State Consumer Disputes Redressal Commission
The Officer-In-Charge, Customer Care, ... vs Sri Samaresh Paul, S/O Late Sarat Ch. ... on 28 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, TRIPURA Appeal No.F.A-38/2013 The Officer-in-charge, Customer Care, Aircel, Near Agiachala Sangha, H.G.Basak Road, Agartala, West Tripura. . . . . Appellant. Vs Sri Samaresh Paul, S/O Late Sarat Ch. Paul, Ramnagar Road No-3, P.O-Ramnagar, Agartala, West Tripura. . . . . Respondent. PRESENT : HONBLE MR.JUSTICE S.BAIDYA, PRESIDENT, STATE COMMISSION MR.H.CHAKRABORTY,IAS (Retd), MEMBER, STATE COMMISSION. For the appellant : Mr.P.Chakraborty,Adv. For the Respondent : Mr.S.K.Bhattacharjee,Adv. Date of Hearing : 20.03.2014. Date of delivery of judgment : 28.04.2014. J U D G M E N T
S.Baidya,J, This appeal filed on 03.08.2013 under section 15 of the C.P.Act, 1986 by the appellant, Officer-In-Charge, Customer Care Aircel is directed against the judgment dated 06.07.2013 passed by the Ld. District Forum, West Tripura, Agartala in the complaint case being C.C. 84/2012 whereby the Ld. District Forum allowed the complaint petition directing the O.P, the appellant herein, to refund a sum of Rs.475/- with a sum of Rs.2000/- towards compensation and a cost of Rs.1000/- to the complainant within a period of one month from the date of judgment, failing which it shall carry interest @ 9% p.a. after expiry of one month till the payment is made.
2. The case of the appellant as narrated in the memo of appeal, in brief, is that the complainant-respondent filed a complaint petition before the Ld. District Forum, West Tripura, Agartala against the O.P.-appellant claiming refund of Rs.475/- along with compensation and cost of litigation. It has also been stated that the allegation of the complainant is that he has a Aircel prepaid mobile connection bearing Mobile No-8575153909 and there was deduction, without his consent from his mobile account in the name of services namely, Aircel Friends Zone and missed call alerts.
3. It has also been stated that the O.P.-appellant appeared before the Ld. District Forum through one Supratim Deb of its Customer Care Department and the Ld. District Forum was pleased to grant time to the parties to explore possibility for an amicable settlement out of court and the appellant without admitting the jurisdiction of Consumer Forum and maintainability of Telecom dispute before the Consumer Forum gave its consent for an amicable settlement, but ultimately could not be settled.
4. It has also been alleged that on 29.04.2013 the O.P.-appellant had filed an objection application on maintainability point in C.C.84/2012 and submitted that the District Forum does not have jurisdiction to entertain the complaint against the telephone/telecommunication service provider being barred by Indian Telegraph Act, 1885 and hence prayed for dismissal of the complaint at the threshold.
5. It has also been stated that at the time of filing the objection application the O.P.-appellant annexed all the relevant judgment passed by the Honble Supreme Court of India, Honble National Commission, Honble Gauhati High Court and other relevant judgment, but the Ld. District Forum instead of considering the maintainability of the case on jurisdiction point passed the impugned judgment disregarding the decision of the Honble Supreme Court in Civil Appeal No.7687 of 2004 in General Manager, Telecom Vs M. Krishnan & another whereby the Honble Supreme Court was pleased to hold that the remedy under the Consumer Protection Act in respect of telephone dispute is barred.
6. That being aggrieved by and dissatisfied with the impugned judgment dated 06.07.2013 passed by the Ld. District Forum in C.C. 84/2012 the O.P.-appellant has preferred the instant appeal challenging the judgment passed by the Ld. District Forum on the ground that the Ld. District Forum though had gone through the preliminary objection on jurisdiction point, but did not consider the same and passed the judgment in capricious and whimsical manner and as such judgment under appeal is not sustainable in law, that the Consumer Forum had no jurisdiction to adjudicate upon the claim for compensation and dispute on telephone/telecommunication service provider, but the Ld. District Forum without considering the judgment of the Honble Apex Court passed in Civil appeal No-7687/2004 [2009(8)SCC 481] awarded the compensation by the impugned judgment which is liable to be set aside being not sustainable in law and hence the appellant has filed the present appeal.
Points for consideration.
7. The points for consideration are (1) whether the Ld. District Consumer Forum has any jurisdiction to entertain the dispute between the consumers and the telecommunication service provider in view of the section 7-B of the Indian Telegraph Act, 1885, and (2) whether the Ld. District Forum was legal and proper in passing the impugned judgment and (3) whether the impugned judgment can be sustained in the eye of law.
Decision with Reasons.
8. Admittedly, an Aircel Sim connection has been given to the complainant-respondent by the O.P.-appellant after observing all formalities. It is also admitted fact that the present appellant being the O.P. through its officer appeared before the Ld. District Forum and both the complainant as well as the O.P. submitted that they were trying to settle the matter outside the Forum. It is also admitted fact that the time for an amicable settlement were granted twice and thereafter the O.P.-appellant submitted a draft compromise petition, but the same was not accepted as the condition included therein were not acceptable to the complainant-respondent. It is also admitted fact that thereafter a written objection was filed on behalf of the O.P., but the order was passed regarding acceptance of the written objection subject to the condition that the O.P. shall pay cost Rs.100/- to the complainant on the next date. It is also admitted fact that on the next date no step was taken from the side of the O.P.-appellant and order was passed further that as the said written objection submitted on behalf of the O.P. was neither verified nor contained the signature of the O.P., it was not treated as written objection and the said complaint case was proceeded for exparte hearing and ultimately, the impugned judgment has been passed.
9. At the very inception of the hearing the learned advocate for the appellant-O.P. submitted that the Ld. District Forum has no jurisdiction to entertain the complaint petition filed by the complainant in view of section 7-B of the Indian Telegraph Act, and as such entertainment of such complaint is without jurisdiction. Reliance has been placed in the judgment reported in (2009)8 SCC 481.
10. The learned advocate for the appellant also submitted that section 8 of the Arbitration Act will not be applicable in the said proceeding because in the eye of law there is no written objection and/or written statement filed by the appellant-O.P. and as such reference may be made before the Arbitrator under the Arbitration and Conciliation Act.
11. He also submitted referring to a decision passed in W.P.(C) No. 429/2011 of the Honble High Court of Gauhati that the jurisdiction of the District Forum and the State Commission to entertain any complaint regarding deficiency in service of telephone would, if arises out of functioning of telephone, lie in an arbitration proceeding.
12. The learned advocate for the appellant also submitted that the judgment of the Honble Supreme Court is the law of the land and the present telecommunication disputes under the C.P.Act shall be liable to be dismissed on the ground of lack of jurisdiction.
13. The learned advocate for the appellant also submitted referring to the section 144 of the Constitution of India that all authorities, Civil and Judicial, in the territory of India shall act in aid of the Supreme Court. He then submitted that the Ld. District Forum, Honble State Commission and the Honble National Commission although all are tribunals, but are the Judicial Authority and as such the judgment passed by the Honble Apex Court of our country is binding on the Consumer Fora and as the impugned judgment has been passed disregarding the decision of the Honble Apex Court in Civil Appeal No.7687/2004 between General Manager, Telecom Vs M.Krishnan & another, the impugned judgment is without jurisdiction and is liable to be set aside.
14. On the other hand, the learned advocate for the respondent-complainant submitted that the case cited by the appellant being Civil Appeal No.7687 of 2004 is not applicable in the present appeal because in the cited case, General Manager, Telecom (Govt. of India) was a party and whereas in the present appeal, the officer-in-charge, Customer Care Aircel, a public limited companys local officer, is a party.
15. He also submitted referring to a decision of the Honble Apex Court reported in AIR 2008 Supreme Court 690 that every case is to be decided on merit of its own facts and circumstances and as such decision of one case shall not be blindly accepted for taking decision of another case.
16. The learned advocate for the respondent referring to section 7-B of the Indian Telegraph Act, 1885 submitted that if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for 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 Govt. either specifically for the determination of that disputes or generally for the determination of dispute under that section. He also submitted that as per section 3(6) of the Indian Telegraph Act, 1885 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 the said Act. He also submitted that the appellant-O.P., in the instant appeal, is not a Telegraph Authority and as such the provision of section 7-B of the India Telegraph Act, 1885 is not applicable in the instant appeal.
17. The learned advocate for the respondent also submitted that BSNL, Aircel, Bharati Airtel etc. are all licensees under section 4 of the Indian Telegraph Act, 1885. These service providers have not been conferred any status of Telegraph Authority by the Central Govt. by way of publishing any notification in this regard. He also submitted that after all, these licensees cannot be termed under any stretch of imagination as Director General of Posts and Telegraphs, a high official of the Govt. of India or an officer duly empowered by him to perform the act of the Director General, Posts and Telegraphs and as such the provision of section 7-B of the Indian Telegraph Act is not applicable in the instant appeal and it also cannot oust the jurisdiction of the Consumer Forum to entertain the dispute between the consumers and the licensees under section 4 of the Indian Telegraph Act as service provider concerning telephone/ telecommunication service.
18. The learned advocate for the respondent also submitted referring to section 3 of the C.P.Act, 1986 and the decision reported in AIR 1997 Supreme Court 533 that section 3 of the C.P.Act envisages that the provision of this Act shall be in addition to, and not in derogation of the provision of any other law for the time being in force. He also submitted referring to the above mentioned cited decision that District Forum, State Commission and National Commission are Judicial Authorities for the purpose of section 34 of the Arbitration and conciliation Act and Consumer Fora by virtue of section 3 of the C.P.Act can proceed with matter in accordance with the provision of that Act rather than relegating parties to arbitration proceedings pursuant to contract between parties. He also submitted that in the first instance, the appellant could not show that there is existence of an agreement between the appellant and the respondent containing any arbitration clause and as such the Consumer Fora in view of the principle of law enunciated in the above mentioned cited case have ample jurisdiction to proceed with the matter in accordance with the provisions of the C.P.Act.
19. The learned advocate for the respondent then submitted that assuming the matter in dispute is/was a subject-matter of arbitration, even then also the District Forum have had judicial authority to deal with the case pending it, because the subject of the arbitration shall be governed/guided by the Arbitration Act, 1986. He also submitted that under section 8(1) of the Arbitration Conciliation Act, 1986 a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement, if a party so applies not later than when submitting his first statement on the subsistence of the disputes refer the parties to arbitration. He also submits that under section 8(2) of the said Act the application referred to in sub-section 1 shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. He also submitted that under section 8(3) of the said Act notwithstanding that an application has been made under sub-section 1 and that issue is pending before the judicial authority, and arbitration may be commenced or continued and arbitral award made. He also submitted that the respondent-complainant filed the complaint petition before the Ld. District Forum and the O.P.-present appellant did not file any application under section 8(1) of the Arbitration and Conciliation Act for referring the matter to the arbitration assuming that there was the existence of an agreement containing arbitration clause. He also submitted that non-filing of such an application under section 8(1) of the Act has made it clear that the present appellant has waived his right to make the matter in dispute referred to the arbitrator.
20. The learned advocate for the respondent further submitted that the object and purpose of enacting the C.P.Act, 1986 is to provide for simple, inexpensive and speedy remedy to the consumers who have grievance against the defective goods and deficient services etc and the said benevolent piece of legislation has been enacted to protect a large body of consumers from exploitation.
21. He also submitted that according to section 3 of the C.P.Act, 1986, the provisions of the said Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and as such it can be said that the relief under the C.P.Act, 1986 provides for additional remedy and from that stand point it can be accepted that the jurisdiction of the District Forum is not barred, in spite of the existence of the provision of section 7-B of the Indian Telegraph Act, 1885 assuming that section 7-B of the Indian Telegraph Act would also have been applicable in the matter in dispute, but the fact is otherwise as the appellant is not a Central Govt. not being the Telegraph Authority as provided under section 3(6) of the Indian Telegraph Act and therefore, the section 7-B of the Indian Telegraph Act has no manner of application in the instant appeal and therefore, the District Forum, West Tripura, Agartala has had ample jurisdiction to entertain the complaint petition filed against the appellant, a mere licensee under section 4 of the Indian Telegraph Act, 1885. He also submitted that as the appellant is a mere licensee and not the General Manager, Telecom (Govt. of India), the principle of law enunciated in the Civil Appeal No.7687 of 2004 in between General Manager, Telecom Vs M.Krishnan & another referred to by the learned advocate for the appellant debarring the jurisdiction of the District Forum to entertain the complaint petition of the present respondent under the C.P.Act, 1986 has got no application in the instant appeal being the facts and circumstances not being similar in nature.
22. He also submitted that all other cases referred to by the learned advocate for the appellant decided on the basis of the decision of the Honble Supreme Court passed in Civil Appeal No.7687 of 2004 between General Manager, Telecom Vs M.Krishnan & another are not applicable in the instant appeal.
23. The learned advocate for the respondent then submitted that in the first instance, the provision of Section 7-B of the Indian Telegraph Act, 1885 is not applicable in the present appeal and as such the filing of the complaint petition in the District Forum by the respondent is not a bar under any of the provisions of the Indian Telegraph Act. Secondly, the appellant has not made out any case by which it can be said that there was an arbitration agreement between the respondent and the appellant and the matter in dispute should be referred to the arbitration under the provision of Arbitration and Conciliation Act, 1896. Thirdly, he also submitted that in view of the principle of law enunciated by the Honble Supreme Court reported in (1994)1 SCC 243 between Lucknow Development Authority Vs M.K.Gupta as quoted in the decision arrived at by the Honble Supreme Court in Civil Appeal 10706 of 2011 arising out of S.L.P.(C) No.17213 of 2010 in between Nivedita Sharma Vs Cellular Operators Association of India, Bharati Televentures Ltd. & others, the provisions of the C.P.Act should be construed widely to give effect to the object and purpose of the Act and the section 3 thereof envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. He, therefore, submitted that the C.P.Act, 1986 provides for the additional remedy, barring any other remedy available under the Arbitration Act, Indian Contract Act and under section 9 of the Code of Civil Procedure.
24. Lastly, the learned advocate for the respondent submitted that in any way the complaint petition filed by the present respondent as complainant is not barred and it is maintainable legally under the provision of C.P.Act, 1986 and therefore, the judgment passed by the LD. District Forum which is under challenge in this appeal, being legal, valid and justifiable should be affirmed and the appeal shall be dismissed.
25. We have gone through the complaint petition, evidences, the impugned judgment, the memo of appeal, case laws referred for both sides and the written notes submitted by the learned advocate of both sides after hearing of the appeal. It transpires from the record of the Ld. District Forum in C.C. 84/2012 that one Mr.Supratim Deb appeared on behalf of the O.P. and submitted that the parties would try to settle the matter outside the Forum and for that time was prayed for which was granted for twice and thereafter the O.P. submitted a draft compromise petition which not being contained the acceptable condition to the complainant, was not materialized. It further appears on that very date i.e. on 29.04.2013 one written objection has been filed on behalf of the O.P. and accordingly, the order was passed to the effect that the acceptance of the said written objection was subjected to payment of cost Rs.100/- to the complainant by the next date. It further appears that the O.P. was directed to supply the copy of the said written objection to the complainant within seven days and the Ld. District Forum fixed the case for evidence of the parties on 04.06.2013, but on 04.06.2013 none appeared for the O.P. and the order has been passed by the Ld. District Forum to the effect that as the said written objection not being verified and signed by the O.P., it cannot be treated as written objection and accordingly, on 12.06.2013 has been fixed for hearing the complaint case exparte and thereafter the said complaint case was heard exparte and the impugned judgment was passed.
26. It transpires from the record of the Ld. District Forum that the learned advocate for the appellant has referred to the decision of the Consumer Dispute Redressal Commission, Chennai passed by a common order on 30.10.2009 in respect of a number of cases pending before it wherefrom it is found that all the cases (appeals) were disposed of by the said Honble State Commission relying on the decision of the Honble Apex Court made in the Civil Appeal No.7687 of 2004 reported in (2009) 8 SCC 481 and held that the complainants cases are not maintainable in view of section 7-B of the Indian Telegraph Act. It has also been held by the Honble National Commission in Revision Petition No.1703 of 2010 as referred to by the learned advocate for the appellant that the Consumer Fora below dismissed the complaint filed by the petitioner relying upon the judgment of this Honble Supreme Court in General Manager, Telecom Vs M.Krishnan & another reported in (2009) 8 SCC 481 wherein it has been held that any dispute between the subscriber and Telegraph Authority can be resolved by taking recourse to arbitration proceeding only. It has also been held that the judgment of the Honble Supreme Court is binding on all the subordinate courts and as such there is no scope for interference and as such dismissed the revision petition.
27. It is also found that the District Consumer Forum, Karimgonj on 01.07.2011 in consumer case No.09/2010 as referred to by the learned advocate for the appellant dismissed the complaint filed against proprietor of Aircel, Chennai on the ground that the Consumer Fora has no jurisdiction to entertain and try the complaint in view of section 7-B of the Indian Telegraph Act, 1885.
28. It also appears as referred to by the learned advocate for the appellant that the Honble National Commission in a revision petition No.701/2011 also dismissed the revision petition in view of the provision of section 7-B of the Indian Telegraph Act, 1885 as enunciated by the Honble Supreme Court in the decision reported in (2009) 8 SCC 481.
29. It has also been held in the decision reported in AIR 2012 Gauhati 156 as referred to by the learned advocate for the appellant that the jurisdiction of District Forum and State Commission to entertain complaint regarding deficiency in service in respect of telecom would, if arises out of functioning of telephone, lie in a arbitration proceeding.
30. It transpires that the decision referred to by the learned advocate for the appellant mentioned above is based on the decision of the Honble Apex Court passed in between General Manager, Telecom Vs M.Krishnan & another reported in (2009) 8 SCC 481, It further appears that the said decision of the Honble Apex Court in the above cited decision is based on the provision of law embodied under section 7-B of the Indian Telegraph Act, 1885. So, it is necessary to quote section 7-B of the Indian Telegraph Act, 1885 which runs as follows :- 7-B arbitration of disputes-(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph lines, appliance or apparatus arises between Telegraph Authority and the persons for 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 Govt. either specially 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.
31. Again, the word Telegraph Authority as provided under section 3(6) of the Indian Telegraph Act, 1885 means the Director General of Posts and Telegraphs, and includes any officer empowered by him to perform all or any of the function of the Telegraph Authority under the said Act.
32. The section 7-B provides for arbitration proceeding in case of dispute between the subscriber and the Telegraph Authority i.e. 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 the Indian Telegraph Act, 1885. The decision of the Honble Supreme Court given in Civil Appeal No.7687 of 2004 reported in (2009) 8 SCC 481 taking into consideration the provision of section 7-B of the Indian Telegraph Act, 1885 was in respect of a dispute between the General Manager, Telecom (appellant) Vs M. Krishnan & another(respondent).
33. Now, the question comes as to whether the present appellant, the officer-in-charge, Customer Care, Aircel can be termed as Telegraph Authority within the meaning of section 3(6) of the Indian Telegraph Act, 1885. Undisputedly, Aircel, Airtel, Vodaphone, BSNL, Reliance are all licensees under section 4 of the Indian Telegraph Act, 1885. It means that the dispute was in between department of telecommunication as a service provider prior to the hiving off of telecom services into a separate company namely BSNL. It appears to us that as the department of telecommunication was the telegraph authority under the Indian Telegraph Act, the reference was made by the Honble Supreme Court to the provision of section 7-B of the said Act, but nothing has been shown or established if the powers of the Telegraph Authority have been vested to the private Telecom service providers and Bharat Sanchar Nigam Limited (BSNL). It also appears to us that recourse to section 7-B of the Indian Telegraph Act, 1885 in the dispute of the present case as submitted by the learned advocate for the appellant between the consumers and private service providers would not be available. It also appears to us that the Honble Supreme Courts judgment as referred by the learned advocate for the respondent is sui generies in its application and has to be read with reference to the particular facts and circumstances of the case before the Honble Apex Court between the Telegraph Authority and the subscriber.
34. It has been held in the decision of the Honble High Court at Delhi on 06.02.2012 in W.P.(C) 8285-10 & C.M. No.21319 of 2010 between the petitioner J.K.Mittal Vs and the respondents Union of India & Others, where the respondent No-2 was Bharati Airtel Ltd., in para-12 of the judgment that the impugned order dated 22.09.2010 passed by the State Commission cannot be sustained as it erroneously holds that the consumer complaint of the petitioner was barred by section 7-B of the Indian Telegraph Act. It is clear that the respondent No-2 is not a Telegraph Authority. The bar under section 7-B, if at all, could have applied, had the dispute arisen between the petitioner and a Telegraph Authority, which is the respondent No-2 is not. Merely because the respondent No-2 is a licensee under section 4 of the India Telegraph Act, it does not confer on it the status of a Telegraph Authority and if the indentment of Director General of Posts and Telegraphs were to confer the status of the Telegraph Authority upon the licensees under section 4, the Director General of Posts & Telegraphs, which comes under the Central Government could have issued the requisite notification under section 3(6) of the Indian Telegraph Act, which has not been done. The parliament was conscious of the fact that there could exist a licensees by virtue of section 4 of the Indian Telegraph Act. However, it has not chosen to fasten the statutory arbitration on the licensee or its consumer under section 7-B. Else, while mentioning the Telegraph Authority, the legislature could easily have included the licensee as one of the parties to an arbitration dispute under section 7-B of the Indian Telegraph Act.
35. From para-8 of the said judgment it appears that the learned advocate for the petitioner submits that the Parliament, while enacting the Finance Act, 1994,-whereby service tax was introduced, defined the expression Telegraph Authority as meaning the Telegraph Authority under clause (6) of section 3 of the Indian Telegraph Act, 1885, and including a person who has been granted a license under the first proviso to sub- section (1) of section 4 of that Act.
36. It was also argued as mentioned in para-9 of the judgment that if a licensee who is granted a license under section 4 of the Indian Telegraph Act where ipso facto covered by the expression Telegraph Authority, there was no need to introduce a new definition for the term Telegraph Authority in clause (III) of section 65 of the Finance Act, 1994.
37. It has been held in that decision as mentioned in para 13 I also found force in the submission of the petitioner founded upon the amendment to the Income Tax Act whereby the service tax provision were introduced. It clearly shows that even the Parliament did not consider the definition of Telegraph Authority contained in section 3(6) of the Telegraph Authority to include a licensee per se.
38. It has also been held by the Honble High Court in the above decision referring to the decision as held by the Honble Supreme Court in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs M.Lalitha (dead) through LRS & others, (2004) 1 SCC 305 placing reliance on the decision reported in (1996)6 SCC 385 between Fair Air Engineers Pvt.Ltd. Vs N.K.Modi The Supreme Court has given a broad interpretation to section 3 of the Consumer Protection Act, in the light of the clear expression used by the Parliament, which states that the Consumer Protection Act shall be in addition to and not in derogation of the provision of any other law for the time being in force. Mere existence of an arbitration agreement, assuming there is one between the petitioner and the respondent No-2, would not bar the maintainability of a consumer claim.
39. From the above findings it is firmly established that the appellant herein is not a Telegraph Authority as provided under section 3(6) of the Indian Telegraph Act, 1885. It is also evident that the appellant herein is a licensee under section 4 of the Indian Telegraph Act as private service provider of telecom. The case reported in (2009) 8 SCC 481 is between General Manager, Telecom Vs M.Krishnan & another and in that case it has been held by the Honble Supreme Court that any dispute between the subscriber and the telegraph authority can be entertained by taking recourse to arbitration proceeding only. The expression Telegraph Authority defined under section 3(6) of the Indian Telegraph Act 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. It is, therefore, clear as the appellant does not come within the definition of expression telegraph authority, the statutory arbitration under section 7-B of the Indian Telegraph Act, 1885 cannot be invoked and as such it can be held that the remedy is not a bar to the maintainability of a consumer claim under the C.P.Act, 1986.
40. It has been mentioned earlier that the appellant could not produce any document showing the execution of an agreement between the appellant and the respondent containing any arbitration clause in case of any dispute arises between them. The complaint petition has been filed by the respondent-complainant in the District Forum. Assuming that there is an arbitration clause in the said agreement between the appellant and the respondent in case of any dispute arises between them. There is a provision for referring the matter to the arbitration under section 8 of the Arbitration and Conciliation Act, 1996. It also appears that the appellant who is the O.P. in the District Forum did not take any step for referring the matter to arbitration following the procedure laid down under section 8(1) and (2) of the Arbitration and Conciliation Act, 1996. Even in that case also the Honble Supreme Court in the decision reported in (2004) 1 SCC 305 Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs M.Lalitha (dead) through LRS & other relying on the decision reported in (1994) 6 SCC 385 has been pleased to hold that in view of section 3, the C.P.Act provides the additional remedy. It has also been observed by the Honble Apex Court that Consumer Fora created under the C.P.Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceeding pursuant to a contract entered into between the parties. It has also been observed that the C.P.Act intends to relieve the consumers of the cumbersome arbitration proceedings or Civil action unless the Forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate Forum for adjudication of the disputes would be otherwise those given in the C.P.Act. So, in that view of the matter, the filing of the complaint petition by the respondent-complainant before the District Forum, West Tripura, Agartala under section 12 of the C.P.Act was legal and proper as the said Consumer Forum has had ample jurisdiction to entertain the said complaint under the C.P.Act.
41. It is clear that the principle of law enunciated in the decision reported in (2009) 8 SCC 481 between General Manager, Telecom Vs. M. Krishnan & another as referred to by the learned advocate for the appellant is not applicable in the instant appeal as the appellant herein is not a telegraph authority within the meaning of section 3(6) of the Indian Telegraph Act, 1885. As regards other case laws referred by the learned advocate for the appellant it is also clear that the said decisions arrived at relying on the decision reported in (2009) 8 SCC 481 are also not applicable in the instant appeal as those cases were in between the subscriber and the private Telecom service provider who are mere licensees under section 4 of the Indian Telegraph Act, 1885.
42. The appellant has made out no case raising any dispute regarding the claim of the complainant-respondent. The appellant only has filed the appeal challenging the jurisdiction of the Ld. District Forum alleging that in view of section 7-B of the Indian Telegraph Act. 1885 the District Forum has got no jurisdiction to entertain the complaint petition. We have already arrived at the conclusion that the section 7-B of the Indian Telegraph Act, 1885 is not applicable in the complaint case and also in the instant appeal as the appellant herein is not a telegraph authority within the meaning of section 3(6) of the Indian Telegraph Act, 1885. So, it is palpable that the appellant has no case disputing the claim of the complainant. In that view of the matter, it can be said as submitted by the learned advocate for the respondent that the appellant is admitting the claim of the respondent-complainant. As the claim of the respondent-complainant is not denied by the appellant-O.P., we find force in the submission of the learned advocate for the respondent in this regard and as such we find no difficulty to proceed with the disposal of the instant appeal taking the submission of the learned advocate for the appellant regarding claim of the complainant-respondent as an admitted fact.
43. We have gone through the judgment passed by the Ld. District Forum. Going through the same, we find nothing to interfere with it. That being the position, we are of the view that the impugned judgment calls for no interference by this Commission and as such the impugned judgment being legal and proper is liable to be affirmed and the appeal is liable to be dismissed. All the three points are, accordingly, disposed of.
44. In the result, the appeal fails. The impugned judgment dated 06.07.2013 passed by the Ld. District Forum, West Tripura, Agartala in case No.C.C.84/2012 is hereby affirmed, but no order as to cost.
MEMBER PRESIDENT State Commission State Commission Tripura Tripura