State Consumer Disputes Redressal Commission
Bsnl, Vijayawada vs Ch. Divakar Babu, Vijayawada on 28 February, 2012
A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD FA 684/2010 against CC 225/2009 on the file of the District Consumer Forum II, Krishna District at Vijayawada. Between : M/s. Customer Care Authorized Person Cell One, BSNL, BSNL Bhavan, Near Chuttugunta, S.R.R & C. V. R. College Road, Machavaram, Vijayawada .. Appellant/opposite party And Ch. Divakar Babu, S/o Ch. Nageswara Rao ( late ) Secretary to Consumer Guides Society, R/o Qtr. Bi, 42, Kannur, KCP Colony, Vijayawada .Respondent/complainant Counsel for the Appellant : Mr. K. Mohan Counsel for the Respondent : Mr. Ch. Divakar Babu Coram ; Sri R. Lakshminarasimha Rao Honble Member
And Sri T. Ashok Kumar .. Honble Member Tuesday, The Twenty Eighth Day of February Two Thousand twelve Oral Order : ( As per Sri T. Ashok Kumar , Honble Member ) ****
1. This is an appeal preferred by the unsuccessful opposite parties as against the order dated 27.04.2010 in CC 225/2009 on the file of the District Consumer Forum II, Krishna District at Vijayawada. For convenience sake, the parties as arrayed in the complaint are referred to as under :
The brief facts of the complaint are that The complainant is the subscriber of BSNL pre-paid Mobile Cellular service bearing No. 94403 90370 for more than five years without any interruption in the subscription of services. But recently he has been receiving unsolicited, undesirable and disgusting commercial calls and messages at odd hours and that too while he was deeply engaged in his professional work causing him great mental agony, anguish and annoyance besides unbearable distraction from his work and attention. All the above circumstances led him to register his Mobile in PNDC on 01.06.2009 at 12.57 PM with an intention to block all such commercial calls.
Even after expiry of the maximum stipulated period of 45 days as mandated by the TRAI and despite many requests, as the OP did not take any action, he again lodged a complaint to the Customer care service bearing No 9440024365 under acknowledgement as AP 2510099193 and thereafter got issued legal notice dated 26.10.2009. Subsequently also as there was no action on the part of OP he filed the complaint to direct the OP for barring the undesirable and unsolicited commercial calls and messages to his mobile number as per the TRAI regulations and to award Rs.5000/- compensation for mental agony and costs.
3. OP filed counter opposing the claim of the complainant and disputing the claim and the brief facts of the counter are as under :
The complainant, who is a subscriber of prepaid Mobile cellular of 9440390370, complained on 25.10.2009 stating that he is receiving many messages to his mobile aforesaid but he did not mention from whom the unsolicited commercial communications was receiving, the date, time and the brief description of such UCC to forward the same to the concerned UCC Nodal Officer.
As per Section 7(b) of Indian Telegraphic Act, any dispute between the customer and the provider the same has to be referred to Arbitrator, hence the District Forum has no jurisdiction to entertain the complaint. The complainant has not followed the prescribed procedure in providing information. There is no deficiency in service and harassment on their part and thus prayed to dismiss the complaint.
4. Both sides filed evidence affidavits reiterating their respective pleadings and Ex. A1 and A2 were marked on behalf of the complainant and no documents were marked for the OP.
5. Having heard both sides and considering the evidence on record, the District Forum allowed the complaint and directed the opposite party to bar the unsolicited calls and messages to the complainants mobile and to pay Rs.2,000/- towards compensation and Rs.1000/- towards costs within one month.
6. Feeling aggrieved with the said order the unsuccessful opposite party filed this appeal on several grounds and mainly contended that the District Forum grossly erred in holding that Section 7(B) of Indian Telegraphic Act will not apply to the facts of the case and that the District Forum failed to appreciate that the complainant failed to follow the prescribed procedure laid down by TRAI and that the order of the District Forum is against the facts and law and thus prayed to allow the appeal and set aside the order of the District Forum.
7. Heard the respondent with reference to his respective contentions and perused the written arguments filed by both sides.
8. Now the point for consideration is whether the order of the District Forum is sustainable ?
9. There is no dispute that the complainant is the subscriber of BSNL pre-paid Mobile Celluar service bearing No. 94403 90370 for more than five years and he has been paying bills. According to the complainant he has been receiving several unsolicited commercial calls and also messages and hence he gave complaint to the opposite party to bar the same and that the OP registered the same on 01.06.2009 at 12.54 PM vide Ex.
A1 and as the said practice of incoming commercial calls were not stopped therefore he got issued Ex. A2 legal notice to OP and in spite of it there was no response from them and that the said acts amount to deficiency in service.
10. The contention of the Opposite party is that as per Section 7 (b) of Indian Telegraphic Act, the matter has to be referred to an Arbitrator for settlement of the dispute. 7B of the Indian Telegraph Act, 1885 mandates as follows : 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.].
The Honble Supreme Court of India in the Judgment dated 1.9.2009 in Civil Appeal No. (S) 7687/2004 titled as General Manager, Telecom, BSNL Vs. LVI Krishnan has decided that when there is a special remedy provided U/s. 7-B of the Indian Telegraph Act , 1885, regarding disputes in respect of the Telephone bills, then the remedy under the Consumer Protection Act is barred. It is true that in this case the dispute does not pertain to Telephone bills but with regarding to unsolicited commercial calls and messages. The words Telegraph line appliance or apparatus are so comprehensive to attract the above dispute pertaining to unsolicited commercial calls and messages and therefore we are of the opinion that the present dispute is also barred under the said special and implicit provisions and the Consumer Forum has no jurisdiction to entertain the complaint. Thus the impugned order is not sustainable and it is liable to be set aside.
11. In the result, the appeal is allowed setting aside the order of the District Forum and consequently the complaint stands dismissed. No order as to costs in the Appeal.
MEMBER MEMBER DATED : 28.02.2012.
Sub:
Proposal for amendment of section 7B Arbitration of Disputes of Indian Telegraph Act, 1885.
Kind reference is invited to the noting of DDG(PG), DoT on 5/N ante.
I Ion ble Supreme Court of India in the Judgment, dated 1-9-2009 in the Civil Appeal No(s).7687 of 2004 titled as General Manager, Telecom, BSNL Vs. Ivi.Krishnan ANR.
has decided that when there is a special remedy provided under Section 7-B of the Indian Telegraph Act, 1885 regarding disputes in respect of the telephone bills, then the remedy under the Consumer Protection Act is barred.