D.o.F: 20/3/09

D.o.O:5/1/2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                                CC.74/09

                        Dated this, the 5^th    day of January 2010.

PRESENT:

SRI.K.T.SIDHIQ                                            : PRESIDENT

SMT.P.RAMADEVI                                                : MEMBER

SMT.P.P.SYAMALADEVI                        : MEMBER

A.Balakrishnan Nair, Advocate,

S/o Chandu Nair,

M.P.C Complex,I.C.B.Road,                                      : Complainant

Kasaragod.(in person)

1. Bharati Airtel Ltd, Regd.office.H.5/12,

    Qutab Ambience, Mehrauli, New Delhi-110030.

2. Bharati Airtel Ltd, Circle Office,

    S.L.Avenue, N.H.By pass,

    Kundannor, Maradu, Po.cochin-682304.                : Opposite parties

3.Airtel Ltd, Brach Office,

   Apsara  Regency, Bank Road,

    Kasaragod.

(Adv.Srikanta Shetty,Kasaragod)

                        ORDER

SRI.K.T.SIDHIQ : PRESIDENT

      This complaint is filed by Sri.A.Balakrishnan  Nair, a practicing advocate  of Kasaragod who is also the President  of  Kasaragod Co-operative  Marketing  & Processing  Society Ltd on the ground that his mobile connection provided by opposite parties on 5/1/09 after accepting sufficient identity proof has been barred  by preventing  outgoing facility. On enquiry made with 3^rd opposite party it was told that 3^rd opposite party has not forwarded his identity proof to 2^nd opposite party.  After confirming  that the identity proof and photo are with  3^rd opposite party, 2^nd opposite party re-activated the out going facility on 27/01/09.  No prior intimation was serve to the complainant regarding the non-receipt of identity proof before barring the outgoing  calls facility.  But to his surprise the incoming calls facility also barred on 29/1/09.  The complainant was very much involved in a flower show and hence he had given the said number to a lot of his customers and due to the  disconnection of his mobile phone calling  facility they could not contact him.  On further enquiry  the complainant came to know that 3^rd opposite party had not forwarded   his identity proof and photo to 2^nd opposite party.  But opposite parties 1&2 did not give any intimation either by a call or message that the incoming or outgoing facility will be cut off for non-production of the mandatory documents.  There is no justification for disconnecting the mobile connection even after accepting  necessary documents and photo.  The  complainant who was actively engaged in the flower show could not contact 3^rd opposite party during those days.  There was no justification for disconnecting  his connection for no fault  on his part.  Hence the complaint

2.  2^nd  Opposite party  filed a version contending  that  the documents submitted by the complainant was insufficient as per the guidelines of  DoT and that was  the reason for disconnection.  The opposite party received the documents of address proof  and identity of the complainant only on 2/2/09 and thereafter the service is providing uninterruptedly .  Hence there is no deficiency in service rendered by them to the complainant and the complaint is liable to be dismissed.

              Sri.Srikanta Shetty, the learned counsel appearing for the 2^nd opposite party also filed  a IA.332/09, raising a preliminary issue regarding the maintainability of the complaint in view of the  verdict  rendered by the Hon’ble  Supreme Court in the case  General Manager Telecom vs. M.Krishna and another reported in III(2009) CPJ 71(SC) . The  counsel  also produced  the copy of the order delivered by the MPSCDRC in appeal No.669/2008 in the case of Reliance Telecom Ltd, vs. Jayakumar Jain & Anr., following the decision of the Hon’ble  Apex court stated .  In both the above cases it has been held that in view of the fact that special law overrides general law and when there is a special remedy provided in Sec.7 B of the Indian Telegraph Act 1885 regarding disputes concerning any telegraph line appliance or apparatus then the remedy under the Consumer Protection Act is by implication is barred.  The issue raised in the said application is also considered in this order.

3.  Complainant filed affidavit in support of his case and cross examined by the counsel for 2^nd opposite party as PW1.  On the side of 2^nd opposite party Exts.B1 to B6 marked.  Both sides heard and the documents perused.

4.  Now the points to be determined  are :

1.      Whether the complaint is maintainable?

2.      Whether there is any deficiency in service on the part of the opposite parties and if so, the reliefs.

5. Point No.1: We fully agree with the contention  of counsel for 2^nd opposite party that general law must yield  to special law  and therefore special law should prevail that provides special provisions to settle the disputes between the consumer and the telecom service providers.  But we hold that this complaint is maintainable before the Forum on  two grounds.     Firstly, the section  7 (B) of the Indian Telegraph Act 1885 is not applicable to private telecom service providers like opposite party because as per 7(B) of the Telegraph  Act,  the Central Govt. has to appoint an arbitrator to settle the dispute between the person whose  benefit  the line is drawn or connection has been provided and the  telecom service provider. We don’t think that in this era of liberalization the Central government had any business in the settlement of disputes between a  telephone  customer and a private telecom service provider.  Hence it is clear that the said provision of Telegraph Act is  intended only to settle the  disputes between  the customer and the government owned  telecom service providers.  The second reason for the rejection of the contention of  opposite party is that the  enactment of  TRAI Act and its subsequent amendments.

6.      The TRAI Act is  a special act enacted in the year 1997 and amended in 2000 to provide for the establishment of the TRAI( Telecom Regulatory Authority of India) and TDSAT ( Telecom Disputes Settlement Appellate Tribunal) to regulate the telecommunication services, adjudicate the disputes, dispose of appeals and to protect the interests of service providers and CONSUMERS  of the  telecom sector.  Therefore, when compared to consumer Protection Act 1986 and Indian Telegraph Act 1885, the  TRAI Act is a special act enacted to protect the interests of service providers as well as the consumers of Telecom sector.  Sec.11 of the Act deals with the functions of TRAI and Sec.12 describes  powers of the TRAI  to call for information, conduct investigations, etc    Sec.14,  deals with the establishment of TDSAT ( Telecom Disputes Settlement Appellate Tribunal) to adjudicate any dispute --

      i.) between a licensor and licensee,

      ii). between 2 or more service providers

     iii). between a service provider and a group of consumers

       The proviso clause of this sections further says that nothing in the above clause shall apply in respect of matters relating to –

(A)  the monopolistic trade practice , restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of Sec.5 of the Monopolies and Restrictive Trade Practices Act ,1969(54 of 1969).:

(B)  the complaint of an individual consumer maintainable before  a Consumer Disputes Redressal forum, and Consumer Disputes Redressal Commission established under section 9 of the C.P.Act,1986(68 of 1986);

(C)  the dispute between telegraph authority and any other person referred to in sub-section (1) of Section 7)B of the Indian Telegraph Act, 1885(13 of 1885)

 7..   So  after the constitution of TDSAT all the disputes relating to the telecom sector shall be adjudicated before the TDSAT including the dispute between a telecom service provider and a  GROUP OF CONSUMERS.  But  as per the proviso clause in Sec.14  TRAI recognizes the jurisdiction of the Consumer Fora constituted under Sec.9 the Consumer Protection Act with respect to the disputes between an  individual consumer and a   telecom service provider.  Therefore, we hold that Consumer Fora constituted under the Consumer Protection Act has got jurisdiction to try the matters filed by individual consumers  against  telecom service providers.  Therefore this point is  answered against  the opposite parties.

8.   The contention of the opposite party is that  the connection of the complainant was barred on 20/1/09 since the documents submitted by the complainant were insufficient as per DoT guidelines.  But Ext.B4 is the copy of Airtel  pre paid  Enrolment form containing the photograph of the complainant.  Ext.B5 is the attested photocopy of the driving license of the complainant .  In addition to that  what are all the  documents required  as per the DoT guidelines are nowhere mentioned by the opposite party.  The opposite party had no case that the complainant had not produced any document to prove his identity.  According to complainant at the time of availing the connection he had submitted  the documents and photo as identity proof along with the prescribed form with 3^rd opposite party.  The complainant also brought to our notice that Ext. B4 is not  the enrolment form signed by him and the signature  is a forged one.  According to him 3^rd opposite party was negligent to forward the identity proof and photo to 1^st opposite party.  3^rd opposite party is a branch of franchisee of Ist&2^nd  opposite parties.  For a default on the part of 3^rd opposite party  complainant has suffered.  The complainant also  stated that the connection is barred following the DoT guidelines is false since no connection can be activated without receiving the basic documents. We accept the arguments advanced by the complainant Sri.Balakrishnan Nair and hold that the disconnection of his mobile phone for no fault on his part is a serious deficiency in service on the part of the opposite parties.

          The complainant had taken the pre paid mobile connection for organizing a flower show conducted by the Kasaragod Co-op Marketing &processing Society Ltd,  He is the  President of said society.  But he could not make use of  phone  due to its disconnection.  So the opposite parties are liable to compensate the complainant for the inconvenience loss and hardships he suffered.  The compensation  claimed by the  complainant is Rs.10,000/-, this claim is appears to be very reasonable.

        Therefore, we allow the complaint and the opposite parties 1 to 3 are jointly and severally directed to pay Rs.10,000/- to the complainant by way of compensation for the loss hardships and mental agony  he suffered along with a cost of Rs.2000/-.  Opposite parties  are also directed to activate his mobile connection and provide life time validity to  him under the most beneficial   minimum tariff scheme prevailing at the time.  Time for compliance  of this order is limited to 30 days from the date of receipt of copy of the order, failing which the compensation of Rs.10000/- will carry interest @12%  from the date of complaint till payment.

 MEMBER                                     MEMBER                                  PRESIDENT

Exts:

B1&B2-copy of notification of Govt. of India

B3-Copy of license agreement

B4-copy ofAirtel prepaid enrolment form

B5-copy of driving license

B6-copy of computer details

PW1- A. Balakrishnan Nair- complainant

MEMBER                               MEMBER                                  PRESIDENT

eva/