State Consumer Disputes Redressal Commission
M/S Bharti Airtel Limited vs Jaswinder Singh on 31 March, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SCO NO.3009-10, SECTOR 22-D, CHANDIGARH
Misc.Application No.2465 of 2009
in/and
First Appeal No.1694 of 2009
Date of Institution : 1.12.2009
Date of Decision : 31.3.2011
1. M/s Bharti Airtel Limited, Circle Office, Rajiv Gandhi
Technological Park, I.T. Park, Chandiarh.
2. The Incharge/Proprietor/Manager, Airtel Company, Branch Office,
Bathinda.
.........Appellants
Versus
Jaswinder Singh s/o Mehar Singh R/o Amarpura, Street No.3, Bathinda.
.........Respondent
Appeal against the order dated 9.10.2009
of District Consumer Forum, Bathinda
BEFORE
Hon'ble Mr.Justice S.N.Aggarwal, President
Mrs.Amarpreet Sharma, Member
Sh.Baldev Singh Sekhon, Member PRESENT For the appellant : Sh.Sanjiv Pabbi, Advocate For the respondent : Ex-parte JUSTICE S.N.AGGARWAL, PRESIDENT Misc.Application No.2465 of 2009 This appeal was filed with delay of 9 days. An application for condonation of delay was filed along with the appeal. Reasons have been given in this application which caused the delay in filing the appeal. This 2 Appeal 1694/2009 application is supported by an affidavit. For the reasons stated in the application, we are satisfied that delay is not intentional and is liable to be condoned. Accordingly the application for condonation of delay is allowed with all just exceptions and delay of 9 days in filing the appeal is condoned. Main Case
2. The respondent was having Mobile Connection from the appellants bearing no.98158-05357. This mobile was being used by the respondent in connection with his business of repairing the cars and he had given this connection number to many of his customers. The SIM No. of this mobile connection was 89910, 20408, 10408 and 5731. The appellants had disconnected the mobile connection of the respondent without any intimation to the respondent and this number was allotted to some other person which was violative of the instructions issued by the appellants themselves. The appellants have misused their authority which has caused mental tension, harassment and loss of reputation to the respondent and which has also affected his business.
3. It was further pleaded that the respondent had filed an application dated 10.4.2009 to the SSP Bathinda along with his affidavit but in vain. The appellants were also requested to restore the mobile connection number to the respondent but to no effect. Hence the complaint for restoration of the mobile connection number. Compensation for loss of business, harassment, mental agony and loss of reputation was prayed.
4. The appellants filed the written reply. It was admitted that the respondent was having mobile connection no.98158-05357 from the appellants. It was pleaded that one Gurmit Singh was having mobile connection no.98158-09357. His mobile was lost from him on which Gurmit Singh submitted an affidavit that he was having Airtel Pre-paid mobile 3 Appeal 1694/2009 connection bearing no.98158-05357 although his actual mobile number was 98158-09357. Due to the error of Gurmit Singh, the mobile number of the respondent was disconnected and it was allotted to Gurmit Singh on 9.4.2009. It was, however, admitted that the respondent was having mobile connection no.98158-05357 but due to the mistake of Gurmit Singh, this mobile number was allotted to him. It was denied if there was any deficiency in service on the part of the appellants. Dismissal of the compliant was prayed.
5. The parties produced affidavits/documents in support of their respective versions.
6. The learned District Forum accepted the complaint vide impugned order dated 9.10.2009 with cost of Rs.2,000/-. The appellants were directed to put the mobile connection of the respondent in its original/previous position and also to pay an amount of Rs.10,000/- as compensation for mental tension.
7. Hence the appeal.
8. The submission of the learned counsel for the appellants was that this Commission has no jurisdiction to entertain the complaint of a mobile connection subscriber against the mobile phone operators. Reliance was placed on the judgment of the Hon'ble Supreme Court reported as "General Manager, Telecom v. M. Krishnan & Anr." 2009 CTJ 1062.
9. This submissions has been considered.
10. The appellants have themselves admitted in the complaint that mobile connection no.98158-05357 was in the name of the respondent, Jaswinder Singh, since 4.10.2006 while the mobile number of Gurmit Singh was 98158-09357 which was lost. Gurmit Singh filed his affidavit that he was having mobile connection no.98158-05357 wrongly whereas his mobile number was 98158-09357. The appellants accordingly disconnected the 4 Appeal 1694/2009 mobile connection of the respondent bearing no.98158-05357 on 9.4.2009 and allotted the same to Gurmit Singh. Obviously therefore the appellants have committed deficiency in service qua Jaswinder Singh, respondent.
11. So far as the judgment of the Hon'ble Supreme Court in M. Krishnan's case (supra) is concerned, this Commission had taken the view in the judgement reported as "Spice Communication Pvt. Ltd. v. Gurinder Kaur and another" 2010 CTJ 688 (SCDRC) (passed on 22.2.2010) that this judgement was not applicable to the private mobile service providers. It was held 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 5 Appeal 1694/2009 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:-
"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 6 Appeal 1694/2009 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 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 7 Appeal 1694/2009 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 Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986);
8Appeal 1694/2009 (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 9 Appeal 1694/2009 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."
12. It was concluded by this Commission 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."
13. However the Hon'ble National Commission had delivered a judgement in Revision Petition No.1703 of 2010 (Prakash Verma vs. Idea Cellular Ltd. & anr.) in which it was observed by the Hon'ble National Commission as under:-
" Fora below have dismissed the complaint filed by the petitioner relying upon the judgment of Supreme Court in General Manager Telecom vs. M. Krishnan & Anr.-(2009)8 10 Appeal 1694/2009 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."
14. Parkash Verma's case (supra) related to private mobile service provider in which the Hon'ble National Commission has held that the judgement of the Hon'ble Supreme Court in M.Krishnan's case (supra) was applicable. The S.L.P. No.27577 of 2010 filed against this order was dismissed by the Hon'ble Supreme Court vide order dated 1.10.2010.
15. Keeping in view the latter orders of the Hon'ble National Commission and Hon'ble Supreme Court and following the same, this Commission has revised its view and held in judgement passed in First Appeal No.668 of 2005 titled as 'Bharti Cellular Limited Versus Sudarshan Kumar' decided on 24.2.2011 that the judgement of the Hon'ble Supreme Court in M.Krishnan's case (supra) was also applicable to Private Mobile Service Providers and the jurisdiction of the Fora under the Consumer Protection Act was barred. Any person aggrieved can resort to the remedy of Arbitration.
16. In view of the discussion held above, this appeal is accepted and the impugned judgment dated 9.10.2009 is set aside. The parties are left to resort to the remedy of Arbitration.
17. The appellants had deposited an amount of Rs.6,000/- with this Commission at the time of filing of the appeal on 1.12.2009. Another amount of Rs.1,000/- was deposited on 11.2.2011 in pursuance of order dated 27.1.2011 passed by this Commission. The amount of Rs.6,000/- with 11 Appeal 1694/2009 interest accrued thereon, if any, be refunded by the registry to the appellants by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum. The amount of Rs.1,000/- be deposited in the State Legal Aid Fund by the Registry.
18. The arguments in this case were heard on 29.3.2011 and the order was reserved. Now, the order be communicated to the parties.
19. 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 March 31 , 2011 vr/-
12Appeal 1694/2009