Anoop V. Mohta, J.@mdashThe Plaintiffs who is service provider has filed this Summary Suit by invoking Order XXXVII of the CPC (for short, CPC) based upon computer generated itemized mobile bills.
THE RELEVANT BACKGROUND AND POLICY OF COMPUTER GENERATED ITEMISED BILLS:
2. The Plaintiffs are engaged in the business of providing Mobile Telephone Services under a Licence Agreement dated 29-11-1994, issued by the Government of India (as amended from time to time), under the terms and conditions set out thereon. Under the provisions of the Indian Telegraphs Rules 1951, and more particularly Rule 439 thereof, the charges for usage become payable on presentation of a bill. It is necessary for the service provider that the billing system of the licensees should generate the billing information, in adequate details, to ensure satisfaction to the customer about the genuineness of the bill. The bill represents the true extent of the service actually provided by the service provider and also the details about the service conditions, which are available to the subscribers. Some of the purposes of issuing or obtaining the telephone/mobile bills through hard copy, inter-alia, are to (a) understand and satisfy oneself about the genuineness of the bill; (b) facilitate making of payment; (c) verify the charges incurred by the consumer and (d) monitor usage or expenditure by consumer.
TRAI DIRECTIVES HAVE BINDING FORCE
3. The directions of Telecom Regulatory Authority of India (for short, "TRAI") issued from time to time with regard to the generation of bills have binding force. TRAI issued a Direction vide No. 303-4/2007-QoS, dated the 4th May, 2007 specifying various guidelines as to how the bill should be presented to the consumers and that bill must contain certain useful information to the consumers in addition to the amount of the bill. TRAI has noted that the service providers of other sectors such as Electricity Corporations, Water Utilities services, and Financial Institutions etc., are not charging any amount for providing the hard copy of the bill. TRAI after careful consideration of the provisions relating to billing in the Indian Telegraph Rules, 1951, License Agreements for Cellular Unified Access, NLD and ILD licenses directed the service providers to provide hard copy of the bill to its post-paid subscribers free of cost. However, if any customer opts for receipts of the bill through e-mail, instead of hard copy, the service providers can supply the same after obtaining explicit consent from the consumers. In all other cases, the service provider must ensure that the bills are generated and delivered to the consumers in printed form free of cost.
4. The amendment to the principal Tariff Order by the Telecommunication Tariff (Forty-sixth Amendment) Order, 2008 incorporates the decision of the Authority that the telecom customers must get the bill in a printed paper form without any extra charge from them. Thus, in compliance thereof, the Plaintiffs generate a bill in a printed paper form and that TRAI by its letter dated 23-06-2011, addressed to all service providers whilst inviting attention to Telecommunication Tariff (Forty-sixth Amendment) Order, 2008, and more particularly para 13 once again directed that bills should be given through e-mail only to the customers who have explicitly opted to receive the bills electronically and in all other cases printed bills should be generated and delivered to the customers in printed form free of cost.
The binding conditions between the service provider & the user/customer.
5. The Plaintiffs submits that the Defendant having declared that he has read and understood the terms and conditions provided overleaf to the Customer Application Form, under clause 4 thereof, the Defendant expressed agreed (a) to make payments for the services on the following basis :-
(A) Payment will be due when HMTL raises the billing statement on the customer;
(i) payment will be made on or before the due date mentioned in the billing statement, failing which HMTL shall be entitled to charge interest of 18% per annum and/or late fees on all outstanding charges from the due date till the date of payment and shall be entitled to discontinue the services without notice, in its sole discretion;
(ii)...
(iii)...
(iv) the Customer shall be liable for all charges for the services provided to the Customer whether or not the services have been used by the customer;
(v) In the event of any dispute regarding the charges; the customer agrees to pay HMTL the charges billed pending resolution of such dispute;
(vi) The customer shall be liable to pay for the services provided even if he does not receive the bills. It will be the customer''s responsibility to make enquiries in case of non-receipt of bills.
The declared procedure to redress grievance with regard to the bills.
(B) The reverse of the Plaintiffs'' bill, it is specifically provided that the subscriber should ensure receipt of the complaint docket number (unique complaint number) which the subscriber needs for all future communication and that the Plaintiffs need at least 4 weeks for settling billing complaints. 3 days for disruption/disconnection of service complaints and 7 days for any other complaints. Further, that if the subscriber is not too happy with the plaintiffs'' responses within these timeliness, the subscriber can contact the Plaintiffs'' Nodal Officer with the docket number, anytime from Monday to Friday (9.30 am to 6.00 pm).
Name : Sujit Suvarna
Phone: 9619215000 Extn: 5032
Further, if the subscriber is still not pleased with Nodal Officer''s response, the subscriber can make a further appeal with the Plaintiffs'' Appellate Authority with the docket number, anytime from Monday to Friday (9.30 am to 6.00 pm), for a quick solution.
Name : Laxmi Bhan
Phone: 9619215000 Extn: 5032 Email: laxmi.b@vodafone.com
(C) Admittedly if at all the alleged dispute was genuine, the Defendant who is a subscriber of the Plaintiffs not only in respect of the said mobile number in respect of which there is a default in payment of bill at Exhibit "D" to the Plaint, but is also a subscriber of 9 other connections of the Plaintiffs, the Defendant would have immediately followed the procedure and manner set down in the reverse of the bill. That, however, the Defendant chose to keep silent from the date of the bill i.e. 07-02-2009 and subsequent letter of the Plaintiffs dated 04-03-2009 Exhibit "E" to the Plaint.
(D) After receipt of the Plaintiffs'' Advocate''s letter dated 05-05-2009 i.e Exhibit "F" to the Plaint, the Defendant by his Advocate''s letter dated 29-05-2009 i.e. Exhibit "G" to the plaint, for the first time allegedly raised a dispute that too without substantiating and without giving any better and material particulars;
(E) It is pertinent to note that the dispute allegedly raised by the Defendant is on a primary ground of not disconnecting the services from the date of his request i.e 15-01-2009, without disputing the levy of charges in the bill dated 07-06-2009 which are only for the period upto 14-01-2009.
(F) Admittedly the Plaintiffs have not claimed for any amount after 14-01-2009 and except for bare and bald denials in the Affidavit in reply, at paras 2, 4(f) and 7, the Defendant has not given any material and better particulars.
(G) Though in para 9 of his affidavit in reply, the Defendant has alleged that the plaintiffs did not apprise him as a customer of the roaming charges though he was a customer having 10 connections, it is pertinent to note that in respect of the other connections and more specifically connection under mobile no. 9820507070, the Defendant has been paying roaming charges @ Rs. 5:50 per kb for GPRS usage. The Plaintiffs refer and rely upon bills of the said mobile number being extensively used by the Defendant for international roaming and GPRS.
(H) It is pertinent to note that in para 10 of his affidavit in reply, the Defendant has admitted that he is willing to pay the amount which is due and payable by him after the said bills are scrutinized and dissected by him and the plaintiffs'' representative which admittedly is a clear admission of having used the GPRS facility upto 14-01-2009. This itself speaks volumes of the Defendant''s conduct.
THE PLAINTIFFS SUBMISSIONS:
6. The Plaintiffs at the outset submit that :
(i) apart from basic telephony services and in compliance with the aforesaid licences, the Plaintiffs offer various value added services including General Packet Radio Services (GPRS) to their subscribers;
(ii) General Packet Radio Service (GPRS) is a non voice value added service that allows date to be sent and received across a mobile telephone network globally;
(iii) thus, any service that is used over the fixed Internet today - File Transfer Protocol (FTP), web browsing, chat, email, et. Is also available over the Plaintiffs'' mobile network because of GPRS;
(iv) thus, the basic function of GPRS is to make the Internet fully available to mobile users and in the instant case to the Plaintiffs'' subscribers and the Plaintiffs'' subscribers on subscription can access any we page or any other Internet applications provided the subscribers are using GPRS compatible mobile handsets with required features;
(v) in or about January 2009, the Defendant requested the Plaintiffs to activate International Roaming and GPRS service n respect of the said Cellular Mobile No. 9833937002. On such a request being made by the Defendant as subscriber, on 05-01-2009, the same was activated by the Plaintiffs;
(vi) the terms of usage in terms of International Roaming and GPRS service are set out on the Plaintiffs'' website.
(vii) It is specifically mentioned on the website that as per the GSMA Regulation on GPRS usage, the Plaintiffs as service providers cannot provide the GPRS usage in terms of websites served by the subscriber.
(viii) The said website also specifies that the charges for GPRS/Data usages are calculated in terms of the volume of data sent or received and the usage charges are for the relevant period at a fixed rate of Rs.5.50 per 10KB while in International Roaming and also that the subscribers local plan for GPRS are not valid overseas and all data usages are charged at the visited operator rates.
(ix) The Defendant was visiting UAE and whilst in UAE, the said Defendant extensively used the GPRS on International Roaming from 05-01-2009 to 14-01-2009.
(x) the charges are levied on the total of sent and received data and that in all instances of high value GPRS sessions, the received data are exceptionally higher than the sent data, indicating that the subscriber has done down loads of higher volumes.
(xi) As and when the roaming partners informed the Petitioners about the usage of a subscriber whilst on roaming, the Plaintiffs immediately informed their subscriber including the said Defendant abut the usage.
(xii)After informing the Defendant about the high usage, the Plaintiffs received on 15-01-2009 requesting deactivation of international roaming which was immediately done. That therefore, as is evident from the bill at Exhibit "D" of the plaint, the international GPRS are only for the period 05-01-2009 to 14-01-2009 and that pursuant to the services used by the Defendant, the Plaintiffs in their regular course of business in compliance with the TRAI directive generated and delivered bill printed to the Defendant i.e Exhibit "D" to the plaint.
(xiii) Dynamic credit limit is pre-determined value depending on past payment history, usage etc. till which a subscriber can avail of cellular services without making interim payment during one bill cycle;
(xiv) reputed clients like the Defendant enjoy special privilege of uninterrupted services beyond Credit Limited without making interim payments;
(xv) the subscribers who are on international roaming are intimated about their usage based on the data received from the roaming partners;
(xvi) as the Defendant was continuously using the said GPRS facilities while roaming internationally ,the Defendant was informed on receipt of the data from roaming partners, about the high usage;
(xvii)the itemized bill contains all the available information provided by roaming partners pertaining to date, time, roaming partner, volume and the usage charges;
(xviii) the bill Exhibit "D" to the plaint has been delivered to the Defendant and the same has been received and duly acknowledged.
7. With the above background, the summary suit is filed on 25.11.2009. Writ of summonses were served as per the Sheriff ''s office endorsement on 8.2.2010. Affidavit of service of special bailiff with regard to service is dated 31.03.2010. The service report is dated 17.04.2010. The defendant filed appearance on 18.02.2010. The summons for judgment is dated 30.07.2010. The defendant''s reply to the same is dated 17.09.2010. The matter was adjourned on 22.07.2010 for settlement. On 20.08.2011 after hearing the Court has directed the Plaintiff to file affidavit in support of electronic documents/records. The matter could not be settled and ultimately heard on 23.09.2011. The Plaintiffs have filed compilation of documents basically copy of Telecommunication Tariff (Forty-Sixth Amendment) Order, 2008 and a copy of letter addressed by Telecom Regulatory Authority of India (TRAI) to all service providers. Thereafter the matter was closed for orders. The matter was listed again on 7.10.2011 for direction as the Plaintiffs have filed affidavit dated 27.09.2011 providing the details of the TRAI Rules, Regulations and connected agreement between the parties. The copy was served to other side apart from affidavit/rejoinder. On 7.10.2011 the matter was thereafter closed for orders as Defendant chooses not to file any further affidavit.
THE DEFENDANTS SUBMISSIONS:
8. The Defendant resisted the summons for judgment and the averments in the plaint as well as supporting affidavit to the summons for judgment on various grounds basically contending that the plaintiff ''s demand of exorbitant bill without disconnecting the services though asked for and by suppressing and misrepresenting the facts and therefore the summons for judgment is liable to be dismissed. He further contended that the Defendant was reputed customer of plaintiff for more than 9 years and they have more than ten mobile connections of the Plaintiffs. There is no denial to the fact that the Defendant applied for roaming on 5.01.2009 and was issued a dynamic credit limit of Rs. 1 lac. The Defendant directed his 14 sj-303-10.sxw representative Mr. Amol to request for disconnection from the second week of January itself. The charges were crossed Rs.50,000/-. The Plaintiff as not taken note of the representative''s request and insisted the subscriber to come forward for disconnection. Therefore on 15.01.2009 sent an SMS from mobile to disconnect connection provided on the number. However, it is alleged that the Plaintiff did not disconnect the same despite SMS. The services were continued for full 25 days and ultimately disconnected on 9.02.2009. The itemised bills are upto this period only.
THE REASONS :
9. Admittedly, the itemized bill is for the period from 7 January 2009 to 6 February, 2009. There is no dispute with regard to the Customer Agreement/ the contract between the parties. However, the defence so raised that it was in fine print and therefore, unable to read the same at the time of signing of the same. Another defence was raised that the flat rate of Rs.5.50 per 10KB was charged without knowledge. Therefore, challenge was raised to the usage charges plus services taxes as demanded through the advocate letter dated 29 May 2009. The challenge was also raised to the sweeping powers provided under the agreement. The personal meetings could not settle the matter.
10. The Plaintiffs reiterated their averments and the case in the rejoinder again, and basically contended that there was no triable issues involved in the matter and the Defendant has raised false and bogus defence that intention to wriggle out of his liability.
11. There is no serious dispute with regard to the printed bill on a monthly basis which were in compliance with a TRAI directives. The Defendant is bound by the agreement as well as the terms and conditions including tariff rates so fixed and agreed. The subscriber if fail to make the payment within prescribed period and/or failed to raise any objection to the bill, he automatically gets tagged as a defaulter. There is no denial to the facts that the Defendant applying for roaming services from 5 January 2009. The roaming charges are due for the usage done by the Defendant for the GPRS in KB while on international roaming for a specific period of 5 January 2009 to 14 January 2009. The Plaintiff after receipt of the SMS discontinued the international roaming subscription and therefore charged international GPRS usage in the bill only upto 14 January 2009. There is no dispute that the Defendant was in UAE during this period. Mobile service was not discontinued as discontinuation request was for only international facility.
12. There is no dispute that its a commercial transaction. Having utilized and used the services based upon the agreement will announced flat rates as per the tariff plan for international use of GPRS services. The denial to the terms and conditions by alleging it to be in fine print in the facts and circumstances are not bonafide. The bill annexed to the plant has itemized billing details. There was no objection as provided was raised except advocates reply dated 29 May 2009.
13. I am not inclined to accept the objection/ defence so raised by the Defendants with regard to the itemized bill as issued based upon the actual usage, the details which are provided only on the ground that the rates were not announced or specifically agreed and that the Defendant has signed the document/ agreement and even using the services since long, now to say that he was not aware of the conditions and tariff rates of international roaming charges is also unacceptable. Mere allegation of fraud and/or wrong itemized bill is not sufficient.
THE PERMISSIBLOE COMPUTERISED ITEMISED BILLS- SECONDARY EVIDENCE :
14. It is relevant to note that the service provider like the Plaintiffs are bound to follow the Telecommunication Tariff (Forty Sixty Amendment) Order, 2008 dated 24 January 2008 and as amended from time to time and of other regular orders, directions and policies of TRAI. It is permissible for the service provider to provide hard copy of the bill to its post paid subscriber free of costs. If opted the bills through e-mails, may be served after obtaining consent from the consumer. It is necessary for the service provider that the bills are generated and delivered to the consumers in printed form free of costs.
15. There is no dispute that the subscriber has right to note and verify the charges levied by the service provider and if case is made out the service provider is bound to correct even the itemized bills. The bill in question provides all useful information in addition to the amount of bill. The customer must get satisfied about the genuineness of the bill by verifying the charges claimed/raised. A purpose of this itemized bill is to facilitate the proper and correct payment.
16. As per the agreement and in view of Rule 439 of the Indian Telegraph Rules, 1951 the charges for calls in message rate and measured rate shall become payable on presentation of bill. The licence agreements for Cellular Mobile Telephone Service (CMTS), Unified Access Service, National Long Distance (NLD) and International Long Distance (ILD) services relating to billing and the customer service are part of Indian Telegraph Rules which are under control and ambit of TRAI.
17. The Information Technology Act, 2000 (for short, "IT Act") has recognised the transactions carried out by means of electronic data, interchange and other means of electronic communication, commonly referred to as "electronic commerce". The computer is nothing but a new communication system to create, transmit, store information in the electronic form instead of traditional paper documents. The law of evidence is based upon actual/hard copies and/or paper documents/records and oral testimony. Section 2(i), (j), (k), (l), (o), (t) deals with the concept of "computer", "computer network", "computer resource", "computer system", "data", "electronic record". The meaning of "computer system", "data" and "electronic record" is as under :
2 (l) "computer system" means a device or collection of device, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, which contain computer programmes, electronic instructions, input data and output data, that performs logic, arithmetic, data storage and retrieval, communication control and other functions.
2 (o) "data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalized manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer.
2 (t) "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.
18. Section 65-A of Evidence Act contemplates that the contents of electronic record may be proved in accordance with the provisions of Section 65-B of the Evidence Act.
19. In the Courts and/or Tribunal, at present, substantial filing of Petitions/Appeals are through print-media and paper. The other modes are also available as contemplated under IT Act. The computerised generated printouts is also permissible mode to place on record relevant data to prove the contents of electronic record.
20. The Apex Court in
ITEMISED COMPUTER GENERATED BILLS ARE PRESUMED TO BE VALID AND RELIABLE.
21. The itemized computer generated hard copy is nothing but a human/readable averment of electronic document or data. The validity of computer record has to be decided from various angels and processing at every stage. The human interference or manual feeding or input of data just cannot be overlooked. The computer is nothing but a creation of human intellectual. The computer programme that generates the record/document without further manual or human interference like mathematical calculations, like processing itemized bill. Unless specifically challenged and disputed, the documents so generated just cannot be overlooked, and need to be treated as correct and genuine and unless proved contrary by bringing material on record. "The computer" of the Plaintiff cannot be stated to be a "Personal Computer", as, the use of mobile services, national or international, have been recorded automatically at various stages. The printouts are nothing but hard copy from the Manstream computer, based upon the data. There is no challenge to the Plaintiff ''s computer system. It is well recognized and convenient mode of recording data and the material for further mathematical calculation based upon the agreed terms and tariff plan. There is no further material or evidence and/or even averments to challenge such permissible recording mode of service based upon the actual use by the Defendant. The vague challenge is only of tariff rate. In the present case, in view of the binding agreement and the conditions, the defence of no knowledge of rate is apparently afterthought, sham, bogus and unacceptable.
22. I am inclined to observe that itemized bills/ printouts are authenticated documents and reliable to accept the case of the Plaintiff with regard to the usage of Mobile services by the Plaintiff and the mathematical calculation of the charges so derived at, based upon the agreed tariff plan, as per the binding contract. This falls within the concept of the acknowledgment or receipt of liability and data. The Summary Suit as filed, therefore, maintainable and so also the Summons for Judgment.
23. The computer is invention of human being. The risk and danger of such system cannot be denied. The possibility of defaults in softwares and hardwares is always there. So also because of in carrying out resources apart from manual possible interference in the computer system and data like other system the computer is also suffers because of internal as well as outer problems and viruses .I am inclined to observe that the computer evidence is not infallible. If the case is made out of manipulation, interpolation and corruption in reproduction and if the party able to show the computer defaults or failures in any part of technical or organizational characters and of related aspect of any stage from the manual feeding upto the production of physical record or document and even the defaults and mistakes in mathematical and calculation, then it needs to be decided taking into consideration its cumulative effect on ultimate printouts/ documents from such computer.
24. In the present case, there is no challenge to the Plaintiff ''s computer equipment, programme, government policies, procedure for use of the equipment, data based and reproduction of its hard copy through printout bills.
25. The aspect of TRAI rules and regulations on such service provider and the governing law also a relevant factor to accept the case of the Plaintiff. There is nothing on record to challenge that the Plaintiff has used unstandard equipment and entries or the input though to some extent and/or some stage human related, was not in the regular course of business. There is nothing to show that such printout or procedure is impermissible as wrong method or mechanism have been used to generate printouts or itemized bills. Mere allegations of challenge to the authenticity and the calculation for want of knowledge about the direct plan is not sufficient to treat untrustworthy and unreliable. There is no challenge to the authenticity, integrity and reliability of the modes, stature, control and proceedings of the form of transmission of the data.
26. There is no serious dispute with regard to the itemized bill and the way and the procedure by which it is generated, as it is within the purview and ambit and as per the provisions of law and directions of TRAI. As per the agreement, the Defendant is bound to pay for services rendered by the Plaintiff on billing statement as raised. The Suit so filed therefore, is based upon the contract between the parties. Itemized bill therefore, in my view need to be considered as acceptance of liability and/or acknowledgment of the amount due and payable as elaborated in the Full Bench Judgment of this Court
27. In this matter, at this stage, we are concerned with the computer generated bills and related documents. In view of the above undisputed position on record, with regard to the computerised bills and as the plaintiff has not filed supporting affidavit as required u/s 65-B of the Evidence Act, still I am inclined to rely upon those computerised printouts which are admissible and as permissible to treat as supporting documents to pass and/or grant summons for judgment as prayed, but on the following conditions :
ORDER
(i) Conditional leave is granted to the Defendants to defend the Suit subject to deposit of a sum of Rs. 6,01,552/- within a period of twelve weeks from today,
(ii)In the event the amount is deposited as directed above, the Suit to stand transferred to the List of Commercial Causes.
(iii)The Defendant to file written statement within 30 days. The affidavit of documents within six weeks thereafter. Recovery and inspection forthwith thereafter.
(iv)If the amount is deposited as aforesaid, the Plaintiff will be entitled to withdraw the same subject to giving an undertaking to this Court to restitute the amount with interest at such rate as may be directed by this Court, in the event the Plaintiff fails in the Suit.
(v)In the event the entire amount is not deposited within the stipulated time, the default shall be treated as grant of summons for judgment as prayed.
28. The Summons for Judgment is accordingly disposed of in the above terms. There shall be no order as to costs.
