Delhi

North East

CC/150/2014

Sh. Jagan Nath Maurya - Complainant(s)

Versus

Aircel - Opp.Party(s)

23 Jul 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 150/14

 

In the matter of:

 

	Jagannath Maurya Khasra 280/1 Lal Bhadur, Shastri Marg, Karawal Nagar, Delhi-110094.	Complainant
	Versus
	General Manager Aircel Ltd Head office: A-44, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi-110044. (MCIE)	Opposite Party

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

30.04.2014 23.07.2018 23.07.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The case of the complainant, in brief is that he had a prepaid mobile no. 9289462916 of which OP was service provider which he was using from August 2013. However the services with respect to the said connection were abruptly disconnected by the OP in February 2014. The complainant, after recharging his SIM called up the OP help line number to enquire about the reason of disruption of services for which he was informed that he had to submit his identification proof again for reactivation of his number. The complainant enquired from the OP as to why his number was activated in the first place when his verification was not proper and if his number was deactivated why had the OP kept the recharge option open when the complainant got the said number recharge for Rs. 38/-. Thereafter the complainant visited Dev Telecom Bhajanpura Centre of OP to submit ID Proof which declined to accept the documents and directed him to go to Karol Bagh Centre which in turn informed the complainant that it was incorrect address and there was no such facility in the such centre and guided him to visit shop no. 31 at Cannaught Place round about where the complainant was informed that they have stopped giving OP services. Lastly the complainant visited Bhagwati Telecom Karol Bagh (East) near Filmistan Cinema on 24.03.2014 where the said centre took the copy of voter ID card and Adhar Card of the complainant and issued a duplicate SIM number 89918000813178703057 to the complainant against his mobile number with assurance that the said SIM shall be functional within next 48 hours. However, till the filing of the present complaint the said SIM has not been activated by OP. The complainant had visited the above mentioned Bhagwati Telecom 10 days after getting the aforesaid SIM to take a duplicate SIM for which he was informed that there was no guarantee for activation of the SIM and his identification proof has been forwarded to the concerned authorities. When the complainant asked the OP to activate his SIM, the OP refused to do the same or extend any support for portability of the said number to any other service provider. Therefore, the complainant was constrained to file the present complaint for deficiency of service on the part of OP before this Forum and prayed for issuance of directions against the OP to pay a sum of Rs. 50,000/- as compensation for mental agony and assistance for portability of his mobile number 9289462916 with an alternative service provider.

The complainant has annexed copy of electricity bill as proof of residence, copy of complaint dated 05.04.2014 to the OP for number portability, copy of e-mails dated 04.04.2014, 05.04.2014 and 07.04.2014 exchanged between complainant and OP.

2. Notice was issued to OP which entered appearance on 06.06.2014 and filed its written statement on 07.08.2014 in which the OP took the preliminary defence that the complainant had subscribed to the connection of the OP after perusing the scheme broacher and executed the Customer Engagement Form (CEF) thereby entering into a binding contract into to abide by the terms and conditions stated in the said CEF vide which the complainant had agreed to limit the liability of OP to the refund of amount of security deposit after adjusting the charges due from the subscriber by duly signing and OP placed  reliance on the Hon’ble Supreme Court Land Mark Judgment of Bharathi Kniting in this regard of limited liability of consignee and the binding nature of terms and conditions of contract signed by the parties thereto. The OP submitted that in pursuance of license granted by central government under section 4 (2) of Indian Telegraph Act 1885, it is providing Cellular Mobile Telephone Services to its customers and as per section 416 of Indian Telegraphic Rules, 1951 “the telegraph authority may reject any application for the connection of a new telephone or for providing any similar service or for the alteration of any existing service and shall have regard to the following factors namely Antecedents of applicant or antecedents of person authorized by applicant, telephone dues outstanding in the name of applicant or person authorized by applicant and refusal of new telephone connection to near / close relations of defaulter telephone subscriber which may be allowed / released on the defaulting subscriber paying the outstanding dues alongwith penalty as may be prescribe by telegraph authority. ” In defence to the allegation of the complainant that the OP has barred his mobile connection services with respect to his mobile number 9289462916 after few days of activation, OP stated that the complainant was informed by the executive of OP that the said connection will be activated subject to verification for the genuineness of complainant including his family members or anybody living on the address given in the CEF as per the mandatory requirements of DoT/TRAI to check the credentials as well as to carry out address verification failing which strict penalty is attracted under DoT/TRAI. The OP urged that during the course of verification of complainant, it was revealed that the address given in the CEF was found to be incorrect and improper and therefore his services were barred and in the mean time the complainant had got his phone recharged for a sum of              Rs. 38/- and if the OP had allowed the phone to be activated, it would have resulted in violation of circulars of DoT/TRAI entailing heavy penalty on OP and therefore the number was deactivated. The OP further submitted that the complainant thereafter went to Bhagwati Telecom and submitted the ID Proof where he was issued a duplicate SIM number 89918000813178703057 on 24.03.2014 but the complainant took back his documents from Bhagwati Telecom the same day because of which his request for activation could not be processed in the absence of true and correct documents. The OP also took the plea that the complainant has nowhere alleged breach or violation of provision and conditions of contract against the OP or any deficiency of service on the part of OP and therefore the complaint is devoid of merits. The OP relied upon the judgment of Hon’ble Supreme Court in Ghaziabad Development Authority Vs Balbir Singh wherein the Hon’ble Apex Court had ruled that compensation is just equivalent for loss of goods or services suffered by person and should not be a bonanza or source of profit. OP further relied upon the ruling of Hon’ble Supreme Court in Vol. III (2004) SLP 161 wherein the Hon’ble Apex Court had held that “damages” and “compensation” are used interchangeabily to reimburse aggrieved party for loss suffered due to omission / negligence of other party which have to be assessed and not awarded randomly / arbitrarily. Lastly, OP took the defence of non maintainability of the present complaint in view of the recent judgment of the Hon’ble Apex Court titled General Manager, Telecom Vs M. Krishnan and Anr. AIR 2010 SC 90 wherein the Hon’ble Apex Court while deciding the controversy regarding billing of telephone, has ousted the jurisdiction of consumer Fora with the observation “in our opinion when there is a special remedy provided in section 7 – B of Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under Consumer Protection Act is by implication barred.” The OP further relied upon the judgment of Hon’ble NCDRC titled Prakash Verma Vs Idea Cellular Ltd & Anr. bearing Revision Petition No. 1703/2010 has held that “the aforesaid judgment of Supreme Court is binding on all the subordinate courts, there is no scope of interference. The Hon’ble Commission in III (2013) CPJ 135 (NC) titled as Ramesh Kumar Rohilla Vs Bharti Airtel Ltd, Prabhakant Shukla Vs Reliance Communications Ltd. bearing Revision Petition No. 3766/2012 decided on 14.01.2013, Dharam Raj Ohlan Vs. Reliance Infocomm Ltd bearing Revision Petition No. 3572/2007 decided on 24.04.2012, Lokesh Parashar Vs Idea Cellular Ltd. bearing Revision Petition No. 3780/2011 decided on 24.04.2012 and Usha Seth Vs Reliance Infocomm Ltd. bearing Revision Petition No. 3842/2007 decided on 23.01.2012 has also held that in view of the above mentioned judgments of the Hon’ble Supreme Court, consumer complaints with respect to disputes concerning telecom companies is not maintainable in consumer Fora. OP further placed reliance upon the Judgments of Hon’ble State Commission of Delhi in Rajeev Tyagi Vs. Bharti Airtel Ltd. in Appeal No. FA-10/585, Amrit Saxena Vs. Bharti Airtel Ltd. in Appeal No. 758/10, Jagdish Singh Chauhan Vs MTNL in appeal no.11/50 relying upon aforesaid Hon’ble Supreme Court Judgment upheld the order of the District Forum dismissing the complaint of complainant in view of the judgment of the Hon’ble Supreme Court of India. Therefore, OP prayed for dismissal of the present complaint.
3. Evidence by way of affidavit was filed by the complainant reiterating his grievance in the complaint.
4. Evidence by way of affidavit was filed by the OP reasserting its defence taken in the written statement.
5. Written arguments were filed by both complainant and OP reinforcing their grievance / defence. During the course of oral arguments, the complainant argued that the OP never highlighted the defects in the CEF ever during the course of proceedings before this Forum and that he had already submitted identification proof at the time of taking the SIM for the mobile number for which reason the said number was allowed to  be functional by OP for six months from August 2013 to February 2014 before disrupting its services abruptly for which the complainant repeatedly requested the OP to facilitate portability of the said number to some other service provider which the OP failed to assist the complainant with and therefore the complainant had to filed the present complaint.
6. We have heard the arguments addressed by the complainant. The OP did not appear despite directions by this Forum however its written arguments were perused for the purpose of oral arguments which are reproduction of its defence taken in the written statement as well as evidence by way of affidavit.

As per section 7 –B of Indian Telegraph Act 1885, any dispute concerning telegraph line, appliance or apparatus arising between telegraph authority and person for whose benefit the line, appliance or apparatus is provided shall be determine by arbitration which shall be referred to an arbitrator applied by Central Government. It has been contended in many cases that in light of section 7 –B, consumer Fora will not have jurisdiction. However the consumer courts in most cases rejected this contention and held that section 7 –B will not oust the jurisdiction of consumer Forum because the existence of a remedy by way of arbitration does not preclude a consumer Forum seeking redressal before the Forums as such remedy is prescribed by a special statute for efficacious and speedy remedy to the consumers as held by Hon’ble NCDRC in the judgment of MTNL Vs Gheval Chand Sesamal Sonigara (1992) II CPR 427 (NCDRC). The same ratio was also followed by Hon’ble NCDRC in the case of Divisional Engineer Telecom Moradabad Vs Virender Kumar (1997) I CPR 165 in which the Hon’ble National Commission held that the consumer Fora have jurisdiction to entertain and decide a dispute which might be covered under section 7 –B of telegraph Act. However Hon’ble Supreme Court in the M. Krishnan case had a different take and observed that when there is a special remedy provided in section 7 –B of Indian Telegraph Act regarding dispute in respect of telephone bills then the remedy under CPA is by implication barred. The consumer Fora after the Hon’ble Supreme Court Decision of 2010 have mostly followed the above said ratio and held that the complaints related to telephone or telecommunication services are not maintainable in consumer Forums as held in several judgments of Hon’ble NCDRC viz Mani Ram Pareek Vs Bharat Sanchar Nigam Ltd I (2012) CPJ 142 (NC), Ramesh Kumar Rohilla Vs Bharti Airtel III (2013) CPJ 135 (NC), Lokesh Parashar Vs Idea Cellular Ltd (2012) II CPJ 635 (NC) and Prakash Verma Vs Idea Cellular Ltd in Revision Petition No. 1703/2010 which held that the aforesaid M. Krishnan Judgment of Hon’ble Supreme Court is binding on all subordinate Courts and there is no scope of interference.

7. In view of the settled law on this aspect, the present complaint is dismissed as non-maintainable with no order as to costs.       
8.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.   File be consigned to record room.
10.   Announced on 23.07.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member