CC No.705/2016 Date of filing:10.05.2016
Date of Disposal:22.10.2019
BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICTCONSUMER DISPUTES REDRESSAL FORUM,
BENGALURU– 560 027.
DATED THIS THE 22nd DAY OF OCTOBER 2019
CONSUMER COMPLAINT NO.705/2016
PRESENT:
Sri. Venkatasudarshan D.R. B.Com,LL.M., …. PRESIDENT
Smt. L.Mamatha, B.A., (Law), LL.B. …. MEMBER
COMPLAINANTS:
Sri. Priyesh B Jain,
No.947, 1st cross, 8th A main road,
Ideal Home Township, R.T. Nagar,
Bangalore-560098.
(Complainant by Sri. Ramesha B.M. Advocate)
V/s
OPPONENTS:
No.55, Divyashree Towers,
Bannerghatta main road,
= = = = = = = = = = = =
Written by Sri Venkatasudarshan D.R., President
******
// ORDER//
This is a complaint filed under section 12 of the Consumer Protection Act 1986 by the complainant Sri. Priyesh B Jain against Airtel, Bangalore praying for a direction to the opponent to refund Rs.2,500/- being the cost of Wi-Fi modem, compensation of Rs.25,000/- and cost of litigation.
2. The brief facts of the case of the complainant as per the complaint are that the representative from the opposite party came to the office of the complainant and requested him to take Air Tel 4 G connection.The complainant who was having BSNL internet connection.He switched over to AIRTEL internet 4 G connection from BSNL after paying Rs.2,500/- to the opposite party.But the speed provided by the opposite party is only 256 KPS and not 4 G.When the complainant contacted the opposite party, the site survey was conducted and confirmed that the deep interior coverage network was weak and they are in the process of setting it right.But did not do anything and also refuse to refund the same.Hence, the complaint.
3. There is only one opposite party in this case.After admitting the complaint the notice was issued to the opposite party.The opposite party entered appearance through an advocate and filed version.
4. In the version filed the opposite party it is contended that the complaint as brought is not maintainable.The dispute as such cannot be raised before this Forum in view of the provision of Section 7-B Indian Telegraph Act.As per the said provision the dispute of this type has to settle only through Arbitration.It is contended that the services provided to the complainant is Wi-Fi connection where in the complainant or any subscriber for that matter at liberty to use in any place which is always subject to availability of the network in such areas.The opposite party or any Telecom service provides cannot assure the availability of network in all the areas wherever the subscriber intends to use Wi-Fi connection.This aspect has been clearly explained in the enrolment form which is the contract between the subscriber and service provider.It is contended that there are many areas where the technical feasibility for reaching network would be on the lower side.The network may be available in a particular area in the premises whereas same not available in another area.Establishment of a tower is not a simple process to be done by service provider.The complainant though availed services from the date of availing connection has filed a false case.It is contended that on 18.12.2015 the connection was activated upon the receipt of grievance of the complainant.The engineering team of the opposite party visited the complainant and found that the network was on the lower side in view of the fact that the tower from which network is provided is situated in a more distance in spite of that the complainant had used the facility and was charged for the same, the connection was deactivated on 13.02.2016 for non-payment of charges.The complainant was due in a sum of Rs.848/-.So, it was deactivated.Hence, prays for dismissing the complaint.
5. When the case was set down for recording evidence, the complainant has filed affidavit evidence, on behalf of the opposite party one Sri. Siddaveer Chakki, the authorized person filed his affidavit evidence of the opposite party side.
6. The complainant has neither filed written arguments nor submitted arguments orally.The opposite party has submitted synopsy of the arguments.
7. The points that arise for our determination are:-
(1) Whether the complaint as brought is maintainable?
(2) If so Whether the complainant proves that there was deficiency in service on the part of the opponents?
(3) If so what is the relief to which the Complainant is entitle?
-
-
Point No.1:- In the Negative.
Point No.2 & 3:- Does not survive
Point No.4:- As per the final order for the following.
: REASONS :
-
10. The opposite party who entered appearance has taken a main contention that the complaint as brought is not maintainable before this Forum in view of the mandatory provisions and section 7-B of the Indian Telegraphic Act.The opposite party also relied on the judgement of the Hon’ble Supreme Court in civil appeal No.7687/2004 disposed on 01.08.2009 in the matter between the General Manager, Telecom V/s M. Krishnan and another reported in 2009 AIR SCW page 5631 which was followed by the Hon’ble National Commission in Revision Petition No.398/2011 in Ziauddin Alvi V/s Bharti Airtel Limited.Since this contention takenby the opposite party is with regard to the maintainability of the complaint itself, which goes to the root of the case this aspect has to be considered before we take up discussion on the points that arise for our determination Section 7(B) of the Telegraph Act reads as under;
7-B arbitration of disputes (1) except as otherwise expressly provided in this Act, if any dispute concerningany telegraph lines, appliances or apparatusarises 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-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any court.
In the same Act the word “Telegraph” has been denied under section 3(1AA) as under “1AA telegraph means any appliances instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writings, images and sound are intelligence of any nature by wire visual or other electro magnetic emission, radio waves or Hertizan views, galvanic, electric or magnetic means.
11. The above said definition of the word telegraph is the amended version of the definition which was amended by the Indian Telegraph (amendment act 2003) i.e., Act No.8 (2004). Though, it received the assent of the president on 09.01.2004, it has come into force with retrospective effect from 01.04.2002. That means to say this word telegraph has been widely amended after coming into force of the Information Technology Act and therefore it takes within the ambit all electric and electronic gadget also.
12. The present case is the one relating to electric gadget i.e., mobile. It is the case of the complainant that he took Airtel 4G internet connection to his mobile after getting the earlier BSNL connection disconnected on the assurance by the representative of the Airtel that the 4G connection that they give will be of a more speed and good in its performance. After getting connection it was noticed that the speed provided by the Airtel was far below, which was far slow and therefore the complainant has come up with this complaint. If the provisions of section 7-B along with the definition of the word “Telegraph” as found in the Indian Telegraph Act referred above we find that this would be the dispute within the meaning of Section 7-B of the India Telegraph Act. In view of the mandatory provisions of section 7-B of the Indian telegraph Act it is clear that the present complaint as brought is not maintainable. In this context we may refer to the decision of Hon’ble National Commission reported in II(2012) CPJ 635 in Lokesh Parashir V/s Idea Cellular Limited and another. In that reported case the complainant had obtained mobile connection from idea cellular Limited through opposite party No.2. According to the complainant at the time of obtaining the connection he was assured about the validity up to February-2007 which was later extended up to July-2007. It was the grievance of the complainant that the opposite party did not provide the cellular service to him and hence filed the complaint before the district Forum. The opposite parties entered appearance before this Forum. In that reported case and filed version contending among other things that the complaint is not maintainable in view of the provisions of section 7-B of the Indian Telegraph Act. The Hon’ble Forum relying on the judgement of the Hon’ble Supreme Court in General Manager, Telegraph V/s M. Krishnan and another reported in III(2009) CPJ 1062 and another judgement in Prakash Varma V/s Idea Cellular Limited and another in Civil Appeal No.24577/2010 of the Hon’ble State Commission has dismissed the complaint holding that the Forum has no jurisdiction to try the case. The same was challenged before the Hon’ble State Commission which upheld the order passed by the District Forum. The Hon’ble National Commission in the above said reported decision has confirmed the orders passed by the District Forum and also the State Commission in view of the mandatory provisions of section 7-B of the India Telegraph Act. In the said judgement para 6 the judgement of the Hon’ble Supreme Court reported in III (2009) CPJ 10622 has been culled out which reads as under;
“6. In our opinion when there is a special remedy provided in section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred. Section 7-B of the Telegraph Act reads as under;
13. That apart in this case though sufficient opportunities were granted to the complainant to appear and submit the arguments, the complainant has not availed the opportunities. So except the oral evidence in the form of the affidavit filed by the complainant which is the reproduction all the averments made in the complaint, we have no other material placed on record by the complainant to take a view different from the ratio laid down in the judgement of the Hon’ble National Commission reported in II (2012) CPJ 635 NC refered above.
14. In the light of the discussions made above, we are of the considered view that the complaint as brought is not maintainable in view of the mandatory provisions of section 7-B of the Indian Telegraph Act. Accordingly we hold that the complaint is not maintainable. Accordingly we answer point No.1 in the negative and against the complainant.
- In view of the finding recorded on point No.1 holding that the complaint as brought is not maintainable, the question of considering the point No.2 and consequently the point No.3 does not arise. Accordingly, they have been answered as they do not survive. In the result we proceed to pass the following order.
-:ORDER:-
The complaint filed by the complainant Sri. Priyesh B Jain u/s 12 of the Consumer Protection Act is dismissed as not maintainable. File closed.
Supply free copy of this order to both the parties.
(Dictated to the Stenographer, typed by her, the open Forum on 22nd day of October 2019)
(L.Mamatha) (D.R. Venkatasudarshan)
Member President.
//ANNEXURE//
Witness examined for the complainant side:
Sri. Priyesh B. Jain, who being the complainant has filed his affidavit.
Witness examined on behalf of the Opposite Parties:
- Sri. Siddaveer Chakki, authorized person of opponent has filed his affidavit.
List of documents filed by the complainant:
- Greetings from opposite party.
- Copy of letter written by complainant to BSNL
List of documents filed by the opponent:
-
-
