Delhi

StateCommission

FA/13/105

HARSH MEHTA - Complainant(s)

Versus

BHARTI AIRTEL LTD. - Opp.Party(s)

23 Jul 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision:26.07.2018

 

First Appeal-105/2013

 (Arising out of the order dated 21.12.2012 passed in Complainant Case No. 294/2012 by the District Consumer Disputes Redressal Forum (VII), Sheikh Sarai, New Delhi)

 

Mr. Harsh Mehta,

S/o Mr. B.B. Mehta,

R/o B-9/6451, Vasant Kunj,

New Delhi-110070.

…..Appellant

 

Versus

 

1. Bharti Airtel Limited,

Through its Managing Director,

Bharti Crescent,

1, Nelson Mandela Road,

Vasant Kunj, New Delhi-110070.

 

2. Standard Chartered Bank,

Through its Branch Manager,

DLF, Gurgaon, Haryana.

.….Respondents

 

 

CORAM

 

Justice Veena Birbal, President

Salma Noor, Member

 

 

 

1.      Whether reporters of local newspaper be allowed to see the judgment?

2.     To be referred to the reporter or not?

 

 

 

 

 

 

Justice Veena Birbal, President

 

1.              This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, the “Act”) against order dated 21.12.2012 passed by the Consumer Disputes Redressal Forum (VII), Sheikh Sarai, New Delhi (in short, the “District Forum”) in Complaint Case No.294/2012 whereby the aforesaid complaint has been dismissed being not maintainable.

       

2.              Briefly the facts relevant for the disposal of present appeal are that a complaint under Section 12 of the Act was filed by appellant herein i.e. complainant before the District Forum stating therein that he had taken post paid mobile connection No.9958316644 having SIM card No. 89911011102212322808F from one of the outlets of respondent-1/OP-1 which was being used by him for several years upon payment of monthly rental.  It is alleged that on 19.1.12, appellant/complainant had received one SMS from respondent-1/OP-1 informing him “request ID for changing of Airtel SIM No. from 89911011102212322808F to 8991101102250806886F is 63279578. You will get confirmation sms once it is complete”.  Appellant/complainant was shocked to receive such a message.  He reported the matter to the Customer Care centre of respondent-1/OP-1 and also objected to deactivation of his mobile SIM.  It was alleged that despite lodging the complaint, the original SIM number was not restored as a result of which there was unauthorized withdrawal of Rs.1,31,000/- from his account.  The matter was reported to the Police Commissioner, Gurgaon. The appellant/complainant also lodged a complaint before the Banking Ombudsman against respondent-2/OP-2.  Thereupon appellant/complainant filed a complaint before the District Forum seeking refund of amount and compensation for the loss caused to him.

3.              On receipt of notice of the complaint, respondent-2/OP-2 filed an application requesting for dismissal of the complaint in view of the law laid down in General Manager, Telecom v M. Krishanan & Anr., (2009) 8 SCC 481.  Relying on the aforesaid judgement and other case law referred by respondent-1/OP-1, Ld. District Forum dismissed the complaint.

4.              Aggrieved with the aforesaid order, present appeal is filed.

5.              Ld. Counsel for appellant/complainant has contended that present is not a case billing dispute.  It is submitted that controversy involved is that the SIM number was changed unauthorizedly due to which some amount have been unauthorizedly  withdrawn from the salaray account of appellant/complainant.  Ld. Counsel for appellant/complainant has further submitted that in view of the judgement of three Member Bench of National Commission in Bharti Hexacom Ltd. vs Komal Prakash, RP No.1228 of 2013 decided on 2.5.14, the District Forum is competent to entertain the disputes between individual telecom consumers and telecom service providers.  It is also submitted that nothing is pending before Larger Bench of National Commission as was submitted by respondent-1/OP-1 on the last date of hearing.

6.              Nothing contrary is pointed out on behalf of respondent-2/OP-2.  No one has appeared on behalf of respondent-1/OP-1. 

7.              We have heard the Counsel for parties present and perused the material on record.               

8.              In the judgement of Bharti Hexacom Ltd. vs Komal Prakash (supra), it is observed by the National Commssion that after order of Apex Court in M. Krishnan (supra) case, Ministry of Commnication and I.T. vide letter dated 24.1.2014 clarified that powers of Telecom Authority are not vested in private telecom service providers and Section 7B of Indian Telegraph Act is not applicable. The relevant portion of aforesaid judgement is reproduced 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 judgement of the Hon’ble Supreme Court in General Manager, Telecom v. M. Krishnan & Anr. (MANU/SC/1597/2009 : (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 judgement 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.  In the light of the said clarification, the complaint before the District Forum was clearly maintainable and the objection of the petitioner in this regard is bereft of any merit.  For the aforesaid reasons, the revision petition is dismissed.”

 

9.              In R.P. No.865 of 2013 titled Reliance Communications Ltd. v. Beena Menon decided on 19.11.2014, National Commission after discussing judgement of Delhi High Court in J.K. Mittal v. Union of India reported in AIR 2012 Delhi 94 held that OP does not fall within purview of Telegraph Authority; so, Section 7B of Telegraph Act was not applicable.         

 

10.            The National Commission in Vivek Bhardwaj vs Vodafone Essar East Ltd. & Others, 2016 SCC online NCDRC 1851 after relying upon Bharti Hexacom Ltd. (supra) 3 Member Bench judgement of National Commission and other judgements referred above held that the Fora constituted under Consumer Protection Act are competent to entertain disputes between individual telecom consumers and telecom service providers.

11.            In view of above discussion, we find the District Forum committed error in dismissing the complaint on the ground that the complaint was not maintainable.  Accordingly the appeal filed by appellant/complainant is allowed and impugned order dated 21.12.2012 passed by the District Forum in CC No.294/2012 is set aside and matter is remanded back to the District Forum for deciding the complaint on merits as per law.

12.            Parties are directed to appear before the District Forum on 28.9.18.                 

13.            A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum for information. Thereafter the file be consigned to record room.

 

 

 (Justice Veena Birbal)

•  

 

(Salma Noor)

•  

 

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