Gsm Company Is Obliged To Provide Information Before The Quota Is Exceeded
3rd Civil Chamber 2016/13926 E. , 2017/9234 K.
“Case Law Text”
….. regarding the reclamation case between the plaintiff … and the defendant … İletişim Hizm.A.Ş. 1.Consumer Court dated 19/06/2014 and numbered 2013/40 Esas-2014/1531 Decision, the correction of the material error was requested by the plaintiff’s attorney against the decree dated 22/10/2015 and numbered 2014/20558 Esas-2015/16478 Decision.
After it was understood that the request for correction was in due time, all the papers in the file were read and considered:
DECISION
Regarding the reclamation case between the plaintiff … and the defendant … İletişim Hizmetleri A.Ş. ….. 1. In the decision dated 22/10/2015 and numbered 2014/20558 E. – 2015/16478 K. given by our Chamber on the reversal of the judgement dated 19/06/2014 and numbered 2013/40 E. – 2014/1531 K. given by the Consumer Court, it is understood that a material error was made regarding the explanation and conclusion sections by mistake; the material error regarding the reversal judgement has been corrected as follows.
“The plaintiff stated that he has a GSM line of the defendant operator, that he purchased 120 minutes of talk and 10 mb internet package abroad due to going abroad, that he started to use the internet package by querying the internet package abroad, that he was not warned by the defendant in due time and as required due to the package quota exceeding,
that the quota was not notified that the quota was over in the queries, that even if it is assumed that the quota exceeding occurred through his own fault, the pricing is exorbitant, that the defendant’s transactions violate consumer rights; stating that due to the defendant’s defect, 7. 006,05 TL paid including taxes due to the defendant’s fault with legal interest, otherwise, it has requested and sued for the refund of 4.907,25 TL with legal interest by calculating the excess usage part over the international internet package tariff.
The defendant defended that there was no error in the transactions contrary to the legislation on consumer protection and that the plaintiff’s claims were not true and requested the dismissal of the lawsuit.
The court decided to dismiss the lawsuit on the grounds that the plaintiff was informed by the defendant’s customer services upon the use of the internet package purchased by the plaintiff abroad due to internet usage and overuse, and that this situation is not one of the unfair conditions, and the judgement was appealed by the plaintiff’s attorney within the period.
Dispute is about whether the defendant company has the obligation to inform the customer in case of quota exceeding, and if this obligation is not complied with, the amount for which the consumer should be held responsible.
The Regulation on Consumer Rights in the Electronic Communication Sector prepared by the Information and Communication Technologies Authority;
Article 6 of the Regulation on Consumer Rights in the Electronic Communication Sector, prepared by the Information and Communication Technologies Authority, reads as follows: “(1) Operators are obliged to provide access to the electronic communication services they offer and
provide at least the following information to all consumers without any request and ensure that this information is easily accessible.
a) Name, title and address of the operator,
b) Regarding the service to be offered; the definition and scope of the service, general terms and conditions on access to and use of the service, tariffs to be applied for the service and subscription packages, if any, the types of taxes included in the tariffs and the rate at which these taxes are reflected in the tariffs when calculating the tariffs, the value of the tariffs only including all taxes in order to create the correct consumer perception, the terms of compensation and reimbursement to subscribers, if any, by the operators, the types of maintenance / repair services offered, if any, the standard contract terms, including the minimum contract period,
c) Consumer complaints resolution mechanisms” contains the legal expression.
Paragraph 12/3 of the same regulation states;
“…(3) In order to protect consumer interest;
a) Determination that the service is far above the level of customary use,
b) In cases where there is a justified suspicion about the existence of an illegal or fraudulent activity, the provision of the service may be restricted or stopped by informing the subscriber.
In the examination of the file; it is understood that a subscription agreement was signed between the parties, the plaintiff accepted the definition of the international speech and internet package to his line in the telephone conversation with the customer service, and according to the expert report regarding the voice recordings, it is understood that the fee tariff to be applied in case of quota exceeding was notified to the plaintiff, but no notification was made that the quota exceeding occurred.
In this context, in accordance with Articles 6/1-b and 12/3 of the Regulation on Consumer Rights in the Electronic Communication Sector, the defendant … İletişim Hizmetleri A.Ş. has the obligation to inform the consumer in case of quota exceeding, but has not acted in accordance with this obligation.
In that case, since it is understood that the defendant communication services company did not inform the plaintiff consumer due to quota overrun, it was not deemed correct to decide to dismiss the case in writing with an erroneous evaluation, while an additional report should be obtained from the expert for calculation over the plaintiff’s domestic tariff and a decision should be made according to the result.
CONCLUSION:
With the acceptance of the request of the plaintiff’s attorney for the correction of the material error, ….. 1. Since it is understood that a material error was made inadvertently in the decision dated 22/10/2015 and numbered 2014/20558 E. – 2015/16478 K. given by our Chamber on the reversal of the judgement dated 19/06/2014 and numbered 2013/40 E. – 2014/1531 K. given by the Consumer Court, it was decided unanimously on 07/06/2017 to remove the reversal decision of our Chamber and to REVERSE the judgement for the reasons explained above.
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