Delhi

StateCommission

FA/445/2014

VIBHA NARULA GUPTA - Complainant(s)

Versus

AIRCEL LTD. & ORS. - Opp.Party(s)

24 Apr 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

 

Date of Decision:24.04. 2019

 

 

First Appeal No.445/2014

(Arising out of the order dated 29.03.2014 passed in Complaint Case No. 188/2013 by the District Consumer Disputes Redressal Forum (VII), Sheikh Sarai, New Delhi)

 

 

Ms. Vibha Narula Gupta,

1402, Tower-19, Vipul Greens, Sohna Road,

Gurgaon – 122003                                                                      …..Appellant

 

Versus

 

Aircel Limited,

A-44, Mohan Cooperative Industrial Estate,

Mathura Road, New Delhi -110044.

 

ALSO AT:

 

5^th Floor, Spencer Plaza,

769, Anna Salai, Chennai – 600002.                                      .….Respondent

 

 

CORAM

 

Justice Veena Birbal, President

Ms. Salma Noor, Member

 

1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?

 

Justice Veena Birbal, President

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, the “Act”) against order dated 24.03.2014 passed by the Consumer Disputes Redressal Forum (VII), Sheikh Sarai, New Delhi (in short, the “District Forum”) in Complaint Case No.188/2013 whereby the aforesaid complaint has been dismissed being not maintainable.
2. Briefly the facts relevant for the disposal of present appeal are that a complaint under Section 12 of the Act was filed by appellant herein i.e. complainant before the District Forum stating therein that the respondent/OP had advertised the launch of Apple iPhone 4s on its network wherein substantial benefits and discounts were offered on monthly bills, on the purchase of the mobile phone from the respondent/OP.  It was alleged that the appellant/complainant being allured by the benefits and discounts offered, purchased the mobile phone from a retail outlet of the respondent/OP in Gurgaon and was provided Mobile No.8285020661. It was alleged that respondent/OP also advertised the image of the handset with a mark showing 3G services, thereby representing that 3G services were available on the network of the respondent/OP. However, subsequent to the purchase, appellant/complainant realized that the mobile phone was receiving only 2G network. It was alleged that upon raising query in this regard, the customer care department of respondent/OP informed that 3G services were not available in Delhi and Haryana on the network of respondent/OP. It was alleged that despite the fact that 3G services were not available in Delhi and Haryana, respondent/OP made misleading advertisement showing 3G network on the mobile phone. It is was alleged that prior to visiting Bahrain on 02.10.2012, the appellant /complainant had requested the respondent/OP to activate international roaming on the mobile phone, which was provided by the respondent/OP till 05.10.2012 and thereafter the respondent/OP unilaterally deactivated the said services without intimating appellant/complainant. It was alleged that appellant/complainant contacted the customer care department of respondent/OP to know the cause of deactivation, wherein it was informed that the same were deactivated due to huge outstanding bill. Appellant/complainant requested for providing her the details of the outstanding bills, however, respondent/OP refused to provide any details. It was alleged that the appellant/complainant received a bill dated 19.10.2012 of Rs.14,421/- from respondent/OP on 20.10.2012 showing that the main charge in the bill was on account of a data call allegedly made by the appellant/complainant while on International Roaming. It was alleged that since the appellant/complainant had not made the alleged data call, she disputed the wrongful amount billed by the respondent/OP and vide email dated 21.10.2012 sought certain clarification from the respondent/OP. It was alleged that in order to ensure that no dispute arise at a later stage, appellant/complainant paid the bill after subtracting the amount due towards the alleged data call and also paid service tax on the complete bill and requested the respondent/OP to reactivate the services of her mobile phone and provide the clarification, however, the respondent/OP neither replied nor activated the services of the appellant/complainant. Left with no option, appellant/complainant sent a legal notice to respondent/OP on 03.12.2012. It was alleged that even thereafter neither any response was received from the respondent/OP nor the services were activated.  Thereupon, appellant/complainant alleging deficiency in service on the part of respondent/OP filed a complaint before the District Forum seeking certain directions to respondent/OP and compensation of Rs.10,000/- towards damages for mental and physical harassment.
3. In response to aforesaid complaint, the respondent/OP filed an application under Section 12(3) of the Act wherein it was stated that the matter pertains to non-payment of bill. It was stated that in Civil Appeal No.7687 of 2004 titled General Manager, Telecom v M. Krishanan & Anr, the Hon’ble Supreme Court held that when there is a special remedy provided under Section 7B of the Indian Telegraph Act, 1885 regarding disputes in respect of telephone bills, then the remedy under the Act is barred. it was prayed that in light of the above decision the complaint be rejected.
4. Ld. District Forum, relying upon the judgment passed by Hon’ble Supreme Court in General Manager, Telecom v M. Krishanan & Anr., (2009) 8 SCC 481 dismissed the complaint.
5. Aggrieved with the aforesaid order, present appeal is filed.
6. No one has appeared on behalf of the parties to assist us. We have perused the material on record including the grounds of appeal on which the impugned order is challenged and reply to the appeal filed by the respondent.
7. In the judgement of Bharti Hexacom Ltd. v Komal Prakash passed in RP No.1228 of 2013 decided on 02.05.2014, it is observed by the National Commission that after order of Apex Court in M. Krishnan (supra) case, Ministry of Communication and I.T. vide letter dated 24.01.2014 clarified that powers of Telecom Authority are not vested in private telecom service providers hence, Section 7B of Indian Telegraph Act is not applicable. The relevant portion of aforesaid judgement is reproduced as under:

 

“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 judgement of the Hon’ble Supreme Court in General Manager, Telecom v. M. Krishnan & Anr. (MANU/SC/1597/2009 : (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 judgement 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 service 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.”

 

8. In R.P. No.865 of 2013 titled Reliance Communications Ltd. v. Beena Menon decided on 19.11.2014, National Commission after discussing judgement of Delhi High Court in J.K. Mittal v. Union of India reported in AIR 2012 Delhi 94 held that respondent No.2 i.e. Bharti Airtel does not fall within purview of Telegraph Authority; so, Section 7B of Telegraph Act was not applicable.  
9. The National Commission in Vivek Bhardwaj v Vodafone Essar East Ltd. & Others, 2016 SCC online NCDRC 1851 after relying upon Bharti Hexacom Ltd. (supra) 3 Member Bench judgement of National Commission and other judgements referred above, held that the Fora constituted under Consumer Protection Act are competent to entertain disputes between individual telecom consumers and telecom service providers.
10. In view of above discussion, we find the District Forum committed error in dismissing the complaint on the ground that the complaint was not maintainable.  Accordingly the appeal filed by appellant/complainant is allowed and impugned order dated 24.03.2014 passed by the District Forum in CC No.188/2013 is set aside and matter is remanded back to the District Forum for deciding the complaint on merits as per law.
11. Parties are directed to appear before the District Forum on 28.05.2019.
12. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum for information. Thereafter the file be consigned to record room.      

 

 

 

(Justice Veena Birbal)​

PRESIDENT

(Salma Noor)​

MEMBER