O R D E R
(By Sri A. Radha Krishna, President on behalf of the Bench)
1 The complainant sought compensation of Rs.1,00,000/- for the disconnection of his mobile phone by the opposite parties.
2 The allegations in the complaint in brief are that he obtained cellular phone connection in the year 2000 and he was allotted mobile No. 9848160317 and activated the same on 16.02.2000. The said cell No. is personal one. As the complainant is the Secretary and correspondent of St. Mary’s Educational Society which administrative office is located at Kakinada he has obtained other cell phone connection in a group plan provided by opposite party and mobile numbers are 9848160650, 9848130011 and 9666685089 respectively and those connections were given to his employees and they were using all these connections by paying the required charges to the opposite party.
3 It is also his case in the month of March, 2013 3rd opposite party disconnected all these cell connections without any prior notice. When he approached 3rd opposite party their staff had given evasive replies and informed they came to know that they were disputes among the members of St. Mary’s Educational Society and therefore they disconnected the connections. According to complainant the said contention is illegal and un-lawful and they are all his personal connections. On his insistence the 3rd opposite party reconnected his personal mobile phone 98481 60317only in the month of May, 2013 and again in the month of June without any notice illegally disconnected the same. Realizing that he was deceived by the opposite party he issued a lawyer’s notice to the opposite parties. 2nd and 3rd opposite party received the notice. The acknowledgment or un-served register cover of 1st opposite party was not received. 2nd and 3rd opposite party failed to reconnect the cell connections to the complainant and the 2nd opposite party issued reply with false allegations. Thus he sought compensation of Rs. 1,00,000/- for physical strain and mental agony.
4 Disputing the very claim of the complainant opposite parties 1 and 2 filed their counter denying the material allegations in the complaint and further according to them this Forum has no jurisdiction to entertain the complaint, in view of the decisions in SLP [Civil] 24577/2010 on the file of Hon’ble Supreme Court of India and also view taken by Hon’ble A.P. State Commission.
5 It is also their case on 31.03.2003 the representative of M/s. St. Mary’s Educational Society has addressed a letter to them for providing post paid mobile connections to the society and also informed them the complainant the then Joint Secretary is authorized to sign the Customer Application Form on behalf of the society. They also undertook to pay for the service availed for post paid account bearing No. 810456356.
6 It is also their case the post paid including the necessary application form and other documents and they had provided 13 connections to the society including the numbers 9848160317, 984816065, 9848130011 and 9666685089 and since then the society is paying monthly bills.
7 It is also their version they have received a letter dt. 16.10.2012 where in the society requested them to surrender mobile numbers except mobile numbers 9848030011 and 9848160650 and at the same time the President of the Society has provided a certified copy of latest list of Governing Body of the society issued by the District Registrar, Kakinada. Accordingly they have initiated steps to suspend the service for society.
8 It is also their case since the mobile numbers were allotted St. Mary’s Educational Society it is proper and necessary party. Hence the complaint is bad for non joinder. It is also their case for the notice issued by the complainant the 2nd opposite party issued detailed reply. According to them there is no deficiency of service on their part. Thus they sought dismissal of the complaint.
9 Now the points for determination are:
1. Whether this Forum has Jurisdiction to entertain the complaint?
2. Whether the complaint is bad for non joinder of the necessary parties?
3. Whether the complainant is entitled for the compensation sought by him?
4. To what relief?
10 Point No.1: To buttress his contention the complainant filed his proof affidavit and exhibited 5 documents Exs. A1 to A5 which are copy of the account pertaining to cell connection showing the activation date 16.02.2010, copy of the account regarding his cell connection showing the activation date 25.02.2013, office copy of lawyer’s notice, postal acknowledgments and reply issued by 2nd opposite party.
11 Contra to this one B. Arun Madhav, Deputy General Manager-Legal of the opposite party at Hyderabad furnished his proof affidavit reiterating the allegations in the counter and exhibited 5 documents Exs.B1 to B5 which are copy of the customer application Form, letter of payment undertaking issued by St. Mary’s Educational Society, letter addressed by the President of the Society to them, copy of list Governing Body of St. Mary’s Educational Society and copy of invoice dt.04.10.2012 for the month of October, 2012 for the account of St. Mary’s Educational Society.
12 Here it may be pointed out that the opposite parties challenged the very jurisdiction of this Forum on the ground that the provisions in Indian Telegraph Act over ride the provisions in Consumer Acts and especially in view of Section 7B of the special Act the complaint is not maintainable. Here in this regard the learned counsel for opposite parties invited attention of this Forum to a ruling in “ General Manager, Telecom [Appellant] Versus M. Krishnan & another [Respondents]” 2009 STPL [CL] 3185 NC [III [2009] CPJ 71 SC]. Wherein their Lordships of Hon’ble Apex Court held that the special remedy provided for Section 7B over rides the Consumer Protection Act as a special law. In that case the telephone was disconnected by the Department pertaining 1st respondent there in. He filed complaint before District Forum at Kozhikode, Kerala State. The Consumer Forum allowed the complaint and directed to reconnect the telephone connection of the 1st respondent and pay compensation of Rs. 5,000/- with interest @12% p.a. from the date of filing the complaint.
13 Aggrieved by the same the Department filed a writ before the High Court of Kerala challenging the jurisdiction of the Consumer Forum. A Single Judge of the High Court dismissed the writ petition as against which writ appeal was preferred and the full bench of the High Court has dismissed the writ appeal.
14 Aggrieved by the said dismissal the Telegraph Department preferred an appeal and their lordships of the Hon’ble Apex Court allowed the appeal preferred by the Telecom Department following the provisions in the Telegraph Act and held that the special law over rides the general law.
15 A perusal of the above said authority would clearly indicate that dispute pertaining to payment of bills or another connection or disconnection of mobile services are clearly covered under Section 7B of the Indian Telegraph Act which provides for arbitration clause. Hence in these circumstances this Forum has no jurisdiction to entertain the present complaint. Hence this point is answered against the complainant.
16. Point No.2: Another objection raised by the opposite parties is that it is St. Mary’s Educational Society which sought mobile connections for their institution and it is not the personal mobile connections given to the complainant. Here it may be pointed out the opposite parties exhibited Exs. B1 to B5 to prove their contentions. Ex.B1 is copy of customer service agreement where in the complainant is also one of the Signatories clearly shows that agreement is on behalf of St. Mary’s Educational Society. Under original of Ex.B2 the society addressed a letter to the opposite party undertaking to pay the amount for the mobile phones provided to them which also included 98481 60317 which complainant contention is personal one and also another mobile bearing No. 98481 60317, 98481 60650. Ex. B3 would indicate the society requested the opposite parties for surrender of 5 sims except two mobile numbers.
17 Here it is pertinent to note that the complainant at the first instance didn’t choose to deny this version of the opposite party set out in their counter by filing any re-joinder. For that matter even in the chief affidavit of the complainant he did not choose to deny these allegations. Thus in view of the non denial and also in view of Exs. B1 and B2 it is clear that the connections were obtained only on behalf of St. Mary’s Educational Society. Though the opposite parties specifically pleaded non inclusion of society as a party, the complainant did not choose to add society as a party claiming that the connections are personal one. But in view of the above said discussion it has come out the connections were obtained on behalf of the Educational Society. Hence in these circumstances the complaint is to be treated as bad for non joinder of necessary parties. Thus this point is answered against the complaint.
18 Point No.3: In view of the discussions and findings rendered under points No.1 & 2, the complainant is not entitled for any amount on account of deficiency of service. Hence this point is answered accordingly.
19. In the result, the complaint is dismissed in the circumstances without costs.
Dictation taken by the Steno, transcribed by her, corrected and pronounced by us, in open Forum, this the 25th day of March, 2015
SD/-XXXX SD/-XXXXX
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant : Sri Kanikella Raj Kumar
For opposite parties : Sri B. Arun Madhav, Deputy General Manager-Legal
Idea Cellular Ltd., Hyderabad.
DOCUMENTS MARKED
For complainant:-
Ex.A1 Copy of the account pertaining to cell connection showing the activation date
Ex.A2 Copy of the account regarding is cell connection showing the activation date
Ex.A3 Office copy of lawyer’s notice,
Ex.A4 Two postal acknowledgments
Ex.A5 Reply issued by 2nd opposite party.
For opposite parties:
Ex.B1 Copy of the customer application Form
Ex.B2 Letter of payment undertaking issued by St. Mary’s Educational Society
Ex.B3 Letter addressed by the President of the Society to opposite
Parties
Ex.B4 Copy of list Governing Body of St. Mary’s Educational Society
Ex.B5 Copy of invoice dt.04.10.2012 for the month of October, 2012
for the account of St. Mary’s Educational Society.
SD/-XXXX SD/-XXXXX
MEMBER PRESIDENT
