State Consumer Disputes Redressal Commission
Shri Vivek Bharadwaj vs Vodafone Essar East Ltd on 12 February, 2014
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 CC NO. 214 Of 2013 Shri Vivek Bharadwaj Vs. Vodafone Essar East Ltd. and Others BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Complainant: Mr. Prabir Basu Ms. Binota Roy , Advocate For the Opp. Party: Bivas Chatterjee., Advocate Devjani Ashra., Advocate Dated : 12 Feb 2014 ORDER Order No. 7. Dt. 12.02.14 Record is put up for passing Order on the maintainability petition filed by the OP Nos. 1-3 as well as the written objection filed on behalf of OP No. 4 .
In the present case, the complaint, in brief , is as follows:
The Complainant being a customer of Vodafone mobile service provider and having the Vodafone Mobile No. 9830143700, received a bill of Rs. 1,427.92 for the months of July and August, 2013 with the stipulation of payment of the bill by 08.08.2013. Allegedly, the Complainant found on 08.08.2013 morning that there was no connection and the Complainant having immediately contacted the OP No. 1 for knowing the reason for their arbitrary and abrupt action towards disconnection within the stipulated date of payment, was told that his 'disconnection request' had been forwarded for processing, vide registration No. 1386601092. The Complainant, vide his e-mail message dated 8.8.2013, requested the OP service provider to immediately restore the connection, which stood deactivated. It is also alleged that he never requested for disconnection of his telephone service, not to speak of having received any notice in any manner as per Clause-7 of the Notification dated 21.3.2006( File No. 305-R/2004/QOS) which provides that "where the service provider unilaterally intends to restrict or cease service to the customer, a notice shall be provided to the customer in advance of such action so that the customer has reasonable time to take preventive action to avoid restriction or cessation of service". OPs paid no heed to his request for restoration of service, which is a clear deficiency in service on the part of the OPs/service provider. Accordingly, the Complainant has prayed for orders, inter alia, for issuing directions upon the OPs to pay a sum of Rs. 2,00,000/- or any other amount as may be determined by this Commission to compensate the loss and/or injury as has been suffered by the Complainant; for granting punitive damage of Rs. 15,00,000/- or any other amount as may be determined by this Commission as a deterrent for adoption of unfair trade practice; for discontinuance of such unfair trade practice and/or not to repeat them; for payment of a sum of Rs. 10,00,000/- or any other amount as may be determined by this Commission to compensate the loss or injury as has been suffered by a large number of Consumers of West Bengal who are not identifiable conveniently as per Section 14(1)(hb) of the Consumer Protection Act, 1986 and also for passing an order for granting adequate litigation cost to the tune of Rs. 1,00,000/- or more as may be considered fit.
The OPs being served notices appeared and submitted an application with the prayer to dismiss the present complaint as being non-maintainable in the light of provisions of Section 7B of the Indian Telegraph Act read with Section 3 of the Consumer Protection Act and rules made thereunder .
OP No. 4 has also submitted a separate objection as to the maintainability of the Complaint against them, being the Telecom Regularity Authority of India.
Ld. Advocates appearing on behalf of all parties were heard and the written objections, as filed before this Commission, have been gone through.
Ld. Advocate appearing for OP Nos. 1- 3 submitted that as per the Licence Agreement executed by and between them and the Licensor, i.e. Director (AS-IV), DOT, New Delhi, the licensee shall be governed by the provisions of Indian Telegraph Act, 1885, Indian Wireless Telegraphy Act, 1933 and Telecom Regulatory Authority of India Act, 1997. It is argued that as per Section 7B of the Indian Telegraph Act, if any dispute concerning any telephone line, appliances or apparatus arises between the Telegraph Authority and the person for whose benefit the line, appliances 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 the arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this section. The award of the arbitrator appointed under Sub-Section 1 of Section 7B of the Indian Telegraph Act shall be conclusive between the parties to the dispute and shall not be questioned in any court. It was further submitted that as per Rule 413 of the Indian Telegraph Rules, the services relating to telephones are subject to Indian Telegraph Rules. Ld. Advocate referred to the decision of the Hon'ble Supreme Court in Civil Appeal No. 7687 of 2004 wherein it was held that for resolution of consumer disputes relating to telephone matters, arbitration, as provided under Telegraph Act, would have to be resorted to. In the present case, the Complainant has alleged that he was not given any notice prior to disconnecting his mobile connection. The subject is very much referable for arbitration as provided under the Telegraph Act. The Ld. Advocate also referred to the decision of the Hon'ble National Consumer Disputes Redressal Commission in Revision Petition No. 1703 of 2010, wherein Hon'ble National Commission going by the decision of the Hon'ble Supreme Court decided in tune with the decision of the Apex Court.. The present Complaint is not maintainable before this Commission as barred by the provisions of the Indian Telegraph Act. Further, there is no deficiency on the part of the OPs in so far as the telephone line was disconnected on the request of the Complainant himself over phone. The Complaint deserves to be dismissed on the face of it.
Ld. Advocate appearing for the OP No.4 submitted that the Written Objection filed by them is self-explanatory showing that the Complaint is not maintainable before the Consumer Forum . In their written objection it has been asserted that there lies no specific complaint against them and they have been included as unnecessary party. By no provisions of the Telegram Regulatory Authority of India Act any individual complaint by a consumer can be brought against them. In the orders of the State Consumer Disputes Redressal Commission, Union Territory, Chandigarh in Appeal No 37 of 2009 titled as TRAI Vs. Devender Rohela, as well as in Appeal No. 491 of 2009, titled as TRAI Vs. Ms. Anuradha & others, it has been held that TRAI not being service providers a Complaint can not be brought against them and there is no relationship of a consumer and service provider between the complainant and them. The Complaint does not stand against them and as such, deserves to be dismissed.
Ld. Advocate appearing for the Complainant submitted that the decision of the Hon'ble Supreme Court, as referred to by the Ld. Advocate for the OP Nos. 1 -3, is not applicable in so far as the present OP/service provider is not in any way Telephone Authority as defined under the Indian Telegraph Act. In relying upon the decision of the Hon'ble National Commission as reported in 2013 (2) CPR 756 (NC) it was argued that if Consumers are relegated to the arbitration mechanism, remedy provided under the Consumer Protection Act would become illusionary and it would be neither expeditious nor inexpensive and shall defeat the very purpose of enactment of the Consumer Protection Act. Remedy provided under Consumer Protection Act is a special remedy with the objective of redressal of grievances of affected Consumers.
Ld. Advocate of the Complainant also cited the following case laws:
Order of the National Consumer Disputes Redressal Commission as reported in 2008 CTJ 954 (CP) (NCDRC) holding, interalia, that the orders of the National Commission are binding upon the lower Forum.
Order of the Hon'ble National Commission reported in 2013 (2) CPR 756 (NC) holding that complaint filed by a consumer before Consumer Fora would be maintainable despite there being arbitration clause in agreement to refer dispute to arbitrator and that remedy provided under the C.P. Act is a special remedy with objective of redressal of grievances of affected consumers in an expeditious and non-expensive manner.
Order of the Hon'ble Supreme Court as reported in I (2012) CPJ 1 SC holding, inter alia , that the remedy of arbitration is not the only remedy available to a consumer . Rather it is an optional remedy . The complainant can seek reference to an arbitrator or file a complaint under the Consumer Act.
4 Order of Hon'ble Delhi High Court in JK Mittal -vs- Union of India and Ors. reported in AIR 2012 Delhi , 1994 wherein it was held that Bharti Airtel Ltd was not a Telegraph Authority but a mere licensee u/Section 4 of the Telegraph Act 1885.
5 Order of the Hon'ble Supreme Court in Civil Appeal No. 10706 of 2010 , holding ,interalia , that it is settled law that when a statutory forum is created by law for redressal of grievances , a writ petition should not be entertained ignoring the statutory dispensation It was argued by the Advocate appearing for the Complainant that the complaint was maintainable under the provision of Section 3 of the Consumer Protection Act and the relief prayed for by the Complainant should be granted .
The Complainant in his petition asserted that the dispute over the issue of payment of telephone bill of Rs.1427.92 is very much maintainable before the Consumer Forum as in the judgment of the Hon'ble Supreme Court in the matter of National Seeds Corporation Ltd. -vs- M. Mudhusadhan Reddy and Anr. (decided on 16.01.12) it has been held that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of Civil Court or any other Forum as established under some enactment.
From the submissions of both the Complainant and the OP it appears that the Complainant obtained a mobile telephone connection No. 9830143700 for more than a year . But the Mobile connection was deactivated without giving any notice on the plea that the Complainant sent a request for disconnection . The Complainant tried to contact the service provider with the request to reconnect but as no action was taken by the OP service provider, deficiency in service on the part of the said service provider was made the point at issue in his petition of complaint.
It is true that the Complainant availed the service of mobile telephone connection from the OP service provider for a consideration . There is no dispute that the service connection was deactivated by the service provider on such date as was stated to be the due date for payment of the bill raised by the service provider . It is natural that the complainant having no suitable response from the service provider in regard to his query as to why the service connection was deactivated , was aggrieved. He preferred to file a complaint before this Commission with a claim of Rs. 28,000,00/- for the value of the service and compensation including pecuniary punishment and litigation cost.
We find that the OP service provider is guided by the provisions of the Indian Telegraph Act 1885, Indian Wireless Telegraphy Act 1933, Telecom Regulatory Authority of India (TRAI) Act and Rules thereof related to telecommunication.
We also find that the subject of dispute can be resolved through arbitration under the provision of Section 7B of the Indian Telegraph Act as held by the Hon'ble Apex Court in Civil Appeal No.7686 of 2004 - ' there is a special remedy provided in section 7B of the Indian Telegraph Act regarding disputes in respect of telephone bills , then the remedy under the Consumer Protection Act is by implication barred.' In the present case the dispute has its origin in the fact that a telephone bill was payable by the Complainant on 08.08.2013 but the service provider without waiting for the due date to be over deactivated the connection causing serious inconvenience to the Complainant. The ground of grievance was no doubt grave and there is every reason to agitate over the issue , particularly, from the service point of view, but we rely upon the judgment of the Hon'ble Supreme Court in the matter of Civil Appeal No. 7687 of 2004 decided on 01.09.2009 read with the decision of the Hon'ble National Consumer Disputes Redressal Commission in Revision Petition No 1703 of 2010 in the matter of PRAKASH VERMA Vs IDEA CELLULAR LTD and Another, the Order passed by the Hon'ble National Commission being as follows -
'Fora below have dismissed the complaint filed by the petitioner relying upon the judgement 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 judgement of the Supreme Court is binding on all the subordinate courts . There is no scope of interference . Dismissed .' It also appears that SLP against the Order of the Hon'ble National Commission was dismissed by the Hon'ble Supreme Court vide their Order dated 01.10.2010 in Special Leave to Appeal (Civil ) No. 24577/2010 .
We find that as service provider the OP in the present case is on the same footing as the IDEA CELLULAR LTD. in Revision Petition No.1710 of 2010 is. That being the position the decision of the Hon'ble National Commission has to be followed by this State Commission . In that view of the fact we are inclined to hold that the present maintainability petition filed by OP Nos.1-3 has merit and the complaint is not maintainable for adjudication by this Commission .
Hence ordered that the maintainability petition be and the same is allowed. Consequently the complaint stands dismissed on contest . This disposes of the written objection of the OP No. 4 accordingly. There shall be no order as to costs.
[HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER