BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD

FA NO. 272 OF 2014 AGAINST C.C.NO.290 OF 2013

ON THE FILE OF DISTRICT FORUM-II,  HYDERABAD

Between:

J.S.Murthy,

7-1-50, Sriniketan, Flat 501,

Ameerpet, Hyderabad-500 016.                    

… Appellant/Complainant

And

1)       Chief Manager,

          IDEA Cellular Ltd.,

          5-9-62, Khan Lateef Khan Estate,

          Fatehmaidan Rd., Hyderabad - 500 001.

2)       Chief Manager,

          Tata Docomo, Gyanpeeth, Hardware Park,

          Plot No.1 to 5, (Survey No:1/1) Imarath Kancha,

          Raviryal Village, Maheshwaram Mandalam,

          R.R.Dist., Hyderabad, Andhra Pradesh-500 005.

3)       Mr.Satish,

          Surabhi Marketing,

          Afzia Towers, Begumpet,

          Opp.Life Style Building,

          Hyderabad – 500016.                                                

… Respondents/Opp.parties 1 to 3

Counsel for the Appellant          :         Party in person

Counsel for the Respondents               :         M/s.Srinivasa Rao Pachwa-R1.

                                                          M/s.C.Niranjan Rao-R2     

Coram                  :

Hon’ble Sri Justice B.N.Rao Nalla   …      President

Friday, the Fourth day of March

Two thousand Sixteen

Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)

***

1)       The unsuccessful complainant filed this appeal against the orders dated 28.03.2014  of the District Forum-II, Hyderabad made in C.C.No.290 of2013, which was filed by him seeking direction to the opposite parties to pay to the complainant Rs.25,000/- for inconvenience, Rs.25,000/- for mental agony, Rs.2 lakhs for the loss of social value in loosing contacts and reduced respect due to misconceived failure in paying to the utility company, Rs.25,000/- for the fancy number 8885550109, which appears as the primary reason for creating the troubles by IDEA, Rs.320/- the balance amount on the account at the time the service was deactivated, Rs.2000/- towards costs of the case.

2)       For the sake of convenience, the parties are described as arrayed in the complaint.

3)       The case of the complainant, in brief, is that the complainant was the customer of TATA DOCOMO post paid and as he had to visit BITS Pilani Hyderabad campus regularly, it became problem to him to operate the mobile as the signals of the TATA DOCOMO are too low and the DOCOMO people could not address his problem. 

4)       As such, the complainant started using IDEA mobile network portability on 17.02.2013. On the insistence of IDEA Centre Agent, ported connection was chosen as prepaid on IDEA side on 06.02.2013 and on the same day, he paid the TATA DOCOMO bill of previous instance with additional money to cover for the balance period as suggested by IDEA agents, despite having Rs.300/- deposit lying with TATA DOCOMO as a post paid connection.  The complainant charged the new IDEA connection on 17.2.2013, 23.02.2013 and two times on 04.04.2013.

5)       The complainant received a letter dated 25.03.2013 from opposite party no.1 in which it is stated that the complainant had to clear Rs.163/- due to TATA DOCOMO within 10 days from the notification and to produce the receipt/ proof of settlement, failing which the TRAI mandates to disconnect the connection.

6)       The complainant went to the office of  TATA DOCOMO, Ameerpet Centre to pay the dues to  them, but they could not collect the dues as the connection was closed on 16.02.2013, as such, he paid the amount on 31.03.2013 under ICICI net payment option without looking for the deposit adjustment. 

7)       However, the opposite party no.1 continued issuing SMSs from 28.03.2013 onwards about Rs.163/- due to TATA DOCOMO till 06.04.2013, though, the payment was made on 31.03.2013.  Though the complainant sent details of payment, the opposite party no.1 asked the complainant for going to IDEA centre for assistance in that regard.  As there was no response from the O.P.No.1, the Complainant sent mail dated 07.04.2013 to opposite party no.1 stating that he is willing to go to another service provider as his request is not considered by them. 

8)       Thereafter, the opposite party no.1 stopped all the outgoing services abruptly without even letting the customer know by a mail, E-mail, SMS or a call. On 12.04.2013 the complainant went to Surabhi Marketing i.e., opposite party no.3 service centre to prove the payment to get the outgoing services restored and Mr.Satish of Opposite party no.3 took the E-mail copy of TATA DOCOMO showing zero balance to take up the matter with Opposite party no.1 and he requested time to resolve the matter.  

9)       Opposite party no.1 without any notice disconnected the mobile number of the complainant on 14.04.2013. The complainant submits that on account of removing the outgoing services including customer care number and later deactivating the number totally making the number invalid without any notice, caused stress mental agony and inconvenience.

10)     Alleging deficiency in service on the part of the opposite party, the complainant approached the District Forum seeking directions as mentioned above.   

11)     Opposite party no.1 filed written version stating that the Forum has no jurisdiction to entertain the complaint in view of Judgment of Hon’ble Supreme Court of India in SLP (Civil) No.24577/2010 wherein it precluded the jurisdiction of Consumer Forum from entertaining the disputes relating to Telephone & Cellular services.  The Complainant opted for IDEA network from TATA DOCOMO and accordingly, smooth porting took place on 17.02.2013 at 00.00 hours and complainant got welcome call from this Opposite party and complainant recharged the new IDEA connection as it is prepaid segment and the complainant received a letter from TATA DOCOMO on 28.03.2013 dated 25.03.2013 asking him to clear the outstanding due of Rs.163/- within 10 days from the notification and to furnish settlement proof, failing which, the services will be disconnected as per the TRAI mandates. 

12)     As per Telecommunication Mobile Number Portability Regulations 2009 issued by TRAI vide regulation bearing number 116-4/2009 MN (Vol.II) dated 23.09.2009, the donor operator of the Complainant i.e., TATA DOCOMO had sent an intimation to them on 24.03.2013 intimating that there was an outstanding due of Rs.163/- in the complainant’s account and requested to initiate steps.  

13)     It stated that they have sent several requests through SMSs to the Complainant since 28.03.2013 to 09.04.2013 to pay the previous bill amount of Rs.163/-, but in spite of repeated requests made, the Complainant failed to pay the outstanding due to the donor operator TATA DOCOMO or either get no due certificate or valid proof of payment of due from donor operator, as such, it had no other way except to bar the services as mandated by the TRAI Regulations. 

14)     It denied having knowledge of complainant approaching the TATA DOCOMO Centre, Ameerpet and paying the outstanding amount and also denied the further allegations of the Complainant.  It also denied as to resolving the dispute within (3) working days.  It is stated that there is no deficiency of service on its part and as such, no mental agony, inconvenience and pecuniary loss caused to the Complainant and therefore, it is not liable to pay any damages and prayed to dismiss the complaint as vexatious. 

15)     The opposite party No.2 filed its counter stating that the complaint is not maintainable as the same is filed against the Chief Manager of the Company and that there is no deficiency in service on its part.  In fact, there is no person working with such designation and in any case, he cannot be held responsible for the day-to-day affairs of the Company.  Further, the Manager cannot be held responsible for the alleged deficiency of service and he is not a necessary party to the complaint.  That, tata Docomo (Tata Teleservices Limited) is a company registered under the Companies Act having its registered office at New Delhi and circle office at Hyderabad.  The Complainant approached them for obtaining mobile connection from them and after verifying the various services, he obtained connection.  They provided mobile connection and he has used the same without any disruption or disturbance till his request to port-out to Idea Cellular Limited.  At the time of obtaining connection, the Complainant has not made any deposit. 

16)     It is further stated that during February 2013, complainant requested this opposite party to cancel the mobile connection for porting-out to Opposite party No.1 for the reasons known to him and on 27.02.2013 an invoice was generated for an amount of Rs.163/- which was paid after very long time on 01.04.2013.  As per TRAI regulations, any person opting for porting to other service has to clear all the outstanding amount, which he failed to.  After cancellation of mobile connection, there is no relationship with this opposite party and he is not a ‘consumer’ as on the date of filing of complaint and there is no privity of contract.  In a recent Judgment in Civil Appeal No.7687 of 2004 between General Manager Vs. M.krishnan and another, the Hon’ble Supreme Court very clearly held that the consumer fora have no jurisdiction to decide the issues arising under the Indian Telecom Act and the customers have to approach the arbitrators for redressal of their grievances.  There arose no cause of action as there is no default on its part in providing service.  No mental agony, as alleged is caused to Complainant.  It urged to decide the issue of jurisdiction and maintainability of the complaint before going into merits of the case.  Hence, there is no deficiency in service and accordingly prayed to dismiss the complaint with costs.

17)     During the course of enquiry before the District Forum, in order to prove his case, the complainant filed his evidence affidavit and got marked Exs.A1 to A62 and on behalf of Opposite parties, evidence affidavit of one B.Arun Madhav, Deputy General Manager-Legal, for Opposite party No.1 and evidence affidavit of Y.B.Seetharaman, Manager-Legal for Opposite party No.2 are filed, but marked no documents.  Complainant and Opposite party No.2 filed their written arguments too.  

18)     The District Forum after considering the material available on record, dismissed the complaint opining that that there was no deficiency in service on the part of the opposite parties and as per law the Forum has no jurisdiction to decide the case and it further observed that the Complainant failed to pay the amount as demanded by the Opposite party No.2 while adopting number portability to the Opposite party No.1 and accordingly dismissed the complaint. 

19)     Aggrieved by the said order, the Complainant preferred this appeal stating that the complaint filed by him will not fall under Sec.7B of Indian Telegraph Act, 1885 and respondents 1 & 2 are not Telegraph Authorities as defined in Indian Telegraph Act, 1885. The appellant/complainant submits that both Department of Telecommunications and Department of Consumer Affairs clarified that the mobile phone service providers are not telegraph authorities to quote Sec.7B of Indian Telegraph Act for dispute resolution and the present case falls into TRAI Act, 1997 and Telecommunication Mobile Number Portability Regulations. The appellant prayed to allow the appeal by setting aside the order of the District Forum and to award compensation as prayed for in the complaint. 

20)     The point that arises for consideration is whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner?  To what relief ?

21)     The Appellant/Complainant in person argued that as per Sec.7B of Indian Telegraph Act, 1885, provisions under the said section are to the effect that the cases arising and are pertaining to the Telegraph Act cannot be entertained by any court and that the disputes arising between any consumer and the authorities under the said Act are to be adjudicated through arbitration and the above statutory position or legal position is clarified by the Central Government which was accepted and acted upon by the National Consumer Disputes Redressal Commission in RP No.1228/2013 pronounced on 02.05.2014 and R.P.No.677/2011 pronounced on 11.09.2014.   According to the said orders of the National Commission, the disputes arising between the consumers and the telecom authorities are permissible to be adjudicated by the authorities under the Consumer Protection Act, 1986.  Therefore, the complainant had submitted that he had rightly approached the District Forum-II, Hyderabad by filing complaint in C.C.No.290/2013 that was decided by the said Forum on 28.03.2014 against him.  In the circumstances, the appellant prays that the impugned orders dt.28.03.2014 passed by the District Forum-II, Hyderabad in CC No.290/2013 may be set aside by allowing the appeal.

22)     On the other hand the learned counsel for the respondent no.1 referred a supporting decision rendered by the Hon’ble Supreme Court in 2009 STPL (CL) 3185 = 2009 (12) SCALE in the case of GENERAL MANAGER, TELECOM vs. M.Krishnan & Anr., according to which the disputes arising between the consumer and telegraphic authorities cannot be adjudicated by the authorities under the C.P. Act, 1986 except as under Sec.7B of   the Telegraph Act through arbitration. He also submits that the decision rendered by NCDRC in RP.1228/2013 and R.P.677/2011 pronounced on 02.05.2014 and 11.09.2014 respectively are not relevant and are not binding on the parties.  He further contended that the said decisions have no over-riding effect over the decision rendered by the Hon’ble Apex Court. So also, he contended that the clarification given by central government/ telegraphic authorities cannot also have any over-riding effect over the decision rendered by the Hon’ble Supreme Court.

23)     Lastly, he contended that there was no deficiency in service on the part of the opposite parties 1 and 2, as such, the appeal may be dismissed with costs.  

24)     A perusal of the record goes to show that the Appellant/Complainant had got marked voluminous documents which are the mails addressed by him and the response he received from the Respondents herein.  The crux of the matter in this case, is that as the Appellant failed to pay the dues amounting to Rs.163/- to the Respondent No.2 while opting the MNP (mobile number portability) i.e., switching the mobile cellular operator from TATA DOCOMO (Respondent No.2) to IDEA Cellular service (Respondent No.1) by keeping the existing mobile phone number.  The mobile phone number of the Appellant was ported smoothly on 17.02.2013 itself and the same is not disputed by either parties but as there were dues of Rs.163/- payable by the Appellant, as is evident from the letter dated 25.03.2013, marked as Ex.A58, the Respondent No.1 disconnected the service to the Appellant.  As a result of which, the Appellant after making payment of Rs.163/- through net banking on 31.03.2013, made numerous mails requesting the Respondents to restore the service as is evident from Ex.A6 to A57, exchange of mails by either of the parties.  In this regard, it is very important to peruse Ex.A58 which reads as follows:

“Mr.Murthy Jandhyala,

H.No.7-1-50,

Srinikethan Ameerpet,

Ameerpet, Hyderabad

Andhra Pradesh 500 001.

Sub:      Request for clearing the billed outstanding of your previous operator against Mobile No.8885550109.

Dear Sir/Madam,

We are informed by your previous operator Tata-GSM that the billed o/s of Rs.163 as per the last invoice generated after the Port out of your mobile connection to idea on 2/16/2013 is still unpaid.

We hereby request you to clear the said billed outstanding within 10 days from the notification and produce the payment receipt/proof of settlement.  Failing which, we will be left with no option other than abiding by the TRAI mandate to disconnect the connection.

In case there is a divergence in views, we would request you to communicate with your previous o0perator and keep us informed accordingly.

We sincerely value your relationship and would request you to clear the payment at the earliest.

Thanking you,

For Idea Cellular Ltd.,

Sd/-

Authorised Signatory

DATE : 25.03.2013.”

A perusal of Ex.A58 goes to show that Appellant is due an amount of Rs.163/- which has to be paid within 10 days from the notification.  Admittedly, the said letter is stated to have been received by the Appellant on 28.03.2013 which he paid the same through ICICI net banking on 31.03.2013.  This payment is disputed by the Respondent No.1 but admitted by Respondent No.2 in its written version filed in CC No.290/2013 at paragraph No.6 that the payment is received on 01.04.2013, which reads as follows:

“…….In this connection on 27.02.2013 an invoice was generated for an amount of Rs.163/- and the complainant was advised to remit the said amount.  Accordingly, the complainant paid the said amount after a very long time on 01.04.2013…..”

Surprisingly, no documents were exhibited by either of the Respondents herein to prove their contention that the Respondent No.2 generated the invoice on 27.02.2013 and that it has been served on the Appellant enabling him to pay the amount.  Whereas, Ex.A58 clearly shows that it was signed on 25.03.2013 by the authorized signatory and acknowledged by the Appellant on 28.03.2013 and acted upon on 31.03.2013 (admittedly received by the Respondent No.2 on 01.04.2013).  Ex.A58 shows that 10 days time is granted to the Appellant for making payment, i.e., on or before 04.04.2013.  Whereas, he made payment on 31.03.2013 itself and received by the Respondent no.2 on 01.04.2013.  Without waiting for the time given under Ex.A58, the Respondent No.1 deactivated the services of the Appellant’s mobile causing him inconvenience and hardship which necessitated him to take long recourse by addressing mails requesting the Respondent No.1 to restore the connection, but for the reasons best known, the Respondent No.1 failed to respond to his requests compelling him to knock the doors of the forum below.  Ex.A4 to A57 shows number of e-mails exchanged between the parties.  As an enlightened citizen, the Appellant knocked the doors of forum below for redressal of his grievance.

In this regard, it is relevant to refer to Section 7B of Indian Telegraph Act, which reads as under:

“S. 7B Arbitration of Disputes :-

(1)         Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person 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.”

From the above, it is clear that the dispute concerning any telegraph line, appliance or apparatus will arise between the telegraph authority and the person or whose benefit the line, appliance or apparatus is, or has been provided relates to the telegraph authority and the person availing such services.  In the case on hand, the Respondents herein are not the ‘telegraph authority’ as defined under the Act.  In this regard, The Hon’ble High Court of Delhi in the case of JK Mittal Vs. Union of India & Ors, in W.P.(C) 8285/2010 & C.M.No.21319/2010 explained in crystal clear terms as to who and who is not is the ‘telegraph authority’ as defined in the Indian Telegraph Act.  It is observed therein as follows:

“7. The submission is that respondent No.2 is not a telegraph authority within the meaning of the Indian Telegraph Act, 1885.  The expression “telegraph authority” has been defined under Section 3(6) to mean “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”.  He submits that respondent no.2 does not come within the definition of the expression “telegraph authority”.  Therefore, the statutory arbitration under Section 7B cannot be invoked.  Consequently, the said remedy is not a bar to the maintainability of a consumer claim under the Consumer Protection Act. 

8. Learned counsel for the petitioner submits that the Parliament, while enacting the Finance Act, 1994, - whereby service tax was introduced, defined the expression “telegraph authority” as meaning the telegraph authority under clause (6) of Section 3 of the Indian Telegraph Act, 1885, and including a person who has been granted a license under the first proviso to sub-section (1) of Section 4 of that Act.

12. Having heard learned counsels for the parties, I am of the view that the impugned order dated 22.09.2010 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.  If the intendment of Director General of Posts & Telegraph were to confer the status of the Telegraph Authority upon the licensees under Section 4, the Director General of Posts & Telegraph, which comes under the Central Government could have issued the requisite notification under Section 3(6) of the Indian Telegraph Act, which has not been done.  The Parliament was conscious of the fact that there could exist a licensee(s) by virtue of Section 4 of the Indian Telegraph Act.  However, it has not chosen to fasten the statutory arbitration on the licensee or its consumer under Section 7B.  Else, while mentioning the Telegraph Authority, the legislature could easily have included the “licensee” as one of the parties to an arbitration dispute under Section 7B of the Indian Telegraph Act. 

14. The Supreme Court has given a broad interpretation to Section 3 of the Consumer Protection Act, in the light of the clear expression used by the Parliament, which states that the Consumer Protection Act shall be in addition to and not in derogation of the provision of any other law for the time being in force.  Mere existence of an arbitration agreement, assuming there is one between the petitioner and respondent no.2, would not bar the maintainability of a consumer claim, as held by the Supreme Court in Secretary, Thirumurugan Cooperative Agricultural Credit Society (supra).

15. Accordingly, the impugned order is set aside.  It is 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.”

The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case of Bharti Hexacom Ltd., Vs. Komal Prakash and another in M.A.No.204 of 2014 in R.P.No.1228 of 2013, decided on 02.05.2014 has clearly clarified the meaning of “Telegraph Authority” as follows:

“We may also note that the main point on which notice in this revision petition was issued was with regard to the maintainability of the complaint, in view of the Judgment of the Hon’ble Supreme Court in General Manager, Telecom V.Krishnan & Anr [(2009) 8 SCC 481].  However, subsequently, vide a letter dated 24.01.2014, the Government of India, Ministry of Communication & IT, while responding to the communication received from the Secretary, Department of Consumer Affairs, Government of West Bengal on 07.10.2013, in relation to the Hon’ble Supreme Court’s judgment in M.Krishnan (supra), has clarified that the said decision involved a dispute between the Department of Telecommunications (DoT), which was a “Telegraph Authority” under the Indian Telegraph Act, as a service provider prior to the hiving off of telecom services into a separate company viz., Bharat Sanchar Nigam Limited (BSNL).  However, as the powers of a “Telegraph Authority” are now not vested in the private telecom service providers, as is the case here, and also in the BSNL, Section 7B of the said Act will have no application and, therefore, the Forums constituted under the Consumer Protection Act, 1986 are competent to entertain the disputes between individual telecom consumers and telecom services providers.

In the light of the said clarification, the complaint before the District Forum was clearly maintainable and the objection of the petitioner in this regard is bereft of any merit.  For the aforesaid reasons, the revision petition is dismissed.”

25)     Viewed from any angle, in the facts of the case on hand, the Respondents 1 and 2 are not the “telegraph authority” as defined under the Act, as such, the provisions of Section 7B of the Indian Telegraph Act are not applicable to them.  Hence, the complaint of the Appellant is maintainable before the District Forum.  Therefore, the Forum below erred in understanding the meaning and content of the word “Telegraph Authority” and thereby arrived at a wrong conclusion in returning the verdict ‘that it had no jurisdiction to decide the case.’  As far as deficiency of service is concerned, Exs.A4 to A58 clinches the issue that in spite of making payment of amount due by the Appellant, the Respondent No.1 has deactivated the service to his mobile as also gave the number to other consumers relying on the provisions of the Mobile Number Portability Regulations.  The Respondents failed to show any cause and reason as to why the mobile service connection of the Appellant is deactivated within the time specified by them without waiting for till time given, which is nothing but sheer irresponsibility on their part.  Even otherwise, there are numerous letters addressed by the Appellant requesting the Respondents to restore the service, which they failed to, as is evident from Ex.A4 to A57. 

26)     It is to be stated that the stance taken by the forum below that it has no jurisdiction in view of the Judgment rendered by the Hon’ble Apex Court in Civil Appeal No.7687 of 2004 in the case of General manager, Telecom Vs. M.Krishnan & anr., is not justified in view of the facts in the case on hand.  It failed to understand the meaning and content of the Judgment and thereby came to an erroneous conclusion.  That, a prima-facie case is made out that the Respondents committed deficiency in service to the Appellant and acted irresponsibly themselves rendering themselves liable for payment of appropriate compensation for causing inconvenience, harassment and agony to the Appellant.

27)     As rightly argued by the Appellant, there is glaring mistakes on the part of the Respondents in deactivating his mobile service.  Hence, this Commission is not inclined to accept with the decision rendered by the Forum below and accordingly the same is set aside. 

28)     In the above facts and circumstances, the order of the District Forum is set aside and the point framed for consideration in paragraph No.10, supra, is answered accordingly.

29)     In the result, the appeal is allowed and the order of the District Forum dated 28.03.2014 in C.C.No.290/2013 is set aside directing the Respondents to pay an amount of Rs.1,00,000/- (i.e., Rs.50,000/- by each of the Respondents) as compensation to the Appellant for the illegal disconnection of Appellant’s mobile service, thereby causing deficiency in service, mental agony and inconvenience, etc., and to pay costs of Rs.10,000/- (i.e., Rs.5,000/- by each of the Respondents).  Time for compliance : four weeks. 

PRESIDENT

Dt. 04.03.2016

JBNRN (P)

TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD

FA NO. 272 OF 2014 AGAINST CC No.290 OF 2013 ON THE FILE OF DCF-II, HYDERABAD

RDER DATE : 04.03.2016

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