Delhi

West Delhi

CC/15/346

JAGDISH - Complainant(s)

Versus

GENERAL MANAGER WEST MTNL - Opp.Party(s)

12 Sep 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-III: WEST

GOVT. OF NCT OF DELHI

C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI

NEW DELHI-110058

 

Complaint Case No.346/2015

 

In the matter of:

 

	Jagdish Singh Chauhan R/o A-402, Sector 10/33, New Cosmopolitan CGHS Ltd., Dwarka, New Delhi 110075	…….Complainant
	Versus

General Manager MTNL

Rajouri Garden,

New Delhi-110027......Opposite Party

 

 

DATE OF INSTITUTION:        JUDGMENT RESERVED ON:           DATE OF DECISION:

01.06.2015 01.08.2022 12.09.2022

 

CORAM

 

Ms. Sonica Mehrotra, President

Ms.Richa Jindal, Member

Mr. Anil Kumar Koushal, Member

Present: Complainant in person

                                                            ORDER

Per: Anil Kumar Koushal, Member

 

The facts  leading to  filing of the present complaint are as follows:

1.         Complainant states that he is a retired government servant and senior citizen, operated for spine and angioplasty with stent for 100% main heart artery blockage. After retirement, he also enrolled himself as an Advocate with Delhi Bar Counsel for his livelihood and was in dire need of a telephone and broadband connection not only for his health reasons but also for his professional work. Accordingly he had applied for the telephone + broadband connection to the OP. Complainant states that  before installation of  landline telephone connection bearing No.25075270 at his above residence by the OP, the same was installed at "Cosmos" society in Sector 10, Dwarka, New Delhi itself and then for one reason or the other, above connection did not work at his said  residence, hence he  complained to the Executive Director, MTNL and  then the OP herein gave him a mobile number of someonein the Department to assist  him  in case any help required. According to the complainant, as and when complaints were made at that mobile no., same  were attended to and telephone connection was made workable without loss of much time.  It is submitted by the complainant that in April 2014 again, his aforementioned telephone connection started giving lot of problems, sometimes phone was not working and sometimes broadband.  Still he continued to pay bills regularly in the hope that connection will be made workable but the same could not be set right. In the meantime, the then GM (West)/OP was transferred. His telephone connection was still not working properly, therefore, complainant also requested for reference of matter for arbitration.  Since the connection was not made workable nor matter referred for arbitration nor any intimation/reply was given, hence vide his e-mail dated 27.9.2014 complainant wrote to the OP that matter may be referred for arbitration as he intended to claim damages. Further, complainant may not be paying/clearing bills any further until above telephone connection(phone and broadband) was  made workable but OP did not respond.  It is further averred that vide e-mail dated 06.11.2014 complainant again wrote to the OP to refer the matter for arbitration. He also requested to the OP that phone No.25075270 may be switched to a minimum call receiving/sending phone instead of combo broadband until rectification of faults. Concerned bill department may also be informed for the purpose. But OP neither refused nor objected to the  same which is nothing but implied consent to do the same. However, connection was not made workable, hence complainant again complained to the Executive Director of OP  and the OP  officials attended complaint by reaching his residence on 21.2.15 but connection was still not made workable nor connection switched to minimum of telephone receiving/sending calls without broadband despite his e-mails and  the bills continued to be charged for combo plan without providing services which were illegal and not payable. The same not only amounted to dereliction of duty, negligence and deficient service but also unfair trade practices and entitled ill aged senior citizen complainant for compensation.  He complained that no one is attending to his complaints at OP’s telephone exchange office at sector 6 Dwarka, New Delhi. It is stated by the complainant that since the said connection was not made workable by the OP, hence complainant was forced to makealternate arrangements for his needed non-commercial works/services, by spending further unnecessarily. The bills raised illegally without providing services are illegal and not payable and may be treated as withdrawn retrospectively. Due to non functioning of the telephone connection, the complainant could not visit even websites of Central Govt. Heath Scheme, Courts, forums, etc., for his daily needs and services. It is  urged that  the OP is vicariously liable for acts, omissions, dereliction of duties, negligence, unfair trade practices and deficient services of its  staff, agents and representatives.

2.         Complainant contends that  since the connection was not made workable, hence he  also gave notice to the OP vide hise-mail dated 05.05.15 but of no avail.  It is stated that the OP is a service provider and not the Govt. department of P&T nor a competent authority as per the Indian Telegraph Act. He relied on the Judgment rendered by the Hon’ble  State Consumer Disputes Redressal Commission, Meghalaya  in Bsnl & Sde Gmtd, Shg vs Smti Battinora, decided on 5 February, 2014(2014 (2) CPJ 38). Hon'ble Supreme Court also already held in the judgment reported in Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. M. Lalitha (Dead) through L.Rs. & Ors., AIR 2004 SC-448 = I(2004) CPJ 1 (SC) that arbitration proceedings cannot overrule Consumer Protection Act which is in addition to and not in derogation of such provisions. On account of dereliction of duty and negligence on the part of the OP, the complainant suffered loss and injury due to deprivation, harassment, mental agony and loss of professional (non-commercial) practices also, besides physical harassment  for which he is entitled to compensation of at least Rs.90,000/-.

3.         The complainant filed along with the complaint, emails sent to OP from 27.9.2014 to 01.2.15  for rectification of the fault in the telephone as also the notice dated 05.5.15 sent by e-mail to OP.

The following prayers are made in the complaint:

1. allow the complaint with costs, admissible interest and litigation expenses;
2. order the OP to pay Rs.90,000/- to the complainant with admissible interest within the stipulated time;
3. order the OP to make, for the time being, above connection 25075270 workable only for minimum rate of receiving/sending telephone calls without broadband, to take back broadband accessories in their custody and refund to the complainant amounts charged for the same;
4. order the OP to withdraw bills raised illegally without providing services forthwith; order the OP to refund or adjust to complainant the amounts already paid by him for illegal bills.

4.         Upon notice being issued, written statement was filed by the OP wherein it was contended that the Complainant does not come with clean hands before this  Court and concealed material facts and the complaint is liable to be dismissed with exemplary costs. No cause of action arose against the OP to file the present complaint and hence the present complaint is liable to be dismissed on this ground alone. There is neither any negligence nor deficiency in providing telephone services on the part of the OP at all and hence the present complaint is liable to be dismissed on this ground also. The present complaint is bad for non-joinder/misjoinder of the necessary parties. The present complaint is based on conjectures or surmises and filed with a sole motive to harass and extort money from the answering OP.It is contended by the  OP that  the present complainant is not  maintainable in the eyes of law andthe same is liable to be dismissed in the light of the observations/judgment passed by the Hon'ble Supreme Court in the case of General Manager Telecom Vs. M. Krishnan & Anr, AIR 2010 SC 90 holding that  in view of the Special remedy available/provided under the Indian Telephone Act under Section 7B of the Indian Telegraph Act, 1885, any dispute concerning any telegraph line, appliances or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is or has been provided, the same  shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section. Therefore, all disputes with respect to the telephone bills etc. may be referred to arbitrator for arbitration and the present complaint is not maintainable before Consumer Courts.  Further it is submitted by the OP that as per judgment of Hon'ble National Consumer Disputes Redressal Commission dated 27.11.2014 in case titled as Mahinder Kumar Garg Vs. PRO, MTNL,  it was held that the disputes regarding telephone connection, Consumer Forum/Commission does not have jurisdiction to entertain the complaint. Therefore, the present complaint is liable to be dismissed.

5.         It is submitted by the OP that whenever the Complainant booked any complaint, the answering OP rectified the same and on several occasions, rent rebate was also sanctioned and was reflected in the respective bills.The present complaint is based on totally baseless and vexatious grounds and without any merits and liable to be dismissed at the threshold.

6.         The OP denied that being General Manager, MTNL, he  is vicariously liable for acts, omissions, dereliction of duties, unfair trade practices and deficient services of their staff, agents and representatives.It is specifically denied by the OP that in April 2014, as alleged by the complainant, again above connection started giving lot of problems and sometimes phone was not working and sometimes broadband. OP also denied that Complainant continued to pay bills regularly in the hope that connection will be made workable but the same could not. OP also denied that since the connection was not made workable, therefore, complainant also requested for reference of matter for arbitration  and no intimation/reply was given to his request and hence vide  e-mail dated 27.9.2014 complainant wrote to the O. P. that Complainant may not be paying/clearing bills any further until above connection, i.e. phone and broad band made workable but OP did not object to that. It is submitted that OP provided the best services to the complainant and whenever the Complainant booked complaint, the O.P attended to the same immediately.

7.         OP also denied that vide e-mail dated 6.11.2014 complainant also requested to the OP that phone No. 25075270 may be switched to a minimum call receiving/sending  instead of combo broadband until rectification of faults and the concerned bill department may also be informed for the purpose. OP also categorically denied that since it did not  refuse or objected to the proposal of the complainant, it amounted to consent to do the same  by the OP.  It was also denied by the OP that its officials attended to the complaint by personally visiting  residence of complainant on 21.02.2015 but connection  still could not be made workable nor connection switched to minimum of telephone receiving/sending calls without broadband despite his e-mails but bills continued to be charged for combo plan without providing services which were illegal and not payable. OP denied that the same  not only amounted to dereliction of duty, negligence, and deficient services but also unfair trade practices and entitled ill aged senior citizen complainant for compensation.  It is again specifically denied by the OP that no one is attending at its Telephone exchange office at Sector-6, Dwarka, New Delhi. It is submitted by the OP that telephone line was disconnected due to Non Payment (DNP) of bills since 17-11-2014 against the pending bills for the months of September, October, November, December of 2014 and January, 2015. Details of outstanding bills as mentioned below wereapprised to the subscriber/complainant:

Sl.No.	Bill date	Amount	Surcharge	Due date
1.	08-09-2014	Rs.752/-	Rs.20/-	29-09-2014
2.	08-10-2014	Rs.752/-	Rs.20/-	29-10-2014
3.	08-11-2014	Rs.752/-	Rs.20/-	29-11-2014
4.	08-12-2014	Rs.752/-	Rs.20/-	29-12-2014
5.	08-01-2015	Rs.495/-	Rs.20/-	01-04-2015
Total amount		Rs.3503/-

 

Moreover, on receiving the complaint, area SDOP/DE (OD) went to the premises of complainant and shown that telephone is working up to guard room and further conduit(internal wiring).

8.         OP also denied the allegation of complainant that since the telephone connection was not made workable, hence complainant was forced to make alternate arrangements for his needed non-commercial works/services by spending further unnecessarily. OP denied that the bills raised illegally without providing services are illegal and not payable and may be treated as withdrawn retrospectively.  It is submitted that the Sr. Manager and SDO informed the complainant that the number was disconnected  due to non-payment  against outstanding  as aforementioned and once cleared, the number will be functional and the same was informed to their GM office.

9.         OP also denied that since the telephone connection of complainant was not made workable hence  complainant also gave notice to the OP vide his e-mail dated 5.5.15 but to  no avail.  It is pertinent to mention here that all the three-mails of the Complainant have been properly responded and replied by the OP. OP also  denied that it is a  service provider and not a Govt Department of P& T nor a competent authority as per Act.  It denied that the judicial pronouncement referred  to by the complainant  as reported in Bsnl & Sde Gmtd, Shg vs Smti Battinora(supra) and further Hon'ble Supreme Court orders as reported in Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. M. Lalitha (Dead) through L.Rs. & Ors.,(supra) holding that arbitration proceedings cannot over rule Consumer Protection Act which is in addition to and not in derogation, have any bearing on the facts of this case. It is submitted that the aforesaid pronouncements are not applicable in the present case in view of the observation of the Hon'ble Supreme Court  in the case of General Manager Telecom Vs. M. Krishnan &Anr (supra) that  in view of the Special remedy available/provided under U/S 7 B  of the Indian Telegraph Act, if  any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section. Therefore all disputes with respect to the telephone bills etc may be referred to adjudication by the arbitrator and the same is not maintainable before Consumer Disputes RedressalForum  as also observed by the Hon’ble NCDRC in the case titled as Mahinder Kumar Garg Vs. PRO, MTNL(supra).

10.       OP filed along with its written statement  copies of judgments of the Apex Court  and the Hon’ble NCDRC in the cases of General Manager, Telecom Vs. M.Krishnan (supra) and Mahender Kumar Garg Vs. PRO, MTNL(supra) respectively, various emails from the OP to its officials with copy to the complainant,  granting approval for rebate in rental, giving details of usage of telephone/broadband and status of complaints filed by the complainantin relation to telephone/broadband from 01.5.2014 to 05.2.2015, showing cancellation of rent rebate for non-payment of regular bills from November, 2014 to January, 2015, advising the concerned officers of OP  to recover telephone/broadband usage charges for the period from August, 2014 to October, 2014 from the complainant, bill payment details  from August, 2014 to February, 2015, pending bills details,  acknowledging complaint of complainant that the telephone was not working from May, 2014 onwards. 

11.       Conversely, the complainant filed rejoinder, rebutting the pleas taken in the written statement. Complainant stated that the OP did not produceany evidence on record that OP is a ‘Telegraph Authority' or 'Central Government' or 'Director-General of Posts and Telegraphs' hence section 7B of the Indian Telegraph Act, 1885  is not applicable to OP as it is a company, service provider and not telegraph authority.Complainant further stated that  Section 3(6) of the Indian Telegraph Act also says that "telegraph authority" means the Director-General of (Posts and Telegraphs) and includes any officer empowered by him to perform all or any of the functions of the telegraph authority under this Act. Letter dated 19.10.2009 of GOI, Ministry of Communications and IT, Department of Telecommunications also clarified to Secretary General of AUSPI that private and public service providers are not Telegraph Authority as noted in Bsnl & Sde Gmtd, Shg vs Smti Battinora (supra).The pronouncement  of the Hon'ble Supreme Court  in the case of General Manager, Telecom vs M. Krishnan and another(supra) was passed ex parte without hearing consumer, only on basis of section 7B of the Act where General Manager, Telecom was appellant being an authorized officer in the Department of Telecommunications, Govt. of India and as such the dispute was between the Department of Telecommunications and the consumer and the said officer was also a telegraph authority. After the above judgment in Krishnan's case (supra), time has changed and players have also changed. The telecom sector has undergone a metamorphosis, It is no more now run by the Department of Telecommunications but by licensed public or private sector companies. Thus Section 7B of the Act has no application whatsoever to OP. Also as per section 2 (ea) of Telecom Regulatory Authority of India Act, 1997(for short TRAI) "licensor means the Central Government or the telegraph authority who grants a license under section 4 of the and (e) "licensee" means any person licensed under sub-section (1) of section 4 of the said Act for providing specified public telecommunication services. As Krishnan's case (supra)is totally based on section 7B,hence  the said  judgment and other judgments passed relying upon that  judgment are of no help to the  OP. Complaint in question is for negligence, deficient service and unfair trade practices, etc., as per Section 3 of the C.P.Act, 1986 as under:

“3. Act not in derogation of any other law - The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”

12.       As regards the complaints redressal of the complainant, complainant contended that  OP officials visited only up to guardroom of society and not the  flat of complainant where connection is taken and installed nor any intimation is given to him at his mobile, e-mail, etc. Without attending complaints and making connection workable, the same were closed and no rebate is given but false and frivolous reports given to superiors. As per bills for April, May, June, August, October, November, December of 2014 and January 15, the complainant  could make only 50 calls during  8 months though 100 free calls are allowed per month itself. This  shows as to how connection was working.  Complainant stated that the OP did not reply to his e-mail dated 14.11.2014 nor acted nor complied even with directions of competent authority, given through Asstt. Vigilance Officer-9 (C1) as per his letter dated 19.12.2014.

13.       Complainant categorically denied that for not making the connection workable, any rebate was given and false and frivolous reports are given to superiors. He  rebutted  the stand of OP that it replied to all emails of complainant as it did not produce anything on record to justify its stand. According to him, as per OPs documents placed on record, a rebate of Rs.240/- is given for the period from  24.9.2014 to 5.10.2014 but another document thereof shows that more amount of Rs.752/- with penalty of Rs.20/- are charged and demanded for September to November 2014 and connection disconnected on 17 11.2014 and thus OP made only false claims. The broadband  was opened but usually remained hanged so the complainant could not  use it  properly. Bills continued to be raised and demanded without providing services and making connection workable. OP also produced no evidence onrecord to show attending to  complaints nor anything to suggest that matter is referred for arbitration nor OP objectedand/or replied to complainant though he specifically wrote that he may not be paying/clearing bills any further until above connection, phone and broadband made workable. No evidence has been filed on record by the OP to show that emails dated 6.11.2014/01.02.2015 of complainant  were replied. Further, the contentions of complainant not specifically denied  by OP with documents and evidence, should be treated as admissions of OP and this Forum may also be pleased to pass necessary orders on basis of such admissions.  Because of the callous attitude of the OP in not replying to his emails  and not rectifying the defect in the telephone line, the complainant  under protest  had told the OP that he may not be clearing bills any further until telephone and broadband made workable and  will also claim damages under Consumer Protection Act and that connection  be switched to a minimum calls receiving/sending phone instead of combo broadband until rectification of faults. Nothing was done by the OP and on the other hand, just to save their skin, they disconnected his telephone illegally on 17.11.2014 though usage is 0' for October to December, 2014.It may also be noted that in the reply, OP admitted that telephone is working up to guard room and a question also arises for consideration whether OP attended to complaints  at complainant’s flat where connection is taken and installed or somewhere else or at guard room where their junction box is installed, having hundreds of connections. OP is charging for any shifting of connection even from one room to another in same flat/house. Complainant denied that email communications attached with the written statement  wereever served upon him and  OP be put to strict proof. The telephone  connection of complainant was misused somewhere else in connivance with OP officials and as such its officials not only stated false but forced complainant to pay bills as usual without providing services to complainant. Even directions of ED/CGMO of OP to rectify faults urgently and send compliance at the earliest are of no avail. It may also be noted that Telecom Regularity Authority of India Act, 1997 (TRAI) enacted by Parliament in 48 year of Republic of India to protect the interest of service providers and consumers of telecom sector under which Telecom Consumers Protection and Redressal of Grievances Regulations, 2007 are also made and as per Rule 3(a) thereof MTNL/BSNL being companies registered under the Companies Act, 1956 (1 of 1956) are service providers and not Telegraph Authority. The question involved in the case in question is also for not attending complaints nor providing services since long but negligence, deficient services, unfair practices; hence non-payment of bills for want of services under protest.  Furthermore, Rule 25, Chapter VII of above Rules 2007 enacted by the Parliament under TRAI says:

"25. Right of consumers to seek redressal under the Consumer Protection Act, 1986 or any other law for the time being in force:

(1) the provisions of these regulations are in addition to any right conferred upon the consumers under the Consumer Protection Act, 1986 (68 of 1986) or any other law for the time being in force;

(2) Any consumer may, at any time (a) during pendency of redressal of his grievance, whether by filing of complaint or appeal, under these regulations, or (b) before or after filing of complaint or appeal, under these regulations exercise his right conferred upon him under the Consumer Protection Act 1986 (68 of 1986) or any other law for the time being in force and seek redressal of his grievance under that Act or law.”

 

14.       Complainant pleads that as per judgment rendered in Bsnl & Sde Gmtd, Shg vs Smti Battinora(supra), section 13 (a) of the Telecom Consumers Protection and Redressal of Grievances Regulations, 2007 framed by TRAI and reproduced below makes it yet further clear that BSNL is a company registered under the Companies Act 1986 and is only a Service Provider:

“Section 13. These regulations shall apply to "all services providers including Bharat Sanchar Nigam Limited and Mahanagar Telephone Nigam Limited, being the companies registered under the Companies Act, 1956 (1 of 1956) providing: (i) BasicTelephone Services, (i) Unified Access Services: (i) Cellular Mobile Telephone Services”.

15.       It is further stated by the complainant that in the said case Bsnl & Sde Gmtd, Shg vs Smti Battinora (supra),it was noted that “as per Section 13 thereof, our conclusion above that BSNL, albeit a Public Sector Company is merely a licensee, service provider and not a Telegraph Authority nor is or can be empowered to act as such, is sufficient to distinguish the present batch of Appeals from the facts of the Krishnan's case and for us to hold that the said esteemed judgment has no application to the instant appeals. Further the moment we find that the said judgment is inapplicable, being distinguishable, in view of our earlier finding that Section 7B of the Telegraph Act does not apply to disputes between entities other than Telegraph Authorities and consumers, there remains no impediment whatsoever to our arriving at the unmistakable conclusion that Consumer Fora have the fullest jurisdiction to entertain disputes between BSNL and or other similar service providers licensees and consumers of telecom telegraph services in India.”

16.       Complainant states that If MTNL/OP herein has to claim to be a telegraph authority then it would have to be both the licensor and the licensee which would be absurdity.

17.       Keeping aforesaid submissions in view, the complainant submitted that his complaint may be allowed with costs, admissible interests, and compensation and litigation expenses as per prayer clauses of the complaint.

18.       Along with the rejoinder, the complainant attached telephone bills for the period from 01.4.2014 to 31.1.2015 showing the calls made and other usage as also showing the outstanding bills from 8^th September, 2014 to 8^th January, 2015, his email dated 14.11.2014 sent to OP, letter dated 19.12.2014 written by the Asstt. Vigilance Officer-9(CI) to OP.

19.       Evidence by way of affidavit was filed  by the complainant and he exhibited the documents placed on record as  OP C.W.1/1(colly) to C.W.1/3. OP also filed evidence by way of affidavit  and exhibited its documents as Ex. RW.1/I to R.W.1/V.

20.       Written arguments were filed by both the complainant and the OP.   Since the OP has  not appeared,  we are proceeding with orders on merits as per provisions of Section 38(3)(b) of the CP Act, 2019.

21.       We have heard the complainant who is present in Court. In order to appreciate the rival contention of the parties and to reach a logical conclusion whether  the  present proceedings  in the complaint are covered by  the arbitration clause in terms of Section 7B of the Telegraph Act, we may acknowledge here the recent pronouncement of Hon’bleSupreme Court of India in the matter of Vodafone Idea Cellular Ltd. Vs Ajay Kumar Agarwal, Civil Appeal No 923 of 2017 (Arising out of SLP (C) No 28615 of 2016, decided on 16^thFebuary, 1922.   In the said case also the Hon’ble Supreme Court was dealing with a similar issue of  deficiency in service by the  telecom service provider and whether in view of the clear cut provision made for reference of the dispute to arbitration under Section 7B of the Indian Telegraph Act, 1885, the jurisdiction of the Consumer Fora is barred.  The Hon’ble Supreme Court  while re-assessing  the verdict rendered  by the same Court in the case of General Manager, Telecom v. M Krishnan and Another, 4 (2009) 8 SCC 481 and the provisions of  Section 2(o)  and 2(g)  of the Consumer Protection Act, 1986 and the corresponding provision of the present Consumer Protection Act, 2019 in the form of Section 2(42)  which specifically includes “telecom services”, held that the Consumer Protection Act is a special law and not in derogation of any other law.  The  relevant observations of the Hon’ble Supreme Court in the case of Vodafone Idea Cellular Ltd. Vs Ajay Kumar Agarwal (supra) are to the following effect:

“In the present case, the existence of an arbitral remedy will not, therefore, oust the jurisdiction of the consumer forum. It would be open to a consumer to opt for the remedy of arbitration, but there is no compulsion in law to do so and it would be open to a consumer to seek recourse to the remedies which are provided under the Act of 1986, now replaced by the Act of 2019. The insertion of the expression ‘telecom services’ in the definition which is contained in Section 2(42) of the Act of 2019 cannot, for the reasons which we have indicated be construed to mean that telecom services were excluded from the jurisdiction of the consumer forum under the Act of 1986. On the contrary, the definition of the expression ‘service’ in Section 2(o) of the Act of 1986 was wide enough to comprehend services of every description including telecom services.”

22.       The Hon’ble Supreme Court in the aforesaid case of Vodafone Idea (supra) relied on the verdict of the Apex Court in  the case of Imperia Structures Ltd. v Anil Patni, (2020) 10 SCC 783in which it was held that the remedies available under the Act of 1986 are in addition to the remedies available under other statutes, including special statutes like the Real Estate (Regulation and Development) Act 2016. The Apex Court reiterated the settled position of law in the following terms:

“23. It has consistently been held by this Court that the remedies available under the provisions of the CP Act are additional remedies over and above the other remedies including those made available under any special statutes; and that the availability of an alternate remedy is no bar in entertaining a complaint under the CP Act.”

23.       In view of the direct  and pointed verdict of the Apex Court in the case of Vodafone Idea Cellular Ltd. Vs Ajay Kumar Agarwal (supra), we have no hesitation in arriving at the conclusion  that this Commission has the jurisdiction to try the issue raised in the present complaint. In fact the Apex Court in the ruling  in the case of Vodafone Idea(supra) has over-ruled the  earlier verdict of Apex Court in the case of Krishnan’s case(supra).

24.       Now coming to the  averments made in the complaint and the rival submissions of the OP, the correspondence exchange between the parties explicitly make it  clear  that there was defect in the telephone line which resulted in not proper use of the telephone and broadband services by the complainant.  The OP admitted in their written statement  that whatever mails were received from the complainant, the same have been replied to though no such reply to those mails has been placed on record. Though  the complainant has not placed on record any document to show that he had sent any SMS or email to the OP requesting to refer the dispute to arbitration prior to September, 2014 but the  emails dated 27.9.2014 and 6.11.2014 sent by the complainant to the OP, clearly reflect  the  request  made to the OP to refer the matter for arbitration and not to charge the complainant for the services which he has not availed.     As per the own admission of the complainant, his telephone in question has since been disconnected  for want of payment of outstanding bills.  But what prompted the complainant not to pay the outstanding bills needs to be understood.  The complainant was not satisfied with  the services offered by the OP.  The OP itself has admitted that the complainant was provided rebate in payment of the telephone bills.What  prompted the OP to take this benevolent step in favour of the complainant is nothing more than the deficiency on their part in rectifying the defect in the telephone services. However, the OP has  not been able to prove on record that any rebate in rentals as projected  by it, has been availed by the complainant.  The telephone bills placed on record by the complainant for the period 01.4.2014 to 31.1.2015 do not reflect such rebates and in fact show the outstanding bills for the period from September, 2014 to January, 2015. This falsifies the claim of the OP taken in the written statement, resulting in deficiency in service which could not be rectified to the satisfaction of the complainant.  As per the own admission of the OP, the telephone line upto the guard room was functioning properly but no serious efforts were made to check whether it was working properly at the flat of the complainant where the telephone line ultimately halted.  The complainant has very well  been able to establish deficiency in service on the part of the OP.  The documents placed on record by the OP themselves show that there was very less usage of telephone and broadband services and the telephone  mostly did not work. Since the telephone line  of the complainant has since been disconnected and the complainant does not now appear to be interested in getting it restored any more having been fed  up of the same, no useful purpose will be served by ordering restoration of the telephone line. 

25.       Therefore, for the foregoing conclusions arrived at by us, we are satisfied that there was deficiency, negligence and unfair trade practice on the part of OP which prompted the complainant to stop making payment of the telephone Bills. Accordingly, the Complaint is allowed and  OP is directed to waive off the  outstanding bills shown pending against the telephone No.25075270 till date, remove the telephone accessories from the flat of the complainant and refund the security deposit, if any, received from the complainant, after adjustment of any legitimate usage charges towards the said telephone. For  the deficiency in service which compelled the complainant to knock at the door of this Commission, the OP is directed to compensate the complainant by Rs.7,500/- as compensation for the harassment, mental agony and disruption in his non-professional services.  Let this order be complied with  within thirty days of receipt of copy of this Court.

A copy of this order shall be supplied to parties to the dispute free of cost  under Regulation 21 of CPR, 2020 on a written requisition/application being made by them to the President of this Commission.

 

(Richa Jindal)                                          (Anil Kumar Koushal)                       (Sonica Mehrotra)

  Member                                                      Member                                                 President