JUDGMENT 1.12.2010 Justice Pritam Pal, President 1. This appeal by Opposite party is directed against the order dated 5.10.2009 passed by District Consumer Forum-II, U.T. Chandigarh whereby complaint bearing No.897 of 2009 of respondent /complainant was allowed with costs of Rs.1500/- and appellant/OP was directed to refund Rs.200/- wrongly charged by it as CALLER TUNE/MCI service due from the complainant for a period of 7 months without her express/written request besides Rs.5000/- as consolidated compensation for causing mental torture, harassment and inconvenience to the complainant. The order was directed to be complied with within four weeks from the date of receipt of the copy of the order, failing which OP was made liable to pay penal interest @ 18% p.a. from 1.11.2008 the date on which it had illegally started making deduction for the value added service till its realization. 2. The parties hereinafter shall be referred to as per their status before the District Consumer Forum. 3. In nutshell, the facts as set out in the complaint are that the complainant possessed a Vodafone prepaid connection No.9888310276 and in the last week of May 2009, the prepaid balance was Rs.45/-Thereafter she made just four calls of total duration to be not more than 7 minutes but when she checked her prepaid balance, it was just Rs.6/-. She immediately made a call to Vodafone Customer Care and asked them to tell her call details and she was told that Rs.30/- had been deducted on that day from her prepaid balance in lieu of a service called MCI, which enables a customer to know about the missed calls details for the duration in which the phone remains switched off. As she had never requested for such a service to be activated on her number, so, she made a request to the customer care and officers of the company regarding reversion of the said deduction. . On this, complainant was told that such deduction could be reversed only if the request is made within 24 hours of the activation of the services. On her telling that she had not availed of such a service, they changed their statement and said that the deduction was in lieu of the MCI service being already used by her. She again told them that she had not even applied for that service too and requested them to get the deduction reversed but they refused to do so. It was further submitted that in her case though it was a matter of wrongful deduction of about Rs.200/-, yet it was not the amount which pinched her but it was the wrongful practice used by the company which resulted in her sheer harassment and mental torture. Hence, alleging deficiency in service on the part of OP, complainant filed complaint before the District Forum with the prayer that OP be directed to reverse the deduction and also pay a compensation of Rs.10,000/- in lieu of the litigation expenses, mental torture, harassment and wastage of his precious time. 4. On the other hand, OP contested the complaint by filing reply before the District Forum inter-alia stating therein that the Complainant had been using the MCI service since November, 2008, which enables the customer to know about the missed calls when the phone is switched off or is out of coverage area and the MCI service is activated only on the request of the customer. The amount of Rs.30/- per month from the month of November, 2008 till May 2009 had been rightly deducted from the prepaid balance of the Complainant. The Complainant had herself requested for the activation of the MCI service and since she had availed the service for seven months, she cannot now turn around and say that she was not liable to pay for the services availed. She had never requested for the deactivation of the MCI service availed by her during the last seven months. Pleading that there was no deficiency in service on its part, a prayer was made for dismissal of the complaint. 5. The District Consumer Forum after going through the evidence and hearing the counsel for parties allowed the complaint as indicated in the opening part of this judgment. Aggrieved against the said order, opposite party has come up in this appeal. 6. We have heard learned counsel for the parties and gone through the file carefully. At the very outset, the learned counsel for Vodafone Essar South Ltd. - Opposite party submitted that the District Fora under the Consumer Protection Act had no jurisdiction to try and decide the dispute between the telecom service provider and its subscriber as such matters against telecommunication services are not maintainable in view of judgment of Hon’ble Apex court in General Manager, Telecom Vs M.Krishnan & another (2009) 8 SCC 481. Against this submission and observations made in the above stated ruling, complainant could not show any law . Thus, we have no option but to hold that the Fora under the Consumer Protection Act,1986 have no jurisdiction to entertain and adjudicate upon such disputes of telecommunication services as it has been held by the Hon’ble Supreme court in above said ruling that there is implied bar to invoke the provisions of Consumer Protection Act in view of Section-7B of the Indian Telegraph Act and any dispute between the subscriber and the telegraph authority can be resolved by taking recourse to arbitration proceedings. In another case of mobile connection titled Prakash Verma Vs Idea Cellular Ltd. & Anr. (Revision Petition No.1703 of 2010) the Hon’ble National Commission by relying upon the said Judgment of Hon’ble Supreme Court dismissed the petition by observing that the Judgment of the Supreme court is binding on all the subordinates courts and there is no scope for interference. 7. Therefore , in view of the law settled by the Apex court in General Manager, Telecom Vs M.Krishnan & another(Supra), the appeal filed by OP is accepted. Consequently, the impugned order dated 5.10.2009 passed by the District Forum is set aside and complaint is dismissed being not maintainable in the Fora. 8. Before parting with this order, it is observed that complainant would be at liberty to knock at the door of the appropriate Forum having jurisdiction over the matter, in accordance with law. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |
