Punjab

StateCommission

A/10/1216

Reliance Communications Ltd. - Complainant(s)

Versus

Big V Cable T.V. Net Work - Opp.Party(s)

D.R.Singal

12 Feb 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                             First Appeal No.1216 of 2010

 

 

                                                          Date of Institution: 13.07.2010  

                                                          Date of Decision :  12.02.2015

 

 

1.       Reliance Communications Limited, 1st Floor, Tower F, DLF       Building, Plot No.2, Rajiv Gandhi Technology Park Chandigarh through its authorized representative Sh.Amit Gupta.

 

2.       Reliance Communications Limited (Anil Dhiru Bhai Ambani Group)       H Block, Ist Floor, Dhirubhai Ambani Knowledge City, Navi Mumbai    400710, Maharashtra.     

 

3.       Reliance Communications Limited, through its Authorized Dealer         Monga Communication, O/s Multani Gate, Ferozepur City.

 

 

                                                                                                                                  …..Appellant/Opposite Parties

         

                                      Versus

 

Bib V Cable T.V Net Work, Inside Gobar Mandi, Ferozepur City, through its Area Incharge Amrik Singh son of Sampuran Singh.

 

 

                                                                                                                                                 ….Respondent/Complainant

 

         

First Appeal against order dated 16.02.2010 passed by the District Consumer Disputes Redressal Forum, Ferozepur

 

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

 

Present:-

 

          For the appellants            :         Sh.D.K.Singhal, Advocate

          For the respondent :         Sh.Tejinder Pal Singh, Advocate

 

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                       

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The appellants (the OP in the complaint) have directed this appeal against the respondent of this appeal (the complainant in the complaint) challenging the order dated 16.02.2010 of District Consumer Disputes Redressal Forum, Ferozepur accepting the complaint of the complainant. The instant appeal has been preferred against the same by the appellant.

2.      The complainants have filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP on the averments that the complainant and some other un-employed persons have been running a local cable TV Network under the name and style of Big V Network, inside Gobar Mandi Ferozepur City  and providing the cable network to the local residents of Ferozepur at a meager profit of Rs.50/- per month. The complainants have obtained 13 corporate mobile phone connections of Reliance Communication in the name of Amrik Singh, which are detailed as under :

Sr.No.                  Connection Number           Name of User

 

1.                          93163-56060                         Prem Chawla

2.                          93163-56061                         Amirk Singh

3.                          93163-56062                         Pankaj Kaura

4.                          93163-56063                         Gian Chand

5.                          93163-56064                         Sumish Gakhar

6.                          93163-56062                         Pardeep Chawla

7.                          93564-61968                         Pankaj Kaura

8.                          93564-61978                         Amrik Singh

9.                          93564-61933                         Kishan      

10.                       93564-62010                         Pappu

11.                       93564-62011                         Sukha

12.                       93564-62012                         Manga

13.                       93564-62013                         Gulshan

 

 

The joint Credit Limit of all the above-mentioned connections was earlier Rs.35,000/-, which was later on reduced to Rs.19,500/- by the OPs, at their own without any notice to the complainant. The OPs have been sending unwanted messages from the very beginning, causing great nuisance to the user of the said telephone connection number. No change in the attitude of the OPs occurred despite request in this regard a number of times by the complainant. Even on the advice of the OPs, on request of DND facility for about three times in the year 2007 and about three times in the year 2008, the said practice was not stopped. The plan of the said 13 connections was NJP 199 and NGP 199 plan, under the said plan, the facility of calling each other interse above referred 13 connections, which was free of cost was provided by the OPs to the complainant from the very start of February 2007. The OPs closed this free call facility without any prior notice to the complainant. Request was made to OP vide no.106626596 dated 15.08.2009 in the month of August 2009 and OPs assured the complainant to restore the facility very soon and thereby to refund the amount charged from the complainant on these calls. Previously bills were deposited at Ferozepur, but later on OPs closed their collection centre at Ferozepur and rather collected the bills at Moga, causing great inconvenience and hardship in this regard. Usually, 15 days time was given to the complainant for deposit of the bills, but on change of the collection centre, bills were received only one or two days from the last date of payment, which also caused great hardship to the complainant. The Credit Limit of the complainant presently is Rs.19,500/- and the amount of the bill for the period from 1.7.2009 to 31.7.2009 was  Rs.4352/-, however, due to late receipt of the bill, the complainant deposited an amount of Rs.3700/- with the OP at Moga Collection Centre on 18.08.2009. Surprisingly, all three connection of the complainant were closed by the OPs and it was informed that amount of Rs.558/- has been deposited lesser by the complainant than actual amount of bill of Rs.4258/-, whereas nothing was informed, when the amount was deposited by the complainant. It has been shut despite the fact that when the credit limit of the complainant is Rs.19,500/-, the OP cannot close the connection for a meager amount only. The amount of Rs.600/- was also deposited on 29.8.2009, at about 1.00 PM, but the connection was restored at 4.31 PM after about 2-1/2 hours from the time of the deposit. The entire action of the OPs in closing free class facility interse in above-referred 13 connections, sending unwanted messages, closing collection center at Ferozepur, closing outgoing call facility of 13 inter se connection is illegal and unnecessary. The complainant has, accordingly filed the complaint against the OPs and prayed that the OPs be directed to restore the free call facility in interse connection, to stop sending the unwanted messages and to open a collection center at Ferozepur, further to refund the amount charged from the complainant illegally on account of calls interse of said 13 connection and to pay Rs.50,000/- as compensation for mental harassment and Rs.5,000/-  as costs of litigation.

3       Upon notice, the OP appeared, filed written reply raising preliminary objections that the complainant has suppressed the material facts from the Forum. That in view of the judgment of Apex Court in General Manager, Telecom  Vs. M.Krishana & Anr , the instant complaint does not lie. The remedy of the complainant is to apply under Indian Telegraph Act for providing arbitration proceeding U/s 7-B thereof. It was further averred that corporate connection were taken by the complainant, which are for commercial purposes and hence subscriber is not a Consumer under the Consumer Protection Act. The alleged complaint is filed on false and flimsy grounds. On merits, complaint was also resisted by the OPs. This fact was admitted that complainant was subscriber of the above-referred connections with the OPs. The OPs further pleaded that subscriber need to adhere to the process of "Do Not Disturb" as laid down by TRAI. Subscriber till time makes a DND request till 45 days  post such request, the customer may get such unwarranted calls from telemarketers.  After lapse of 45 days, the OP ensured that number of subscriber be put there in NDNC list which is to be scribed by the telemarketers before initiating any promo call. The OPs do not have any check on initiation and termination of call on the connection of any subscriber since it does not interfere in the security and privacy of any subscriber. In case any unwarranted call  received by the subscriber after he is registered in DND, he need to complaint to the OPs, so that it may take necessary action against such telemarketer. The complainant has not requested for DND except 9316356060, 9316356062 and 9316356063 on which DND had already been activated by the OP. The OP after receipt of the present complaint considered the same as DND request for all the valid MDNs  and activated DND, which is subject to the statutory activation period. The complainant has not placed any proof of such DND request. It is further averred that the complainant has not made the entire payment of bill dated  01.08.2009 by due date i.e. 19.08.09 and thereby the OPs approached the complainant time and again through SMS and IVR but to no effect. The OPs referred to agreement, vide which, the connection can be suspended and terminated for default of the payment of the fee. Rule 443 of the Indian Telegraph Rules, 1951 was also relied upon by the OP justifying them to disconnect the above connections. The OPs controverted other averments of the complaint and prayed for dismissal of the complaint.

4.      The complainant tendered in evidence his affidavit Ex.C-1, bills Ex.C-2 to Ex.C-4. As against it, opposite parties tendered affidavit of Mast Ram Deswal, Authorized Signatory of OP, Copy of order of Hon'ble Supreme Court Ex.R-2, copy of order of U.T State Commission Ex.R-3, Customer Application Form Ex.R-4, terms and conditions Ex.R-5, duplicate copy of bill Ex.R-6, account statement Ex.R-7, Licence Agreement Ex.R-8. On conclusion of evidence and arguments, the District Forum, Ferozepur by virtue of detailed and prolix judgment accepted the complaint of the complainant, as prayed for by the complainant. Dissatisfied with the order of the District Forum, the OPs now appellants have preferred this appeal against the same. 

5.      We have heard Learned Counsel for the parties and have also examined the record of the case.

6.      The District Forum primarily expatiated on this point as to whether the instant complaint is barred U/s 7-B of the Indian Telegraph Act or not ? Various authorities have been quoted in the order in this regard by the District Forum in coming to this conclusion that the instant complaint by the private company against the service provider is maintainable. The main reliance of the OP is on the judgment of the Apex Court in General Manager, Telecom  Vs. M.Krishana & Anr.  The matter has now been examined in the light of above Apex Court's judgment by the National Commission in Bharati Hexacom Limited Vs. Komal Prakash & Anr.", decided on 02.05.2014 in Revision Petition No. 1228 of 2013. Hon'ble  National Commission has clarified that the said decision in M.Krishnan's case (supra) involved  a dispute between the department of Telecommunication, which was the 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). 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, 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, Government of West Bengal on 07.10.2013, in relation to the Hon'ble Supreme Court's judgment in M.Krishnan's case (supra). On the basis of law laid down by the Hon'ble National Commission in "Bharti Hexacom Limited Vs.  Komal Prakash & Anr.'s case (supra) by holding that the ratio of law of M.Krishnan's case by the Apex Court is not attracted and hence, the District Forum is competent to entertain this type of complaint. Even the District Forum has also come to this conclusion, which has  now been finally laid down by Hon'ble National Commission in the above-referred authority. This point, thus, needs not to detain us any longer in this case. We, thus, hold that instant complaint is maintainable.

7.      Now, coming to the merits of the case, we have to refer to evidence on the record. Ex.C-1 is affidavit of Amrik Singh, Complainant. This is verbatim reproduction of the version of the complaint. The complainant stated his version on oath in his affidavit Ex.C-1 in this case. Ex.C-2 is bill for Rs.172.62 as  total charges of reliance no.9356461993, Ex.C-3 is bill of Rs.324.39 as total charges of reliance no.9316356060, Ex.C-4 is the total current charges of Rs.4352.79 as mentioned in the bill. This is the only evidence relied upon on record by the complainant in this case.

8.      To counter this evidence, the affidavit of Mr. Mast Ram Deswal, Authorized Signatory of OPs, vide Ex.R-1 is on the record. He has stated the version, as taken in the written reply, by the OPs on oath in this affidavit. It is stated in the affidavit that jurisdiction of Consumer District Forum is excluded in view of Section 7-B of Telegraph Act.  This point is no longer res-integra, as such, this controversy has been finally concluded by the Hon'ble National Commission, as discussed above.  The OPs relied upon the order of the Apex Court in "General Manager, Telecom  Vs. M.Krishana & Anr  in Civil Appeal No.7687 of 2004. Ex.R-3 is certified copy of the order of this Commission, Ex.R-4 is Customer Application Form of the complainant through authorized person Amrik Singh and terms and conditions are detailed in it, Ex.R-6 is duplicate copy of the bill  from 1.7.09 to 31.7.09 with bill dated 01.08.2009. The credit limit is Rs.19,500/-, Ex.R-7 and Ex.R-8 is license agreement on the record as adduced by the OPs. The submission of the OPs before this Forum is that the license agreement Ex.R-8 lays down that license shall be governed by the provision of Indian Telegraph Act, 1885, Indian Wireless Telegraphy Act, 1933 and Telecom Regularly Authority of India Act, 1997. In view of the law laid-down by Hon'ble National Commission as referred to above, the Consumer Forum is equipped with the additional remedy and is competent to entertain this complaint.

9.      The contention of the appellants/OPs is that the bill for the period of 1.7.09 to 31.7.09 for the above connection was Rs.4352.79. It was argued that the District Forum acted with material irregularity in the impugned order observing that counsel for the OPs stated at bar that collection center of OPs at Ferozepur has ceased to work and there is no bill payment collection center of OP at Ferozepur.  This submission has been challenged by the OPs now appellants in this appeal. We find that there is affidavit of the complainant to this effect on the record proving it that the collection center at Ferozepur had been shut down and due to which complainant had faced a lot of hardship and monetary expenses for depositing of the payment of bill at Moga.  Affidavit of the complainant cannot be brushed aside on this point, even if the statement of the counsel for the OP was not put into the black and white by the District Forum. The primary purpose of the service provider of the telephone department is to open the collection center at the nearby places, so that the consumers do not suffer unnecessary harassment of travelling to 60-70 kilometer in depositing the bills. The contention of the appellant is that as per the Telegraph Regulatory Authority of India , it is pertinent to set out that appellants send communication including SMS to educate them about DNC/NDNC registry. However, customer had option not to receive unsolicited commercial communication by notifying his MDN into DNC list through various means including calling 333, sending SMS, visiting authorized outlets of appellant. On receipt of such requests, needful could be done forthwith. Till subscriber makes a DND request and till 45 days post, such customer may get unwarranted calls from the telemarketers. The complainant has been raising hue and cry to this effect and despite bringing this fact to the notice of the OPs, he received unsolicited messages causing disturbance to him. It is not believable that complainant had not brought this fact to their notice, when he was compelled to file this complaint as a last resort before District Forum about it.

10.    The next submission of the OPs is that as per Rule 440, 441 and 443 of the Telegraph Rules, the OPs are competent to disconnect the telephone connection without notice as there has been default in making payment of the bills. Findings of the District Forum have been assailed on this point. We have to affirm the order of the District Forum on this point because credit limit of the complainant was Rs.19,500/- and connection was disconnected for non-deposit of the meager amount of the bill only when the bill was within credit limit of Rs.19,500/-. Therefore, there was no necessity to disconnect the connection and the amount could have been charged under the next bill at the most. We do not find that there is any violation of Rule 440, 441 and 443 particularly in view of the cash credit limit of the complainant to the extent of Rs.19,500/-. The submission of the OP that this is only a contract between the complainant and the OPs and the instant complaint is not maintainable. The main purpose of the contract is to provide unhindered telephone services to the subscriber and it cannot be said that in the presence of the contract, this complaint is not maintainable. Rule 443 would not be attracted in this case, in view of credit cash limit of Rs.19,500/-.  The balance amount of Rs.600/- was deposited by the complainant on 29.08.09 and thereafter outgoing facility was restored at 4.31 PM by the OPs only. When there was interse free call facility in the above referred 13 connections, therefore, stopping this facility without any prior notice to the complainant would not be unjustified on the part of the OPs. The District Forum rightly came to the conclusion that  while relying upon the judgment of the Hon'ble Apex Court as cited in the order that jurisdiction of the Consumer Forum has to be construed liberally so as to bring many cases under it  for their speedy disposal, hence, the District Forum Ferozepur has jurisdiction to entertain this complaint because  complainant received the bills at Ferozepur and services were also received at Ferozepur and earlier deposited the bills at Ferozepur, hence, cause of action partly arose within the territorial jurisdiction of District Forum, Ferozepur. The District Forum has also referred to Rule 7 of the Regulation 2006 dealing with Rules and Regulations and Removal of service to this effect, which is reproduced as under :-

          "Where the service provider unilaterally intends to restrict or    cease service to the customer, a notice shall be provided to the       customer in advance of such action so that the customer has      reasonable time to take preventive action to avoid restriction or        cessation of service."

11.    Next submission of OPs is that the complainant took the connection for commercial purposes, as such, consumer complaint is not maintainable. This contention of the OPs has been rejected by the District Forum in the order under appeal in this case. We find that complainant has specifically pleaded in Para No.1 of the complaint that complainant earns livelihood exclusively by means of self-employment along with some unemployed person in the area by running local cable network under the name and style of Big V. Network inside Gobar Mandi, Ferozepur City and providing the cable network to local area with the meager amount profit of Rs.50/-. Affidavit of the complainant Ex.C-1 has further stated this fact that Section 2(d) of the Consumer Protection Act, 1986 is appended with explanation, which lays down that for the purpose of this clause, commercial purpose does not include use by the person of goods bought and used by him and service availed by him exclusively for the purpose of earning his livelihood  by means of self-employment. In view of the clause 2(d) of the Consumer Protection Act with the definition of the consumer, the complainant has taken these connection exclusively for the purpose of earning livelihood by means of self-employment. Consequently, it cannot be said that complainant has taken them with the motive of earning any profits. We affirm the findings of the District Forum on this point.

12.    In the light of our above discussion, we do not find any illegality or material infirmity in the order of the District Forum calling for any interference in this appeal. Finding no merit in the appeal, the same is hereby dismissed.

13.    The appellant had deposited an amount of Rs.3500/- at the time of filing the appeal. This amount with interest, if any, accrued thereon be refunded by the registry to the respondent/complainant by way of crossed cheque/demand draft after  45 days from receipt of copy of this order. Remaining amount shall also be paid to respondent/complainant by the appellant as per order of the District Forum within 45 days from receipt of the copy of this order.

14.     Arguments in this appeal were heard on 10.02.2015 and the order was reserved. Now the order be communicated to the parties.

15.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                          MEMBER

 

February, 12    2015.                                                               

(ravi)