Date of filing : 03-02-2010
Date of order : 31-12-2010
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
C.C. 30/2010
Dated this, the 31st day of December 2010
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
Majeed.A,
K.A.Ahammad, } Complainant
Kollampady House, Kasaragod.
(Adv. Rajesh.K. Kasaragod)
1. Authorised Distributors,
Kamath’s Tele Services Court Road, } Opposite parties
Kasaragod.
2. Yogesh Traders, Kasaragod.
3. Tata Tele services Limited Unit No.IV B
IInd Floor, Leela Info Park Plot No.5,
Info Paste, Kaikkannel, Kusumagiri.Po,
Kochi. 682030.
4. Tata Tele Services Limited,
Jeevabhasthis tower, 10th floor 124
Connact circle New Delhi 110001.
(Exparte)
O R D E R
SRI.K.T.SIDHIQ, PRESIDENT
Case of complainant Majeed a peoples representative of Kasaragod Municipality is that opposite parties disconnected his TATA DOCOMO Mobile connection without any cause having subscriber No.9037303079 and after disconnecting this connection they provided the same mobile number to a third party with the same identity proof and photo of complainant. Being a social worker and a political activist he fears that the strangers may use this mobile connection for terrorist activities and it may cause irreparable loss and hardships to him. Hence the complainant claiming a compensation of 90,000/- for the mental agony suffered by him.
2. All opposite parties appeared in response to the registered notice issued. But opposite party No.1 has not filed any version. Opposite parties 3 & 4 filed a joint version and Opposite party No.2 filed his version separately.
3. According to opposite party No.2 complainant is not a consumer as defined U/s 2(d) of the Consumer Protection since the connection was provided free of cost. The 2nd opposite party obtained the ID proof and photograph as per the direction of the Department of Telecommunications. Those were forwarded to service provider. The complainant never approached any opposite parties complaining disconnection of his cellular mobile connection. They checked the complainant’s phone on receipt of copy of complaint and found it to be inactive. They suspect that SIM card must have turned defective and hence the connection is turned inactive. Opposite party No.2 is ready to issue a duplicate one if the SIM is found defective on examination. There is no deficiency in service on the part of opposite party No.2 and they are not liable to pay any compensation. According to opposite parties 3 & 4 complainant was employed as a retailer under 2nd opposite party for marketing cellular phone connections. At that time 2nd opposite party offered a cellular connection free of cost. Since there is no consideration in the transactions and the complainant availed the connection solely for commercial purposes he is not a consumer as envisaged under CP Act. They have never disconnected the complainant’s cellular phone connection and even now subscriber number 9037303079 is in the name of the complainant. The averments in the complaint that the opposite parties had disconnected the complainant’s cellular phone connection and had assigned his subscriber number to another subscriber are false. The SIM card may turned defective and that may be the reason why the connection is turned defective. If the complainant is ready to hand over the SIM card to 4th opposite party they are ready to issue a duplicate in the event it is found to be defective. As the dispute involved has arisen in between a service provider and the subscriber and is with respect to a cellular phone connection, it has to be resolved by recourse to the remedy provided U/s 7(B) of the Indian Telegraph Act 1835 and hence the Forum has no jurisdiction to adjudicate upon the subject matter of present complaint and therefore the complaint is liable to be dismissed.
4. Complainant examined as PW1 and he faced cross-examination by the learned counsel for opposite parties 3&4. The disputed SIM card is produced by the complainant at the instance of opposite parties and it is marked as Ext. MO-1. No evidence is adduced by opposite parties.
5. The points arise for considerations are:-
1) Whether the complainant is a consumer?
2) Whether the complaint is maintainable?
3) Whether there is deficiency in service on the part of opposite parties?
4) If so what order as to relief and costs?
6. Point.No.1.
The contention of opposite party No.2 is that the connection is provided free of cost as part of the promotional sale and the complainant is one of their retailer. But no document is produced or no evidence is adduced to prove these allegations. Had the complainant been a retailer of opposite parties then there should have some documents to show that he is appointed as a retailer.
7. Even if it is admitted that the connection is provided free of cost, the complainant does not cease to be a consumer since the TATA DOCOMO is not giving mobile connection to all its subscribers free of cost. The charges for providing such connections are being met from the paying subscribers as in the case of private hospitals providing free services to poor patients. In such cases the services provided could not be regarded as free services as held by the Honb’le Supreme Court of India in the case of Indian Medical Association V VP Santha III 1995 CPJ (1)(SC)). Therefore we hold that complainant is a consumer and the connection is provided neither free nor for any commercial purpose.
8. Point No.2:
The opposite parties 3 & 4 contended that since they are bound by the provisions of the telegraph Act the complainant ought to have sought recourse under 7(B) of the Telegraph Act as per which an arbitrator alone shall have jurisdiction to resolve the dispute.
9. But the said contention is not acceptable for the following reason.
There is an association of Unified Telecom Service providers called Association of Unified Telecom Service Providers of India (In short AUSPI). The said Association submitted letter to the Department of Telecommunications seeking some clarifications in the light of the judgment the Hon’ble Apex Court in the case of General Manager, Telecom V. M. Krishnan and Another. The following queries/clarifications were sought.
“ a. Are private and public service providers are telecom authorities and provisions
of Sec.7-B applicable on them ? and
b- Can private and public service providers as telecom authority appoint
arbitrators for arbitration of disputes?”
10. The department of Telecommunications vide its letter No.07-32/2007-PHP (Pt) dated 19th Oct 2009 has specifically clarified that neither the private nor the public service providers falls in the defenition of Telegraph Authority. For the sake of convenience, letter dated 19-10-2009 issued by the Ministry of Telecommunications is hereby reproduced as under:-
No.07-32/2007-PHP (Pt)
Government of India
Ministry of Communications &IT Department of
Tele Communications, 1205, Sanchar
Bhawan, Ashoka Road, New Delhi.
Dated 19th Oct 2009.
To
Sh. S.C. Khanna,
Secretary General AUSPI,
B-601, Gauri Sadan, 5, Halley Road,
New Delhi.110001.
Subject:- Supreme Court Judgment regarding Telecom Consumers cannot
Approach Consumer Forums for billing disputes.
Sir,
Kindly refer to your letter No. AUSPI/13/2009/141 dated 1-10-2009 seeking clarification on the subject cited above. The clarification is given below.
| Point | Clarification |
(a) | Are Private and Public Service Providers are Telecom authorities and provisions of Sec 7-B applicable on them? | No. Private and Public Service Providers are not Telegraph Authority. Further only Central Government can appoint arbitrator under Sec.7 B of Indian Telegraph Act. |
Yours faithfully,
Sd/-
(Misha Bajpal)
Assistant Director General (PHP) Tele 23036027
The reference of the above said queries as well as the reply of the Department of Telecommunications also find mentioned in the website of the AUSPI (www.auspi.in)
From the above it is crystal clear that Private Telecom Service providers like TATA DOCOMO and Public Service Providers like BSNL are not telegraph Authorities and hence Sec.7-B of the Telegraph Act is not applicable to them and therefore there is no necessity referring the matter to arbitrators. The Consumer FOR A constituted under the Consumer Protection Act can entertain and settle the consumer disputes including that of BSNL, MTNL and VSNL being the public telecom service providers.
11. Point No.3.
The definite case of the complainant is that his mobile service is disconnected and the same mobile number is provided to another person with whom complainant has no contacts but at the same time the connection still exists in his name. Therefore he reasonably apprehends that if the connection is happened to reach in the hands of anti social terrorist elements, he would be the sufferor The apprehension of the complainant is genuine. Since there is a practice in vogue among the mobile service providers to provide the ‘dead’ mobile numbers to third parties when then earlier consumers leave or abandon such connections. Most often no fresh identity proof or photographs are collected in such cases. Now a days it is rampant that many of such mobile subscribers are being held by various security agencies for different reasons.
12. The disconnection of mobile service without any valid reason amounts to deficiency in service on the part of opposite parties. The contentions that the connection became inactive since the SIM became defective is also not proved by any of the opposite parties through SIM card is produced by the complainant at their instance. Hence we hold that opposite parties committed deficiency in their services and therefore they are liable to compensate the complainant.
13. Point No.4. Relief and Costs
The complainant during enquiry has submitted that he is a councilor of Kasaragod Municipality and therefore his apprehension regarding the loss of his reputation if he faces any unpleasant prosecution is reasonable. Except this grievance complainant has not stated any other specific losses or grievances. In such circumstances we feel that he is entitled only for a reasonable compensation which we fix as `10,000/-.
In the result complaint is allowed and opposite parties 1 to 4 are jointly and severally liable to pay a compensation of `10,000/- to the complainant together with a cost of `2000/-. The opposite parties are also restrained from providing the mobile connection No.9037303079 to any other subscribers until the identity proof and photograph of the complainant is returned to him. Time for compliance of this order is limited to 30 days from the date of receipt of copy of this order. Failing which opposite parties shall further liable to pay interest @ 9% for `10,000/- from the date of complaint till payment.
Sd/- Sd/-
MEMBER PRESIDENT
Ext. MO-1. SIM card.
PW1. Majeed.A.
Sd/- Sd/-
MEMBER PRESIDENT
Pj/
Forwarded by Order
SENIOR SUPERINTENDENT
