to be carried out on a live network which had its own technical and logistical challenges. It is well understood that to ensure networks perform to their optimum, there is reasonable amount of time required for them to be optimized and stabilized. The concerns with regard to the risk of deterioration of service was pointed out by the service providers. The TRAI also had in its recommendations suggested to the DoT to provide a period of at least six months, which in fact was not provided and the service providers were required to complete the Spectrum Changeover exercise within two months, that too in a live network. This was a huge and challenging task, yet was achieved by maintaining coverage and continuity of service within the QoS norms, through the changeover process with various measures and efforts undertaken by the service providers including OP-1 to improve the network quality.
Noida adopted a restrictive Policy in the year 2008, prohibiting the erection of mobile towers in residential areas. The aforesaid restrictive policy hinders the mobile network in residential areas. Noida sent a notice to Mrs. Aruna Jaitley, the owner of the property where the site/BTS serving the area (where the complainant also resides) was installed at Plot No. 341, Sector 15A Noida. Pursuant to the said notice, the said party asked the Infrastructure Provider Indus Tower Ltd. to vacate the property and therefore the site/BTS in question became non-functional and network in residential areas had suffered and the same was beyond the control of OP-1, despite its best efforts. The restrictive policy adopted by Noida continued in the years 2013 and 2016 as well, and was contrary to public interest as the subscribers of the mobile network in such areas faced call drops and intermittent network.
OP-1, in any case, sought to address the grievance of call drops raised by the complainant by the installation of additional towers. The attempt of OP-1 in the installation of additional towers for boosting signals has been objected to by the Residents Welfare Association on a number of occasions, and the Local Authorities have also issued "show cause notices" for removal of certain towers. This has further hampered the attempt of OP-1 to boost signals and to minimize the grievance of call drops. OP-1 has made best endeavours to adhere with all the Regulations and laws regulating the telecom services, as also providing services to the best of their abilities in the given complex scenario.
It is wrong to allege that the quality of service completely disappeared or there is complete loss of network in the beginning of March, 2015. OP-1 has always adhered to the terms of the License and the applicable regulations, including the QoS Regulations. In September 2015, at the request of the complainant and as a gesture of goodwill, OP-1, at its own cost installed a Repeater of around Rs.150000/- to boost the signal at the residence of the complainant. Repeater is an electronic device that receives a signal from long distance. This fact has not been disclosed by the complainant and is a concealment of material fact. The network problem faced by the complainant cannot be categorized as deficiency of service u/S. 2(1)(g) of the said Act.OP-1 in its email dated 16.03.2015 intimated to the complainant that the network problem was due to the closing of telecom site in the vicinity of the complainant.
9. Terms of the contract between the complainant and OP-1 provides as follows:- "1(b) All services are subject to network availability, Airtel's wireless telecommunication network used for providing the services (network") is made available on an as-is-as- available basis and Airtel makes no representation, guarantee or warranty regarding the availability, fitness, 12 quality or reliability of the network whatsoever. Please note that Airtel's network availability may be adversely affected due to force majeure circumstances, any acts of God and also due to limitations caused by global graphical/geographic/demographic factors. Network and services may also be affected in cases where interconnection with other networks may not be available, or for routine maintenance works including any updates/upgrades/repairs etc. in no circumstance shall Airtel be responsible or liable, in any manner whatsoever, irrespective of the nature of damages, whether or not such damages could have been foreseen/prevented by Airtel and even if Airtel had been informed of the possibility of such damages for any loss of data, network unavailability, service unavailability or any other claim whatsoever related to the quality or availability or sufficiency of the network or services. The aforesaid limitation shall apply to the fullest extent permitted by law.
1(c) service will always be provided subject to applicable law as well as any applicable guidelines/instructions issued by any statutory or judicial authority (such as TRAI, DOT, Income Tax Department, CCI, TDSAT, COPRA, CERN etc.) including, without limitation KYC requirements, legal interception requirements and any other applicable law, regulation, UASL licence conditions or similar binding provision........"
10. Section 2(1)(g) of the Consumer Protection Act, 1986 defines deficiency in service as follows:-
Section 2(1)(g)- deficiency means any fault, imperfection, shortcoming in quality, nature and manner of performance, which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
11. Supreme Court in Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines, (2011) 5 SCC 495 and The Branch Manager, Indigo Airlines Vs. Kalpana Rani Debbarma, AIR 2020 SC 678, held that deficiency in service cannot be alleged without attributing fault, in nature and manner of performance, which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. In case of no wilful fault in rendering the service, there is no deficiency in service. If on fact, it is found that the person or authority rendering service had taken all precaution and considered all relevant facts and circumstances during course of transaction and their action or decision was in good faith, it cannot be said that there had been any deficiency in service, In deficiency in service, lack of due care, absence of bonafide, rashness, haste or omission and the like may be the factors to ascertain deficiency in service.
12. The circumstances for arising connectivity issues during the year 2015, as mentioned by OP-1 prove that there was no wilful fault of OP-1 in rendering service. The complainant has alleged that OP-1 has issued excess subscription than its capacity. The complainant has not given as to what was capacity and how excess connections were given. In the absence of sufficient material in this respect, no finding can be recorded on its basis. Newspapers reports are not admissible in evidence unless it is proved by the editor that he had material evidence in support of the materials printed in the newspaper. OP-1 has stated that under the terms of licence and under the law, they cannot refuse to give SIM card to any body. As such deficiency in service so as to give cause of action to the complainant to file consumer complaint is not proved.
13. The complainant has claimed Rs.11734070/-, as compensation for providing deficient service and Rs.448220000/-, as liquidated damages, for call drops, although the complainant has paid total bills of three SIM cards for those period of Rs.11734.07. Under Section 73 of the Contract Act, 1872, the compensation can be awarded to the extent of the loss suffered for breach of the contract. The complainant has not adduced any evidence in respect of loss suffered by him due to connectivity issue. If the services of OP-1 was not only useless but also so painful that the complainant requires to be compensated for Rs.448220000/-, for a period of about six months, then at least, the complainant ought to have surrendered his SIM cards and obtained more efficient service from other services of mobile SIM cards available in the market. The conduct of the complainant shows that he is utilising the services of OP-1 and claiming arbitrary compensation is an attempt of unjust enrichment and malafide.
O R D E R In view of the aforesaid discussion, the complaint is dismissed with cost. The complainant is directed to pay cost of Rs.two lacs to each of the opposite party, within a period of two months from the date of this judgment.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER