State Consumer Disputes Redressal Commission
M/S Bharti Cellular Limited vs Sudarshan Kumar on 24 February, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.668 of 2005
Date of institution : 4.5.2005
Date of decision : 24.2.2011
M/s Bharti Cellular Limited having its Registered Office at H-5/12, Qutab
Ambience, Mehrauli Road, New Delhi and having its Circle Office, C-25,
Industrial Area, Phase-II, SAS Nagar, Mohali (Punjab) through its Manager
(Legal).
.......Appellants
Versus
Sudarshan Kumar son of Sh. Banarsi Dass c/o M/s Sharda Ram Banarsi Dass,
resident of Bareta, District Mansa.
......Respondent
First Appeal against the order dated 1.4.2005 of the
District Consumer Disputes Redressal Forum,
Mansa.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Mr. B.S. Sekhon, Member.
Present :-
For the appellants : Shri Sanjiv Pabbi, Advocate. For the respondent : Shri A.K. Jain, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:
The respondent has purchased mobile cell No.98152-00237 from the appellants and had paid the bills due upto 15.1.2003. He had also deposited a sum of Rs.2,000/- as refundable security. However there was no network coverage of the appellants at Bareta when the mobile was activated. The respondent was told by the appellants that the mobile network service at Bareta would start within a month. The network of the appellants was not available even thereafter.First Appeal No.668 of 2005. 2
2. It was further pleaded that on 15.1.2003 the respondent had gone to the office of the appellants to enquire as to when the mobile network coverage of the appellants would be available at Bareta but he was told by the appellants to deposit the sim in safe custody with the appellants till the mobile network of the appellants become operational in Bareta area. The respondent deposited it with the officials of the appellants against receipt No.0089842 dated 15.1.2003. After the mobile network of the appellants became operational at Bareta, the respondent went to them for restoring the mobile connection but he was told by the appellants that it was allotted to some other person. The security amount of Rs.2,000/- was also not refunded to him. Hence the complaint for restoring the said mobile connection number. Compensation, interest and costs were also prayed.
3. The appellants filed the written reply. It was admitted that mobile No.98152-00237 was purchased by the respondent and he had paid the bills upto 15.1.2003. The respondent was using the said mobile connection which was proved by the mobile connection bills. It was denied if the appellants were ever approached by the respondent with the complaint that mobile network was not available at Bareta or if the appellants had told the respondent to deposit this mobile connection number in the safe custody of the appellants. Even otherwise the safe custody does not exceed 90 days after which the mobile connection was permanently disconnected. It was admitted that this mobile number was allotted to some other subscriber. It was also denied if the respondent was entitled to the refund of the security amount. Dismissal of the complaint was prayed.
4. The respondent filed his affidavit as Ex.C-1 and the affidavit of Moti Lal as Ex.C-2. He also proved documents Ex.C-3 to Ex.C-8.
5. On the other hand, the appellants filed the affidavit of Birender Singh Mohindroo, Senior Executive (Legal) as Ex.OP1. The appellants also proved documents Ex.OP-2 to Ex.OP-5.
6. Learned District Forum accepted the complaint with costs of Rs.2,000/- vide impugned order dated 1.4.2005. The respondent was also awarded First Appeal No.668 of 2005. 3 compensation to the tune of Rs.7,000/-. The appellants were also directed to refund the security amount of Rs.2,000/- with interest at the rate of 9% per annum.
7. Hence the appeal.
8. The first submission of the learned counsel for the appellants was that the District Forum does not have the jurisdiction to entertain the complaint of a mobile connection subscriber against the mobile phone operators. Reliance was placed on the judgment of the Hon'ble Supreme Court reported as "General Manager, Telecom v. M. Krishnan & Anr." 2009 CTJ 1062.
9. On the other hand, the submission of the learned counsel for the respondent was that there was no merit in the present appeal and the same be dismissed.
10. Record has been perused. Submissions have been considered.
11. So far as the judgment of the Hon'ble Supreme Court in M. Krishnan's case (supra) is concerned, the dispute was narrated by the Hon'ble Supreme Court in para 4 of the judgment as under:-
"4. The dispute in this case was regarding non- payment of telephone bill for the telephone connection provided to the respondent No.1 and for the said non- payment of the bill the telephone connection was disconnected. Aggrieved against the said disconnection, the respondent No.1 filed a complaint before the District Consumer Disputes Redressal Forum, Kozhikode. By order dated 26.11.2001, the Consumer Forum allowed the complaint and directed the appellant herein to re-connect the telephone connection to the respondent No.1 and pay compensation of Rs.5,000/- with interest @ 12% per annum from the date of filing of the complaint."
12. In the facts narrated above, the Hon'ble Supreme Court was pleased to observe in M. Krishnan's case (supra) as under:-
First Appeal No.668 of 2005. 4
"6. In our opinion when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred. Section 7B of the Telegraph Act reads as under:
"Section 7B. Arbitration of Disputes-- (1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an Arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this section.
(2) The award of the Arbitrator appointed under Sub-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court.
Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules.
First Appeal No.668 of 2005. 5
7. It is well settled that the special law overrides the general law. Hence, in our opinion the High Court was not correct in its approach."
13. The objection now raised by the appellants was considered by this Commission as also the judgment of the Hon'ble Supreme Court in M. Krishnan's case (supra) in the judgment reported as "Spice Communication Pvt. Ltd. v. Gurinder Kaur and another" 2010 CTJ 688 (SCDRC) (passed on 22.2.2010) and this Commission had observed as under:-
"11. Section 7-B of the Indian Telegraph Act, 1885 reads as under:-
"Section 7B. Arbitration of Disputes-- (1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an Arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this section.
(2) The award of the Arbitrator appointed under Sub-
section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court."
12. Section 7B of the Indian Telegraph Act, 1885 is applicable if a dispute arises between the telegraph authority and the person for First Appeal No.668 of 2005. 6 whose benefit the line/appliance or apparatus was or was being provided.
13. The telegraph authority has been defined in Section 3(6) of the Indian Telegraph Act, 1885 as under:-
"3(6) "telegraph authority" means the Director General of [Posts and Telegraphs], and includes any officer empowered by him to perform all or any of the functions of the telegraph authority under this Act."
14. Similarly the word "telegraph" has been defined in Section 3(1) of the Indian Telegraph Act, 1885 as under:-
"3(1) "telegraph" means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means."
15. Similarly "telegraph line" has been defined in Section 3(4) of the Indian Telegraph Act, 1885 as under:-
"3(4) "telegraph line" means a wire or wires used for the purpose of a telegraph, with any casing, coating, tube or pipe enclosing the same, and any appliances and apparatus connected therewith for the purpose of fixing or insulating the same."
16. The definitions, reproduced above, clearly reveal that the provisions of Section 7B of the Indian Telegraph Act, 1885 would be applicable only if the dispute is pending between the Director First Appeal No.668 of 2005. 7 General of Posts and Telegraphs or his nominee on the one side and the person for whose benefit the line, appliance/apparatus are being provided i.e. the consumers on the other.
17. Now the question arises is whether the appellants i.e. private service providers are the telegraph authority within the meaning of Section 3(6) of the Indian Telegraph Act, 1885 or in other words are they the Director General of Posts and Telegraphs or they are the officers empowered by him to perform all or any of the functions of the telegraph authority under the Indian Telegraph Act, 1885?
18. Admittedly the private service providers are the licencees to operate private mobile lines under Section 4(1) of the Indian Telegraph Act, 1885. Therefore they cannot be equated with the Director General of Posts and Telegraphs nor they can be termed as the officers appointed by the Director General of Posts and Telegraphs to discharge the functions of the telegraph authority. They are only the licencees. Therefore any dispute between a licencee and their consumer is not covered by the provisions of Section 7-B of the Indian Telegraph Act, 1885.
19. It can be looked from another angle also. The functioning of the private mobile operators is regulated by the provisions of the Telecom Regulatory Authority of India Act, 1997 (in short "the TRAI Act"). Section 14 of the TRAI Act provides the establishment of Appellate Tribunals as under:-
"14. Establishment of Appellate Tribunal.--The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal to--
a) adjudicate any dispute--
(i) between a licensor and a licensee;
First Appeal No.668 of 2005. 8
(ii) between two or more service providers;
(iii) between a service provider and a group of consumers:
Provided that nothing in this clause shall apply in respect of matters relating to--
(A) ................................................................... (B) the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986);
(C) dispute between telegraph authority and any other person referred to in sub-section (1) of section 7B of the Indian Telegraph Act, 1885 (13 of 1885);
(b) ..............................................................."
20. This section clearly demarcates the area in which the provisions of the TRAI Act are applicable. It clearly reveals that these provisions are not applicable when a dispute is pending between the service providers and their individual customers.
21. Proviso 'C' to Section 14(a) of the TRAI Act still makes the things more clear that no provision of this Act is applicable to the provisions laid down in Section 7B of the Indian Telegraph Act, 1885. It means, therefore, that the provisions of this Act are not identical nor these interfere with the purview, scope or the applicability of Section 7B of the Indian Telegraph Act, 1885. In other words, the provisions of the TRAI Act protect and do not widen the provisions of Section 7B of the Indian Telegraph Act so as to include the disputes of private service providers with their individual consumers in it. It clearly means that the private service First Appeal No.668 of 2005. 9 providers do not fall under the category of telegraph authority within the meaning of Section 7B of the Indian Telegraph Act, 1885.
22. Similarly proviso (B) to Section 14(a) of the TRAI Act protects the provisions of the Consumer Protection Act, 1986 by providing that the provisions of this Act shall not apply to any complaint filed by an individual consumer before the District Forum/State Commission/National Commission. From this angle also it is clearly proved that the private service providers are neither governed by the provisions of Section 7B of the Indian Telegraph Act, 1885 nor the jurisdiction of the District Forum over the private service providers is ousted rather it is protected."
14. It was concluded by this Commission as under:-
"26. Since the dispute of the private service providers with their individual consumer does not fall in the scope of Section 7-B of the Indian Telegraph Act, 1885, therefore, the private service providers cannot avail the benefit of the judgment of the Hon'ble Supreme Court in M. Krishnan & another's case (supra).
27. In view of the discussion held above, it is held that the private service providers are not covered by the judgment of the Hon'ble Supreme Court in M. Krishnan & another's case (supra) and the consumers/customers have the right to challenge the actions of the private service providers by filing complaints under the Consumer Protection Act, 1986."
15. Therefore this Commission was of the view that the judgment of the Hon'ble Supreme Court in M. Krishnan's case (supra) was not applicable to private mobile service providers.
16. The same view of law was taken by the Hon'ble U.P. State Consumer Disputes Redressal Commission, Lucknow in the judgment reported as "Bharat Sanchar Nigam Ltd. v. Ambika Singh" 2011 CTJ 237 (CP) (SCDRC). First Appeal No.668 of 2005. 10
17. However the learned counsel for the respondent brought to our notice the order dated 21.5.2010 (i.e. after the passing of the order by this Commission on 22.2.2010) passed by the Hon'ble National Commission in Revision Petition No.1703 of 2010 (Prakash Verma vs. Idea Cellular Ltd. & anr.) (i.e. in the case of a private mobile service provider) in which it was observed by the Hon'ble National Commission as under:-
" Fora below have dismissed the complaint filed by the petitioner relying upon the judgment of Supreme Court in General Manager Telecom vs. M. Krishnan & Anr.-(2009)8 SCC 481 wherein it has been held that any dispute between the subscriber and the telegraph authority can be resolved by taking recourse to arbitration proceedings only.
The judgment of the Supreme Court is binding on all the subordinate courts. There is no scope for interference. Dismissed."
18. The above mentioned consumer (Parkash Verma) had filed Special Leave to Appeal (Civil) No.27577 of 2010 against this order. Hon'ble Supreme Court also dismissed the SLP vide order dated 1.10.2010.
19. Keeping in view the latter orders of the Hon'ble National Commission in the case of private mobile service provider, the judgment in M. Krishnan's case (supra) of the Hon'ble Supreme Court is applicable to any dispute between the subscriber and the telegraph authority and it can be resolved only by taking recourse to the arbitration proceedings. Therefore the complaint in Fora under the Consumer Protection Act, 1986 is not maintainable.
20. In view of the discussion held above, this appeal is accepted and the impugned judgment dated 1.4.2005 is set aside.
21. The appellants had deposited an amount of Rs.5,780/- with this Commission at the time of filing of the appeal on 4.5.2005. This amount of Rs.5,780/- with interest accrued thereon, if any, be refunded by the registry to the appellants by way of a crossed cheque/demand draft after the expiry of 45 days. First Appeal No.668 of 2005. 11
22. The arguments in this case were heard on 11.2.2011 and the order was reserved. Now, the order be communicated to the parties.
23. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
(MRS. AMARPREET SHARMA)
MEMBER
February 24 , 2011 (BALDEV SINGH SEKHON)
Bansal MEMBER