Telecom Services and Consumer Law

Mr. Inderjeet Dasgupta You can contact the consumer forum Ferozepur at consumerforum@yahoo.in and request for the Judgment

The District Consumer Forum Bathinda Punjab has also passed an order on 9-10-2009 copy of which is also available on internet. Copy of the said order is also placed hereunder:: DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA (PUNJAB) CC. No. 105 of 28-04-2009 Decided on : 09-10-2009 Jaswinder Singh, S/o Mehar Singh, R/o Amarpura, Street No. 3, Bathinda. .... Complainant Versus The Incharge/Proprietor/Manager Airtel Company, Branch Office, Bathinda. ... Opposite party Complaint under Section 12 of the Consumer Protection Act, 1986. QUORUM Sh. George, President Sh. Amarjeet Paul, Member For the Complainant : Complainant in person. For the Opposite parties : Sh. Sunder Gupta, counsel for the opposite party. O R D E R GEORGE, PRESIDENT The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act') against the opposite party with the allegations that he is a regular consumer of the opposite party for the last five years and have mobile connection No. 9815805357and SIM No. 89910, 20408, 10408 and 5731. He was using the said mobile connection for running his business of repairing automobiles and informed all his customers for contacting him on the said mobile number. The opposite party disconnected the said mobile connection and transferred the same in the name of another person without informing him or giving any instruction for disconnection of his mobile connection. Due to the act of the opposite party, he had to suffer in his business adversely and loss of his reputation. Since the person in whose name the phone number of the complainant has been transferred, when contacted by his customers, used to abuse them by using filthy language as a result of which they used to complain to him. Resultantly he had to suffer mental agony, tension, harassment and loss of reputation and heavy loss in his business. He reported the matter to SSP, Bathinda and approached the opposite party, but heard nothing from them. Few days back, he alongwith some of his relatives approached the opposite party to put his complaint and to explain his position and also to register his protest as to why mobile connection allotted to him has been cancelled but the opposite party did not give any satisfactory reply to him and refused to accede to his request by saying that he can do whatever he likes and also misbehaved with him. As such, he had no other alternative except to file the present complaint. He has sought directions of this Forum to the effect that the opposite party be directed to restore his mobile connection which was disconnected illegally and also to pay to him compensation to the tune of Rs. 30,000/- on account of mental tension, agony and harassment and an amount of Rs. 20,000/- as monetary loss he suffered in his business. He has also sought reasonable amount of this forced litigation expenses. The opposite party contested the allegations raising inter-alia preliminary objections that complaint is false and frivolous; complainant has not approached this Forum with clean hands and as such, not entitled for any compensation; he has no cause of action and locus standi; the opposite party is not guilty of any deficiency in service; complaint has been filed with ulterior motive by abuse of process of law; this Forum has no jurisdiction as the facts in dispute can only be proved or disapproved by leading elaborate and detailed evidence which is not possible in this Forum in summary manner; complaint is bad for non-joinder and mis-joinder of the parties. It is pleaded that due to mistake of Gurmit Singh S/o Amrik Singh connection of the complainant was disconnected on 9th April, 2009. On 8th April, 2009, Sh. Gurmit Singh approached Relationship Centre of the opposite party and submitted a copy of information given to Police Station, Abohar regarding loss of his phone and also submitted duly filled in Airtel Prepaid Enrolment Form wherein he mentioned his phone Number as 9815805357 in place of his actual mobile connection No. 9815809357. Thus due to this error committed by Sh. Gurmit Singh, opposite party disconnected the services on the SIM which was provided to the complainant and activated the same number for Sh. Gurmit Singh. It was only done on the basis of documents submitted by Sh. Gurmit Singh. On merits, the allegations made by the complainant are not admitted as correct and the facts narrated in the preliminary objections are reiterated though in para No. '2' of the reply it has been specifically admitted by the opposite party that “as per records of the opposite party, the complainant subscribed to Pre-paid Mobile Services of the opposite party and was allotted 9815805357 on 4th October, 2006.” In support of his averments contained in the complaint, the complainant has produced in evidence his two affidavits Ex. C-1 & Ex. C-2, photocopy of his Identity Card Ex. C-3, photocopy of SIM Ex. C-4 , photocopy of affidavit of complainant Ex. C-5 and photocopy of application dated 10.4.09 Ex. C-6. To controvert the evidence of the complainant, the opposite party tendered in evidence affidavit of Sh. Kamal Kant Joshi, Manager-Legal and Regulatory for Punjab & Haryana, photocopy of application form Ex. R-2, photocopy of DDR No. 24 Ex. R-3, photocopy of Identity Card Ex. R-4 and photocopy of Change Request Form Ex. R-5. We have heard learned counsel for the parties and have gone through the entire record of the case. In the reply filed on behalf of the opposite party though the allegations have been contested by raising legal and factual objections, however at the same time in para No. '12' of the preliminary objections and in paras No. '2' & '4' on merits, the opposite party has almost admitted the fact that as per the record of the opposite party, the complainant subscribed to pre-paid mobile services of the opposite party and he was allotted mobile No. 9815805357 on 4th October, 2006 and this number was subsequently allotted by mistake to one Sh. Gurmit Singh S/o Amrik Singh R/o H. No. 22, Centre Gurudware De Nere, Village Kattean Wali, Tehsil Malout, Mukatsar as Sh. Gurmit Singh moved an application to opposite party on 8th Februrary, 2009 by approaching Relationship Centre of the opposite party and submitted a copy of information given to Police Station, Abohar regarding loss of his phone and he submitted duly filled in form to register himself a fresh in Airtel Pre-paid Subscription. Sh. Gurmit Singh in his enrollment form mentioned his previously allotted mobile number as 9815805357 in place of 9815809357 and due to this error of Sh. Gurmit Singh, the opposite party disconnected the services on his SIM as was provided to the complainant and activated mobile No. 9815805357 for Sh. Gurmit Singh. The services on the SIM of the complainant Jaswinder Singh was disconnected and activated on the new SIM of Sh. Gurmit Singh. This admission made by the opposite party in reply makes it clear that complainant was not in any way at fault and he was made to suffer on account of mistake of another subscriber and thereafter fault committed by the opposite party in rendering services. The disconnection of the services to the SIM of the complainant who was subscriber of the opposite party since 4th October, 2006 without any kind of his fault, has been put not only to monetary loss in his business but also had to undergo a stressful long period as despite his request, the opposite party failed to rectify the mistake committed. When the fault came to the notice of the opposite party, as to why the mistake has not been rectified remained totally unexplained in the reply filed on behalf of the opposite party rather the manner in which the opposite party has contested the allegations by raising various objections clearly reveals non-helping and adamant attitude of the opposite party towards the complainant who was subscriber of the opposite party since 4th October, 2006 and never committed any fault. This amounts not only deficiency in service on the part of the opposite party but also a serious unfair trade practice. Sh. Sunder Gupta, learned counsel appearing on behalf of the opposite party has vehementally argued that even if for arguments sake it be admitted that any mistake has been committed by the opposite party, even then, this Forum has no jurisdiction to take cognizance of the allegations of the complainant as the complainant has an alternate remedy under Section 7B of the Indian Telegraph Act, 1885. He has relied upon a judgement of Hon'ble Supreme Court of India titled General Manager, Telecom Vs. M. Krishnan & Anr in Civil Appeal No. 7687 of 2004 decided on 01-09-2009 wherein it has been held that :- “It is well settled that the special law overrides the general law. Hence, in our opinion the High Court was not correct in its approach.” This case pertains to a dispute regarding payment of telephone connection provided to respondent No. 1and due to non-payment of bill, telephone connection was disconnected. The matter was taken to District Consumer Forum and District Consumer Forum directed the General Manager Telecom to reconnect the telephone connection of the to respondent No. 1 and to pay compensation of Rs. 5,000/- with interest @12% P.A. The matter was taken up before the Hon'ble High Court of Kerla by appellant in the form of writ petition. Writ petition was dismissed. The appellant filed a writ appeal before the Division Bench of High Court. The Division Bench referred the matter for consideration by a larger Bench. Full Bench of the Hon'ble High Court dismissed the writ appeal. Thereafter the matter went before the Hon'ble Apex Court and the Hon'ble Apex court after taking into consideration the special remedy provided under Section 7B of the Indian Telegraph Act, 1885 regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred. Such a matter was earlier also came before the Hon'ble Apex Court titled Secretary, Thirumurugan Co-operative Agricultural Credit Society Vs. M. Lalitha (dead) through Lrs and others AIR 2004 Supreme Court 448 wherein the Hon'ble Supreme Court has held that :- “Consumer Forum has jurisdiction to decide the dispute between members and co-operative society as neither S. 99 nor S. 156 of the Tamil Nadu Co-operative Societies Act, 1983 ousts the jurisdiction of consumer forum. The remedies that are available to an aggrieved party under the Consumer Protection Act are wider. For instance in addition to grating a specific relief the forums under the Consumer Protection Act have jurisdiction to award compensation for the mental agony, suffering etc., which possibly could not be given under the Act in relation to dispute under S. 90 of T. N. Co-operative Societies Act. Merely because the rights and liabilities are created between the members and the management of the society under the Act and forums are provided, it cannot take away or exclude the jurisdiction conferred on the forums under the Consumer Protection Act expressly and intentionally to serve a definite cause in terms of the objects and reasons of Consumer Protection Act. Therefore, the view taken by the State Commission that the provisions under the T.N. Co-operative Societies Act relating to reference of disputes to arbitration shall prevail over the provisions of the Consumer Act is incorrect and untenable.” The Hon'ble Supreme Court while considering the similar provisions as contained in Section 90 as well as Section 156 of Tamil Nadu Co-operative Societies Act, has observed that :- “7. We have carefully considered the submission made on either side. The provisions of the Act to the extent they are relevant are :- Section 90 Disputes (1) if any dispute touching the constitution of the board or the management or the business of a registered society (other than a dispute regarding disciplinary action taken by the competent authority constituted under sub-section (3) of Section 75 or the Registrar or the Society or its board against a paid servant of the society arises - (a) among members, past members and persons claiming through members, past members and deceased members, or (b) between a member, past member or person claiming through a member, past member or deceased member and the society, its board or any officer, agent or servant of the society, or (c) between the society or its board and any past board, any officer, agent or servant, or any past officer, past agent or past servant, or the nominee, heirs or legal representative of any deceased officer, deceased agent, or deceased servant of the society, or (d) between the society and any other registered society, such disputes shall be rendered to the Registrar for decision. Explanation – For the purpose of this section, a dispute shall include - (i) A claim by a registered society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of the deceased member whether such debt or demand be admitted or not. (ii) A claim by a registered society against a member, past member or the nominee, heir or legal representative of a deceased member for the delivery of possession to the society of land or other immovable property resumed by it for breach of the conditions of assignment or allotment of such land or other immovable property, and iii) a decision by the board under sub section (3) of Section 34 : Provided that no dispute relating to, or in connection with, any election shall be referred under this sub-section till the date of the declaration of the result of such election.” Section 156 - “Bar of jurisdiction of civil courts – Nothwithstanding anythings contained in any other law for the time being in force no order or award passed, decision or action taken or direction issued under this Act by an arbitrator, a liquidator, the Registrar or an officer authorised or empowered by him, the Tribunal or the Government or any officer subordinate to them, shall be liable to be called in question in any Court and no injunction shall be granted by any Court in respect of anything which is done or intended to be done by or under this Act.” Section 3 of the 1986 Act reads :- “Section 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.” 8. Before proceeding further, it is useful to know the background, the objects and reasons and purpose for which the 1986 Act is enacted. Consequent upon Industrial Revolution and vast development and expansion in the field of international trade and commerce, variety of consumer goods entered the market to meet the needs of the consumers and most of services like insurance, transport, electricity, housing, entertainment, finance and banking have been made available to the consumers. Well-organised sector of manufacturers and traders with better energy and markets have emerged affecting relationship between the traders and consumers. With the help and aid of media both electronic and print, the advertisements of goods and services in television, newspapers and magazines have created great impact and influence on the demand for the same by the consumers though there may be manufacturing defects or deficiencies or shortcomings in the quality, quantity and the purity of the goods or there may be deficiency in the services rendered. In the interest of the public and to protect the consumers, it became necessary to check adulterated and substantiated articles in the market. Despite various other statutes such as Indian Contract Act, 1872, Sale of Goods Act, 1930. The Indian Penal Code 1860. The Standard of Weights and Measures Act, 1976 and the Motor Vehicles Act, 1988 etc., being in operation, very little could be achieved in the field of consumer protection. Though the MRTP Act, 1969 and the Prevention of Adulteration Act, 1954 provide relief to the consumers yet it become necessary to protect the consumers from the exploitation and to save them from adulterated and substandard goods and deficiency in services and to safeguard their interest. 9. In General Assembly a Consumer Protection Resolution No. 39/248 was passed and India is a signatory to this Resolution. The United Nations had passed a resolution in 1985 indicating certain guidelines under which the governments could make laws for better protection of the interest of the consumers and such laws were more necessary in developing countries to protect the consumer from hazardous to their health and safety and to make them available speedier and cheaper redress. With this background, the 1986 Act was enacted. The Statement of Objects and Reasons show that the Consumer Protection Bill, 1986 sought to provide for better protection of the interest of the consumers and for the purpose to make provision for the establishment of consumer council and other authorities in the settlement of consumer disputes and for matters connected therewith. It seeks, inter-alia, to promote and protect the rights of consumers such a protection against marketing of goods which are hazardous to life and property; the right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices; the right to be assured, wherever possible; access to an authority of goods at competitive prices; the right to be heard and to be assured that the interest of consumers will receive due consideration at appropriate forums; the right to seek redressal against unfair trade practices or unscrupulous exploitation of consumers and right to consumer education. The object is also to provide speedy and simple redressal to consumer disputes, a quasi judicial machinery is sought to be set up at the District State and Central levels. These Quasi Judicial bodies will observe principles of natural justice and have been empowered to give relief of specific nature and to award wherever appropriate, compensation to consumers. Penalties for non-compliance of orders given by Quasi Judicial bodies have also been provided. 10. The preamble of the Act declares that it is an Act to provide for better protection of the interest of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers disputes and matters connected therewith. In Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of 1986 Act shall be in addition to and not in derogation of the provisions of the any other law for the time being in force. 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 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.” The Hon'ble Supreme Court has also relied upon the law laid down by Hon'ble Apex Curt in Lucknow Development Authority Vs. M K Gupta 1(1994) 1 SCC 243), wherein it has been held that :- “We therefore come straightway to the legal issue involved in these appeals. But before doing so and examining the question of jurisdiction of the District Forum or State or National Commission to entertain a complaint under the Act. It appears appropriate to ascertain the purpose of the Act, the objective it seeks to achieve and the nature of social purpose it seeks to promote as it shall facilitate in comprehending in the issue involved and assist in construing various provisions of the Act effectively. To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted 'to provide for the protection of the interest of consumers.' Use of the word 'protection' furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a preamble cannot control otherwise plain meaning of a provision. In fact the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory. Various legislations and regulations permitting the State to intervene and protect interest of the consumers have become a haven for unscrupulous ones as the enforcement machinery either does not move or it moves ineffectively, inefficiently and for the reasons which are not necessary to be stated. The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful, business, described as, 'a network of rackets' or a society in which, 'producers have secured power to 'rob the rest' and the might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting against it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot.” The matter was again considered by the Hon'ble Supreme Court in the case titled Fair Air Engineers Pvt. Ltd. and another Vs. N K Modi (1996) 6 SCC 385) wherein the Hon'ble Apex Court after referring Lucknow Development Authority case (supra) held :- “ that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It went on to say that “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 Shri 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 . Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 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 “Further, dealing with the jurisdiction of the forums under the 1986 Act in paragraph 16 this Court has stated, thus :- “16. It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that 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 parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on 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.” Again in Spring Meadows Hospital and another Vs. Harjol Ahluwalia through K S Ahluwalia and another 1(1998) 4 SCC 39), the Hon'ble Apex Court after taking a note and background of Consumer Protection Act, 1986 observed that :- “The Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. The Act being a beneficial Legislation should receive a liberal constructions.” A bench of three learned Judges of the Hon'ble Apex Court in a recent decision in State of Karnataka Vs. Vishwabharathi House Building Co-op. Society and others (2003)2 SCC 412) expressed view that :- “The 1986 Act was brought into force in view of the long-felt necessity of protecting the common man from wrongs wherefor the ordinary law for all intent and purport had become illusory and that 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. Referring to the Fair Air Engineers (P) Ltd., case (aforementioned), the Court stated that the provisions of the said Act are required to be interpreted as broadly as possible. On the question of jurisdiction it is stated that the forums under the Act have jurisdiction to entertain a complaint despite the fact that other forums/courts would also have jurisdiction to adjudicate upon the lis. It is also noticed that the Act provides for a further safeguard to the effect that in the event of complaint involves complicated issues requiring recording of evidence of experts, the complainant would be at liberty to approach the civil court for appropriate relief.” The Indian Telegraph Act was enacted in the year 1885 and the telegraph line has been defined under Sub Section 4 of Section 1 of the Act which means – “(4) “telegraph line” means a wire or wires used for the purpose of a telegraph, with any casing, coating, tube or pipe enclosing the same, and any appliances and apparatus connected therewith for the purpose of fixing or insulating the same.” Section 7B deals with :- “7B. Arbitration of dispute (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. In the present case, the dispute between the complainant and the opposite party is with regard to deficiency in service as the services available on his SIM has been disconnected without any fault on his part. The ruling cited by the learned counsel for the opposite party is regarding non-payment of telephone bills whereas it is admitted fact that complainant is subscriber of the opposite party since 4th October, 2006. Having regard to the position of Law as has been referred to here-in-above, we are of the considered view that the law cited by the learned counsel for the opposite party is not applicable in the facts and circumstances of the present case. Accordingly, this Forum has the jurisdiction to take cognizance of the facts and circumstances of the case where the SIM connection of the complainant who is admittedly a subscriber of the opposite party and therefore is a consumer, has been disconnected without any fault on his part and he has been put to unnecessary mental tension, harassment, inconvenience and also monetary loss. In the result, the complaint is hereby accepted and the opposite party is directed to put his mobile connection in its original/previous position and to pay him Rs. 10,000/- as compensation for mental tension, harassment and inconvenience and monetary loss suffered in his business alongwith Rs. 2,000/- as cost of this forced litigation. The compliance of this order be made within a period of 45 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of cost and the file be indexed and consigned. Pronounced : 09-10-2009 (George) President (Amarjeet Paul) Member

Thank you very much for bringing the order to our notice. will be very grateful if you can upload a PDF copy or scanned copy of the order.

The Consumer Law is a special law known as Consumer Protection Act. When the services provided by a service provider, the provisions of Law are attracted. In these situations, creating a ban on the limits of Consumer Forums is not so good and cannot be appriciated. With due appology from the Hon'ble Supreme Court of India, it is to be pointed out that the Judgment delivered by the Hon'ble Justice Katju and Justice Ganguly have tied the hands of Consumer Foras. The Govt. of India as per policy matter has decided not to refer any dispute to arbitratopr under section 7-B suo moto unless a competent court gave a direction to refer the matter to arbitrator. So, in this situation the consumers are helpless. We can see that Consumer Foras are entertaining the petty matters for a minor amount. For example, if the dispute of a consumer with a telecom authority is only for minor amount of Rs.1000-10000, what will the option for the consumer, to approach a Consumer Forum or first to go toa civil court to file asuit seeking manmdatory injunction for appointment of an arbitrator which will take much time of 2-3 years whereas a straight way complaint before consumer foras will be decied in only a short period of 3- 6 months. So, there must be some guide lines as to upto which amount the matter can be solved by the consumer foras.