Date of Filing: 09-08-2018
Date of Order: 09-01-2020
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.VIJENDER, B.Sc. L.L.B., PRESIDENT
HON’BLE Sri K.RAM MOHAN, B.Sc. M.A L.L.B MEMBER
HON’BLE Smt. CH. LAKSHMI PRASANNA, B.Sc. LLM. (PGD (ADR), MEMBER
ON THIS THE FRIDAY THE 9th DAY OF JANUARY, 2020
C.C.No.304 /2018
Between
Mr.P.Ravinder,
S/o. P.C. Narsimlu,
Aged 57 years, Occ: Business,
R/o. 1-7-770/5,Flat No.503,
5th Floor, SBI Colony, New Bakaram,
Gandhinagar, Hyderabad – 500 080. ……Complainant
And
- Idea Cellullar Limited,
Rep.by its Managing Director,
Basheerbagh, Hyderabad – 500 001.
- Idea Cellular Limited, Corporate Office,
Rep.by its Managing Director,
B Wing, Pandurang Budhakar Marg, Worli,
Mumbai – 400 030.
- Idea Cellullar Limited, Registered Office,
Rep.by its Managing Director ,
Prahalad Nagar, Ahmedabad,
Gujarat – 380015.
Counsel for the complainants : Ms.J.Saritha
Counsel for the opposite parties : Mr. Sreenivasa Rao pachwa
O R D E R
(By. Smt. CH. Lakshmi Prasanna,B.Sc. LLM (PGD ( ADR)., Member on behalf of
Bench)
The complainant has filed this complaint Under Section 12 of the Consumer Protection Act, 1986 against the opposite parties for deficiency of service seeking a direction the opposite party:-
- To pay the amount of Rs.29,659/- with interest @24% from the date of cause of action till the date of realization
- To pay a sum of Rs.50,000/- towards compensation
- To Pay an amount of Rs.50,000/- towards mental agony sustained by the complainant
- to pay $205 US Dollars that was spent by the complainant to contact customer care in India from USA.
- To award a sum of Rs.10,000/- for costs of litigation.
2) The brief averments of the complainant are:-
The complainant subscribed for activation of international roaming calls for his mobile phone from 4/12/2017 to 27/2/2018 during his visit to USA by paying an amount of Rs.2000/- to the Opposite Party. The complainant was shocked to find that calls were barred from 17/1/2018 and was not restored despite complaint calls on 17/1/2018 and 19/1/2018 to the customer care of the Opposite Party. The complainant paid additional Rs.25,068/- on being informed by the customer care officer to pay the said amount to restore the services. Even then the phone services were not restored and again when the complainant called on 22/1/2018, he was told to pay another Rs.4591/- and the complainant had no choice but to pay for restoration of his phone services. But, to his utter dismay, the services were stopped again on 29/1/2018. The complainant made several complaints to the customer care of the Opposite Party who advised him to take Rs.3000/- plan on 19/2/2018 for 10 days which was taken by the complainant but in vain. Having been subjected to so much inconvenience and hardship without proper phone connectivity in USA, the complaint returned to India on 27/2/2018 and met the Asst. Manager of the Opposite Party but of no avail. The complainant suffered immense loss to his business and reputation owing to the poor telephone connectivity caused by the inefficient services of the Opposite Party. Hence the present complaint seeking appropriate relief.
- In their Written version, the Opposite Parties raised the preliminary objection of maintainability relying on the SC judgment in General Manager, Telecom vs M.Krishnan & Anr. (2009) 8 SCC 481wherein it was held that "where there is a special remedy provided u/Sec.7-B of The Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer protection act is by implication barred..."
Further, while denying the allegations of deficiency of service, the Opposite party contended that the International roaming package is not valid for more than 30 days, and all the tariff plans are periodically published as per the directions of TRAI vide F.No.301-14/2010-ER dt.16/1/2012 and hence within the knowledge of the complainant. As the IR package selected by the complainant has 30 days validity, the same got expired on 3/1/2018 and regular charges are payable thereafter. The Opposite Party reportedly informed the complainant through SMS on 12th and 17 of January 2018 about the high usage asking him to pay the charges to avoid disconnection. The Opposite Party restored the connection including activation of IR package (of Rs.1999/-) after the complainant paid an amount of Rs.25,068/- on 19/1/2018 and balance of Rs.4591/- on 22/1/2018. That the usage of mobile by the complainant during from 19th to 27th of February 2018 reflecting in the invoice dt.12/3/2018 clearly shows that the connection was restored immediately after payment of dues and Rs.2999/- for activation. Further, as a goodwill gesture, the Opposite Party waived a sum of Rs.23471/- + taxes ( Rs.4224.78) on 22/3/2018, on the request of the complainant being an old customer. The Opposite Party contends that the suppression of the above fact of waiver of Rs.27,695/- shows lack of bonafides on the part of the complainant. And that the complaint deserves to be dismissed for lack of jurisdiction and no cause of action as there is no deficiency of service on the part of the Opposite Party.
- In the enquiry, the complainant filed his evidence affidavit reiterating the averments in the complaint supporting his claim with 8 documents Ex A1 to A8 and citations along with Office Memorandum of Ministry of Communications & IT, GOI dt.4/2/2014, while Ex B1 to B4 are marked on behalf of the Opposite Parties in support of their written version and counter affidavit.
- Based on the facts and material brought on record, and written arguments submitted by both the parties, the following points have emerged or consideration:
- Whether the complaint is maintainable under the Consumer Protection Act?
- Whether there is negligence or deficiency on the part of the Opposite Parties
- Whether the complainant is entitled for the claim/compensation made in the complaint?
- To what relief?
- Point No.1:- As the jurisdiction of the Consumer Forum goes to the root of the matter, it was our considered view that the maintainability of the complaint be first decided as a preliminary issue before going into the merits of the case. The Opposite Parties argued that the Consumer Courts lacked inherent jurisdiction to entertain the complaint relying on the SC judgment in General Manager, Telecom vs M.Krishnan & Anr. (2009) 8 SCC 481wherein it was held that "where there is a special remedy provided u/Sec.7-B of The Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer protection act is by implication barred..."
On the other hand, the counsel for the complainant argued that the private telecom companies are service providers and cannot be considered as Telegraph Authority and hence the above judgment of General Manager, Telecom vs M.Krishnan & Anr. is not applicable and hence the present complaint is maintainable as held by the National Commission in BSNL vs D.P.Sharma reported in III (2019 CPJ 405 (NC). The complainant also filed a copy of the Office Memorandum of Ministry of Communications & IT, GOI dt.4/2/2014 wherein it was notified to all the concerned authorities that Consumer Fora are competent to entertain disputes between consumers and Telecom Service Providers after the Department of Telecommunication has examined the implication of the above mentioned Supreme Court judgment on the jurisdiction and competence of the consumer fora in adjudicating telecom disputes vis-a-vis the Sec.7B of the Telegraph Act ousting the same.
Logical question that arises then is whether the Ministry of Communications & IT, Government of India is empowered to interpret the Act or the Rules by issuing such circulars and clarifications. This question was answered by the Supreme Court (SC) in the case of Bhuwalka Steel Industries Ltd v. Bombay Iron and Steel Ltd.(2010) 2 SCC 273 wherein it categorically stated that, "It is not the task of the government to interpret the law; that is the task of the courts and even if the government understood the law in a particular manner, that cannot be a true and correct interpretation unless it is so held by the court. [...] these circulars are merely advisory in nature."
The same legal position was reiterated by the SC in Chief Settlement Commissioner, Punjab v. Om Prakash AIR 1969 SC 33, wherein the SC clearly laid stress on the salient principle that a circular in conflict with a statutory provision cannot prevail over the statute. The SC emphasized that the executive has no inherent law-making power; and whatever law-making power it has is derived through delegation by the legislature. In India, where the rule of law prevails, an administrative action has to be judged by the standard of legality. Therefore, the meaning of a statutory provision can never be overridden by any circular. In effect, it is the function of the courts to interpret the law and hence any circular/ Office Memorandum contrary to the judgments of Hon’ble Supreme Court become non-est in law and cannot not be binding on the courts.
In view of the above discussion and in view of Article 141 of the Constitution, we are bound by the judgment of the Hon'ble Apex Court in General Manager, Telecom vs M.Krishnan & Anr. (2009) 8 SCC 481 and bound to follow the ratio decided laid down therein being applicable to the present issue/question under consideration, Hence the complaint is not maintainable.
- In this regard, before we conclude, it would also be pertinent to mention that the new Consumer Protection (Amendment) Act, 2019 hopefully provides for more clarity resolving, this dichotomy and enlarging the scope of consumer grievances in the changed scenario of the telecom sector.
- In conclusion, as a result of the above discussions and findings, the complaint is dismissed with no costs.
Dictated to steno transcribed and typed by her and pronounced by on this the 9th day of January, 2020.
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESS EXAMINED
NIL
Exhibits filed on behalf of the Complainant:
Ex.A1 - Copy of reversal Excess Bill
Ex.A2 – Copy of Receipt for Rs2,000/-
Ex.B3 & A4 – Summaries of charges
Ex.A5 – Copy of Receipt of Rs.25,068/- & statement of accounts
Ex.A6 – Summary charges
Ex.A7 – Copy of Email
Ex.A8 - Wireless Statement bill
Exhibits filed on behalf of the Opposite parties:
Ex.B1 – Copy of Tariff plan in Hans India
Ex.B2 – Tariff plan in Sanchalana Newspaper
Ex.B3 - Direction from TRAI on tariff publication
Ex.A4 to 6 – Duplicate invoices
MEMBER MEMBER PRESIDENT
