State Consumer Disputes Redressal Commission
Idea Cellular Ltd., C-105, (Erstwhile ... vs Jagdish Kajla on 5 August, 2011
F.A. No. 545 of 2011 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No. 545 of 2011
Date of institution : 25.3.2011
Date of Decision : 5.8.2011
Idea Cellular Ltd., C-105, (Erstwhile Spice Communication Ltd.) A company registered
under the Companies Act having its registered office at Suman Tower, Plot No. 18,
Sector 11, Gandhi Nagar-382011 (Gujarat) and Punjab Circle Regional Office at C-105,
Phase VII, Industrial Focal Point, Mohali-160055 (Punjab) through its Authorised
Signatory/Manager Legal Mr. Manoj Madan.
.....appellants.
Versus
1. Jagdish Kajla son of Sh. Dhanwant Ram, resident of Village Muzzafar Pur, P.O.
Bhojwal, District Jalandhar.
2. Batra Songs, Opposite Lovely Sweet Shop, Jalandhar, through its Proprietor.
...Respondents
First Appeal against the order dated 9.2.2011 of
the District Consumer Disputes Redressal Forum,
Jalandhar.
Before:-
Hon'ble Mr. Justice S.N. Aggarwal, President.
Mrs.Amarpreet Sharma, Member
Present:-
For the appellant : Sh. Vishal Gupta, Advocate
For the respondent : Ex-parte
MRS. AMARPREET SHARMA (MEMBER):-
Respondent No. 1 had purchased post paid telephone connection/SIM Card from respondent No. 2 on 23.7.2006 and he was allotted mobile No. 9914134646. He had been paying the telephone bills regularly. On 13.10.2009, respondent No. 1 requested respondent No. 2 to convert his telephone number from post paid plan to pre- paid plan. His request was accepted and his connection was duly activated on 15.10.2009. However, on 23.10.2009, respondent No. 2 illegally barred the incoming and outgoing call facility to the said connection of respondent No. 1 at 5.45 p.m. without serving any prior notice to him. When respondent No. 1 contacted respondent No. 2 in this regard, he was told that his identity proof given at the time of request for converting the post paid connection to pre-paid connection had been rejected. He was also meted with misbehaviour and his SIM Card was taken away forcibly.
2. It was further alleged by respondent No. 1 that he had given the copy of licence for his identity proof bearing the same address which was mentioned for his F.A. No. 545 of 2011 2 identity proof given at the time of taking the post paid connection on 22.7.2006. But respondent No. 2 had without any notice or without assigning any reason for the rejection of his identity proof, disconnected his connection and this act on its part clearly amounted to deficiency in service.
3. With the aforesaid allegations, respondent No. 1 filed the complaint and sought direction to the appellants and respondent No. 2 to release the SIM Card and to re-activate of his connection. He also prayed for compensation and costs.
4. Despite services, none appeared on behalf of respondent No. 2 and hence they were proceeded against ex-parte.
5. Upon notice, the appellants appeared and filed the written reply wherein the preliminary objection as to the maintainability of the complaint in view of Section 7-B of Telegraph Act was taken. On merits it was pleaded that the mobile phone number 9914134646 was activated in pre-paid category on 15.10.2009 in the name of respondent No. 1. It was further pleaded that incoming and outgoing facility of the said connection was barred due to lack of identity proof which was mandatory as per D.T.O guidelines. It was further pleaded that respondent No. 1 had inquired about the barring of service to his mobile connection on 23.10.2009 at helpline and he was guided to visit the showroom for the same. It was denied if respondent No. 2 mis-behaved with respondent No. 1 or kept his SIM Card forcibly. Since respondent No. 1 failed to give sufficient identity proof, therefore his incoming and outgoing facility was duly barred as per the company's policy. Thus denying any deficiency in service on their part, the appellants prayed for the dismissal of the complaint.
6. Parties led evidence in support of their respective contentions by way of affidavits and documents.
7. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum accepted the complaint vide impugned order dated 9.2.2011 and directed the appellants and respondent No. 2 to re-activate the connection of respondent No. 1. They were further F.A. No. 545 of 2011 3 directed to pay a sum of Rs. 2500/- as compensation to respondent No. 1 besides a sum of Rs. 500/- as litigation expenses.
8. Hence the appeal.
9. The submission of the learned counsel for the appellants was that as per the judgment of 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 as well as of the Hon'ble National Commission in Revision Petition No. 1703 of 2010 decided on 21.5.2010 in the case "Prakash Verma Versus, IDEA Cellular Ltd. and Anr," , the Consumer Fora have no jurisdiction to try and decide the complaint between the telecom service providers and their subscribers. It was thus prayed that the appeal be accepted and the complaint of the respondent be dismissed as not maintainable.
10. Record has been perused. Submissions have been considered.
11. 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 or not.
12. 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/- F.A. No. 545 of 2011 4 with interest @ 12% per annum from the date of filing of the complaint."
13. In the facts narrated above, the Hon'ble Supreme Court was 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 telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules.
F.A. No. 545 of 2011 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."
14. 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 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:-
F.A. No. 545 of 2011 6
"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 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 F.A. No. 545 of 2011 7 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;
(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 F.A. No. 545 of 2011 8 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 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."
15. It was concluded by this Commission as under:-
F.A. No. 545 of 2011 9
"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."
16. 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.
17. However, it has now 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:-
"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."
18. 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.
F.A. No. 545 of 2011 10
19. Therefore the Hon'ble National Commission vide order dated 21.5.2010 has applied the judgment of the Hon'ble Supreme Court in M. Krishnan's case (supra) to the case of private mobile service operator also the SLP filed against that order has been dismissed by the Hon'ble Supreme Court on 1.10.2010.
20. 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 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.
21. In view of the above discussion, this appeal is accepted and the impugned order under appeal is set-aside. Consequently the complaint of the respondent No. 1 is dismissed. However the parties would be at a liberty to take recourse to arbitration proceedings.
22. The arguments in this case were heard on 3.8.2011 and the order was reserved. Now, the order be communicated to the parties.
(Justice S.N.Aggarwal) President (Mrs.Amarpreet Sharma) Member August 5, 2011 Rupinder