| Final Order / Judgement | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR. Complaint No.388 of 2017 Date of Instt.11.10.2017 Date of Decision: 09.03.2021 Prem Pal Bhatia aged 70 years (Senior Citizen) s/o Inder Singh, resident of Shankar Garden Colony, House No.1813, Nakodar, Distt. Jalandhar. ..........Complainant Versus Bharti Airtel Limited, Plot No.21, Rajiv Gandhi Technology, Chandigarh through its Director.
2. N. P. Info.SIS, Royal Tower Nakodar, Distt. Jalandhar through its Prop Gurdev Singh. ….….. Opposite Parties Complaint Under the Consumer Protection Act. Before: Sh. Kuljit Singh (President) Smt. Jyotsna (Member) Present: Sh. Sachin Dhir, Adv. Counsel for the Complainant. Sh. M. S. Sachdev, Adv. Counsel for the OP No.1. OP No.2exparte. Order Kuljit Singh(President) The instant complaint has been filed by the complainant, wherein alleged that theOP is working in Telecom Sector and has its telecom work throughout India whereas the complainant is customer of OP for the last so many years and complainant approached to the local dealer of OP at Nakodar i.e. OP No.2 for obtaining special number and company dealer after searching and found that one special number 98759-99999 free of cost as Lucky number under scheme is available and after completing the formalities on 27.09.2017 at 10:00 PM the said number was activated to the applicant vide account No.1364419257 but to the utter surprise of the complainant, the said lucky number of the complainant was deactivated by the OP on 28.09.2017 without any information and notice to the complainant and then the complainant got registered a complaint to the OP vide complaint No.SR7988630 through customer care of OP and then said OP has made mobile call to the complainant on next day i..e 29.09.2017 at 08:04 AM on his other mobile number 98786-66686 and said OP No.1 executive namely Royi Vikas assured the complainant that by 30.09.2017 the said number which was wrongly deactivated due to technical defect, will be reactivated but on 30.09.2017 when the said number is not reactivated, then complainant again moved similar complaint, but thereafter that number was stopped. When OP did not take any action then complainant moved a complaint to the Police Station City Nakodar, vide No.315-BHM dated 03.10.2017 against OP, but no action was taken by the Police. That the complainant is senior citizen and commands good respect in the society and after the activation of said lucky number, he has circulated the said number among his relations, family friends and in the society. But due to documentary evidence-activation of this number without any information or notice and without any reasonable cause by OP, the complainant is facing hardships. That due to the deficiency in service on the part of the OPs, the complainant suffered a great mental agony and financial loss and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to reactivate the said lucky number to the complainant and OPs be also directed to pay Rs.10,00,000/- for causing harassment, inconvenience to the complainant and Rs.11,000/- as litigation expenses. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed its separate reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable and does not hold any ground. The complainant is thus not entitled to any relief claimed and no injunction and/or relief can be provided to the complainant. It is further allege that the complaint is bad on account of lack of jurisdiction. It is humbly submitted that this Court has got no jurisdiction to try the present complaint. It is further alleged that the complaint is frivolous and vexatious exercise and is fit to be dismissed. That the complainant is not entitled to any relief, whatsoever. That the answering defendant reserves it right to file such additional reply or document etc. as this Court may deem necessary. It is further alleged that the Hon’ble Supreme Court in “General Manager, Telecom Vs. M. Krishan and Another” (Civil Appeal No.7987 of 2004) observed that when there is a Special remedy provided in Section 7-B of the Indian Telegraph Act, then the remedy under the Consumer Protection Act is barred. Section 7-B of the Indian Telegraph Act talks of determination by arbitration of any dispute concerning any telegraph line, appliance or apparatus between the telegraph authority and the person or whose benefit the line, appliance or apparatus is or has been provided. The Hon’ble Supreme Court has held that the special law overrides the general law. Thus, it is most humbly submitted that such disputes are to be referred to arbitrator and this Hon’ble Commission has no jurisdiction to try the present complaint.On merits, the factum in regard to providing services of network is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed. OP No.2 filed its separate written reply and contested the complaint by taking a plea that the OP No.2 is the proprietor of N. P. Infosis, Royal Tower Nakodar, Distt. Jalandhar and OP No.2 is holding distributorship of Airtel Company for Nakodar Area and further submitted that the OP No.2 had sold sim card of Airtel Company of Mobile No.98759-99999 to Sh. Prem Pal Bhatia Complainant on 27.09.2017. That in case there is any complaint regarding the services or any problem in the sim then it is the responsibility of the Bharti Airtel Company to remove the deficiency and lastly submitted that the OP No.2 is not responsible in any manner for any act of the company. In order to prove hiscase, the complainant himself tendered into evidence his own affidavit Ex.CA alongwith some documents Ex.C-1 to Ex.C-4 and closed the evidence. In order to rebut the evidence of the complainant, the counsel for the OP No.1 tendered into evidence affidavit Ex.OP1/A and closed the evidence. We have heard the argument from learned counsel for the complainant as well as counsel for the OP No.1 and also gone through the case file very minutely. During arguments, the contentions of learned counsel for the parties are similar to the pleadings, so no need to reiterate the same.The first submission for adjudication in this case, is as to whether the instant complaint is barred by Section 7-B of Indian Telegraph Act in this case or not. OPs relied upon the judgment of Apex Court in the case of M.M Krishanan versus General Manager Telecom reported in Civil Appeal no.7687 of 2004 decided on 1St September 2009. We find that this judgment applies only in those cases, where the government controls the telecom authorities like BSNL. The OPs are private telephone services providers herein and the ratio of this judgment is not applicable in this case. Even otherwise, this matter has been settled by our National Commission holding that complaint against private telecom service providers is maintainable before Consumer Forum and is not barred under Section 7-B of Telegraph Act, in law laid down in “Bharti Hexacom Limited vs. KomalPrakash&Anr”, reported in Revision Petition no. 1228 of 2013 decided on 02.05.2014, wherein it has been held by the National Commission in its order that M. Krishnan’s judgment by the Apex Court has clarified that the said decision involved a dispute between the Department of Telecommunication, which was the Telegraph Authority under the Indian Telegraph Act, as a service provider to the hiving off of telecom services into a separate company, viz., Bharat Sanchar Nigam Limited (BSNL). The Hon’ble National Commission further observed in this order that as the powers of a “Telegraphy Authority” are not vested in the private telecom service providers, as is the case here, and also in the BSNL, hence Section 7-B of the Telegraph Act will have no application and therefore Consumer Foras/Commission, as constituted under the Act, are competent to entertain the dispute between the individual consumer and telecom service providers. Hon’ble National Commission based its order on the letter dated 24.01.2014 of Government of India, Ministry of Communication and IT, while responding to the communication received from the Secretary, Department of Consumer Affairs, Govt. of West Bengal on 07.10.2013, in relation to the Hon’ble Supreme Court’s judgment in M.Krishnan’s (supra). On the basis of law laid down by the Hon’ble National Commission in “Bharti Hexacom Limited Vs. KomalPrakash&Anr.’s case (supra) by holding that the ratio of law of M.Krishnan’s case by Apex Court is not attracted and hence, the District Forum is competent to entertain and dispose such like consumer complaints on merits and hence it is maintainable. This point is, thus, decided against OPs in this case. The complainant tendered in evidence his affidavit is Ex.CA supporting his allegation on oath, as pleaded in the complaint. Further, from the record of case file, it transpired that vide order dated 01.08.2018, the Op No.2 was proceeded against ex parte. But in its written version he admitted that the OP No.2 had sold SIM card of Airtel Company of Mobile No.98759-99999 to Sh. Prem Pal Bhatia- Complainant on 27.09.2017. That in case there is any complaint regarding the services or any problem in the SIM then it is the responsibility of the Bharti Airtel Company to remove the deficiency. The dispute is between the subscriber and telegraph authority and for resolving the same, the special remedy provided under section 7-B of Indian Telegraph Act and regarding the dispute in respect of telephone bills, the remedy under the Consumer Protection Act is barred. Hon'ble Supreme Court in case "General Manager, Telecom Vs M. Krishnan &Anr.", 2009 CTJ-1062 (Supreme Court) (CP) (supra) held that special remedy is provided u/s 7-B of the Indian Telegraph Act and the dispute can be resolved by appointment of arbitrator. It was further held that that special law overrides the general law. Thereafter, similar question again arose in case "Parkash VermaVs Idea Cellular Limited &Anr" Revision Petition No. 1703 of 2010 decided on 21.5.2010, wherein the Hon'ble National Commission observed as follows:-
"Fora below have dismissed the complaint filed by the petitioner relying upon the judgment of Supreme Court in General Manager Telecom vs. M. Krishnan &Anr. - (2009)8 SCC 481 wherein it has been held that any dispute between the subscriber and the telegraph authority can be resolved by taking recourse to arbitration proceedings only. The judgment of the Supreme Court is binding on all the subordinate courts. There is no scope for interference. Dismissed."
The revisionist PrakashVerma filed the Special Leave to Appeal before the Hon'ble Supreme Court and the same was also dismissed by the Hon'ble Supreme Court vide order dated 1.10.2010. The present appeal pertains to the dispute between the subscriber/ respondent no.1 and M/s Bharti Airtel Limited, appellant, which is also similar to the above cases. In view of the law laid down by the Hon'ble National Commission and the S.L.P. dismissed by the Hon'ble Supreme Court, this Commission has no jurisdiction to try and decide the present controversy between the parties. Accordingly, the present complaint is dismissed with no orders as to costs.
13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room after due compliance. Announced in open Commission 9th of March 2021 Kuljit Singh (President) Jyotsna (Member) | |
