Consumers Should Be Informed In Case Of Quota Exceeding
If the consumer exceeds the quota, the GSM operator has the obligation to inform the consumer. If the operator fails to fulfill this obligation, the operator will be liable.
3rd Civil Chamber
Principal Number: 2014/20558
Decision Number: 2015/16478 K.
“Case Law Text”
COURT : ADANA 1ST CONSUMER COURT
DATED : 19/06/2014
NUMBER : 2013/40-2014/1531
As a result of the trial of the lawsuit between the parties arising from the Law on the Protection of Consumers, the judgment given for the dismissal of the lawsuit was appealed by the plaintiff’s attorney within the time limit; after it was decided to accept the appeal petition, the papers in the file were read and considered accordingly:
JUDGMENT OF THE COURT
In his petition, the plaintiff’s attorney stated that the plaintiff became a member of this campaign in order to benefit from the connect card campaign implemented by the defendant communication company for its corporate subscribers and that a subscription agreement was concluded between them on 14.08.2008 under the tariff model ………. .” tariff model, in accordance with the content of this “………..” campaign; the defendant company gave the subscriber a number and a device directed to this number, the subscriber’s right to use is 1 gb and it is stated that a monthly fixed fee will be paid for this use, the defendant sent information to the plaintiff in January 2009 that no payments were made, and when the bank accounts were checked, the defendant company sent an invoice for December 2008 for the phone number 0530 338 27 67, which was sent by the defendant company as the invoice for December 2008. 189,30 TL invoice was paid on 08.01.2009 and notified the defendant; the defendant stated that the invoice was incorrect and that the amount in question would be paid to them, but after this information, the defendant company was repeatedly spoken to and the money was requested to be refunded, but the payment was not refunded and enforcement proceedings were initiated, and requested and sued for the removal of the unfair and malicious objection, and the defendant’s bad faith compensation, which is the highest rate of bad faith compensation, not less than 40%.
The defendant requested the dismissal of the lawsuit.
As a result of the trial held by the local court; it was decided to partially accept the lawsuit; the decision in question was appealed by the attorneys of the parties.
According to the writings in the file, the evidence on which the decision is based and the reasons in accordance with the law, and especially since there is no inaccuracy in the appreciation of the evidence, the other appellate objections of the defendant’s attorney, which are outside the scope of the following paragraph, should be rejected.
In the expert report based on the judgment; the plaintiff has a monthly 1gb quota fixed fee internet usage permit. However, in the invoice of 4.189,30 TL for December 2008, the mobile internet usage used 1324 mb – 1.29gb, Turkcell stated that it received 2,56 TL for each 1mb in excess of the limit, in this case, for 324 mb, which is the amount of quota exceeding, the total extra = 324mb x 2,56 TL = 829.44 TL can be requested, whereas in the invoice, it was determined that Turkcel only requested 2.893,56 TL for quota exceeding mobile usage in the invoice detail, that is, there is a difference of 2.064,12 TL. In the invoice, 18% VAT and 25% communication tax were added to this amount. When these amounts are added to the difference (2.064,12 TL), 18% VAT = 371,54 TL, 25% communication tax = 516,03 TL Total = 2.951,69 TL It has been determined that Türkcell has overbilled.”
It is fixed that the defendant has an internet usage package with a fixed fee of 1 gb; upon the defendant exceeding the 1 gb usage right, the defendant company sent the invoice for December 2008 by charging over the penalty tariff for the use exceeding the quota without any warning regarding the quota exceeding.
The 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 states that “(1) Operators are obliged to provide the following information to all consumers without request regarding access to and use of the electronic communication services they offer and to ensure that this information can be easily accessed.
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 regarding 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 term,
c) Consumer complaints resolution mechanisms”.
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 of the existence of an illegal or fraudulent activity, the provision of the service may be restricted or suspended by informing the subscriber.”
The legal regulation has been introduced.
In this context, pursuant to Articles 6/1-b and 12/3 of the Regulation on Consumer Rights in the Electronic Communication Sector, the defendant Turkcell İletişim Hizmetleri A.Ş. has the obligation to inform the consumer in case of quota exceeding. However, the consumer did not act in accordance with this obligation.
In this respect; by referring the file to the expert again for the preparation of an additional report; taking into account that the plaintiff pays 39 TL + VAT per month for 1 gb usage; each mb in quota exceeding should be calculated within this rate; while the invoice should be issued by calculating the quota exceeding over the price to be found within this rate; In this direction, it is inappropriate to establish a judgment in line with the expert report that calculates each mb exceeding over 2.56 TL without making a proportion within the scope of the package used by the consumer, and it required a reversal.
CONCLUSION: It is inappropriate to establish a verdict in the written manner without taking into account the principles explained above, and since the appellate objections are appropriate for these reasons, it was unanimously decided on 22.10.2015 that the verdict shall be DISMISSED in accordance with Article 428 of the Code of Civil Procedure and the prepaid appeal fee shall be returned to the appellant upon request.
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