Telecom cases & consumer jurisdiction

DOT has notifed that DCDRF are competent to deal with disputes with individual telecom  customers and telecom service providers.

Now DCDRF, State and National Commission should not decline to accept such complaints.

You can download the notification from following thread:

https://www.lawyersclubindia.com/forum/Consumer-court-can-now-decide-telecom-complaints-100830.asp#.U0wKFEeBmXU

You are right. That is not happening and NCDRC is dismissing cases in the old fashion even now. RP/531/2013 judgement on the 30/4/2014 is a proof of that. Verify yourself. They didn't upload the judgement in Judgements section. Can be viewed  from Status page as a daily order. Attached bellow for your convenience. 

Murthy

What is happening is not surprising. Whenever there is a Supreme Court order, it remains there as a stumbling block. So far lower courts and authorities are only trying to explain away or circumvent the Supreme Court judgment. The only solution is either to get the judgment removed or to get the Section 7B repealed by the Parliament. Notwithstanding all the explanations, clarifications and orders given by the lower authorities, whenever a new case comes before a judge, the Supreme Court judgment will be staring at him in the face and he dare not ignore the same.

I find that judges do not resourcefully and suo moto apply themselves to the case before them. They just go by the material and arguments placed before them by the lawyers of the parties.

The General Manager, Telecom  vs Krishnan & Anr case had a tortuous journey from a District Forum at a remote place near Kozhikode, Kerala to the High Court in Ernakulam and then all the way to the Supreme Court in Delhi, all for a paltry sum of Rs.5000/- in dispute.

The telephone line of Mr. Krishnan was disconnected. He filed a case against BSNL before the local District Forum. The Forum imposed a fine of Rs.5000/- on the Telecom authority. The aggrieved General Manager of BSNL appealed to the Kerala High Court. A single judge of Kerala High Court dismissed the appeal. Not satisfied BSNL wanted the case to be heard by a larger bench. The Division Bench on its own referred the case to the full bench because of the importance of the case. The judgment of the full bench goes deeply and at length into the case. Actually the Kerala High Court judgment is a treatise on the subject.

The mighty BSNL was undaunted. The General Manager went all the way to the Supreme Court. Poor Mr. Krishnan was only an individual. He would have thought that he could not go all the way to Delhi to Supreme Court, hire a Supreme Court lawyer and fight the case. Thus only the lawyers of the Telecom Authority appeared before judges Markanday Katju and A. K. Ganguly. There was no one to present the case on behalf of Mr. Krishnan.

The Supreme Court judgment traces the route taken by the case, but does not go into detail or rebut the judgments of the Kerala High Court. In one stroke they over-ruled the Kerala High Court judgment.

The Indian Telegraph Act, 1988 was passed in the 19th century. But Section 7B was introduced by an amendment in 1957 and it came into force in 1959. What was the situation in 1957 to 59. Jawaharlal Nehru was the Prime Minister and he was dreaming of a Socialistic pattern of society and the commanding heights to which Socialism was to be taken. In 1988 probably only telegraph was in existence and not even telephones. That may the reason that it is called the Telegraph Act and not the Telecommunications Act. In 1959 telephones were under the Posts and Telegraphs Department. Not even MTNL and BSNL were in existence. Even then to put P & T beyond the jurisdiction of courts (there were no consumer courts during those days) was a tyranny.

Whenever a bill is placed before the Parliament it will have a preamble which would say why the Act was necessary. Amendments to the Act are brought when such  need arises. The amendment will say the reason for such amendment. If there was no Section 7B until 1956 how and why did the need for it arise in 1957? I wanted to find it out. I made an RTI application to the Department of law. They didn't know how to respond to my query. So they passed the buck to the Telecom Department. In that Department each official passed it to the next desk. Finally I got a nil reply. I have made an appeal asking at least for a copy of the Gazette Notification of the amendment. That official is yet to reply to my appeal.

Are laws gospels to be followed with no questions asked?  When judges ruled upholding Section 7B, did they look into why there had been such a Section? 1959 was just in the beginning of the second half of the 20th century. Now we are in the second decade of the 21st century. There was no consumer awareness and consumer moment during those days. Justice Katju said that Section 7B was a special law overriding the Consumer Protection Act. Kerala High Court was holding that Consumer Protection Act would override Section 7B.

The problem cannot be solved without hitting the bull's eye.

Thanks Dr.MPS  Ramani.

I don't agree with Dr. Ramani. It is not the Supreme Court Order that is holding the NCDRC or the other forums. Small consumer not able to get justice against mighty Telecom Companies. Complainant's lawyers generally skip the court  in most cases or don't argue with all relevant points to make a case.

It is very necessary that the Supreme Court judgment should be smashed.  I say that the judgment is not applicable not only against private service providers, but is even against core Government Departments. Section 7B is against the principles of natural justice. Parliament should repeal it. Let someone answer me why at all the amendment was brought in, in 1957. Is a Government Department so sacrosanct that no court can have jurisdiction over it? Some judgments reject the case saying "when a remedy is available in Section 7B". One uses the word "available" only when what is available is an easier route than the one chosen by the complainant.  Think of a case like this. A telephone line of a private individual  is wrongly disconnected by say, BSNL or MTNL. The aggrieved individual has to apply to the Central Government to appoint an 'arbitrator'. Does it not look  ludicrous? Is Justice Katju, who is vocal about many things, listening?

"Complainant's lawyers generally skip the court  in most cases or don't argue with all relevant points to make a case."

I very much agree. It is so in many many cases. not just in telecom cases only. Why the judges are only dependent on what the lawyers present before them? Why don't they do home work? At least as a test case one case should be taken up to the Supreme Court and validity of Section 7B should be tested once again.

I have been fighting against NCDRC's handling of adjournments and not applying Rule 11( Regulation rules 2005) and Sec 19A of CP ACT.   NCDRC also has a habit of suppressing Daily Orders and Case Status on Confonet web site. Some judgments are also willfully suppressed from Confonet site. I want to unite people to go to NCDRC to present the issue of bad adjournments, which are helping the consumer rights violators. Consumer side advocates are also being bought by these big corporations to take or accept adjournments to prolong the case and dilute the cases completely. Recently in FA/156/2004 ( CC/351/1993 of State commission of UP ) National commission reduced the compensation from 9 lakhs to 5 lakhs in a medical negligence case. No interest and no costs awarded . 

I do not appoint advocates. I fight my own consumer case. Hence the question of purchase of consumer advocates does not arise.

While it is true that in RP 531 of 2013, NCDRC has not considered Letter No. 2-17/2013 of the Dept. of Telecom, the peculiar circumstances of the case namely a) that the judgment is dated 30 April 2014 only 7 weeks after the Department of Consumer Affairs sent (File No. J-24/11/2014) the letter of DoT to NCDRC, b) that NCDRC might have relied on written arguments submitted before the circulation of the said DoT letter and c) that the petitioner did not appear in front of the NCDRC give rise to hope that better sense would prevail on the NCDRC.

I have filed a case against Airtel in Hyderabad District Forum-3 for refusing to change my bill inspite of confirming the same by SMS and thereafter harassing me by not taking into cognizance their confirmation SMS. I was surprised when Airtel's lawyer brought up this aspect and did some research. I was specifically looking for NCDRC rulings after the clarification about jurisdiction of consumer fora was issued. Apart from RP 531 of 2013 and the spirited fight being put by Mr. Ramesh Kumar Rohilla (please google for his various petitions to Dept. of Consumer Affairs, Prime Minister, Chief Justice of Supreme Court and President of India) against Bharti Airtel, I could not find any other references. I seek help in finding references of Letter No. 2017/2013 of DoT being upheld by NCDRC. Meanwhile, I find that the SCDRCs upholding this letter in the following instances:

1. Tamil Nadu SCDRC, Madurai bench. FA 10 of 2013. This order dated 3rd April 2014, incidentally holds (in a poorly crafted sentence, one might add) that "thereby the Consumer Forum is the competent authority to entertain such complaint". Having upheld jurisdiction of Consumer Fora, in the main matter of the case the Commission finds against the petitioner and in favour of BSNL.

2. Meghalaya SCDRC, FA 14 of 2008, dated 20 June 2014. This Commission initially "held in favour of the jurisdiction of the learned District Forum" on 25 February 2014. As can be expected the Commission then goes on to make strong observations: "We are happy to find that, at long last, after considering the M. Krishnan judgment and the provisions of Section 7B of the Telegraph Act the Government too has taken a view that recourse to Section 7B of the Telegraph Act in case of disputes between consumers and private service providers as well as BSNL would not be available and that Consumer Fora are competent to deal with disputes between individual telecom consumers and telecom service providers. This view of the Government of India conforms with our own decision dated 25.2.2014 and puts the matter even further beyond any doubt, not that we ever harboured any. Of course, we cannot help but sadly observe that had this memorandum been issued earlier, instead of coming more than 4 years after the Krishnan judgment, it would have provided better protection of the interests of the billion consumers for which the C.P. Act has itself been enacted as is borne out by its objects. It would have also forestalled a great deal of heart burn and litigation and lessened the load on the already over-burdened courts and tribunals of our country. However as the adage goes, it is always better late than never." The Commission after making it clear that BSNL is not a "Telecom Authority" then makes passing observations that "such [mobile] phones are wireless telegraphs for which there appears to be a separate set of legislation viz. The Indian Wireless Telegraphy Act, 1933 and The Indian Wireless Telegraphy Rules, 1973. After criticizing BSNL in strongly worded language, the Commission awarded a sum of Rs. 30,000 to the Complainant.

3. Himachal Pradesh SCDRC FA 330 of 2014, order dated 4th December 2014. Citing File No. J-24/11/2014-CPU of Dept. of Consumer Affairs, Letter No. 2-17/2013 of DoT, and the cases of J. K. Mittal Vs. Union of India & Ors. AIR 2012 Delhi 94 in the High Court of Delhi, and the case of Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through Others (2004) 1 SCC 305 and Fair Air Engineers (P) Ltd. Vs. N. K. Modi (1996) 6 SCC 385 in the Supreme Court of India, rejects the plea of the appellant, BSNL, that the District Forum lacks jurisdiction.

By the way, I am also fighting my own case.