Consumer right
Silabhadra Sastry Advocate
(Querist) 16 August 2011
This query is : Resolved
Dear friends,I want a clarification whether a person using a cell phone can approach the consumer forum against illegal and unnoticed disconnection of his line by the 2nd service provider on the fake ground of non payment of bill, of the previous operator, after he has ported out from BSNL to AIRTEL through MNP.If any case law is there then plz. send me as i need it by tomorrow.regards Silabhadra Sastry,Advocate
ajay sethi
(Expert) 16 August 2011
for your perusal am giivng you the citation of following judgements
The appellant was asked to pay compensation on account of mental agony andharassment the complainant-respondent suffered for disconnection of his mobilephone which cannot be denied on the ground that the consumer happened to be achairman of a school it would not mean that he would be entitled to compensationfor loss of business by way of disconnection of mobile telephone. The compensationallowed by District Forum was reduced in appeal.Bhari Cellular Ltd. Vs Blue Bells Model School II (2005) CPJ 103 [Delhi-SCDRC
ajay sethi
(Expert) 16 August 2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR.
QUORUM
President : Shri Sanjay Garg
Member : S. Tarlok Singh
C.C. No.180 of 2009
Date of Institution: 9.4.2009
Date of Decision: 11.9.2009
Lakhbir Singh, aged about 34 years, son of Mohinder Singh son of Harnam Singh, resident of Basti Kamboj Nagar, Ferozepur City.
……. Complainant
Versus
1. Aman Arora Telecom, Dulchi Ke Road, Opposite Guruduwara
Market, Basti Kamboj Nagar, Ferozepur City, Tehsil and District
Ferozepur, through its Proprietor Aman Arora.
2. Bharat Sanchar Nigam Limited, Telecom (Mobile), Ferozepur Cantt,
through its General Manager.
……… Opposite parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
* * * * *
P R E S N T :
For the complainant : Complainant in person
For opposite party No.1 : Sh. Deepak Maggo, Advocate
For opposite party No.2 : Sh. Gagan Goklany, Advocate
O R D E R
SANJAY GARG, PRESIDENT:-
Complainant Lakhbir Singh has filed the present complaint against Aman Arora Telecom (herein after referred to as opposite party No.1) and Bharat Sanchar Nigam Limited (herein after referred to as opposite party No.2) pleading that the complainant got a mobile telephone
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connection No.94645-59188 from opposite party No.1 after paying Rs. 200/- on 6.2.2009 and at that time the complainant had given his proof of identity i.e. one snap and photo copy of voter card to opposite party No.1. Opposite party No.1 issued a sim card of the above said mobile connection to the complainant and told that the validity of the same would be three months with the value of Rs. 100/- talk time. After that the said mobile connection was activated and it was running upto 1.3.2009, but on 2.3.2009, opposite party No.1 disconnected the connection of the complainant. On enquiry, the complainant came to know that his mobile connection has been disconnected for want of identity proof. On 3.3.2009, the complainant again submitted the same proof i.e. one snap and one photo copy of the voter card to the opposite parties and opposite party No.2 promised that the mobile connection in question will be activated again up till evening of the same day. Thereafter, the complainant made several requests to the opposite parties, also served a legal notice dated 28.3.2009 upon the opposite parties regarding the above said negligence and deficiency in service, but the opposite parties have neither paid any heed to the requests of the complaint nor given any reply to the notice. Pleading deficiency in service on the part of the opposite parties, the complainant has claimed Rs. 20,000/- as compensation for mental agony, pain and harassment and Rs. 2200/- as litigation expenses.
2. Notice of the complaint was given to the opposite parties, who appeared and filed their separate written replies to the complaint. Opposite party No.1, in its written reply, has pleaded that the complainant got a
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mobile telephone connection No.94639-59188 from opposite party No.1 on 6.2.2009 and had given his identity proof i.e. one snap and photo copy of voter card and opposite party No.1 issued sim card of the mobile connection and told that as per the norms and conditions of the company, the validity was of three months with talk time worth Rs. 100/-. After obtaining the proof required for the connection, the same was forwarded to BSNL for activation of the connection and the said connection was activated. It has been further pleaded that after submission the identity proof, the connection in question was activated by the BSNL and opposite party No.1 has got no role to play thereafter. The verification of the identity proof is done by the company and in case of negative verification, the company can seek the identity proof other than the furnished at the time of getting the connection. Denying any deficiency in service on the part of opposite party No.1, dismissal of the complaint has been prayed for.
3. Opposite party No.2, in its written reply, has pleaded that opposite party No.1 is not an authorized agent of opposite party No.2 rather M/s Aneja Enterprises, Jalalabad (W) is the authorized dealer. Prepaid mobile connections are given to consumers after the completion of requisite formalities and the dealer is to activate the same. The sim in question was given to M/s Aneja Enterprises and not to opposite party No.1. It has been further pleaded that the said sim is in working condition. Other allegations of the complaint have been denied.
4. Parties led evidence.
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5. We have heard the complainant in person and learned counsel for the opposite parties and have also gone through the file.
6. At the outset, the learned counsel for opposite party No.2 has produced a recent judgment of the Hon’ble Supreme Court of India styled as General Manager, Telecom Versus M. Krishnan & Another, Civil Appeal No.7687 of 2004, decided on 1.9.2009 and submitted that in view of the above said authority, this Forum has no jurisdiction to entertain and decide the present complaint.
7. So before adjudicating the matter on merits, it has become necessary to decide as to whether this Forum, established under the Consumer Protection Act, has jurisdiction to entertain the disputes relating to mobile connections. The Hon’ble Supreme Court of India in the above said judgment 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 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.
8. In full respect to the Hon’ble Supreme Court of India, before relying upon the above said authority, we would like to discuss another law/legislature enactments made by the Parliament and also the various other authorities on the question relating to the jurisdiction of the Consumer Forums.
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9. 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.”
10. 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 New Haven. In the year 1882, first telephone exchange was opened at Calcutta in India having only 93 subscribers. In the year 1885, when the Indian Telegraph Act was enacted, telephone facility was not available to the people at large in India. Through telegraph system, certain messages were used to be conveyed 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
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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.
11. 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 India. Mobile phones were formally launched in India in August, 1995. With the advancement of the technology, the facility of phones reached to the consumers at large. With the changed circumstances, the law relating to telecommunication has also been changed and it must be changed with the changed circumstances, otherwise the legal system would fall flat and the people would become violators of law.
12. 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 India Act, 1997, the ‘telecommunication services’ 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
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description (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.”
13. 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
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;
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(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)”.
14. From the bare perusal of the above said provisions, now it is clear beyond doubt that the telephone services and to be more particular
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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.
15. 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,
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.
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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
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,
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(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.”
16. 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 -
(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
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other law for the time being in force and seek redressal
of his grievance under that Act or law.”
17. 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.”
18. 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 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.
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19. 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 U.P. & Others Versus Jeet S. Bisht & Anr., 2007 (3) CLT 10”, wherein the Hon’ble Supreme Court has specifically held that court cannot add or substitute word in a statute. By judicial verdict the court cannot amend the law made by the Parliament or State Legislature. It has been further held by the Hon’ble Supreme Court in the said authority that mere a direction of the Hon’ble Supreme Court without laying down any principle of law is not a precedent. It is only where the Hon’ble Supreme Court lays down a principle of law that will amount to a precedent. The courts are subordinate to law and not above the law.
20. 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.
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(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 description 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 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
provisionsof thisAct shall be in addition to and not
in derogation of the provisions of any other law for the
time being in force”.
21. 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.
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22. 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 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
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.
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 leave the parties either to proceed or avail the remedies before the other Forums depending upon the facts and circumstances of the case.
23. The Hon’ble Supreme Court of India in “Neeraj Munjal and Others Versus Atul Grover (Minor) and another, 2005 (3) CLT 30”, in para 10 and 11 of the judgment has held that the courts could not deprive the parties from a remedy, which is otherwise available to them in law. It has been further held that a court of law has no jurisdiction to direct a matter to be governed by one statute when provisions of another statute are available. 24. In “State of U.P. & Others Versus Jeet S. Bisht & Anr., 2007 (3) CLT 10” (supra), the Hon’ble Supreme Court has held that the Consumer Protection Act, 1986 has been enacted for better protection of the interest of the consumers. The said Act is in addition to and not in derogation of the provisions of the any other law for the time being in force.
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The Act not only provides for new rights for the citizens of India in their capacity as consumers, it envisages their empowerment in this behalf. It is indisputably the solemn duty of the executive of both the Government of India and also the Government of State to implement the provisions of the Act in true letter and spirit. The Hon’ble Supreme Court in the above said authority has further held that the Consumer Protection Act embodies a certain value in protecting the interest of the consumers in the age of consumerism and the institution of consumer Fora is a specific mission in that behalf.
25. In “State of Karnataka Versus Vishwahharathi House Building Coop. Society and others, 2003 (2) CLT 3”, where the 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
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any procedural wrangles and hyper-technicalities. One of the objects of the said Act is to provide momentum to the consumer movement. While referring 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 complaint despite the fact that other Forum/courts would also have jurisdiction to adjudicate upon the matter.
26. 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 referred 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
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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.
27. In Kishore Lal Versus Chairman, Employees’ State Insurance Corporation, 2007 (4) SCC 579, the Hon’ble Apex Court has observed :-
“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.”
28. The Hon’ble Supreme Court in “Fair Air Engineers Pvt. Ltd. & ANR. Versus N.K. Modi, III (1996) CPJ 1 (SC)” has held :-
“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
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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 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.
29. The Hon’ble Supreme Court of India in “Lucknow Development Authority Versus M.K. Gupta, 1994 (1) CLT 1” has observed that a legislation which is enacted to protect public interest from undesirable activities cannot be construed in such narrow manner as to
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frustrate its objective. It has been further observed in the said authority that any attempt to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and spirit behind it. The Hon’ble Supreme Court of India has further observed that truly speaking it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions scrutinized, as public accountability is necessary for healthy growth of society.
30. 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.
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.
His Lordship Markandey Katuj, J. in “State of U.P. Versus Jeet S. Bisht” (supra), in para No.66 and 67 of the judgment has observed as under :-
“66. It is well settled that a mere direction of the
Supreme Court without laying down any principle
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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, Amritsar Vs. Hazara
Singh, AIR 1975 SC 1087, the Supreme Court
observed that only a statement of law in a decision
is binding. In State of Punjab Vs. Baldev Singh,
1999 (6) SCC 172, this Court observed that
everything in a decision is not a precedent. In Delhi
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:
“….. 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…..”.”
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31. 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. 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.
32. 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.
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33. 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. So we hold that the Fora established under the Consumer Protection Act has jurisdiction to entertain the matter concerning the disputes relating to telecommunications.
34. Now coming to the merits of the case, the connection of the complainant was disconnected without any notice. However, opposite party No.1, who is the dealer, has pleaded that he has no role to play in the disconnection of the connection of the complainant after the activation of the same. The disconnection, if any, has been done by opposite party No.2. Opposite party No.2 i.e. Bharat Sanchar Nigam Limited, who is the telecom
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service provider, has pleaded that infact the connection is working and it was Charged/extended for validity in last month. However, no reason has been given as to why the connection of the complainant was disconnected. After the filing of the present complaint, opposite party No.2 has restored the services, but without any intimation to the complainant and the complainant could not use the said connection because he was under the impression that his sim is not working. The complainant has definitely suffered loss and harassment at the hands of opposite party No.2. Opposite party No.2 has failed to give any explanation for the deficiency in service on their part. Opposite party No.2 is thus grossly deficient in service and is liable to be burdened with exemplary costs. In view of this, this complaint is allowed and opposite party No.2 is directed to activate the connection of the complainant for a period of another three months with due intimation to the complainant without charging any extra sum for the same. Opposite party No.2 is further directed to pay a sum of Rs. 10,000/- to the complainant for the loss and harassment suffered by him. Opposite party No.2 is further directed to pay a sum of Rs. 2000/- as litigation expenses to the complainant. The orders be complied with within a period of thirty days from the date of receipt of its copy. File be consigned to the record room.
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4 Comments for this Article
Satnam Singh
Wrote on 25 October 2009
Mr. Inderjeet Dasgupta You can contact the consumer forum Ferozepur at consumerforum@yahoo.in and request for the Judgment
Vishal Khanna
Wrote on 24 October 2009
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
Raj Kumar Makkad
(Expert) 16 August 2011
Nothing is required to be added in the detailed reply with support of citation filed by sethi.
K.S.Srinivas
(Expert) 16 August 2011
suggestion with relevant citation is given by Mr.Ajay
girish shringi
(Expert) 17 August 2011
I do agree with experts.
However you are a client/customer of the tele service provider Co. Hence you can proceed against them.It is not necessary that you must have citation for the same MNP has been introduced very recently.
Don't worry simply apply to the Forum at your nearest relevant forum.
Advocate. Arunagiri
(Expert) 17 August 2011
Recently the consumer courts are not entertaining cases against the cellular companies, citing a supreme court judgement.
The supreme court had held as per the 7B of the Telegraph Act, the disputes has to be referred to the arbitrator only, and finally held that the consumer court can not entertain case against BSNL.
Based on this the consumer forums are not accepting the cases against any cellular companies.
Arun Kumar Bhagat
(Expert) 21 August 2011
First the Complaint has to be referred to Arbitrator, Even after the admission of complaint at consumer forum , the forum shall direct the parties to approach the Arbitrator.
M/s. Y-not legal services
(Expert) 16 August 2011
