D.o.F:19/11/2010
D.o.O:28/7/2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO. 238/10
Dated this, the 28th day of July 2011
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.BEENA.K.G : MEMBER
M.Lakshman Bhakta ,
Bhakth Mutt, Car Street,Manjeshwar, : complainant
Kasaragod.
(in person)
Idea Cellular Limited, Corporate Office,
5th Floor, Windsor, CST Road, Kalina, : Opposite party.
Santa Cruz(E) Mumbai-400098.
(Adv.Raveendran.B,Kasaragod&
Adv.P.C.Girish,Malappuram))
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
Tersely stated, the case of the complainant M.Lakshman Bhakta , an Advocate practicing in Mangalore is that his mobile connection No.9844473507 provided four years back has been disconnected on 4/11/2010 alleging that he has not submitted the identification documents though he has submitted the identification documents at the time of taking the connection. It is his case that he has received a number of messages earlier to submit documents and in response to it he repeatedly provided his account details and when he again received SMS, on enquiry made with customer care people he was told to ignore the SMS as he has already submitted the account details. Thereafter when he came to know that he is bound to submit the identity proof he submitted the election ID card by sending the same through registered post with acknowledgement due. It was delivered on 16/11/2010. But his connection is not reactivated in spite of waiting 24 hrs. As a result he suffered great loss and hardship. Hence the complaint.
2. According to opposite party the complaint is not maintainable before the Forum. In view of the decision of the Hon’ble Apex Court in CA 7687/2004 in the case of General Manager Telecom vs. M.Krishnan and also in view of the decision of Hon’ble National Commission in the case of Prakash Varma vs. Idea Cellular Ltd and the Forum lacks territorial jurisdiction also to entertain the complaint since complaint obtained the mobile connection from Mangalore which is in Karnataka state.
On merits the opposite party contends that the complainant had not submitted his identification records as per the request of the company and all customer having mobile connection is aware that the correct records are necessary to hold a mobile phone connection and the ignorance ‘now’ pretending is with ulterior , voracious and vindictive motive since complainant is not an ordinary layman and he knows the guidelines issued by the government of India for the protection of the country and no identification records were submitted by the complainant to hold the mobile connection. If the mobile phone used in other state is used in another state usually for the sake of safety, records are verified and insisted for further use and there is no illegality in the same and the demand made by the opposite party is correct and the allegation that the connection is severed without any notice is also not correct and the opposite party used to have strict vigil on the connection transferred from other companies since there may be terrorist link. The usual requirement is sought and the complainant took the same as something affecting his pride and it is the reason for the complaint.
3. The complainant filed proof affidavit in support of his case and Exts.A1&A2 marked. On the side of opposite party DW1 examined and Exts.B1 to B3 marked. Both sides heard and documents perused.
4. The issues to be settled in this case are:
1. Who is a telegraph authority?
2. Whether the opposite party is a telegraph authority?
3. Whether the complaint against opposite party is maintainable before the Forum
4. Whether the opposite party can refer the matter to an arbitrator to settle the disputes with their customers?
5. Whether the Forum has got territorial jurisdiction to entertain the complaint?
6. Whether there is any deficiency in service on the part of opposite parties?
7. What is the order as to relief and cost?
5. Issues 1 to 6 are discussed together since they are interlinked each other.
The learned counsel for the opposite parties submitted that in view of Sec.7 B of the telegraph Act 1885 the complaint is not maintainable before the Forum since this is a dispute between a telegraph authority and its subscriber. He relied on the following decisions in support of his defense.
General Manager Telecom vs. M.Krishnan rendered by the Hon’ble Apex Court in CA 7687/2004 Prakash Varma vs. Idea Cellular Ltd in RP No1703/2010 of Hon’ble National Disputes Redressal Commission.
In both cases the dictum law down is that the dispute between a subscriber and the’ telegraph authority ‘can be resolved by taking recourse to arbitration proceedings only o In view of Sec.7B of the Indian Telegraph Act 1885 which is applicable if a dispute arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided:
6. So who is a telegraph Authority has to be decided first.
The telegraph authority has been defined in Sec.3 (6) of Indian Telegraph Act 1885 as under:
3(6) 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:
Similarly the word telegraph" has been defined in Sec 3(1) of Indian Telegraph Act as under
3(1)telegraph" means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of. any nature by wire, visual or other electro- magnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means”
Similarly the word telegraph line" has been defined in Sec 3(4) of Indian Telegraph Act 1885 as under
3(4) telegraph line" means a wire or wires used for the purpose of a telegraph, with any casing, coating, tube or pipe enclosing the same, and any appliances and apparatus connected therewith for the purpose of fixing or insulating the same:
7. The definition reproduced above clearly reveal that provisions of Sec
7B of the Indian Telegraph Act would be applicable only if the dispute is pending between the Director General of Posts and telegraph or his nominee on the one side and the person for whose benefit the line, appliance / apparatus are being provided ie the consumers on the other.
8. Now the question arises is whether the opposite party, a private service provider is a Telegraph Authority within the meaning of Sec.3(6) of Indian Telegraph Act 1885 or in other words are they the Director General of Posts and telegraph or they are the officers empowered by him to perform all or any of the functions of the telegraph authority under the Indian Telegraph Act 1885,
9. The Private Service Providers are the licenses to operate private mobile lines under Sec.4(1) of the Indian Telegraph Act 1885. Therefore they cannot be equated with the Director General of Posts and telegraph nor they can be termed as the officers appointed by the Director General of Posts and telegraph to discharge the function of the telegraph authority. They are only the licensees. Therefore any dispute between a licensees and their consumer is not covered by the provisions of Sec.7B of the Indian Telegraph Act 1885.
10. It can be looked from another angle also. The functioning of the private mobile operation is regulated by the provisions of the Telecom Regulatory Authority of India Act 1997.
Under the said Telecom Regulatory Authority of India Act, 1997, a provision has been made for establishment or incorporation of an authority namely Telecom Regulatory Authority of India to regulate the functioning of telecommunication service providers and other matters including and relating to mobile telephones also. Under Section 14 of the said Act, a provision has been made for establishment of Appellate Tribunals to adjudicate any dispute relating to the telecommunication services. For the purpose of facilitation, Section 14 of the Telecom Regulatory Authority of India Act, 1997 is reproduced as under:- “ Establishment of Appellate Tribunal – The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal to –
(a) adjudicate any dispute –
(i) between a licensor and a licensee;
(ii) between two or more service providers;
(iii) between a service provider and a group of consumers:
Provided that nothing in this clause shall apply in respect of matters relating to –
(A) the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of Section 5 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969);
(B) the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986);
(C) dispute between telegraph authority and any other person referred to in sub-section (1) of section 7B of the Indian Telegraph Act, 1885 (13 of 1885)”.
11. From the bare perusal of the above said provisions, now it is clear beyond doubt that the telephone services have been specifically covered under the Telecom Regulatory Authority of India Act, 1997 and the provisions of the said Act are in addition to the Indian Telegraph Act, 1885. From perusal of Section 14 (b), it is very much clear that even when a consumer approaches the Consumer Disputes Redressal Forum, then the provisions of the Telecom Regulatory Authority of India Act, 1997 or the jurisdiction of the Appellate Tribunals established under the Telecom Regulatory Authority of India Act, 1997 ceases, rather the provisions of the Consumer Protection Act get precedence over the powers vested with the Appellate Tribunals established under the Telecom Regulatory Authority of India Act, 1997.
12. The Telecom Consumers Protection and Redressal of Grievances Regulations, 2007 have come into force vide Notification dated 4th May 2007 and have been published in Gazette of India. Under Regulation No.1 Clause (3), it has been provided that these regulations shall apply to –
“(a) all service 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) Basic Telephone Service;
(ii) Unified Access Services;
(iii) Cellular Mobile Telephone Service.”
“ Definitions – In these regulations, unless the context otherwise requires -
The ‘Basic Telephone Service’ has been defined under Section 2 (g) of the above said Regulations. The meaning of ‘consumer’ has also been defined. For the sake of convenience, Section 2 (d), 2 (g) and 2 (h) of the above said Regulations are Reproduced asunder:-
(d) “Basic Telephone Service” covers collection, carriage, transmission and delivery of voice or non-voice messages over licensee’s Public Switched Telephone Network in licensed service area and includes provision of all types of services except those requiring a separate licence;
(g) “Cellular Mobile Telephone Service” -
(i) Means telecommunication service provided by means of a telecommunication system for the conveyance of messages through the agency of wireless telegraphy where every message that is conveyed thereby has been, or is to be, conveyed by means of a telecommunication system which is designed or adapted to be capable of being used while in motion;
(ii) Refers to transmission of voice or non-voice messages over Licensee’s Network in real time only but service does not cover broadcasting of any messages, voice or non-voice, however, Cell Broadcast is permitted only to the subscribers of the service,
(iii) In respect of which the subscriber (all types, pre-paid as well as post-paid) has to be registered and authenticated at the network point of registration and approved numbering plan shall be applicable;
(h) “consumer” means a consumer of a service provider falling in clause (a) or clause (b) of sub-regulation (3) of regulation 1 and includes its customer and subscriber.”
13. Section 25 of the above said Regulations is very much relevant, which for the sake of
convenience is reproduced as under:
“ 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. Section 27 of the above said Regulations is also very much important, which
for the sake of convenience is reproduced as under:-
“27. These regulations not to apply in certain cases –
Nothing contained in these regulations shall apply to any matter or issue for which-
(a) any proceedings, before any court or tribunal or under the Consumer Protection Act, 1986 (68 of 1986) or any other law for the time being in force, are pending; or
(b) a decree, award or an order has already been passed by any competent court
or tribunal or authority or forum or commission, as the case may be.”
15. From the bare perusal of the above said Regulations framed by the Telecom
Regulatory Authority of India exercising the powers conferred upon it under Section 36 and Section 11 of the Telecom Regulatory Authority of India Act, 1997, it is abundantly clear that the provisions of the Consumer Protection Act, 1986 prevail over the Telecom Regulatory Authority of India Act, 1997 and the jurisdiction and powers of the Consumer Disputes Redressal Forums are over and above the jurisdiction and powers of the Tribunals established for the purpose of adjudication of disputes relating to telecommunication services.
16. It is settled law that the law enacted by the Parliament cannot be changed or made useless by judicial interpretation. The provisions of the enactments have to prevail over the judicial decisions. The question of interpretation comes only when the provisions of legislative enactments are either not clear, ambiguous or cannot depict the true meaning. When the provisions of the legislative enactments are plain, clear and unambiguous, then these cannot be negativated through judicial interpretation. Reliance can be placed upon various authorities of the Hon’ble Supreme Court of India on this point. The Hon’ble Supreme Court in “State of U.P. & Others Versus Jeet S. Bisht & Anr., 2007 (6) SCC 586, wherein the Hon’ble Supreme Court has specifically held that court cannot add or substitute word in a statute. By judicial verdict the court cannot amend the law made by the Parliament or State Legislature. It has been further held by the Hon’ble Supreme Court in the said authority that mere a direction of the Hon’ble Supreme Court without laying down any principle of law is not a precedent. It is only where the Hon’ble Supreme Court lays down a principle of law that will amount to a precedent. The courts are subordinate to law and not above the law.
17. So far the question as to whether the Consumer Protection Act, 1986 is a special legislation or a general law, the Hon’ble Supreme Court of India has given its view in various authorities, some of which we will discuss hereinafter. However, before discussing the authorities, we would like to discuss certain provisions of the Consumer Protection Act, 1986.
“1. Short title, extent, commencement and application –
(1) This Act may be called the Consumer Protection Act,1986.
Save as otherwise expressly provided by the Central Government by notification, this Act shall apply to all goods and services.
2. Definitions – (1) In this Act, unless the context otherwise Requires --
(o) “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board, or lodging or both housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
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”.
18. So from the perusal of the above said provisions of the Consumer Protection Act, 1986, it is quite clear that the provisions of the Consumer Protection Act, 1986 apply to all type of goods and all services availed by the consumers against consideration paid or promised. Section 1 (iv) of the Consumer Protection Act, 1986 is of wide connotation.
19. The Hon’ble Supreme Court of India in “Secretary, Thirumurugan Co-operative Agricultural Credit Society Versus M. Lalitha (Dead) through LRs. and others,1986-2004 CONSUMER 7844(NS), wherein an objection was raised as to the jurisdiction of the Consumer Disputes Redressal agencies in view of the bar/arbitration clause contained in Section 90 and Section 156 of the Tamil Nadu Co-operative Societies Act, 1983, the Hon’ble Supreme Court of India has held that merely because the rights and liabilities are created to the appellate society under the Co-operative Societies Act, 1983 and Forums are provided for adjudicating the dispute between them, it cannot take away or exclude the jurisdiction conferred on Forum under the Consumer Protection Act, 1986 expressly and intentionally to serve a definite cause in terms of the objects and reasons of the Act. The Hon’ble National Commission was held right in holding that the view taken by the Hon’ble State Commission that the provisions under 1983 Act relating to reference of disputes to arbitration shall prevail over the provisions of 1986 Act, is incorrect and untenable. The authority Chairman, Thiruvalluvar Transport Corporation Versus Consumer Protection Council, (1995) 2 SCC 479, relied upon in the authority General Manager, Telecom Versus M. Krishnan & Another (supra), has been discussed and distinguished by the Hon’ble Supreme Court in the above said authority. The Hon’ble Supreme Court in para 11 and 12 of the judgment has observed as under:-
“(11) From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi judicial forums are set up at the district, State and National level with wide range of powers vested in them. These quasi judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever ‘appropriate, compensation to the consumers and to impose penalties for non-compliance of their orders.
(12) As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional /extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar”. So as per the above said authority, despite provisions for referring the dispute to arbitration in the certain Acts/Laws, the object and purpose of the Consumer Protection Act cannot be frustrated as the provisions of the Consumer Protection Act are in addition and not in derogation of any other law in force.
It was further held by the Hon’ble Supreme Court that if parties approach both the Forums created under any other Act and the 1986 Act (Consumer Protection Act, 1986), it is for the Forum under the 1986 Act to leave the parties either to proceed or avail the remedies before the other Forums depending upon the facts and circumstances of the case.
20. The Hon’ble Supreme Court of India in “Neeraj Munjal and Others Versus Atul Grover (Minor) and another, 1986-2004 CONSUMER 7438(NS), in para 10 and 11 of the judgment has held that the courts could not deprive the parties from a remedy, which is otherwise available to them in law. It has been further held that a court of law has no jurisdiction to direct a matter to be governed by one statute when provisions of another Statute are available.
21. In “State of U.P. & Others Versus Jeet S. Bisht & Anr., 2007 (6) SCC 586 (supra), the Hon’ble Supreme Court has held that the Consumer Protection Act, 1986 has been enacted for better protection of the interest of the consumers. The said Act is in addition to and not in derogation of the provisions of the any other law for the time being in force. The Act not only provides for new rights for the citizens of India in their capacity as consumers, it envisages their empowerment in this behalf. It is indisputably the solemn duty of the executive of both the Government of India and also the Government of State to implement the provisions of the Act in true letter and spirit. The Hon’ble Supreme Court in the above said authority has further held that the Consumer Protection Act embodies a certain value in protecting the interest of the consumers in the age of consumerism and the institution of consumer Fora is a specific mission in that behalf.
22. In “State of Karnataka Versus Vishwabharathi House Building Coop. Society and others, 1986-2004 CONSUMER 7415(NS), where the constitutionality of the Consumer Protection Act, 1986 was challenged on various grounds, the three Judges Bench of the Hon’ble Supreme Court of India has held that the provisions of the Consumer Protection Act clearly demonstrate that it was enacted keeping in view a long felt necessity of protecting the common man from wrongs where for the ordinary law for all intent and purport had become illusory. In terms of the said Act, a consumer is entitled to participate in the proceedings directly as a result whereof his helplessness against a powerful business house may be taken care of. The Hon’ble Supreme Court of India further held that by reason of the said statute (Consumer Protection Act), quasi-judicial authorities have been created at the District, State and Central levels so as to enable a consumer to ventilate his grievances before a Forum where justice can be done without any procedural wrangles and hyper-technicalities. One of the objects of the said Act is to provide momentum to the consumer movement. While referring to the several provisions of the Consumer Protection Act and also discussing the various authorities, the Hon’ble three Judges Bench of the Supreme Court of India further held that by reason of provisions of Section 3 of the Act, the said Act supplements and not supplants the jurisdiction of the civil court or other statutory authorities. The Hon’ble Supreme Court of India while relying upon another authorities styled as “Fair Air Engineers Versus N.K. Modi, III 1996 CPJ(SC) and “Satpal Mohindra Versus Surindra Timber Stores, (1999) 5 SCC 696” has specifically held that the provisions of the said Act are required to be interpreted as broadly as possible. It has jurisdiction to entertain a complaint despite the fact that other Forum/courts would also have jurisdiction to adjudicate upon the matter.
23. The Hon’ble Supreme Court of India in “Ghaziabad Development Authority Versus Balbir Singh, 1986-2004 CONSUMER 8287(NS) 2004 (2) CLT 628”, has held that the Consumer Protection Act has a wide reach and the Commission has jurisdiction in case of services referred by the statutory and public authorities. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Hon’ble Supreme Court in the said authority further held that matters, which require immediate attention, should not be allowed to linger on. The consumer must not be made to run from pillar to post. Where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation.
24. In Kishore Lal Versus Chairman, Employees’ State Insurance Corporation, 2007 (4) SCC 579, the Hon’ble Apex Court has observed:-
“It has been held in numerous cases of this Court that jurisdiction of the Consumer Fora has to be construed liberally so as to bring many cases under it for their speedy disposal. The Act being a beneficial legislation, it should receive a liberal construction.”
25. The Hon’ble Supreme Court in “Fair Air Engineers Pvt. Ltd. & ANR. Vs N.K. Modi, III (1996) CPJ 1 (SC)” has held:-
“Accordingly, it must be held that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Mr. Suri, that the words “in derogation of the provisions of any other law for the time being in force” would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. The Parliament is aware of the provisions of
the Arbitration Act and the Contract Act and the consequential remedy available under Section 9 of the Code of Civil Procedure i.e. to avail of right of civil action in a competent Court of civil jurisdiction. Nonetheless, the Act provides the additional remedy”.
26. The Hon’ble Supreme Court has further held that in view of the object of the Act and by operation of Section 3 thereof, it would be appropriate that these Forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve all the consumers of the cumbersome arbitration proceedings or civil action unless the Forums at their own and on the peculiar facts and circumstances of a particular case come to the conclusion that the appropriate Forum for adjudication of the disputes would be otherwise those given in the Act.
27. The Hon’ble Supreme Court of India in “Lucknow Development Authority Vs M.K. Gupta, AIR 1994 SC 787 has observed that a legislation which is enacted to protect public interest from undesirable activities cannot be construed in such narrow manner as to frustrate its objective. It has been further observed in the said authority that any attempt to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and spirit behind it. The Hon’ble Supreme Court of India has further observed that truly speaking it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions scrutinized, as public accountability is necessary for healthy growth of society.
28. In “General Manager, Telecom Versus M. Krishnan & Others” (supra), the Hon’ble Supreme Court has held that the special law prevails over the general law. But the point whether the Consumer Protection Act is a special enactment or a general law has not been discussed. On the other hand, in view of the other judgments, reference of which has been given above, the Hon’ble Supreme Court has declared the Consumer Protection Act as a special legislation. Time and again it has been held by the Hon’ble Apex Court of country that where a law is declared after thorough discussion, only then it is held as a binding precedent and not otherwise.
29. His Lordship Markandey Katju, J. in “State of U.P. Versus Jeet S. Bisht” (supra), in para No.66 and 67 of the judgment has observed as under:
“66. It is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent.
67. In Municipal Committee, Amritsar Vs. Hazara Singh, AIR 1975 SC 1087, the Supreme Court observed that only a statement of law in a decision is binding. In State of Punjab Vs. Baldev Singh, 1999 (6) SCC 172, the Court observed that everything in a decision is not a precedent. In Delhi Administration Vs. Manoharlal, AIR 2002 SC 3088, the Supreme Court observed that a mere direction without laying down any principle of law is not a precedent. In Divisional Controller, KSRTC Vs .Sahadeva Shetty, 2003 (7) SCC 197, this Court observed as follows:
“….. The decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent judge is the principle, upon which the Case was decided…..”.
30. The Hon’ble Supreme Court in the case of Bhavanagar University vs Palitane Sugar Mills Pvt Ltd reported in (2003)2 SCC 111 has held that a little difference in facts and additional facts may make a lot of difference in the precedential value of decision.
31. The Hon’ble National Commission in “Union of India and Others Versus Jagdamba Rice Mills, I (1992) CPJ 90(NC), while discussing Section 7-B of the Indian Telegraph Act and referring to the authority styled as Santosh Singh Versus Divisional Engineer Telephones, Shilong, AIR 1990 Ghuwahati 47, has observed that the Government of India has itself taken a policy decision to the effect that all the requests and reference to Arbitration under the Indian Telegraph Act shall be rejected and Arbitrator shall be appointed only in such cases where subscriber approaches a court with a request for arbitration and court orders for the same. So when the Government of India to be more specific Telecom Authority itself is not willing to refer the dispute concerning the telegraph apparatus etc. to the Arbitrator except upon the orders of the court, then it does not behoove to the opposite parties to raise an objection under Section 7-B of the Telegraph Act.
32. Now, it is also a settled law that where two interpretations of statute/law are possible, then the one favoring the consumer is to be taken. Moreover, in case of petty consumer disputes, to direct a poor consumer to approach the Central Government for appointment of an Arbitrator for the adjudication of his small dispute, would be just the denial of justice to him especially when the legislature has enacted a consumer friendly legislation for better protection of the consumer rights and the remedy is available at the door step of the consumer as the District Consumer Forums have been established at every District head quarter of a State.
33. The Consumer Forum established under the Consumer Protection Act, 1986 does not exercise jurisdiction upon each and every matter, rather the jurisdiction of the Consumer Forum can be invoked only on the matters/disputes where the consumer element is involved. So when a dispute where the rights of the consumers are to be adjudicated there only the consumer courts, specially enacted for the said purpose, have the jurisdiction and all other Forums fall subordinate to it. It is now clear that the Consumer Protection law is not a general law, but a special law enacted for the better protection of the interests of the consumers. Where there is a deficiency in service and unfair trade practice, the provisions of the Consumer Protection Act, 1986 can be invoked irrespective of any other statute dealing with the same matter. The remedy under the Consumer Protection Act is an additional and special remedy. Moreover, even as per the provisions of the Telecom Regulatory Authority of India Act, 1997, the provisions of the Consumer Protection Act, 1986 prevail upon the other provisions/ enactments relating to telecommunication. So we hold that the FORA established under the Consumer Protection Act has jurisdiction to entertain the matter concerning the disputes relating to telecommunications.
34. The Hon’ble Maharashtra State Commission in the case of Reliance Energy Ltd vs. Abdul Manaf Shaikh reported in I (2010 CPJ 17 relying of the dictum laid down in the case of Kishore Lal’s case cited supra as well as in the case of Dhulabai vs. State of Madhya Pradesh & Anr. Reported in AIR 1969 SC 78 has held that the decision rendered by Hon’ble Apex Court in General Manager Telecom vs M Krishnan & Anr. is per incuriam since it is passed ignoring the decisions of larger bench in the above cited judgments.
35. From the above discussions it is clear that the FORA constituted under the Consumer Protection Act can go in to the merits of this case and can be settled it on merits.
36. Whether the opposite party can appoint arbitrator to settle the disputes between them and their customers is queried by AUSPI an Association of Unified Telecom Service Providers of India with the Govt of India in the wake of the decision of the Honble Supreme Court in CA7687/2004. The said association on Oct.2009 submitted a letter to the Department of Telecommunications seeking some clarifications in the light of the judgment of the Hon’ble Apex Court in the case of General Manager Telecom vs. M.Krishnan and Another. The following queries/ clarifications were sought:-
“ ( a) Are Private and Public service providers are telecom authorities and provisions of Sec 7B applicable on them? And
(b) Can private and public service providers as telecom authority appoint arbitrators for arbitration of disputes?”
The Department of Telecommunications vide its letter dt.07-32/2007- PHP (Pt) dtd 19th Oct 2009 has specifically clarified that neither the private nor the public service providers falls in the definition 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.7-32/2007-PHP (Pt)
Govt. of India
Ministry of Communications & IT
Department of Telecommunications,
1205,Sanchar Bhawan, Ashoka Road,New Delhi.
Dated 19th October 2009
To
Sh. S.C.Khanna,
Secretary General , AUSPI, B-601
Gauri Sadan, 5, Halley Road, New Delhi-1100001.
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/dtd 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.7B applicable on them? | No. Private and Public service providers Are not Telegraph Authority. Further only central Govt. can appoint Arbitrator under Sec.7B of the Indian Telegraph Act. |
Yours faithfully,
/Sd/
(Misha Bajpal)
Assistant Director General (PI +P)
Tel 23036027”
The reference of the above said queries as well as the reply of the Department of Telecommunications also finds mentioned in the website of the AUSPI (www.auspi.in)Telecom bytes Oct.2009.
37. From the above it is crystal clear that neither the private service providers such as TATA DOCOMO, AIRTEL, AIRCEL , VODAFONE, RELIANCE nor Public Service Providers such as BSNL, MTNL, VSNL are Telegraph Authorities and hence the benefits claimed under Sec.7B of the Telegraph Act are not applicable to them and therefore there is no necessity of referring the disputes to arbitrator as provided under the Telegraph Act. On this ground also FORA constituted under the Consumer Protection Act has got jurisdiction to deal the complaints against mobile service provides both public and provate.
38. From the above it is further clear that the Central Government only has got the authority to appoint an arbitrator to settle the dispute between a telegraph authority and its subscriber and by the above letter the Central Government has clarified that they are not intending to appoint any arbitrators to settle the disputes between a public/private service provider and its customers. So even if the Consumer FORA a constituted under the Consumer Protection Act refer the matter to an arbitrator to settle the dispute the said order will be in limbo since it will be impossible to appoint arbitrators for want of authority or provisions. No doubt this will further aggravate the grievance of the hapless consumers who happened to obtain an order in their favour directing the service provider to relegate the matter to an arbitrator.
39. The opposite party further contends that the complaint is not maintainable for want of territorial jurisdiction since the complaint is not a customer of Idea Kerala and the mobile number does not belong to Kerala. This contention is also not legally sustainable since the opposite party is a private mobile service provider carries on business through out the country. The carrying on business in a state is sufficient to attract jurisdictional powers vested with the Forum under section 11 of the Consumer Protection Act.
40. On merits the opposite party contends that the complainant had not submitted his identification records as per the request of the company and all customers having mobile connection is aware that the correct records are necessary to hold a mobile phone connection and the ignorance ‘now’ pretended is with ulterior, voracious and vindictive motive since complainant is not an ordinary layman and he knows the guidelines issued by the government of India for the protection of the country and no identification records were submitted by the complainant to hold the mobile connection. If the mobile phone used in other state is used in another state usually for the sake of safety records are verified and insisted for further use and there is no illegality in the same and the demand made by the opposite party is correct and the allegation that the connection is served without any notice is also not correct and the opposite party used it have strict vigil on the connection transferred from other companies since there may be terrorist link. The usual requirement is sought and the complainant took the same as something affecting his pride and it is the reason for the complaint.
41. In support of the above contentions DW1 in his affidavit has stated that complainant had taken a mobile connection from Idea Cellular Ltd office at Mangalore on 21/8/06 bearing Reg.No.9844473507. At the time of taking connection he had produced the Election Identity of Kerala in Manjeshwar where the complainant is residing and he had produced the local address of Kerala in Manjeshwar that is the Election ID as the subject to proof for taking connection but he had availed the connection from Mangalore office in Karnataka.
42. In support of the defense opposite party produced Ext.B3. But on a close perusal of Ext.B3 it is clear that it is applicable only to new customers and not to existing customers because it says that ‘ The local reference shall be verified telephonically at the point of sale before issue of SIM card and cross verified by the service provider at the time of verifying clause 3(11) DOT order dated 22/11/06.
43. So as per this clause the local reference shall be verified at the point of sale before issuing SIM card. Here the connection was provided in 2006 and the disconnection for the reason of non production of ID proof was in Nov.2010.
44. Even according to opposite party the complainant has obtained the mobile connection on 21/8/2006 and they have no case that the complainant has not submitted any ID proof at the time of taking connection. The amalgamation or taking over by one company by other is not a matter of concern of the customers for which they cannot be saddled. Therefore we hold that the disconnection of the mobile connection provided to the complainant was without any justifiable grounds.
45. Apart from that the Hon’ble Kerala State Consumer Disputes Redressal Commission in its judgment dated 22/4/10 in Appeal No.EA 652/2009 between Tata Tele Services & Anr. Vs Mathew Chacko & anr. Has held that the activation of a mobile connection without ID proof itself constituted deficiency in service and thereby the order of the lower Forum awarding compensation for disconnection of mobile connection provided to the customer is upheld . The facts and circumstances of the said case are applicable to this case a great extent.
46. ISSUE No.7
The complainant is an advocate practicing in Mangalore who is hailing from Manjeshwar situated in the northern end of the Kerala state. The mobile connection in dispute is availed by him in the year 2006. No doubt the illegal severance of the mobile connection cause much mental agony and hardships to a professional like the complainant. Therefore, we are of the view that the complainant is entitled for adequate compensation. It is also the prayer of the complainant to punish the customer care people of the opposite party for misrepresenting the consumers and thereby causing mental agony.
In the result complaint is allowed and opposite party is directed to reconnect the mobile connection 9844473507 and pay compensation of `10,000/- with a cost of ` 3000/-. Time for compliance is limited to 30 days from the date of receipt of copy of order. In the event of inability to reconnect the mobile connection with No.9844473507 the opposite party shall further liable to pay ` 20,000/- in addition to the compensation and costs aforementioned.
Exts:
A1- copy of Election Identity
A2-postal acknowledgment
B1-copy of the direction for re-verification from Govt. of India
B2- copy of computer print call register
B3- copy of standing order of OP
PW1-M.Lakshman Bhakta- complainant
DW1- Rajkumar P- witness of OP
Sd/ Sd/ Sd/
MEMBER MEMBER PRESIDENT
eva
/Forwarded by Order/
SENIOR SUPERINTENDENT
