State Consumer Disputes Redressal Commission
Bharath Sanchar Nigam Limited And ... vs C.Subrahmanyam S/O Late C.Mogilappa on 20 September, 2011
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD. F.A.No.15 OF 2009 AGAINST C.C.No.89 OF 2008 DISTRICT FORUM-1 CHITTOOR Between: 1. The Chief General Manager, Bharath Sanchar Nigam Limited A.P.Circle rep. by Asst. General Manager (Legal) Abids, Hyderabad 2. The D.E. BSNL, Telecom Service, Chittoor 3. The Dy. General Manager, BSNL, Telecom Services BSNL, Exchange Office, Chittoor 4. The General Manager, Telecom of Tirupati 5. The Asst. General Manager, GMTF., BSNL, Tirupathi. Appellants/opposite parties And: C.Subrahmanyam S/o late C.Mogilappa Age about 58 years, Advocate, R/o D.No.10-116, Gandhi Road Extension Chittoor. Respondent/complainant Counsel for the Petitioner Sri K.Mohan Counsel for the Respondent Sri M.Venkata Ramana Reddy QUORUM: SRI R.LAKSHMI NARASIMHA RAO, HONBLE MEMBER
AND SRI T.ASHOK KUMAR, HONBLE MEMBER TUESDAY, THE TWENTIETH DAY OF SEPTEMBER, TWO THOUSAND ELEVEN Oral Order:(Per Sri R.Lakshmi Narasimha Rao, Honble Member.) ***
1. The opposite party, Bharth Sanchar Nigam Limited is the appellant. The respondent filed complaint seeking direction to the appellant to erect tower at Gandhi Road, Chittoor and for payment of `50,000/- towards damages and costs.
2. The respondent is subscriber of the appellants with mobile phone service connection bearing No.9440737704 and he complained to the appellants no.1 and 2 by letter dated 25.4.2007 that the existing cell tower does not meet the requirement of the customers and requested them to erect a new tower at Gandhi Road, Chittoor or enhance the power of existing tower.
The first appellant visited the office-cum-residence of the respondent and made enquiry as to the signals within the premises of the respondent. The respondent subsequently had sent letter dated 15.10.2007 to the appellant no.5 requesting to furnish information about the capacity of cell tower in Chittoor town for which the 5th appellant had sent reply on 22.10.2007 informing the respondent that the information sought for would be furnished by them. On 6.11.2007 the 3rd appellant had informed the respondent that the information sought for by the respondent is of commercial confidence and trade secret exempted under Sec.8(1)(d) of RTI Act. The respondent has got issued notice dated 11.7.2008 requesting the appellants to improve the power of the tower and pay damages to the tune of `50,000/- with interest thereon.
3. The respondent contended that there is unproportionate mobile connections to the existing tower and as such the information sought for is not exempted under the provisions of RTI Act. It is contended that the respondent is an advocate by profession and furnished his mobile phone connection number to many of his clients who would be affected by poor reception of the calls made to or from the mobile phone of the respondent as it was impracticable to get connected from the mobile connection of the respondent and once it is got connected, it would be disconnected within seconds.
4. The appellants resisted the claim contending that the complaint is not maintainable and it has to be referred to the arbitrator, the Chief General Manager or his nominee under the provisions of Section 7B of the Indian Telegraph Act and the rules framed thereto. It is contended that the complaint has to be filed within the jurisdiction of the courts in Hyderabad and not before consumer forum. It is submitted that Gandhi Road area where the respondent has been residing is congested area and is covered by Chittoor Church Street, BTS Sector-1 intermittently by Chittoor Shantapeta Sector-02 and RX level is about 093 dbm indoor and -80 dbm outdoor.
The church BTS is about 700 mts away from the respondents premises, it being a congested area, the RX level indoor is less and to improve the coverage a new BTS was planned at the premises Dr.No.10-198 Gandhi Road and the work is in progress. A new BTS is schedule to be commissioned within two months which is expected to improve the coverage at the premises of the respondent.
5. The respondent has filed his affidavit and the documents Exs.A1 to A6. On the side of the appellants the appellant no.5 has filed his affidavit and no documents.
6. The District Forum has allowed the complaint on the premise that the appellants had released number of connections unproportionate to the power of the cell towers as also the information sought for by the respondent was not furnished to him.
7. The opposite parties have filed the appeal contending that the information sought for by the respondent is of commercial nature which cannot be furnished to him and as per the clause in the agreement the dispute is arbitrable and that the respondent would have discontinued his subscription had there been any inconvenience caused to him in regard to the usage of mobile connection.
8. The point for consideration is whether the complaint is maintainable and if so to what relief the respondent is entitled to?
9. The respondent had obtained prepaid mobile connection about five years prior to the date of filing the complaint and he had complained of reception of poor signals on 25.4.2007. The first appellant had sent reply informing the respondent that he had visited the respondents premises and noted that the speech quality is poor due to variation in RX level between -90 to -100 dbm indoor and a new BTS was planned to be installed under phase-IV at Chaitanya college building Gandhi Road.
10. The erection of a tower as sought for by the respondent and furnishing of information prohibited under Sec.8(1)(d) of RTI Act cannot be complained of before Consumer Forum in the light of decision of the Honble Supreme Court in General Manager, Telecom Vs M.Krishnan and Anr., in Civil Appeal No.7687 of 2004 decided on 1.9.2009. The Supreme Court held that the Indian Telegraph Act is special law and Consumer Protection Act being a general law, the Consumer Forum has no jurisdiction to adjudicate claims in regard to the complaint concerning any telegraph line. The Apex Court held that:
11. In our opinion when there is a special remedy provided in Sec.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. Sec.7B of the Indian Telegraph Act reads as under:
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 for whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government 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.]
12. The Supreme Court had referred to its earlier decision in Tiruvalluvar Transport Corporation Vs Consumer Protection Council (1995) 2 SCC 479 to hold that special law overrides general law and when there is a special statute created for dealing the matters prescribed thereunder, the general law has no application and it has to give way to the special statute. The Apex Court had made it clear that the domain of special law would wipe away the power of the courts to deal with the matters either expressly prohibited or prohibited by implication under special law. The erection of tower relating to the telegraph line falls within the domain of Sec.7B of the Indian Telegraph Act and the dispute is to be adjudicated by the arbitrator.
13. In the result the appeal is allowed. The order of the District Forum is set aside. The respondent is at liberty to approach the arbitrator, the Chief General Manager, Telecom Circle Hyderabad or his nominee. There shall be no order as to costs.
MEMBER MEMBER Dt.20.09.2011 KMK*