In a recent litigation involving arrears for the use of cellular services the Bombay High Court had occasion to refer to an interesting cross section of electronic evidence, telecommunications regulations and consumer law. The case titled as, Vodafone Essar Ltd. Vs. Raju Sud (pronounced on November 22, 2011), concerned a dispute with regard to the subscriber, inter alia challenging the authenticity of computer generated bills which contained the charges.
The Court first began by examining the regulatory compliance of the service provider in making computer generated bills. It reasoned that the sectoral regulator, TRAI through amendment to the principal Tariff Order by the Telecommunication Tariff (Forty-sixth Amendment) Order, 2008 stated that the telecom customers must get the bill in a printed paper form without any extra charge from them. Thus, in compliance, the service provider generated a bill in a printed paper form and that TRAI by its letter dated 23-06-2011, addressed to all service providers while 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. Following this the Court held that computer generated bills were permitted by the TRAI and hence could be relied upon.
Going further to the seed of the controversy with respect to the authenticity of the entries of charges contained in the computer generated bills the court came down quite heavily on the subscriber. It firstly focused its reasoning on the permissibly of evidence generated through mechanical means and its admissibility as per the provisions of the Information Technology Act and the Indian Evidence Act. Here the court noted that, since that:
“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 State (NCT of Delhi) vs. Navjot Sandhu (2005) 11 SCC 600), has recognised and permitted to rely on “copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies”. Considering Sections 65 and 65 of the Evidence Act, it is also observed that secondary evidence of the contents of a document if the original is impracticable to move and produce easily. Therefore printouts taken from the computer/server by mechanical process as contemplated under Sections 65 and 65-A of the Evidence Act is permitted, irrespective of the compliance with the requirement of Section 65-B of the Act.”
On first glance, a dispensation of the compliance requirements of Section 65-B of the Indian Evidence Act appear to be problematic. However the Court reasons that the requirements of Section 65-B which call upon a party producing electronic evidence to file an affidavit in support have been complied in a sense, firstly through the nature of the computerised bills which are generated automatically and in the course of bussiness and secondly due to an absence of a challenge to the authenticity, integrity and reliability of the modes, stature, control and proceedings of the form of transmission of the data.
According to me this ruling sets quite a high bar for disputing the presumption of authenticity in electronic bills. In Delhi there are several reported cases of computer generated bills by the Electricity Distributors being inflated. In the case of such disputes the utility providers can be checked due to the physical installation of a electricity meter at the premises of the consumer. However, in case of mobile phones we often deal with intangibles. Most post-paid subscribers do not maintain their call and data records till the end of the billing cycle when they receive thier bills. This is in contrast to the Cellular Operators who have tremendous resources to monitor and account subscriber billing. In such a scenario, its often hard for a subscriber to make specific averments as required to be demonstrated in a court of law. Here filing of an affidavit under Sec. 65-B by the service provider may proove useful.
What are your thoughts on it ? Should electronic bills be presumed to be authentic till proven otherwise ? also why don’t we ever get under-billed by a service provider!