If the consumer exceeds the quota, the GSM operator has an obligation to inform the consumer. In case of failure to fulfill this obligation, the operator will be liable.
Law office
Base Number: 2014/20558
Decision Number: 2015/16478 K.
“Justice Text”
COURT: ADANA 1st CONSUMER COURT
DATE: 19/06/2014
NUMBER: 2013/40-2014/1531
As a result of the court’s judgment of the lawsuit arising from the Law on the Protection of the Consumer between the parties, upon the appeal by the plaintiff’s attorney within the time limit of the judgment rendering the dismissal of the lawsuit; After the decision to accept the appeal petition, the papers in the file were read and the necessary consideration was given:
Y A R G I T A Y A R A R I
In the petition of the plaintiff’s attorney; the plaintiff is a member of this campaign in order to benefit from the connect card campaign implemented for the corporate subscribers of the defendant communication company and that the subscription agreement between them on 14.08.2008 ………. ” It is concluded with the name of the tariff model, According to the content of this “………..” campaign; The defendant company gave the subscriber a number and a device directed to this number, it was stated that the subscriber’s right of use is 1 GB and a monthly fixed fee will be paid for this use, and that in January 2009, the defendant was informed that a payment was not made, and when the bank accounts were checked, the defendant He informed the defendant that the invoice amount of 4.189.30 TL, which was sent as the December 2008 invoice of the phone number 0530 338 27 67 received by the company, was paid on 08.01.2009; The defendant stated that the invoice was wrong and that the said price would be paid to them, but after this information, he talked to the defendant company many times and every time the money was requested to be refunded, it was said OK, but the payment could not be refunded and enforcement proceedings were initiated. He demanded and sued to be awarded the highest amount of bad faith compensation, not less than 40%.
The defendant requested the dismissal of the case.
As a result of the judgment made by the local court; it was decided that the case be partially accepted; The said decision was appealed by the attorneys of the parties.
According to the articles in the file, the evidence on which the decision is based and the legally required reasons, and especially if there is no inaccuracy in the evaluation of the evidence, all other appeal objections of the defendant’s attorney, which are outside the scope of the paragraph below, should be rejected.
In the expert report on the basis of the judgment; The claimant is allowed to use a fixed fee internet with a monthly quota of 1GB. However, in December 2008, the bill fee of 4,189.30 TL was used for mobile internet usage 1324 mb – 1.29 GB, Turkcell stated that he received 2.56 TL for each 1mb in excess of the limit. It has been determined that he can demand ,56 TL = 829.44 TL, whereas Turkcel in the invoice details only demands 2,893.56 TL for mobile usage exceeding the quota, that is, there is a difference of 2,064.12 TL. 18% VAT and 25% communication tax are added to this price in the invoice. When these amounts are added to the difference (2,064.12 TL), it has been determined that Turkcell has charged an excess invoice fee of 18% kd = 371.54 TL, 25% communication tax = 516.03 TL Total = 2.951.69 TL.” opinion has been given.
The defendant has a 1 gb fixed fee internet usage package; It is fixed that after the defendant exceeded the 1 GB usage right, the defendant company was charged the penalty tariff for the usage exceeding the quota without any warning regarding the exceeding the quota, and the December 2008 invoice was sent.
The dispute is related to determining whether the defendant company has an obligation to inform the customer in case of exceeding the quota, and if this obligation is not complied with, the amount to be held responsible for the consumer. Prepared by the Information Technologies and Communications Authority;
Article 6 of the Regulation on Consumer Rights in the Electronic Communications Sector “(1) Operators are obliged to provide at least the following information to all consumers without request regarding access to and use of electronic communication services they offer, and to ensure that this information is easily accessible.
a) Name, title and address of the operator,
b) Regarding the service to be provided; the definition and scope of the service, the general terms and conditions regarding access to and use of the service, the tariffs to be applied for the service and subscription packages, if any, the tax types included in the tariffs and the rate of reflection of these taxes on the tariffs when calculating the tariffs, the value of the tariffs including all taxes only in order to create the right consumer perception, Conditions for providing compensation and reimbursement to subscribers by the operators, if any, types of maintenance/repair services offered, standard contract terms including the minimum contract period,
c) Consumer complaints ç
resolution mechanisms”.
12/3 of the same regulation;
“…(3) In order to protect consumer interests;
a) Determining that the service is above the usual level of 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.
He brought the legal regulation.
In this context; Pursuant to articles 6/1-b and 12/3 of the Consumer Rights Regulation in Electronic Communications Industry, the defendant Turkcell İletişim Hizmetleri A.Ş has an obligation to inform the consumer in case of exceeding the quota. However, the consumer has not acted in accordance with this obligation.
In this respect; by re-delivery of the file to the expert for the issuance of an additional report; Considering that the plaintiff pays 39 TL + VAT per month for 1 GB usage; Calculating each MB over the quota within this ratio; While it is necessary to issue an invoice by calculating the excess of quota over the price to be found within this rate; In this direction, the judgment was inaccurate and necessitated breaking it, in line with the expert report, which calculated each MB excess over 2.56 TL without making a ratio within the scope of the package used by the consumer.
CONCLUSION: Considering the principles explained above, it was unanimously decided on 22.10.2015 that the written verdict was rendered inaccurate, and the appeal objections were valid for these reasons, and that the judgment be OVERFINED pursuant to Article 428 of the HUMK and that the appeal fee in advance be returned to the appellant upon request.
