State Consumer Disputes Redressal Commission
Satpal Aggarwal Son Of Sh. Chaman Lal ... vs Reliance India Mobile, Maker ... on 15 November, 2011
F.A. No. 1444 of 2008 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
PLOT NO. 1037, SECTOR 37-A DAKSHAN MARG, CHANDIGARH
First Appeal No. 1444 of 2008
Date of institution : 16.12.2008
Date of Decision : 15.11.2011
Satpal Aggarwal son of Sh. Chaman Lal Aggarwal r/o 564, Vishkarma Street, Miller
Ganj, Gill Road, Ludhiana.
.....appellant.
Versus
1. Reliance India Mobile, Maker Chambers-V, 222, Narman Point, Mumbai through
its M.D./Chairman.
2. Reliance India Mobile, Feroze Gandhi Market, Ludhiana through its Branch
Manager.
...Respondents
First Appeal against the order dated 21.10.2008 of
the District Consumer Disputes Redressal Forum,
Ludhiana.
Before:-
Hon'ble Mr. Justice S.N. Aggarwal, President.
Mrs.Amarpreet Sharma, Member
Sh. Baldev Singh Sekhon, Member Present:-
For the appellant : Sh. Sandeep Chopra, Advocate For the respondents : None MRS. AMARPREET SHARMA (MEMBER):-
The appellant obtained mobile connection No. 3116953 under the "Tariff Plan" from the respondents after paying a sum of Rs. 3000/- vide cheque on 18.2.2003. At the time of purchasing the connection, the appellant was assured that he would be charged 5 paise per 15 seconds for outgoing calls and he would enjoy free talktime upto 31.3.2003. Under the said plan, the appellant was required to pay Rs. 1800/- per quarter which included the cost of the mobile set as well as the rent thereof. Besides this, the appellant was offered 400 minutes free calls per month. The appellant had been paying the mobile bills regularly. However the respondents had been charging amounts in excess to those offered and promised by them. Even the pulse rate F.A. No. 1444 of 2008 2 charged by the respondents was four times more than that offered by them. All these deficiencies were brought into the notice of the respondents by serving a legal notice upon them requesting them to disconnect the mobile connection of the appellant to refund his balance amount. The appellant also offered to surrender his handset but the respondents retained the balance amount with them and disconnected the connection of the appellant at a very later stage and kept on issuing bills to him even after disconnecting his mobile connection. Hence the complaint.
2. Respondents filed written reply and contested the case.
3. Parties led evidence in support of their respective contentions by way of affidavits and documents.
4. After going through the documents and material placed on file, the learned District Forum dismissed the complaint vide impugned order dated 20.10.2008
5. Hence the appeal by the complainant/appellant.
5.A The submission of the learned counsel for the appellant was that the appeal be accepted and impugned order dated 21.10.2008 be set-aside.
6. Record has been perused. Submissions have been considered.
7. The main question for consideration before us is whether the present case involving a dispute between the private mobile service provider and its subscriber can be adjudicated under the Consumer Protection Act, 1986.
8. Similar controversy was considered by the Hon'ble Supreme Court in Civil appeal No. 7687 of 2004 "General Manager, Telecom Versus M. Krishnan and Anr." decided on 1.9.2009. 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 F.A. No. 1444 of 2008 3 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."
9. In the facts narrated above, the Hon'ble Supreme Court was further pleased to observe in M. Krishnan's case (supra) as under:-
"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 F.A. No. 1444 of 2008 4 telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules.
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."
10. The judgment of the Hon'ble Supreme Court in M. Krishnan's case (supra) was considered by this Commission 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:-
"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."
11. 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.
12. However, thereafter it was been held by the Hon'ble National Commission in Revision Petition No. 1703 of 2010 decided on 21.5.2010 in the case "Parkash Verma Vs. Idea Cellular Ltd. & Anr" as under:- F.A. No. 1444 of 2008 5
"Fora below have dismissed the complaint filed by the petitioner replying upon the judgment of Supreme Court in General Manager Telecom Vs. M. Krishan & 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."
13. The revisionist Prakash Verma had filed the Special Leave to Appeal before the Hon'ble Supreme Court and the same was also dismissed by the Hon'ble Supreme Court vide order dated 1.10.2010.
14. It means, therefore, that the Hon'ble National Commission vide order dated 21.5.2010 had applied the judgment of the Hon'ble Supreme Court in M. Krishnan's case (supra) to the case of private mobile service operators also and the SLP filed against that order was dismissed by the Hon'ble Supreme Court on 1.10.2010.
15. Hence keeping in view of the orders passed by the Hon'ble Supreme Court and Hon'ble National Commission in the aforementioned cases, this Commission had revised its view and held in the judgment dated 24.2.2011 passed in F.A. No. 668 of 2005 (M/s Bharti Cellular Vs. Sudarshan Kumar) that the judgment of the Hon'ble Supreme Court in M. Krishnan's case was applicable to private mobile service providers also and the jurisdiction of the fora under Consumer Protection Act stands barred.
16. In view of the above discussion, this appeal is dismissed on the ground that the complaint under the Consumer Protection Act was not maintainable. However liberty is granted to the appellant to take recourse to any other remedy available to him.
17. The arguments in this case were heard on 14.11.2011 and the order was reserved. Now, the order be communicated to the parties. F.A. No. 1444 of 2008 6
18. 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 (Baldev Singh Sekhon) Member November 15, 2011 Rupinder