Jammu & Kashmir High Court
Union Of India (Uoi) Through G.M. ... vs V.K. Chopra, Advocate, District Court on 29 April, 2004
Equivalent citations: 2004(2)JKJ341
Author: Permod Kohli
Bench: Permod Kohli
JUDGMENT Permod Kohli, J.
1. Union of India, the writ petitioner in this petition seeks setting aside of orders dated 1-3-1999 passed by the J&K State Commission (Under Consumer Protection Act, 1986) Jammu passed in Appeal No. 1809/1998 and order dated 9-3-1998 passed by the Divisional Forum (Under J&K Consumer Protection) Act 1987 on the grounds: --
(i) that both the Forums have not appreciated the facts/evidence on record;
(ii) That the forums constituted under the provisions of the Jammu and Kashmir Consumer Protection Act have no jurisdiction to decide the controversy raised in view of specific provision of Section 7B of the Indian Telegraphs Act 1885, which provides a remedy for adjudication of the dispute;
(iii) Notice under Section 80 Code of Civil Procedure was mandatory before lodging the complaint before the Divisional Forum and non-service of the notice has vitiated the proceedings.
2. Briefly, stated the facts as appear from the record are that respondent No. 1 is an Advocate by profession. He was holder of a Telephone connection bearing No. 542315. The said Telephone went out of order for which a complaint was lodged on 6-6-1996. The defect was removed and the telephone became functional only on 4-7-1996. The complainant lodged a complaint with the Divisional Forum claiming an amount of Rs. 40,000/- as compensation for the loss caused to the complainant due to non-functioning of the office Telephone. Petitioner herein filed objections. Besides disputing the claim on merit, it also stated that the complaint was not maintainable in view of the remedy available under Section 7B of the Indian Telegraphs Act 1885. The dismissal of the complaint was also sought for non-service of notice under Section 80 CPC. The Divisional Forum considered the claim of respondent No. l and awarded an amount of Rs. 5000/- as compensation holding that there has been deficiency in service by the Telegraphs Department vide its judgment dated 9-3-1998 and an appeal preferred there-from before the State Commission came to be dismissed vide judgment dated 1-3-1999. Petitioner has now sought quashment of both these judgments on the grounds, noticed hereinabove.
3. As far as the challenge to the impugned orders on the ground that the forums below have not appreciated the evidence there is a concurrent finding of fact and the writ Court cannot interfere in the same. I decline to interfere in the findings of fact arrived at by the forums below.
4. Contention of the petitioner is that the forums constituted under the Consumer Protection Act have no jurisdiction in view of the fact that all disputes concerning the telegraph line, appliance or apparatus arising between the telegraph authority and the person for whose benefit the line, appliance or apparatus is or has been provided, is to be determined by arbitration under-Section 7B of the Indian Telegraphs Act, 1985.
5. Petitioner has relied upon judgments dated 23-2-2001 passed in OWP No. 303/98 and OWP 297/98 wherein this Court held that a dispute relating to Telegraph line, appliance and apparatus is to be arbitrated upon by the Arbitrator in terms of Section 7B of the Indian Telegraphs Act. This judgment was appealed against and a Division Bench of this Court vide its order dated 16-7-2002 passed in LPA (OW) 124/2001 dismissed the appeal by holding as under: --
"The only submission of the learned counsel for the appellant is that the learned Single Judge ought not to have relegated the appellant to the remedy of arbitration proceedings under Section 7B of the Telegraphs Act. According to the learned counsel, the matter should have been allowed to be dealt with by the Consumer Forum as the over-billing amounts to deficiency in service.
We find no merit in the contention of the learned counsel for the appellant. It has been held by a Division Bench of Kerala High Court in General Manager, Telecom District v. Consumer Disputes Redressal Forum, AIR 2000 Kerala 250, that the dis-connection of telephone for non-payment of dues does not amount to deficiency in service as defined in Section 2(1)(g) of the Telegraph Act, 1985.
The complaint by the appellant could have been entertained by the Consumer Forum only when there was any deficiency of service. Since there was no deficiency in service the Consumer Forum was not competent to entertain the complaint. The allegation made by the appellant in the complaint was that there has been over-billing by the telephone department. This dispute could be dealt with only by the arbitrator under Section 7B of the Telegraphs Act 1985. Therefore, in our view the learned Single Judge has committed no error in relegating the appellant to the remedy of arbitration under Section 7B of the Act.
In view of the above, we find no merit in this appeal, which is accordingly dismissed."
6. No-doubt a coordinate bench of this Court has ruled that the dispute relating to Telegraph lines, appliance or apparatus is required to be adjudicated upon in terms of Section 7B of the Telegraphs Act. However, in the appeal preferred there-from a Division Bench of this Court has held that in the event of dis-connection of the telephone for non-payment there is no question of deficiency in service and relying upon a judgment of the Kerala High Court reported in General Manager, Telecom District v. Consumer Disputes Redressal Forum, AIR 2000 Kerala 250, the complaint was dismissed. In the present case the dispute is not of dis-connection of the Telephone for non-payment. The telephone connection of respondent No. 1 remained non-functional for a period of one month as per the findings recorded by the forums below. The telephone subscriber had paid the dues. It is a case which falls within the purview of deficiency in service as defined under-section 2 (g) of the State Consumer Protection Act, which reads as under: --
"(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any services."
Once there is a deficiency in service, then the jurisdiction of the consumer forum is not ousted.
The scope of the Consumer Protection Act is further contained in Section 3 of the Act which is re-produced below:
"3. Act not in derogation of any other law- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
7. In view of the clear provision of the afore-said section this is a forum which is in addition to all other remedies available under law provided the case fall within the definition of deficiency in service or other provision.
8. There is another aspect that Section 7B of the Telegraphs Act does not oust the jurisdiction of consumer forum. Even if it is assumed that both the forums i.e. Arbitrator to be appointed under Section 7B and Consumer Forum created under the Act, have the jurisdiction, the one which is more convenient and provide efficacious remedy to a person can be preferred by the applicant/ complainant. The Consumer Protection Act being a Special Act is enacted in the larger public interest and specifically deals with the disputes relating to deficiency in service. Dispute relating to telegraph line, appliance and apparatus has not been defined, whereas the deficiency in service is clearly defined under the provisions of the Consumer Protection Act. Even if the Telegraphs Act is also considered to be a special statute, the Consumer Protection Act also being a special statute and enacted later in time and providing additional remedy, it cannot be said that the remedy available under this Act is ousted or cannot be availed in view of the provisions of the Telegraphs Act. The intention of the legislature is clear and even if the two remedies are available, the choice is with the aggrieved person to opt for a remedy un-less there is a specific bar or exclusion of jurisdiction. There is none in the present case. The Apex Court in a similar situation in the case of Skypak Couters Ltd. v. Tata Chemicals Ltd, AIR 2000 SC 2008, wherein it has been held as under:
"Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force."
9. Keeping in view the above decision, I am of the considered view that the forums constituted under the Consumer Protection Act have the jurisdiction to entertain and decide the complaint where there is deficiency in service as defined under the Act.
10. Now coming to the last argument of the learned counsel for the petitioner that the service of notice under Section 80 CPC is necessary before seeking the remedy. I am unable to accept this contention too. As noticed above the additional remedy is made available to a consumer under this Act. There is no provision under the Act which requires service of notice under Section 80 CPC. The consumer has only to lodge a complaint, if his case falls within the definition of deficiency in service. The intention of the legislature is clear even when a complainant approaches the Consumer Forum constituted under the Consumer Protection Act, he is not required to pay any Court fee for claiming any damages or compensation which he may be required to pay, if he approaches a Civil Court. Similarly, he is not required to serve any notice under Section 80 CPC, if he has to approach the forum under this Act as the same is not the requirement of law.
11. In view of the above, there is no scope for interference in the orders impugned in the present petition. This writ petition is accordingly dismissed.