TELEPHONE SERVICES AND CONSUMER FORUM
Advocate Suresh Kumar T V
(Querist) 12 May 2011
This query is : Resolved
Now a days the Hon'ble State Consumer Readdressal Commission, Chennai and District Consumer Forum, Chennai are not entertaining new complaints against the Mobile Service Providers by relying the Hon'ble Supreme Court case General Manager, Telecom, versus M Krishnan.
According to my view, this judgement will not be applicable to the private mobile service providers in terms of TRAI Act 1997. Further the judgement in the case of Lakhbir Singh,the DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR has clearly distinguished the applicability of the said supreme court judgement.
On account of the State Commission and District Forums orders rejecting the complaint, there are so many consumers are handcuffed and handicapped to fight their rights as a consumer.
Therefore I have decided to challenge the said consumer courts order by way of Civil Revision Petition before Hon'ble High Court Madras under Art.227 of Constitution of India on the ground that the State Commission and District Forum are failed to exercise jurisdiction and flagrant violation of law.
I Invite the vies from the members about the scope of the said revision petition
Thanks & Regards
T.V.Suresh Kumar
Advocate
R.Ramachandran
(Expert) 12 May 2011
Dear Mr. Suresh,
Why don't you give the citation of the cases which you are mentioning here. This will help people to immediately refer the cases.
Advocate Suresh Kumar T V
(Querist) 12 May 2011
Dear MR.Ramachandran,
You may click and get full judgment
http://www.indiankanoon.org/doc/1505749/
Advocate Suresh Kumar T V
(Querist) 12 May 2011
Dear Mr.Ramachandran,
You may get judgement of Lakhbir Singh case
http://www.lawyersclubindia.com/mobile/articles/display_article_list_mobile.asp?article_id=1697
R.Ramachandran
(Expert) 13 May 2011
Dear Mr. Suresh,
The SC Judgment in the case of BSNL is mainly in view of the provision of Sectin 7B of the Telegraph Act.
I am not sure whether other Private Telecom Companies have such a provision. If they do not have similar provision, then the SC decision which was rendered in the case of BSNL will have no application, and the service receivers can definitely approach the Consumer Forums. The actions of the Consumer Forums in refusing to entertain and adjudicate upon the complaints against private telecom operators can be called into question.
Having said this, I am afraid, the decision of the Ferozepure District Forum, in entertaining and adjudicating the complaint against BSNL, especially in the face of the SC decision in G.M.Telecom vs. Krishnan, does not appear to be on sound footing. In fact, the District Forum has blatantly questioned the decision of the S.C. I am also reminded of the very recent severe action of the S.C. in pulling up a Addl. District Judge of the Delhi District Court, who granted stay in an eviction case, disregarding the decision of the S.C.'s decision rejecting the appeal of the tenant.
N.K.Assumi
(Expert) 13 May 2011
I am of the view that, Section 7-B of the TA is very clear and there is no doubt to the language of that section. But the difficulty is that, the common people can not approach the central Government for arbitration unless the said authority is delegated to some responsible persons to act on its behalf in every States of India. What I fell is that section 7-B of the TA should be suitably amended by the Parliament in the general interest of the people, as the said section has the tendency to tighten the hands of those stake holders.
R.Ramachandran
(Expert) 13 May 2011
Dear Mr. Assumi,
No further amendment etc., is called for Sec.7-B of the Telegraph Act. The telephone user has to raise a dispute with the local authority and seek arbitration. That is all. He need not approach any Central Government for such arbitration.
N.K.Assumi
(Expert) 13 May 2011
Thanks for the information, I have posted the same as this point was raised in some cases.
Advocate Suresh Kumar T V
(Querist) 13 May 2011
Dear N.K.Assumi & R.Ramachandran,
We may also see TRAI Act 1997, there is a specific provision to file individual complaint before consumer court. Therefore in my view why we should go to Telegraphic Act and Arbitration. Section 14(B) of TRAI Act 1997 as follows
" 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)"
Guest
(Expert) 13 May 2011
Dear Experts,
Better we may not try to read between the lines.
In fact Sec. 7B of the Indian Telegraphs Act 1885 pertains to arbitration in the dispute cases arising between the consumer (subscriber of the telephone services) and the TELEGRAPHS AUTHORITY. The Telegraph Authority is only one, i.e., the Director General of Telecom Services (erstwhile Director General Post & Telegraphs before separation of the Posts & Telecom Departments), as defined in Sec. 3 (6) of the Telegraphs Act. Any such dispute arising in any unit of the Department of Telecom was treated as the dispute with the Telegraphs Authority and that authority has the power to appoint arbitrators in such disputes cases.
Naturally this section is not applicable to private operators, as they don't operate the services of the network of the Department of Telecom on behalf of the Telecom Authority. They provide services, of their own, as an individual operating company.
Both the cases, as referred to by Mr. Suresh Kumar, pertain to Sec. 7B, i.e., arbitration arising in the BSNL working under the department of Telecom, as its Public Sector Corporation. So, none of the aforesaid cases pertain to any private operator.
But, needless to mention, the telecom services, irrespective whether provided by or on behalf of the telegraphs authority or by a private operator, do come under the purview of the Consumer Forum for redressal of the disputes between the consumer and the operator.
Since Sec.7B of the Indian Telegraphs Act do not apply to the private operators, the cases of dispute pertaining to faulty service by the operators definitely fall within the purvew of the Consumer Forum for which there should be no doubt to any one.
Mr. Suresh Kumar may better like to take up the cases first at the forum against any such private operator, or even against the BSNL and MTNL (if not already referred to arbitration), and see the outcome. If the Forum declines to take up such cases, only then he may try to challenge the forum decision in the appropriate court of law.
Advocate Suresh Kumar T V
(Querist) 15 May 2011
Dear Mr.Dhingra,
Very thanks for your views. Yes absolutely correct. I am also in your point. I had already filed complaint before the District Forum, Chennai and the same has been returned to me as not maintainable.
Now I like to confirm from the experts is that, if i file revision petition before Hon'ble High court under Art.227 of Constitution of India, the High court definitely ask that you have alternate remedy so you go to state commission for challenging the district forum order. But in my case there is no use to go to State commission because the district forum has rejected my complaint only based on the state commission order.
I wish to make submission before the hon'ble high court is that, under Artl.227 the high court has supervisory jurisdiction of subordinate courts and tribunals. if the subordinate courts and tribunals failed to exercise the jurisdiction, it will come under the Art.227. Therefore the revision petition is maintainable.
is it correct?
Experts may suggest and give your inputs
Guest
(Expert) 15 May 2011
Dear Suresh Kumar,
We must not act merely on our prsumption that the State Forum may also reject to entertain the case. My advice -- must try that also. If the State Forum also turns down your case, you will have a very strong foundation to challenge such decisions.
Of course this would also create a history for others to follow if you are able to get reversed such type of wrong practices by the forums.
J. P. Shah
(Expert) 06 August 2011
Dear Sureshkumar,
Thanks for initiating action for public good.
I have recently accessed 24 pages of file notings etc from DoT, Ministry of Communication & IT and DoT is in process of filing curative petition in SC. Last noting is of 07-01-2011 for drafting petition.If I can get your address, I will courier this material, which will be useful to you.
Advocate Suresh Kumar T V
(Querist) 06 August 2011
Dear Mr.J.P.Shah,
Thank you for your best support. Could you please send the papers to below my address
T.V.Suresh Kumar
Advocate
M/s Genicon & Associates
No.43C, South Mada Street,
Mylapore, Chennai-600 004
Cell:9942311211.
The case is adjourned to 9.8.2011. If i received the papers, the same will be helpful to me.
Rajneesh Madhok
(Expert) 06 August 2011
Dear Mr. Suresh Kumar TV,
Regards,
I have filed the appeal against Consumer Forum's decision in State Consumer Disputes Redressal Commission and has appealed on the points collected by Hon'ble J.P. Shah from DOT, Ministry of Communication and IT. The said appeal's hearing is fixed on August 18, 2011.
http://164.100.72.12/ncdrcrep/judgement/1245110722134807424RAJNEESH%20MADHOK.html
http://164.100.72.12/ncdrcusersWeb/ViewProceedingCS.jsp
Case No: A/11/1046
Complainant:
Rajneesh Madhok
Respondent:
BSNL
Date Of Hearing
Date Of Next Hearing
Stage
Court Proceeding
Order
28/07/2011
18/08/2011
Issue Notice/Directions
Proceedings
Daily Order
The hearing date against BSNL has been fixed for hearing on 18th Aug 2011. It is in the preliminary stage on the issue of notice/ Directions. I shall keep on taking guidance on the subject from yourgoodself on the matter. Kindly suggest the points for the concerned case. Sir, in the mean time I had written to the Secretary Telecommunication for appointment of Arbitrator as well as to the General Menager Telecom District, Jalandhar. The Secretary written to me to send me the complete detail of file. On sending the complete detail he had marked the application with 110 pages annexures to the DDG for appointment of arbitrator. In the mean time General Manager Telecom District, jalandhar directed PRO of Tecom District to settle the dispute. The PRO then wrote to Accounts officer. The Accounts officer then written to me that the amount of Early termination charges have been refunded to me.
Now let us see how the wind blows.
Regards,
Rajneesh Madhok
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, KAPURTHALA.
Complaint No.61 of 2011
Date of Instt. 11.05.2011
Date of Decision : 18.05.2011
Rajneesh Madhok, B-XXX/63, Nehru Nagar, St. No.2, Railway Road, Phagwara-144401. (Pb) 094173-06415 (M)
..........Complainant
Versus
1. Bharat Sanchar Nigam Limited, through its Divisional
Engineer, BSNL, Telephone Exchange Building, Phagwara
2 Bharat Sanchar Nigam Limited, through its General Manager,
Telecom District CTO Complex, Jalandhar.
3. Bharat Sanchar Nigam Limited, through its Chief General
Manager, Telephone Exchange Building, Room No.1,
Sector 34-A, Chandigarh-160022.
.........Respondents
Complaint under Section 12 of the
Consumer Protection Act.
Before: Shri Surinder Mohan (President)
Mrs. Shashi Narang (Member)
Present: Shri Rajneesh Madhok complainant in person
ORDER
Surinder Mohan (President)
1. Heard. Complaint be registered. This order will decide the present complaint at preliminary stage. Rajneesh Madhok has filed
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the present complaint against Bharat Sanchar Nigam Limited and others on the grounds that the Broad Band Connection from Bharat Sanchar Nigam Limited. Phagwara office was taken by him by depositing Rs.5515/- due to deficiency in service provider, the information regarding the deficiency in service of Bharat Sanchar Nigam Limited collected from department and it it proved that the department could not provide proper service to the consumers. The Department provided misleading information on various points and the Refund sought on deficient service and amount charged under unfair trade practice not refunded as per the deposited amount and failed to provide any guidelines framed by the Department of Telecommunication. The complainant filed various representations about fault Broad Band Connection and inflated bills, but the complainant failed to get justice. The representations were also made to different authorities to refund the amount illegally charged from the consumer, but the Department failed to settle the claim sought. The complainant spent Rs.3000/- towards collection of information which was not provided to the applicant and due to the negligence of the BSNL the complainant has to be present in Central Information Commission to get the sought information and again vague and misleading information provided to the complainant. The BSNL also provided misleading reply by dodging the complainant that the Broad Band was faulty due to OFC cable cutting by NHAI according to reply by the opposite party No.1. The document submitted with letter dated 24.2.2010 that 100 pair of OFC Cable and 50 Pair of OFC damaged. Any manufacturer worldwide has never manufactured the said sizes of OFC cables. So the BSNL is dodging the consumers by giving vague and misleading reply. This is deficiency in service. As per reply dated 2.3.2010, the misleading information provided that the fault was due to old Broad Band system of Phagwara. As the complainant's system is created under new system as informed by Mr. Gurcharan Singh TTA while providing the connection, the misleading and vague reply is deficiency in service. The information provided by BSNL D.E. (Phones) vide letter dated 9.4.2010 has again deficiencies. That there is unfair trade practice on behalf of the opposite parties. A relief has been sought that the respondents are misleading the complainant and they be directed to refund full amount deposited with BSNL without any termination charges and service tax charges, that complainant maybe compensated towards expenses met by him in getting misleading information, that complainant may be provided exemplary costs, Rs.1,00,000/- as compensation for tension and mental physical agony. Further prayer has been made that opposite parties be directed to settle the claim of the complainant as per loss suffered and to pay the same with interest at 12% per annum, to pay Rs.5000/- as litigation expenses, the complainant be compensated for the period of Broad Band connection failed to connect and amount charged under unfair trade practice by BSNL, to take action against the official with whose negligence, the consumer has to suffer and action may be directed to initiate against officials those have provided vague and misleading information to the consumer.
2. We have heard complainant in person and have gone throughthe file. The complainant has sought number of reliefs from BSNL due to alleged deficiencies in services. He has also sought refund of Rs.5415/- and refund of full amount deposited with BSNL and amount for mental and physical agony as well as tension etc. The law has been settled by the Hon'ble Apex Court in a case with title General Manager Telecom Versus M. Krishnan another reported as 2009 (8) SCC 481, wherein the Hon'ble Apex Court was pleased to observe that there is special remedy provided under Section 7(b) of Indian Telegraph Act regarding the disputes in respect of telephone bills, then remedy under Consumer Protection Act is by implication barred. The Hon'ble Punjab State Consumer Disputes Redressal Commission has also followed the Apex Court judgment referred above in a case with title as Bharti Cellular Limited Vs. Sudarshan Kumar in first appeal No.668 of 2005, decided on 24.2.2011. Similarly, the Hon'ble Chandigarh Consumer Commission in appeal No.671 of 2009 decided on 29.1.2010 with the title Bharti Airtel Limited Vs. Sunil Kumar has also followed the above said Apex Court Authority. Hon'ble Haryana State Consumer Disputes Redressal Commission has also followed the above said authority in first appeal No.642 of 2009 decided on 29.12.2010 with the title Bharti Airtel Limited Vs. Jagdish Lal. All these authorities were related to provide telecommunication companies. The Hon'ble Apex Court his given his verdict in the case of Government Agency. Therefore, we are of the view that this Forum can not take cognizance of the complaint as the jurisdiction is barred. Therefore, the complaint is ordered to be returned. The complainant may file appropriate application for appointment of Arbitrator. The complaint be returned against a proper receipt. Photostat copies of complaint and its documents attached with the complaint be retained. Copy of the order be communicated to the complainant free of costs. Photostat papers retained by this Forum be consigned to the record room.
Dated Shashi Narang Surinder Mohan
18.5.2011 Member President
Advocate. Arunagiri
(Expert) 06 August 2011
Mr.Suresh,
I have a similar experience in Consumer court. My complaint against Airtel was returned.
As per 7B of the TRAI act, the complaints has to be referred to arbitrator.
If you have any strong grounds in challenging the rejection of consumer forums, please share with us.
Advocate Suresh Kumar T V
(Querist) 07 August 2011
Dear Mr.Arunagiri,
I am attaching the C.R.P Npd No.2478 of 2011 pending before Chennai High Court, you may take grounds from the petition:
MEMORANDUM OF CIVIL REVISION PETITION
(Under Section 227 of Constitution of India)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.R.P No. 2478 of 2011
In
C.C.Sr..No.320 of 2011
(On the file of District Consumer Disputes Redressal Forum, South, Chennai)
D.Velusamy,
New no.15, Old No.8
Telephone Colony,
Ganesh Nagar Main Road,
Adambakkam,
Chennai-600 088 .........Petitioner/Complainant
Versus
Aircel Limited,
Registered Office at
5th Floor, Spencer Plaza,
769 Anna Salai,
Chennai – 600002 …..Respondent/Opposite Party
The addresses for service of all notices, summons and processes on the above named petitioner are that of their counsel M/s Genicon & Associates, Advocates & Legal Consultants, having office at No.43C, First Floor, South Mada Street, Mylapore, Chennai-600 004
The above named petitioner begs to present this Memorandum of Civil Revision Petition to this Hon’ble Court against the order passed in C.C. Sr.No.320 of 2011 dated 13.05.2011 passed by the District Consumer Disputes Redressal Forum, South, Chennai, on the following among other grounds.
Grounds
1. The order passed by the forum below is contrary to law and is vitiated by errors of jurisdiction.
2. The District Consumer Disputes Redressal Forum, South, Chennai has rejected the petitioner’s complaint as not maintainable, which is filed against the respondent for deficiency in service and unfair trade practice. The forum below has committed error in rejecting the complaint by referring order in F.A.No.460 of 2004 dated 30.11.2009 passed by Hon’ble State Commission Dispute Redressal Commission, Chennai.
3. In the above said order in F.A.No.460 of 2004, the Hon’ble State Commission has passed common order dismissing sixty appeals in all together relying Hon’ble Apex Court Judgment in General Manager, Telecom Vs. M.Krishnan & Another, reported in 2009 AIR SCW 5631. In terms of the order the State Commission has come to the conclusion that the complaint against BSNL or others(Private Mobile Service Providers), are all not maintainable before Consumer Fora and the parties have to seek their remedies under section 7-B of the Indian Telegraph Act. Based on the said findings, the forum below is not entertaining the compliant from the petitioner and other consumers who are affected by mobile service providers.
4. It is submitted that the apex court judgment in the case of General Manager, Telecom Vs. M.Krishnan & Another, which is against the Telecom Department for disconnecting telephone connection (Land Line). The apex court held that there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred. In the apex court judgement, there is no reference about the applicability of section 7-B of the Indian Telegraph Act to the private and public service provider. However the State Consumer Commission, Chennai has wrongly interpreted the apex court judgement and the passed the above said common order.
5. The impugned rejection order passed by the forum below and the State Commission is patently wrong. According to section 7-B of Indian Telegraph Act “ 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”.
6. In terms of the above said provision, the dispute is related to telegraph line. The word “telegraph line” is defined under section 2 (4) which 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”. It means telegraph connected with wire or wires. The mobile phone is not connected with wire and it is a wireless devise. Therefore the disputes relating to mobile phones are not covered under section 7-B of Indian Telegraph Act.
7. Further the parties to the disputes should be, between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been provided. The word telegraphic authority has been defined under section 2(6) of the Telegraphic Act. According to the provision, "telegraph authority" means the Director General of Posts and Telegraphs, and includes any officer empowered by him to perform all or any of the functions of the telegraph authority under this Act”. Neither the respondent is a Director General of Post and Telegraphs nor the petitioner has benefited telegraph line. Therefore Section 7-B of the Telegraphic Act will not apply to private and public service providers. However the forum has passed the impugned order without properly construing Section 7-B of the Act.
8. The State Commission has erroneously referred the definition of Telegraph and has come to the conclusion that all types of communication including mobile, internet etc. will come under the Telegraph. Whereas Section 7-B of the Telegraphic Act covers the dispute relating to Telegraphic Line and not Telegraph, the mobile service does not come under Telegraphic Line.
9. The Indian Telegraphic Act was enacted in 1885 more than a century ago, and those times there were no mobile phones like now. Thereafter the parliament has enacted The Telecom Regulatory Authority of India Act, 1997 as a new and special legislation for telecommunication issues. In the new Act, the mobile phone service has been covered under Telecommunication services. When compared to Indian Telegraphic Act and TRAI Act, the TRAI Act is a special Act and the same will prevail.
10. According to Section 14(2) (b) of TRAI Act, which states that ‘nothing in this sub-section shall apply in respect of matters relating to “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”. In terms of the said provision, the individual complaint against the telecommunication services will be maintainable before the Consumer court and has jurisdiction to entertain the Complaint. However the forum below has committed grave error and rejected the petitioner’s complaint as not maintainable.
11. It is submitted that the Telecom Consumers Protection and Redressal of Grievances Regulations, 2007 came into force vide Notification dated 4th May 2007. This regulation contained provisions for establishment of call centre by mobile service provider, lodging complaint to call centre, nodal office and redress the same. In terms of the regulation 25,
The consumer has a right to seek redressal under the Consumer Protection Act, 1986 or any other law for the time being in force. Hence it is abundantly clear that the consumer can approach consumer forum and redress his grievance apart from the remedies under the above said regulations.
12. Apart from the above, it is submitted that the Association of Unified Telecom Service Providers (AUSPI) submitted a letter dated 1.10.2009 to the Department of Telecommunication seeking clarification on the Hon’ble Apex court judgment as below:
i. Are private and public service providers are telecom authorities and provision of Section 7-B of Telegraphic Act will apply to them.
ii. Can private and public service providers as telecom authority appoint arbitrator for arbitration of disputes?
The Department of Telecommunications functioning under Ministry of Communications & IT vide letter dated 19.10.2009 issued under ref No.07-32/2007-PHP(Pt.) has clarified that the private and public service providers are not Telegraph Authority and Section 7-B will not apply on them. Further clarified that the private and public service providers cannot appoint arbitrator and the Central Government can only appoint Arbitrator under Section 7B of the Telegraphic Act. From the above, the petitioner has every right to approach consumer forum against the deficiency in service on the part of the respondent. In the above said common order passed by the State Commission, it is stated that in the apex court judgment, the appeal preferred by the BSNL was allowed and setting aside the order of the High Court. This observation of the State Commission is clearly showed that they have not properly understood the apex court judgement. The appeal was preferred by the General Manager, Telecom and not by BSNL. BSNL is a public sector unit.
13. In terms of section 3 of the Consumer Protection Act 1986, 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. In view of the above, the reliefs under the Consumer Protection Act are supplementary to other reliefs and not supplant. Therefore petitioner cannot be prevented to get relief under the Consumer Protection Act 1986 and the petitioner complaint is maintainable before the forum below. Under these circumstances, the forum below has rejected the petitioner’s complaint without considering above grounds.
Therefore the petitioner prays that this Hon’ble Court may please to set aside the order passed by District Consumer Disputes Redressal Forum, South, Chennai in C.C.Sr.No.320 of 2011 and direct the forum below to take the petitioner’s complaint on file.
Dated at Chennai at this 11th day of July 2011
Advocate Suresh Kumar T V
(Querist) 07 August 2011
Dear Mr.Rajneesh Madhok,
With regard to appoint of arbitrator, The Department of Telecommunications functioning under Ministry of Communications & IT vide letter dated 19.10.2009 issued under ref No.07-32/2007-PHP(Pt.) has clarified that the private and public service providers are not Telegraph Authority and Section 7-B will not apply on them. Further clarified that the private and public service providers cannot appoint arbitrator and the Central Government can only appoint Arbitrator under Section 7B of the Telegraphic Act. The BSNL also comes under Public Sector, therefore 7-B of the Act will not applicable.
Advocate. Arunagiri
(Expert) 07 August 2011
Thank you Mr.Suresh.
I have latest information from our colleage Adv.Dinesh. He had filed a criminal case against Airtel in Chennai Suburban Police, CCB. Few weeks before the HC also directed to file the charge sheet against the MD of Airtel.
I am also planning to file a criminal case against Airtel u/s 420 IPC.
Advocate Suresh Kumar T V
(Querist) 08 August 2011
Dear Members,
The Hon'ble National Commission also is against the consumer court's jurisdiction
http://www.corecentre.co.in/guest/judgement/judg_feb_09.asp
I am expecting valuable comments
Kumar Doab
(Expert) 14 April 2014
On 4th Feb,2014 the DOT has notifed that DCDRF are competent to deal with disputes with individual telecom customers and telecom service providers.
You can download from thread;
http://www.lawyersclubindia.com/forum/Consumer-court-can-now-decide-telecom-complaints-100830.asp#.U0wKFEeBmXU
Now DCDRF, State and National Commission should not decline to accept such complaints.
Kumar Doab
(Expert) 15 April 2014
Dear Mr. Suresh Kumar,
Could not access the National Commission decision at the link provided by you:
http://www.corecentre.co.in/guest/judgement/judg_feb_09.asp
Please provide the correct link to access it.
Regards
KumarDoab
Kumar Doab
(Expert) 26 August 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 865 OF 2013
(Against the Order dated 13/12/2012 in Appeal No. 154/2012 of the State Commission
Maharastra)
1. RELIANCE COMMUNICATIONS LTD. & ANR.
MAHARAJA RANJEET SINGH MARG,
NEW DELHI ...........Petitioner(s)
Versus
1. BEENA MENON
R/O A-303 VAIBHAV TOWER SHANTI PARK
LAYOUT, MIRA ROAD (E)
THANE - 401107
MAHARASTRA
2. BOMBAY TELEPHONE USERS' ASSOCIATION
- ...........Respondent(s)
Dated : 19 Nov 2014
JUSTICE J.M. MALIK
1. The key question which falls for consideration is, whether, the consumer fora have the jurisdiction to try and decide the disputes relating to excess telephone billing and whether, there lies a rub in exercising its jurisdiction in view of Section 7-B of the Indian Telegraph Act, 1885.
2. All the cases entail similar facts and the same questions of law. We will decide the above detailed cases through this common judgment. The learned counsel for the OPs, namely, Reliance Communications Ltd., Maharashtra Telephone Nigam Ltd. and Bharti Airtel Ltd., has placed reliance on the celebrated authority reported in General Manager, Telecom Vs. M. Krishna & Anr., Civil Appeal No. 7687 of 2004, decided on 01.09.2009, wherein it was held, as under :-
“In our opinion when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred. Section 7-B of the Telegraph Act reads as under:-
"S. 7B Arbitration of Disputes :-
(1) Except as otherwise expressly provided in 3 this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this Section.
(2) The award of the arbitrator appointed under sub-s. (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court.
Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules.
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”.
3. We are of the considered view that this authority is not applicable to the present cases. In Fair Air Engineers (P) Ltd. Vs. N.K. Modi (1996) 6 SCC 385, it was held, as under :-
“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 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 the particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act”.
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4. In Appeal (civil) 4965 of 2000,
Kishore Lal Vs. Chairman, Employees State Insurance Corporation, decided by a larger
Bench of the Hon’ble Apex Court, vide order dated 08.05.2007,
the Hon’ble Apex Court, after having considered the provisions of the State Insurance Act, 1948, the Hon’ble Apex Court 17 of its judgment, it has observed that it has been held in numerous cases of this Court that the jurisdiction of a consumer forum has to be construed liberally so as to bring many cases under it for their speedy disposal. In the case of
M/s. Spring Meadows Hospital and Another v. Harjol Ahluwalia and Another, AIR
1998 SC 1801
, it was held that the CP 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 construction. We are of the considered view that same ratio will be applicable to these cases.
5. Moreover, the above said Section 7-B of the Indian Telegraph Act, 1948, under any of the circumstances, could not have been invoked, as it provides that any dispute concerning any telegraph line, appliance or apparatus arising between Telegraph Authority and the person for whose benefit the line, appliance or apparatus is provided shall be determined by an Arbitrator to be appointed by the Central Government. All the OPs above named, do not come within the definition of ‘Telegraph Authority’, within the meaning of Indian Telegraph Act, 1885.
6. In view of the above said definition, the petitioners/OPs cannot be said to be ‘telegraph authority’. Consequently, there lies no rub in invoking the jurisdiction of the consumer fora.
7. The ‘telegraph authority’ has been defined in the Finance Act, 1994 and it includes a person who has been granted a licence under the first proviso to sub-section (1) of Section 4 of the above said Act. In para 11 of the judgment of the State Commission dated 06.11.2012, rendered by the Bench headed by Hon’ble Mr.Justice S.B.Mhase, it was held, as under :-
“Learned Counsel for the complainants and Authorised Representative of the Intervener invited our attention stating that said letter has not been issued by Director-General of Posts and Telegraphs, but it has been issued by Director Phones (E) on behalf of the Telegraph Authority-Director General, Telecommunications, Department of telecommunications and thus, submitted that this letter has not been issued by the Telegraph Authority as defined under Section 3(6) of the Indian Telegraph Act, 1885, it cannot be used to say that MTNL or the MTNL officers are the Telegraph Authority. It is further to be noted that our attention has been also brought to the order passed in Writ Petition No.7824/2005 which was in respect of Bharati Tele-Ventures Limited, one of the Licensees under the Indian Telegraph Act, 1885, the Bombay High Court has observed in Para 40 that the Licensee does not step in the shoes of the telegraph authority under the said Act. Being so, even though the tower and/or cabin can be called as a “post” as defined under Section 3(5) of Indian Telegraph Act, 1885, that itself will not absolve the Licensee from complying with the requirements of the provisions of law under the MRTP Act and the BPMC Act. The delegation of power under Section 19B of the Indian Telegraph Act, 1885 to the Licensees is not to the extent of extending the powers of the telegraph authority under the Indian Telegraph Act, 1885 to the Licensees. In the said judgment, the Bombay High Court has observed after having considered the order of delegation of powers issued in favour of Bharti Tele-Ventures Ltd. that the delegation is absolutely limited to the extent of “seeking way-leave” from the private owners to place and maintain telephone lines and to enter such properties for that purpose and thus, after interpreting said order, the Bombay High Court has come to the conclusion that there is nothing in the order to constitute the Bharti Tele-Ventures Ltd. to say that they are telegraph authority”.
8. In a recent authority, the Delhi High Court in J
.K. Mittal Vs. Union of India & Ors.
W.P.(C) 8285/2010 & C.M. No.21319/2010
decided on 06.02.2012
, his Lordship, Hon’ble Mr. Justice Vipin Sanghi, was pleased to hold, as under :
“
-3-
the impugned order dated 02.09.2010 passed by the State Commission cannot be sustained, as it erroneously holds that the consumer complaint of the petitioner was barred by Section 7B of the Indian Telegraph Act. It is clear that the respondent no.2 is not a telegraph authority. The bar under Section 7B, if at all, could have applied, had the dispute arisen between the petitioner and a telegraph authority, which the respondent no.2 is not. Merely because respondent No. 2 is a licensee under Section 4 of the Indian Telegraph Act, it does not confer on it the status of a telegraph authority. It was held that the petitioner’s consumer claim is maintainable before the District Forum. The District Forum is, therefore, directed to entertain and consider the said claim on its merits”.
9. The gamut of all these facts, circumstances and arguments lean on the side of the consumers/complainants. There lies no rub in filing the complaint, before the consumer fora. All the revision petitions, filed by the petitioners are hereby dismissed. Stay, if granted, stands vacated.
......................J
J.M. MALIK
PRESIDING MEMBER
......................
DR. S.M. KANTIKAR
MEMBER
http://www.lawyersclubindia.com/forum/files/48136_20160826081016_910347486_judgement2014_11_19.pdf
