In view of the recent judgement of the supreme court in M. krishnan' s case, whether private cellular/mobile telephone service providers can be sued in consumer courts, the following judgement of the Distt. consumer forum, Ferozepur, Punjab may be helpful. Please post a comment whether you agree
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR.
QUORUM
President: Sh. Sanjay Garg
Member: Sh.T.S.Kamboj
C.C. No. 249 of 2009
Date of Institution: 1.6.2009
Date of Decision: 26.11.2009
Bachan Singh Bhullar aged 50 years son of
……Complainant.
Versus
1. Idea Cellular Limited, C-105, Industrial Area, Phase-VII, S.A.S.Nagar, Mohali Punjab through its Circle Incharge.
2. Spice Communication Private Ltd., C-105, Industrial Area, Phase-VII, S.A.S.Nagar, Mohali Punjab through its Circle Incharge.
3. Telecom Regulatory Authority of
….Opposite Parties
Complaint under Section 12-A
of the Consumer Protection Act.
*******
PRESENT :
For the complainant : Sh.Maninder Vohra Advocate
For opposite party Nos.1 & 2 : Sh. Shallinder Bhalla Advocate
For opposite party No.3 : Exparte
ORDER
SANJAY GARG, PRESIDENT:-
Complainant Bachan Singh has filed the present complaint against the Idea Cellular Limited (hereinafter referred to as opposite party No.1), Spice Communication Private Limited (hereinafter referred to as
C.C. No. 249 of 2009 \\2//
opposite party No.2) and Telecom Regulatory Authority of India (TRAI) (hereinafter referred to as opposite party No.3), pleading that earlier the complainant was a subscriber of the Spice Communications Private Limited (mobile service provider) having connection No. 98555-57510. The said Spice Communication Private Limited has now been taken over by opposite party No.1 Idea Cellular Limited. Without any dues pending against the mobile connection of the complainant, his connection has been disconnected by the opposite party Nos.1 & 2 on 30.3.2009 without any notice to the complainant. The complainant enquired about the matter from opposite party Nos.1 & 2, but no satisfactory reply has been given. The complainant was asked to deposit Rs.800/- and the complainant accordingly deposited the said amount. But despite that his connection has not been restored/reactivated. Even after the disconnection, opposite party Nos.1 & 2 are adding rent/other charges in the telephone bill for the future months also. The further grievance of the complainant is that he has been receiving unwanted promotional messages and promotional calls from opposite party Nos.1 & 2 despite specific repeated requests to stop the unwanted promotional messages and promotional calls. It has been further pleaded that after the taking over of the affair of Spice Communication Private Limited by the Idea Cellular, opposite party No.1, Idea Cellular Limited has unilaterally changed the scheme plan, tariff, rental etc. without the consent of the consumers and in violation of the agreement of the consumers with the Spice Communication Private Limited. The Idea Cellular Limited Company mobile service provider is exploiting the consumers by taking undue benefit
C.C. No. 249 of 2009 \\3//
of its monopoly because the consumers of Idea Cellular cannot opt from another company/mobile service provider with the same number as the mobile number of the consumer has infact beome the identity number of a particular consumer. So the consumer cannot afford to change his mobile connection number and as such the mobile service provider (Idea Cellular ) taking wrongful advantage of the same, with the passage of time, use to levy more and more illegal and wrongful charges without the consent and without any agreement to this effect with the consumers. The complainant has pleaded that after the taking over by the Idea Cellular Limited, the following malpractices/illegal charges have been adopted and levied by opposite party No.1:
A) Earlier the monthly rental of the consumer was Rs.150/- and same has been enhanced to Rs.300/- per month.
B) The complainant is an old customer of the Spice Communication/Idea Cellular and instead of giving some incentives to the old customer, opposite party Nos.1 & 2 have started charging Rs.50/- extra per month as plan chages because of continuing the plan of tariff for more than one year.
C) Opposite party Nos.1 & 2 have started charging Rs.15/- per month
as premium service charges without offering any extra service.
D) On certain festival, occasion like New Year, Diwali, Gurpurbs etc., opposite party Nos.1 & 2 have started charging enhanced SMS charges than the normal routine charges illegally taking wrongful benefit of the innocence of the consumer knowing well the
C.C. No. 249 of 2009 \\4//
consumers are used to send greeting messages to their relatives, friends etc. on those days.
E) Opposite party Nos.1 & 2 have started charging more than Rs.35/- per month on account of incremental rental.
F) Earlier at the time of taking the connection, no charges were levied for showing the phone number of the caller on the telephone of receiver, but now opposite party Nos 1 & 2 have starting charging clip charges @20/- per month.
G) Opposite party Nos.1 & 2 are charging service tax @ 12.36% including Education Cess 2% and for higher education @1% on ST, but they are not depositing the same with the Government. Even in case, opposite party Nos.1 & 2 are used to pay this amount to government, then they are bound to declare about this deposit in the telephone bills or otherwise convey to the consumers as to how much amount was calculated from the consumers on this account and how much has been deposited with the Government.
2. It has been further pleaded that opposite party Nos.1 & 2 are used to add certain amounts illegally in the bills and that too in between the period of billing cycle and not at the commencement of the billing cycle and without notice to the complainant. Even there is a very bad service of the opposite parties as the calls are frequently disconnected without maturity and as such the complainant has to pay extra for making another call to complete the conversation. The complainant has further pleaded that though the Telecom Regulatory Authority of India (TRAI) regulates the
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functioning of the mobile service provider, but it has failed to control the illegal activities and exploitation of the consumers at the hands of opposite party Nos. 1 & 2 and as such the Telecom. Regulatory Authority of India has also been impleaded as a party to the complaint. With these grievances, the complainant has prayed for the following reliefs against the opposite parties:-
“i) To direct the opposite parties to restore the mobile phone
connection of the complainant.
ii) The opposite parties be directed to charge Rs. 150/- per month as rent which was being charged by spice previously for the same monthly bumper plan with the same scheme as was being provided by the spice and to refund the amount charged from the complainant in excess than the fixed rent of Rs.150/- per month with interest from the date, the rent is enhanced by the Idea/Spice.
iii) To stop charging extra Monthly Plan Charges, Premier Service Charges, Clip Charges and Incremental Rental Charges and to refund the amount earlier charged on this account from the complainant alongwith interest @18% per month.
iv) The opposite parties be stopped from increasing SMS charges
on special occasions and to provide the services on the SMS rates already being charged by the opposite parties.
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v) To provide detail of service tax @12.36% (Including Education Cess @2% Sec. and for Higher Education @1% on ST) collected from the consumers and the mode by which and when the said amount is being deposited with the Government. In case the said amount is not deposited with the Government, the opposite parties be directed to refund the said amount to the complainant, which is charged from the complainant on the said account.
vi) To make sure better services in future and not to repeat illegalities and not to provide deficient services in future. It be also directed that the call where done, be matured in only one attempt and stop delivering false computerized messages.
vii) To stop delivering wrong, illegal and unwarranted promotional messages and promotional calls.
viii) Rs.4,00,000/- be awarded as compensation out of which, Rs.50,000/- be awarded in favour of the complainant for his harassment and remaining be ordered to be deposited in the Consumer Legal Aid Fund.
ix) Any other relief, which this Forum may deem fit to the facts and circumstances of the case may also be awarded.”
3. Notice of the complaint was issued to the opposite parties who appeared and filed written reply to the complaint. A common reply has been filed on behalf of opposite party Nos.1 & 2. In their written reply, opposite party Nos.1 & 2 have taken the preliminary objection that the jurisdiction of this Forum is barred in view of the recent authority of the Hon’ble Supreme
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Court styled as “General Manager Telecom Versus M.Krishnan and others” wherein the Hon’ble Supreme Court has held that in disputes relating to telephone bills, there is a specific remedy under Section 7 B of the Indian Telegraph Act and remedy of Consumer Protection Act, by implication, is barred. Further an objection has been taken that as per agreement executed between the complainant and the opposite parties, the complainant has agreed to confer the jurisdiction to the courts at
C.C. No. 249 of 2009 \\8//
malpractices/illegal charges as pleaded by the complainant, the opposite parties have pleaded that the parawise reply of the opposite parties are as under:-
A) The package charges have not been changed. Earlier there was a discount of Rs.150/- rental and the complainant had opted this concession after paying Rs.551/- and after the expiry of six months (discounted period) the original rental @ 300 per month has been restored
B) The charging of Rs.55/- as plan charges has been admitted. The same are charged as per company policy. If the subscriber does not change the package after one year, than plan chages are levied.
C) CUSSD service was activated on subscriber’s number due to which service charges were levied. However, the same was deactivated on request at helpline on 29.1.2009.
D) The SMS messages (Short Messages Service) are chargeable on blackout days and communication regarding this is updated on the websites and the consumers are also informed through SMSs and even by advertisement in the newspaper.
E) Public notice was published on 21.12.2008 in Indian Express newspaper for the addition of Incremental rent and hence the same is being charged.
F) Earlier the clip charges were included in the monthly rental. However, the clip charges have been revised in the month of October and the same was published in the newspaper on 25/10.
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G) The company is receiving the service charges/taxes as per government
rules and policy.
It has been further pleaded that the plan charges have rightly been added in the bill of the consumer during the billing cycle and this fact was made known to the complainant. Rest of the averments of the complaint have been denied and dismissal of the complaint has been prayed for.
4. Written reply from opposite party No.3 has been received by post wherein, it has been pleaded that the complaint is not maintainable against the Telecom Regulatory Authority of India. However no explanation or written submission have been made as to the allegations of the complainant against the opposite party Nos. 1 & 2( Mobile Service Provider). Nothing has been mentioned as to what has been done to control or regulate or to stop the malpractice or illegal charges levied by opposite party Nos. 1 & 2 to the consumers. None was present on behalf of opposite party No.3. Hence opposite party No.3 was proceeded against exparte vide order dated 31.8.2009.
5. Parties have led evidence.
6. We have heard the learned counsel for the complainant and the learned counsel for opposite party Nos.1 & 2 and have also gone through the file.
7. The counsel for opposite party Nos. 1 & 2 has contested this case on the ground of maintainability in the light of recent authority styled as “General Manager, Telecom Versus M.Krishnan and others” and further
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submitted that in view of the Section 7 B of the Indian Telegraph Act, the jurisdiction of this Forum has been barred. In full respect to the Hon’ble Supreme Court of India, before relying upon the above said authority, we would like to discuss Section 7-B of the Indian Telegraph Act and certain other law/legislature enactments made by the Parliament and also the various other authorities on the question relating to the jurisdiction of the Consumer Forums. Section 7 B of the Indian Telegraph Act is reproduced as under:-
“Section 7-B : 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)”
A careful reading of the Section 7 B of the Indian Telegraph Act reveals that the dispute relating to telegraph line, appliance or apparatus and that too with the telegraph authority are refferable to Arbitration.
The telegraph authority has been defined under Section 3(6) of the Indian Telegraph Act, which is reproduced as under:
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“Section 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;”
8. Earlier entire system relating to the telegraph service was maintained by Department of Post and Telegraph. Lateron a Deparment of telecommunications was set up and in this context the Director General, Department of Telecommuncations can be said to be the ‘telegraph authority’ under the Indian Telegraph Act. So far opposite party Nos.1 & 2 are concerned, the counsel for opposite party Nos. 1 & 2 failed to show us any rules regulations or provisions as to how the licensees like ‘Spice Communication,’ and ‘Idea Cellular’ have come into the definition of Telegraph authority. The dispute involved in the present case is not between the telegraph authority and the complainant, it is between the licensees to whom the licence has been issued under Section 4 of the Telegraph Act for maintaining and providing mobile telecom services by Central Government. Even from the perusal of the proforma licence agreement, copy of which is available on the internet, it reveals that it has been specifically mentioned in the said licence agreement that any dispute beween a consumer and the licensee regarding the telephone services will be between the licensee and the consumer and the licenser i.e. Central Government or Telegraph Authority would not be in any manner involved or liable for the same. The relevant clauses of the licence agreement are reproduced below :-
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“2. Scope of the Licence
- - - -
2.2 The LICENSEE shall clearly define the scope of
Service to the subscriber(s) at the time of entering
into contract with such subscriber(s). Any dispute
with regard to the service provided to the subscriber
shall be a matter between the subscriber and the
licensee only.
31. Customer Service
- - - - -
- - - - -
- - - - -
- - - - -
31.5 Any dispute, with regard to the provision of SERVICE
Shall be a matter only between the aggrieved party and
the LICENSEE, who shall duly notify this to all before
providing the SERVICE. And in no case the LICENSOR
shall bear any liability or responsibility in the matter.”
So when the Central Government or the Licensor does not owe liability for any dispute between a consumer and the licensee then the licensee cannot in any terms fall in the definition of telegraph authority, rather, the working of the licensee is monitored by the telegraph authority. If the licensee fails to maintain/fulfil the condition of the licence agreement then the Telegraph Authority or the Central Government as the case may be, can take action against the licensee including termination of his licence. The powers of the
C.C. No. 249 of 2009 \\13//
Telegraph Authority have not been delegated to the licensee for the purpose of Section 7 B of the Telegraph Act.
9. Even otherwise, the disputes relating to telegraph line, appliances or apparatus are referable to Arbitration. But the present dispute is not related to telegraph line appliances or apparatus rather the dispute in question is regarding various unfair trade practices adopted by opposite party No.1 and 2 and for wrongfully levying of certain illegal charges in the bill amount and the said dispute is squarely covered under the provisions of the Consumer Protection Act, 1986. Earlier the telephone services were solely and exclusively established and maintained by the Central Government, but with the passage of time and with the advancement of technology, certain private operators have been given licences. For controlling and regulating their working, ‘The Telecom Regulatory Authority of India Act, 1997’ has been passed. Under the said Act, the jurisdiction of the Consumer Fora under the Consumer Protection Act to entertain the dispute between individual consumer and mobile service provider has been specifically recognized. We have discussed about the aspect of jurisdiction of the Consumer Protection Act in an another case also bearing C.C. No.180 of 2009 styled as Lakhbir Singh Versus B.S.N.L.
10. The Hon’ble Supreme Court of India in “General Manager Telecom Versus M. Krishnan and others (supra)” has held that under Section 7-B of the Indian Telegraph Act, 1885, the disputes concerning any telegraph line, appliance or apparatus are required to be referred to an Arbitrator appointed by the Central Government. Relying upon another
C.C. No. 249 of 2009 \\14//
authority of the Hon’ble Supreme Court styled as “Chairman, Thiruvalluvar Transport Corporation Versus Consumer Protection Council, (1995) 2 SCC 479”, the Hon’ble Supreme Court of India has further held that special law overrides the general law.
11. So far the provisions of The Indian Telegraph Act, 1885 are concerned, under Section 3 (1AA), the word ‘Telegraph’ has been defined as under :-
“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,
Explanation – “Radio waves” or “Hertzian waves” means
electro magnetic waves of frequencies lower than 3,000
giga-cycles per second propagated in space without artificial
guide.”
12. The instrument named telephone, through which one person could directly talk with another person at a distant place without seeing personally face to face, was invented by Alexander Graham Bell in the year 1876. In 1878, the first telephone exchange was established at
C.C. No. 249 of 2009 \\15//
through signs, signals and sounds etc. Even the facility was not available to people at large, but was used in emergency cases through the specialized facility offered by the Government authorities. With the advancement of technology, new inventions were made and landline telephone services were made available to the consumers at large. Thereafter, mobile telephone technology stepped into to serve the people and it was indeed a revolution in the field of telecommunication.
13. Section 3 (1AA), as reproduced above, was introduced in the said Act in the year 1961 by way of amendment to the parent Act of 1885. In the year 1961, the mobile technology had not been developed in
14. Several mobile service providers have been granted licenses to provide mobile telephone services to the consumers. To regulate the telecommunication services, adjudicate disputes, dispose of appeals and to protect the interest of service providers and consumers of the telecom sector and for matters connected therewith, the Parliament has passed “The Telecom Regulatory Authority of India Act, 1997”. Under the Telecom Regulatory Authority of
C.C. No. 249 of 2009 \\16//
have been defined, which for the purpose of facilitation is reproduced as under :-
“2. Definitions.-(1) In this Act, unless the context otherwise
requires -
(k) “telecommunication service” means service of any
descripttion (including electronic mail, voice mail,
data services, audio tax services, video tax services,
radio paging and cellular mobile telephone services)
which is made available to users by means of any
transmission or reception of signs, signals, writing,
images and sounds or intelligence of any nature, by
wire, radio, visual or other electromagnetic means
but shall not include broadcasting services:
Provided that the Central Government may
notify other service to be telecommunication service
including broadcasting services.”
15. Under the said Telecom Regulatory Authority of India Act, 1997, a provision has been made for establishment or incorporation of an authority namely Telecom Regulatory Authority of India to regulate the functioning of telecommunication service providers and other matters including and relating to mobile telephones also. Under Section 14 of the said Act, a provision has been made for establishment of Appellate Tribunals to adjudicate any dispute relating to the telecommunication services. For the purpose of facilitation, Section 14 of the Telecom Regulatory Authority of India Act, 1997 is reproduced as under :-
“14. Establishment of Appellate Tribunal – The Central
Government shall, by notification, establish an Appellate
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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) the monopolistic trade practice, restrictive trade
practice and unfair trade practice which are subject
to the jurisdiction of the Monopolies and
Restrictive Trade Practices Commission established under sub-section (1) of Section 5 of
the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969);
(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);
(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)”.
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16. From the bare perusal of the above said provisions, now it is clear beyond doubt that the telephone services and to be more particular Cellular mobile telephone services have been specifically covered under the Telecom Regulatory Authority of India Act, 1997 and the provisions of the said Act are in addition to the previous Indian Telegraph Act, 1885. From perusal of Section 14 (b), it is very much clear that even when a consumer approaches the Consumer Disputes Redressal Forum, then the provisions of the Telecom Regulatory Authority of India Act, 1997 or the jurisdiction of the Appellate Tribunals established under the Telecom Regulatory Authority of India Act, 1997 ceases, rather the provisions of the Consumer Protection Act get precedence over the powers vested with the Appellate Tribunals established under the Telecom Regulatory Authority of India Act, 1997.
17. Even otherwise, the establishment of Telecom Disputes Appellate Tribunal under the Telecom Regulatory Authority of India Act, 1997 itself leads to presumption that the applicability of Section 7-B of Telegraph Act has been abandoned so far disputes relating to telecommunication services are concerned.
18. The Telecom Consumers Protection and Redressal of Grievances Regulations, 2007 have come into force vide Notification dated 4th May 2007 and have been published in Gazette of India. Under Regulation No.1 Clause (3), it has been provided that these regulations shall apply to –
“(a) all service providers including Bharat Sanchar Nigam
Limited and Mahanagar Telephone Nigam Limited,
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being the companies registered under the Companies
Act, 1956 (1 of 1956) providing –
(i) Basic Telephone Service;
(ii) Unified Access Services;
(iii) Cellular Mobile Telephone Service.”
The ‘Basic Telephone Service’ has been defined under Section 2 (g) of the above said Regulations. The meaning of ‘consumer’ has also been defined. For the sake of convenience, Section 2 (d), 2 (g) and 2 (h) of the above said Regulations are reproduced as under :-
“2. Definitions – In these regulations, unless the context
otherwise requires -
(d) “Basic Telephone Service” covers collection, carriage,
transmission and delivery of voice or non-voice
messages over licensee’s Public Switched Telephone
Network in licensed service area and includes provision
of all types of services except those requiring a separate
licence;
(g) “Cellular Mobile Telephone Service” -
(i) means telecommunication service provided by means
of a telecommunication system for the conveyance of messages through the agency of wireless telegraphy
where every message that is conveyed thereby has been,
or is to be, conveyed by means of a telecommunication
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system which is designed or adapted to be capable of
being used while in motion;
(ii) refers to transmission of voice or non-voice messages
over Licensee’s Network in real time only but service
does not cover broadcasting of any messages, voice or
non-voice, however, Cell Broadcast is permitted only to
the subscribers of the service,
(iii) in respect of which the subscriber (all types, pre-paid as
well as post-paid) has to be registered and authenticated
at the network point of registration and approved numbering plan shall be applicable;
(h) “consumer” means a consumer of a service provider
falling in clause (a) or clause (b) of sub-regulation (3) of
regulation 1 and includes its customer and subscriber.”
19. Section 25 of the above said Regulations is very much relevant, which for the sake of convenience is reproduced as under :-
“25. Right of consumers to seek redressal under
the Consumer Protection Act, 1986 or any other
law for the time being in force – (1) The provisions
of these regulations are in addition to any right
conferred upon the consumers under the Consumer
Protection Act, 1986 (68 of 1986) or any other law
for the time being in force.
(2) Any consumer may, at any time -
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(a) during pendency of redressal of his grievance, whether
by filing of complaint or appeal, under these regulations;
or
(b) before or after filing of complaint or appeal, under these
regulations, exercise his right conferred upon him under
the Consumer Protection Act, 1986 (68 of 1986) or any
other law for the time being in force and seek redressal
of his grievance under that Act or law.”
20. Section 27 of the above said Regulations is also very much important, which for the sake of convenience is reproduced as under:-
“27. These regulations not to apply in certain cases –
Nothing contained in these regulations shall apply to
any matter or issue for which –
(a) any proceedings, before any court or tribunal or
under the Consumer Protection Act, 1986 (68 of
1986) or any other law for the time being in force,
are pending; or
(b) a decree, award or an order has already been
passed by any competent court or tribunal or
authority or forum or commission, as the case
may be.”
21. From the bare perusal of the above said Regulations framed by the Telecom Regulatory Authority of India exercising the powers conferred upon it under Section 36 and Section 11 of the Telecom Regulatory
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Authority of India Act, 1997, it is abundantly clear that the provisions of the Consumer Protection Act, 1986 prevail over the Telecom Regulatory Authority of India Act, 1997 and the jurisdiction and powers of the Consumer Disputes Redressal Forums are over and above the jurisdiction and powers of the Tribunals established for the purpose of adjudication of disputes relating to telecommunication services.
22. It is settled law that the law enacted by the Parliament cannot be changed or made useless by judicial interpretation. The provisions of the enactments have to prevail over the judicial decisions. The question of interpretation comes only when the provisions of legislative enactments are either not clear, ambiguous or cannot depict the true meaning. When the provisions of the legislative enactments are plain, clear and unambiguous, then these cannot be negtivated through judicial interpretation. Reliance can be placed upon various authorities of the Hon’ble Supreme Court of India on this point. The Hon’ble Supreme Court in “State of
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23. So far the question as to whether the Consumer Protection Act, 1986 is a special legislation or a general law, the Hon’ble Supreme Court of India has given its view in various authorities, some of which we will discuss hereinafter. However, before discussing the authorities, we would like to discuss certain provisions of the Consumer Protection Act, 1986.
“1. Short title, extent, commencement and application –
(1) This Act may be called the Consumer Protection Act,
1986.
- - - - -
- - - - -
(4) Save as otherwise expressly provided by the Central
Government by notification, this Act shall apply to all
goods and services.
2. Definitions – (1) In this Act, unless the context otherwise
Requires --
- - - - - - -
- - - - - - -
(o) “service” means service of any descripttion which is made
available to potential users and includes, but not limited
to, the provision of facilities in connection with banking,
financing, insurance, transport, processing, supply of electrical or other energy, board, or lodging or both
housing construction, entertainment, amusement or the purveying of news or other information, but does not
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include the rendering of any service free of charge or under a contract of personal service.
- - - - - - -
- - - - - - -
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”.
24. So from the perusal of the above said provisions of the Consumer Protection Act, 1986, it is quite clear that the provisions of the Consumer Protection Act, 1986 apply to all type of goods and all services availed by the consumers against consideration paid or promised. Section 1 (iv) of the Consumer Protection Act, 1986 is of wide connotation.
25. The Hon’ble Supreme Court of India in “Secretary, Thirumurugan Co-operative Agricultural Credit Society Versus M. Lalitha (Dead) through LRs. and others, 2004 (1) CLT 456”, wherein an objection was raised as to the jurisdiction of the Consumer Disputes Redressal agencies in view of the bar/arbitration clause contained in Section 90 and Section 156 of the Tamil Nadu Co-operative Societies Act, 1983, the Hon’ble Supreme Court of India has held that merely because the rights and liabilities are created to the appellate society under the Co-operative Societies Act, 1983 and Forums are provided for adjudicating the dispute between them, it cannot take away or exclude the jurisdiction conferred on
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Forum under the Consumer Protection Act, 1986 expressly and intentionally to serve a definite cause in terms of the objects and reasons of the Act. The Hon’ble National Commission was held right in holding that the view taken by the Hon’ble State Commission that the provisions under 1983 Act relating to reference of disputes to arbitration shall prevail over the provisions of 1986 Act, is incorrect and untenable. The authority Chairman, Thiruvalluvar Transport Corporation Versus Consumer Protection Council, (1995) 2 SCC 479, relied upon in the authority General Manager, Telecom Versus M. Krishnan & Another (supra), has been discussed and distinguished by the Hon’ble Supreme Court in the above said authority. The Hon’ble Supreme Court in para 11 and 12 of the judgment has observed as under :-
“(11) From the statement of objects and reasons
and the scheme of 1986 Act, it is apparent that the main
objective of the Act is to provide for better protection of
the interest of the consumer and for that purpose to
provide for better redressal mechanism through which
cheaper, easier, expeditious and effective redressal is
made available to consumers. To serve the purpose of
the Act, various quasi judicial forums are set up at the
district, State and National level with wide range of
powers vested in them. These quasi judicial forums,
observing the principles of natural justice, are
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empowered to give relief of a specific nature and to
award, wherever ‘appropriate, compensation to the
consumers and to impose penalties for non-compliance
of their orders.
(12) As per Section 3 of the Act, as already
stated above, the provisions of the Act shall be in
addition to and not in derogation to any other provisions
of any other law for the time being in force. Having due
regard to the scheme of the Act and purpose sought to
be achieved to protect the interest of the consumers,
better the provisions are to be interpreted broadly,
positively and purposefully in the context of the present
case to give meaning to additional/extended jurisdiction,
particularly when Section 3 seeks to provide remedy under
the Act in addition to other remedies provided under other
Acts unless there is clear bar”.
So as per the above said authority, despite provisions for referring the dispute to arbitration in the certain Acts/Laws, the object and purpose of the Consumer Protection Act cannot be frustrated as the provisions of the Consumer Protection Act are in addition and not in derogation of any other law in force.
26. It was further held by the Hon’ble Supreme Court that if parties approach both the Forums created under any other Act and the 1986 Act (Consumer Protection Act, 1986), it is for the Forum under the 1986 Act to
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leave the parties either to proceed or avail the remedies before the other Forums depending upon the facts and circumstances of the case.
27. The Hon’ble Supreme Court of
29. In “State of
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constitutionality of the Consumer Protection Act, 1986 was challenged on various grounds, the three Judges Bench of the Hon’ble Supreme Court of India has held that the provisions of the Consumer Protection Act clearly demonstrate that it was enacted keeping in view a long felt necessity of protecting the common man from wrongs where for the ordinary law for all intent and purport had become illusory. In terms of the said Act, a consumer is entitled to participate in the proceedings directly as a result whereof his helplessness against a powerful business house may be taken care of. The Hon’ble Supreme Court of India further held that by reason of the said statute (Consumer Protection Act), quasi-judicial authorities have been created at the District, State and Central levels so as to enable a consumer to ventilate his grievances before a Forum where justice can be done without any procedural wrangles and hyper-technicalities. One of the objects of the said Act is to provide momentum to the consumer movement. Whilereferring to the several provisions of the Consumer Protection Act and also discussing the various authorities, the Hon’ble three Judges Bench of the Supreme Court of India further held that by reason of provisions of Section 3 of the Act, the said Act supplements and not supplants the jurisdiction of the civil court or other statutory authorities. The Hon’ble Supreme Court of India while relying upon another authorities styled as “Fair Air Engineers Versus N.K. Modi, (1996) 6 SCC 385” and “Satpal Mohindra Versus Surindra Timber Stores, (1999) 5 SCC 696” has specifically held that the provisions of the said Act are required to be interpreted as broadly as possible. It has jurisdiction to entertain a
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complaint despite the fact that other Forum/courts would also have jurisdiction to adjudicate upon the matter.
30. The Hon’ble Supreme Court of India in “Ghaziabad Development Authority Versus Balbir Singh, 2004 (2) CLT 628”, has held that the Consumer Protection Act has a wide reach and the Commission has jurisdiction in case of services rendered by the statutory and public authorities. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Hon’ble Supreme Court in the said authority further held that matters, which require immediate attention, should not be allowed to linger on. The consumer must not be made to run from pillar to post. Where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission/Forum has a statutory
obligation to award compensation.
31. In Kishore Lal Versus Chairman, Employees’ State Insurance Corporation, 2007 (4) SCC 579, the
“It has been held in numerous cases of this Court that
jurisdiction of the Consumer Fora has to be construed
liberally so as to bring many cases under it for their speedy disposal. The Act being a beneficial legislation, it should receive a liberal construction.”
32. The Hon’ble Supreme Court in “Fair Air Engineers Pvt. Ltd. & ANR. Versus N.K. Modi, III (1996) CPJ 1 (SC)” has held :-
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“Accordingly, it must be held that the provisions of the Act
are to be construed widely to give effect to the object and
purpose of the Act. It is seen that Section 3 envisages that
the provisions of the Act are in addition to and are not in
derogation of any other law in force. It is true, as rightly
contended by Mr. Suri, that the words “in derogation of
the provisions of any other law for the time being in force”
would be given proper meaning and effect and if the
complaint is not stayed and the parties are not relegated to
the arbitration, the Act purports to operate in derogation of
the provisions of the Arbitration Act. Prima facie, the
contention appears to be plausible but on construction and
conspectus of the provisions of the Act we think that the
contention is not well founded. The Parliament is aware of
the provisions of the Arbitration Act and the Contract Act
and the consequential remedy available under Section 9 of
the Code of Civil Procedure i.e. to avail of right of civil
action in a competent Court of civil jurisdiction. Nonetheless,
the Act provides the additional remedy”.
The Hon’ble Supreme Court has further held that in view of the object of the Act and by operation of Section 3 thereof, it would be appropriate that these Forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the
C.C. No. 249 of 2009 \\31//
parties. The reason is that the Act intends to relieve all the consumers of the cumbersome arbitration proceedings or civil action unless the Forums at their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate Forum for adjudication of the disputes would be otherwise those given in the Act.
33. The Hon’ble Supreme Court of
34. In “General Manager, Telecom Versus M. Krishnan & Others” (supra), the Hon’ble Supreme Court has held that the special law prevails over the general law. But the point whether the Consumer Protection Act is a special enactment or a general law has not been discussed. On the other hand, in view of the other judgments, reference of which has been given above, the Hon’ble Supreme Court has declared the Consumer Protection Act as a special legislation.
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35. Time and again it has been held by the Hon’ble Apex Court of
country that where a law is declared after thorough discussion, only then it is held as a binding precedent and not otherwise.
36. His Lordship Markandey Katuj, J. in “State of
“66. It is well settled that a mere direction of the
Supreme Court without laying down any principle
of law is not a precedent. It is only where the Supreme
Court lays down a principle of law that it will amount
to a precedent.
67. In Municipal Committee,
Singh, AIR 1975 SC 1087, the Supreme Court
observed that only a statement of law in a decision
is binding. In State of
1999 (6) SCC 172, this Court observed that
everything in a decision is not a precedent. In
Administration Vs. Manoharlal, AIR 2002 SC 3088,
the Supreme Court observed that a mere direction
without laying down any principle of law is not a
precedent. In Divisional Controller, KSRTC vs.
Mahadeva Shetty, 2003 (7) SCC 197, this Court
observed as follows:
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“….. The decision ordinarily is a decision on
the case before the Court, while the principle underlying
the decision would be binding as a precedent in a case
which comes up for decision subsequently. The scope
and authority of a precedent should never be expanded
unnecessarily beyond the needs of a given situation. The
only thing binding as an authority upon a subsequent
judge is the principle, upon which the case was
decided…..”.”
37. The Hon’ble National Commission in “Union of India and Others Versus Jagdamba Rice Mills, 1993 (1) CLT 705, while discussing Section 7-B of the Indian Telegraph Act and referring to the authority styled as Santokh Singh Versus Divisional Engineer Telephones, Shilong, AIR 1990 Ghuwahati 47, has observed that the Government of India has itself taken a policy decision to the effect that all the requests and reference to Arbitration under the Indian Telegraph Act shall be rejected and Arbitrator shall be appointed only in such cases where subscriber approaches a court with a request for arbitration and court orders for the same. The relevant portion of the Circular No.13-324/Arb/88-TR, dated 13th April, 1989, issued by the Department of Telecommunications, is reproduced as under :-
“According to the above, if anybody approaches the
department to appoint an Arbitrator, we are bound to
do so, but we are aware that if in every case of dispute
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by subscribers, an arbitrator is appointed, the workload
will increase tremendously, an cases will increase to
numbers where it will be difficult to find a sufficient
number of Officer for appointing as arbitrators. To
control the overflow of such cases, the Department has
decided, as a matter of policy, that Arbitrators will be
appointed only in such cases where the subscriber
approaches the Court with a request to appoint an
Arbitrator, and the court orders for the same”.
So when the Government of India to be more specific Telecom Authority itself is not willing to refer the dispute concerning the telegraph apparatus etc. to the Arbitrator except upon the orders of the court, then it does not behoove to the opposite parties to raise an objection under Section 7-B of the Telegraph Act.
38. Now, it is also a settled law that where two interpretations of statute/law are possible, then the one favouring the consumer is to be taken. Moreover, in case of petty consumer disputes, to direct a poor consumer to approach the Central Government for appointment of an Arbitrator for the adjudication of his small dispute, would be just the denial of justice to him especially when the legislature has enacted a consumer friendly legislation for better protection of the consumer rights and the remedy is available at the door step of the consumer as the District Consumer Forums have been established at every District head quarter of a State. Even as per a news item, published in leading newspapers on November 25, 2009, the Law Ministry
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has asked the Ministry of Communications & Information Technology to work towards setting up Consumer Courts specifically for mobile users taking into consideration the fact that the mobile subscriber base has increased now and the consumers are facing so may problems and that is why a proposal has been made to set up special consumer courts for mobile subscribers.
39. The Consumer Forum established under the Consumer Protection Act, 1986 does not exercise jurisdiction upon each and every matter, rather the jurisdiction of the Consumer Forum can be invoked only on the matters/disputes where the consumer element is involved. So when a dispute where the rights of the consumers are to be adjudicated, there, only the consumer courts, specially enacted for the said purpose, have the jurisdiction and all other Forums fall subordinate to it. It is now clear that the Consumer Protection law is not a general law, but a special law enacted for the better protection of the interests of the consumers. Where there is a deficiency in service and unfair trade practice, the provisions of the Consumer Protection Act, 1986 can be invoked irrespective of any other statute dealing with the same matter. The remedy under the Consumer Protection Act is an additional and special remedy. Moreover, even as per the provisions of the Telecom Regulatory Authority of India Act, 1997, the provisions of the Consumer Protection Act, 1986 prevail upon the other provisions/enactments relating to telecommunication. In view of the above discussion, we hold that this Forum has jurisdiction to try and decide the matter in question.
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40. Now coming to the merits of the case, no copy of the agreement exectuted by the complainant with the opposite parties has been produced on the file by the opposite parties.The opposite parties have not led any evidence on the file except an affidavit of one Manoj Madan, Manager Finance, Spice Communications Limited. The opposite parties are supposed to be in possession of agreement and all other related documents, which would have been relevant to support the pleadings of the reply of the opposite parties. There is no explanation as to under what rules, regulations, terms and conditions, opposite party No.1 after taking over opposite party No.2 has enhanced certain rental charges. The sole reason as mentioned by opposite party No.2 is that before enhancement, notice was issued in the newspaper. Now the question for adjudication is that whether the mobile service provider can enhance the charges like rental tariff etc. to the disadvantage of the consumers without their consent ?
41. Certain Regulations have been framed by the Telecom Regulatory Authority of India, the authority, specifically constituted to regulate the telecommunication service.
42. The quality of service ( Code of Practice for metering and billing accuracy Regulations, 2006 have been framed by Telecom Regulatory Authority of India. Rule 1 of the Annexure I of the said Regulation is relevant and under the said rule 1.1, it has been specifically written that before a customer is enrolled as a subscriber of any telecommunication service, he shall be provided in advance with detailed information relating to the tariff for using that service. Further the service
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provider should inform the customer in writing within a week of activaton of service, the complete details of his tariff plan. In addition the following information shall also be provided:
Quantity related charges (e.g. the charge for each SMS message, or kilobyte of data transmitted)
Accuracy of measurement of time, duration and of quantity and also the resolution and rounding rules, including the underlying units, used when calculating the charges for an individual event or an aggregation of events.
Contractual terms and conditions for supply, restriction and cessation of Service.
Rule 2 is relating to provisions of service is also important, which is also reproduced as under:-
“Provision of Service
The services provided to the customer and all subsequent changes therein shall be those agreed with him in writng prior to providing the service or changing its provisions.”
Rule 7 is also relevant, which is reproduced as under:-
“Restriction and Removal of Service
Where the service provider unilaterally intends to restrict or cease service to the customer, a notice shall be provided to the customer in advance of such action so that the customer has reasonable time to take preventive action to avoid restriction or cessation of service.”
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The Common Charter has been prepared by the TRAI, which has been voluntarily agreed and adopted to by all the telecom service providers. Rule 1 of the said Common Charter is relevant, which is reproduced as under:
“All Service Providers acknowledge the rights of citizens to have a free choice in selecting their Service Providers and agree to promote their services in the best spirit of competition and traditions of service to consumers.”
So from the perusal of the above said Regulations and Common Charter, it is quite clear that any charges cannot be enhanced or changed without written consent of the consumer. Even the service of any consumer cannot be barred without any written notice in advance to the consumer. If the mobile service provider intends to levy any charges etc. then the written consent of the consumer, is necessary.The mobile service provider cannot enhance or levy new charges unilaterial by just publishing a notice in the newspaper. Even in another complaint styled as ‘S.K. Bajaj Versus Rahat Telecom & other’, C.C. No. 156 of 2009, we have already discussed that the mobile service providers have monopoly in the field of mobile phone numbers, as a consumer cannot opt for the services of another mobile service provider without changing his mobile connection number. A person, who has a mobile connection number since a long time or for a few years, cannot afford to change his mobile number because his mobile connection number has been given to number of persons with whom he develops interaction
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through the usage of that mobile connection for so many years. Even the professions like Lawyers, Doctors and Chartered Accountants etc. cannot opt to change their mobile connection number because by that time it has reached to their number of clients/patients and the change of mobile number adversely affects their profession. The mobile service providers take undue advantage of this thing and once the connection has been obtained by the consumer, they use to enhance the tariff charges and charges for opting facilities like CLI, which is a facility by which the phone number of the caller is displayed on the mobile telephone of the receiver. The mobile service providers in this way are running away from their undertaking written in the common charter as reproduced above.
43. Even we have discussed in “Neelam Rani Versus Reliance Communications Limited, C.C. No. 112 of 2009, decided on 10.7.2009 that it is a common practice of the mobile service providers that they are used to send certain SMSs or IVR through which the paid services are activated on pressing certain buttons on the mobile set. The mobile phone consumers are not only harassed by sending such type commercial SMSs time and again say for ten to twenty times a day and further by making computer controlled telephonic calls and if the customer by chance presses any button, the said services are activated and charges are deducted from the account of the consumer. The consumer is not only disturbed time and again, but is also found cheated and defrauded by the mobile service providers. We have also discussed in the above said authority that non-opting of ‘Do Not Disturb’ facility does not give right to the mobile service providers to
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disturb the consumers time and again by sending commercial calls and messages and thereby also harassing the consumers and if by chance the handset falls in the hands of children or the person, who is not so conversant with the use of mobile hand set and the buttons by mistake are pressed, the paid services are activated and the amount is deducted from the account of the consumer without his knowledge or consent. However, it is surprising that when the consumer has to request for certain other services like change of address or change of subscripttion pack etc., then the customer/consumer is forced to go to the local dealer and clear all the dues upto that date irrespective of the billing period and he is also directed to produce certain other documents.
44. Now coming to the specific point wise grievances of the complainant, the mobile connection of the complainant has been disconnected for non-payment of bill of some other mobile connection, address of holder of which matches with the complainant. The said connection has been disconnected without any written notice to the complainant. Even the amount due against the mobile telephone connection
No.98550-93193 has not ever been raised in the mobile bill of the complainant bearing No.9855-57510. When neither any demand was raised in the mobile telephone connection in question nor any notice was given to the complainant for its disconnection, we hold that the same has been wrongly and illegally disconnected by the opposite parties.
45. There is no explanation for the enhancement of tariff, rental and other charges by the opposite parties without consent of the complainant.
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Even no copy of any agreement by the opposite parties has been placed on the file. So we hold that any increase in the rental, tariff and other charges such like plan charges, CLI charges etc. have been wrongly and illegally levied/enhanced by opposite party No.1 and 2.
46. When a consumer has opted for a SMS pack or is charged for sending SMSs, the opposite parties cannot take benefit of the days of festivals etc. The charging of higher charges for sending SMS on days of festivals and other certain occasions, is grossly unfair trade practice on the part of the opposite parties. SMSs and greetings are supposed to be sent by the consumers on occasions, festivals etc. and the mobile service providers cannot be allowed to exploit the consumers in this manner. It has been pleaded by the opposite parties that SMSs on black out days are chargeable, but it has not been explained what are those black out days and why the SMSs are charged on those black out days. It has also not been explained as to what extra cost or special arrangements are required to be incurred by the opposite parties on those black out days. As discussed above, the opposite parties cannot enhance or change the rates without the written consent of the consumers. The opposite parties have not placed on the file any document from which it can be gathered that the Telecom Regulatory Authority of India has given consent or direction to charge the consumers at enhanced rates or for the levy of certain charges, including plan charges. It is surprising that instead of giving any incentive to the old consumers, the opposite parties (Mobile Service Provider) take the advantage of the fact that as when the mobile phone number of the consumer become an old number
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and he would not afford to change that number, they started levying certain charges. Imposing of plan charges is one such example. The opposite parties have not filed any document from which it can be gathered as to any extra expenditure has been incurred by the opposite parties or any extra charges have been imposed upon the opposite parties and for which they have enhanced the charges or have levied additional incremental rental after prior approval of the Telecom Regulatory Authority of India. Without such approval, imposing of certain charges such as plan charges, extra clip charges and incremental rental is a gross unfair trade practice on the part of opposite party No.1 and 2.
47. So far the fact of charging of service tax etc. is concerned, the
consumer has a right to know that the amount deducted from his account on account of certain taxes whether is deposited in the Government Treasury or siphoned off by the company/mobile service provider in the name of taxes. The opposite parties have failed to plead that whether the amount collected as taxes like service tax, education cess and higher education cess are actually deposited with the Government. The opposite parties are supposed to mention the detail about the total amount collected from the consumers on account of service tax etc. and further that as to what amount has been deposited with the Government on monthly basis.
48. Under the Consumer Protection Act, the Consumer Fora established under the Act has got the jurisdiction not only to pass directions and award compensation and damages to the individual consumer, but the Foras can also issue directions and order for payment of compensation etc.,
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keeping in view the interests of the consumers at large. It is a fit case where we feel it necessary to issue directions to the opposite parties keeping in view the interest of numerous consumers.
49. Before parting with the judgment, we also wish to point that
the Telecom Regulatory Authority of India has been arrayed as a party to the present complaint as opposite party No.3. But neither anyone has appeared on behalf of the Telecom Regulatory Authority of India nor any communication has been received from their end as to what action has been taken by the said authority against opposite party No.1 and 2 despite receipt of copy of complaint attached with summons of this Forum. The only pleading on their behalf is that the complaint against the said authority is not maintainable and nothing else has been explained. So when such type of statutory authority fails to act, the poor consumer is left with no alternative than to invoke the jurisdiction of the Consumer Foras established for the purpose of protection of the consumer rights.
50. In view of what has been discussed above, opposite party No.1 and 2 are directed to restore the connection of the complainant. Opposite party No.1 and 2 are further directed to stop charging monthly plan charges, clip chares (as the same were already included in his rental at the time of opting for the services) and the opposite party No.1 and 2 are further directed to stop charging incremental rental charges, as the complainant has never consented for the same. Opposite party No.1 and 2 are further directed to stop charging extra sum or money for sending SMSs on special occasions
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or festivals except the normal charges for which the consumers have taken package etc. Opposite party No.1 and 2 are further directed to disclose the total amount collected from the consumers on account of taxes like service tax, education cess and higher education cess etc. and the detail of the deposit with the Government with date and receipt/challan number etc. Opposite party No.1 and 2 are further directed to stop sending unwarranted promotional messages and promotional calls without the written consent of the consumers. As we have already discussed that the dispute in question relates and affects the rights and interests of the consumers at large, so taking into consideration the interest of the consumers at large, we order opposite party No.1 and 2 to stop levying of plan charges, CLI charges or incremental charges or other rental charges etc. to all their consumers, which were not a part of the plan, which was opted by the consumers at the time of taking the services of opposite party No.1 and 2. Opposite party No.1 and 2 are further directed to stop the use of monopolistic trade practice. To end this practice, we deem it necessary to recommend to the Telecom Regulatory Authority of India that taking into consideration the expoitation of the consumers at large, the Telecom Regulatory Authority of India should issue certain guidelines for giving right to the consumers to change his service provider retaining the same number as is already in use by that consumer. We direct opposite party No.1 and 2 that the account of consumers enrolled with opposite party No.1 and 2 be overhauled from the last two years from today and refund back the amount extra charged by opposite party No.1 and 2, including the extra charges levied for sending SMS on special occasions,
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plan charges, enhanced or extra CLI charges, incremental rental etc. Opposite party No.1 and 2 are further directed to pay a compensation of Rs.1,00,000/- for adopting such type of monopolistic and unfair trade practice out of which Rs.10,000/- be paid to the complainant and rest of the amount i.e. Rs.90,000/- be deposited with the Consumer Legal Aid Fund meaintained by this Forum. Opposite party No.1 and 2 are further directed to pay a sum of Rs.5000/- to the complainant as litigation expenses. Opposite party No.1 and 2 are further directed that if the amount collected from the consumers as taxes has not been deposited with the Government, then the same be refunded (either full or in part) to the respective consumers. The orders be complied with within a period of fourty five days of the receipt of a copy of this order. File be consigned to the record room.
Announced
26.11.2009 (Sanjay Garg)
President
(Tarlok Singh)
Member
or not with the views of the forum.
