This appeal has been filed by the appellant Mr. Akhilesh Kumar Singh,  against the order dated 23.9.2013 of the State Consumer Disputes Redressal  Commission, West Bengal, (in short ‘the State Commission’) passed in Complaint No.6 of 2013, whereby the complaint has been dismissed.       

2.      Brief facts of the case are that the appellant was having a mobile connection from respondent No.1/opposite party no.1 Bharti Air Tel Ltd.  He also had one account in the State Bank of India and the mobile number of the complainant was registered with the account number of the complainant.  It is alleged that on 21.08.2011 a total amount of Rs.1,40,000/- was transferred from his account fraudulently and he got three SMSs alert on his mobile indicating that Rs.45,000/-, Rs.55,000/- and Rs.40,000/- were transferred from his account through internet banking.  As the above fund transfers were not authorised by him neither had he carried out any transaction through internet, amount should not have been debited from his account.  It has been alleged by the complainant that this could happen as the opposite party No.1 disconnected mobile phone of the complainant and gave the sim to some other customer who fraudulently withdrew this amount.  The complainant filed the criminal complaint against the opposite parties and also filed an application before the Banking Ombudsman for recovery of the debited amounts.  As the bank could recover Rs.85,000/-, the same was given to the complainant.  The Banking Ombudsman vide its order dated 10.01.2012 ordered for payment of the balance amount of Rs.55,000/-.

3.      Aggrieved, the appellant/complainant filed a consumer complaint No.06 of 2013  before the State Commission alleging deficiency on the part of the opposite parties. The complaint was contested by the opposite parties.  The opposite parties filed an application stating that the case was not maintainable in the light of Section 7 B of the Indian Telegraph Act, 1885. This application was contested by the complainant, however, the State Commission finally decided that the complaint was not maintainable and accordingly, the complaint was also dismissed.

4.      Hence the present appeal.

5.      Heard the appellant in person and the learned counsel for the respondents/opposite parties.

6.      Appellant in person stated that the State Commission has erred in giving finding that the complaint was not maintainable in the light of Section 7B of the Indian Telegraph Act, 1885.  In this regard, the appellant relied upon the judgment of this Commission in Reliance Communications Ltd. & Anr. Vs. Beena Menon, RP No.865 of 2013, decided on 19.11.2014, (NC), wherein following has been held:-

“5.    Moreover, the above said Section 7-B of the Indian Telegraph Act, 1948, under any of the circumstances, could not have been invoked, as it provides that any dispute concerning any telegraph line, appliance or apparatus arising between Telegraph Authority and the person for whose benefit the line, appliance or apparatus is provided shall be determined by an Arbitrator to be appointed by the Central Government.  All the OPs above named, do not come within the definition of ‘Telegraph Authority’, within the meaning of Indian Telegraph Act, 1885.

6.    In  view  of the above said definition, the petitioners/OPs cannot  be  said to be ‘telegraph authority’.  Consequently, there lies no rub in invoking  the jurisdiction of  the consumer fora.” 

7.      On the basis of the above judgment, appellant stated that the respondents are not a telegraph authority and Section 7 B of the Indian Telegraph Act, 1885 is not applicable in the present case.

8.      On the other hand, learned counsel for the respondents/opposite parties stated that it is wrong to say that sim of the complainant was issued to some other person.  This is totally against the record as the complainant has himself stated in the complaint that he received three messages that certain amounts have been deducted from his bank account.  Thus, prima facie case of the complainant is not sustainable and the complainant does not deserve any compensation from the opposite parties.

9.      Learned counsel further mentioned that the consumer fora do not have jurisdiction to entertain the present complaint as held by Hon’ble Supreme Court in Civil Appeal No.(S) 7687/2004 General Manager, Telecom Vs. M. Krishanan and another, decided on 01.09.2009 wherein the following has been observed:-

“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.”

10.    I have given a thoughtful consideration to the arguments advanced by both the sides and have examined the record.  The State Commission has basically dismissed the complaint on the ground that the complaint was not maintainable in the light of Section 7 B of the Indian Telegraph Act, 1885.   Apart from order of this Commission in Reliance Communications Ltd. & Anr. Vs. Beena Menon (supra), this Commission in revision petition No.1228 of 2013, Bharti Hexacom Ltd. Vs. Komal Prakash, decided on 02.5.2014 (NC) has held that the private telecom operators are not telecom authority within the meaning of Section 7 B of the Indian Telegraph Act,1885 by observing 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 judgment of the Hon’ble Supreme Court in General Manager, Telecom V. M. Krishnan & Anr. [(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 judgment 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.”

11.    Hon’ble Supreme Court has affirmed this view in Special Leave to Appeal (C) Nos (s).30531-30532 of 2015, D.P. Sharma Vs. Bharat Sanchar Nigam Ltd. & anr., decided on 04-09-2017 (SC) wherein the Apex Court has observed:-

“Delay condoned.

In view of the decision rendered by the National Consumer Disputes Redressal Commission in Revision Petition No.1228 of 2013 decided on 2^nd May, 2014, we are of the view that the petition filed by the petitioner is maintainable.

Under the circumstances, we set aside the impugned judgment and order dated 13^th January, 2014 and remand the matter to the National Consumer Disputes Redressal Commission for consideration on merits

The special leave petition is disposed of.

Pending application, if any, is disposed of.

The parties may appear before the national Commission on 10^th October, 2017.”

12.    Thus, clearly the opposite parties are not a Telegraph Authority under the Indian Telegraph Act 1885, and hence Section 7 B of the Indian Telegraph Act, 1885 is not applicable in the present complaint case.  From this view, the order of the State Commission is not legally sustainable and therefore, is liable to be set aside.

13.    Accordingly, the First Appeal No.403 of 2014 is partly allowed and the order of the State Commission dated 23.9.2013 is set aside.  The matter is remanded to the State Commission to decide the complaint on merits.  Parties to appear before the State Commission on 05.08.2019.