Kerala

StateCommission

A/12/15

IDEA CELLULAR LTD - Complainant(s)

Versus

K.GOPALAN - Opp.Party(s)

T.L.SREE RAM

30 Jun 2012

ORDER

Kerala State Consumer Disputes Redressal Commission
Vazhuthacaud,Thiruvananthapuram
 
First Appeal No. A/12/15
(Arisen out of Order Dated 29/07/2011 in Case No. CC/10/154 of District Pathanamthitta)
 
1. IDEA CELLULAR LTD
MERCY ESTATE,2ND FLOOR,RAVIPURAM,M.G.ROAD
ERNAKULAM
KERALA
...........Appellant(s)
Versus
1. K.GOPALAN
KOLLANTE THEKKETHIL VEEDU,PARAKKODU.P.O.ADOOR
PATHANAMTHITTA
KERALA
...........Respondent(s)
 
BEFORE: 
  SRI.M.K.ABDULLA SONA PRESIDING MEMBER
 
PRESENT:
 
ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

AAPPEAL No. 15/2012 

JUDGMENT DATED. 30/06/2012

 PRESENT

SHRI. M.K. ABDULLA SONA             :  HON. ACTING PRESIDENT

SMT. A. RADHA                                  :  MEMBER

 

APPELLANT

 

Idea Cellular Limited,

Mercy Estate, 2nd Floor, Ravipuram, M.G. Road,

Cochin – 682 015.

                          (Rep. by Adv. T.L. Sreeram)

 

                                    Vs

RESPONDENT

 

1.    K. Gopalan,

      Kollante Thekkethil Veedu, Parakodu P.O.,

     Adoor Village

 

  1. Draksha Communications,

     Court Road, Adoor P.O.

                       

                           

JUDGMENT

SHRI. M.K. ABDULLA SONA : HON. ACTING PRESIDENT

          The appellant is the opposite party prefers this appeal from the order of the CDRF, Pathanamthitta in C.C. No. 154/2010 filed on 12.11.2010and ordered on 29th July, 2011.  The appeal prefers from the order of the Forum below that; directed to issue the call details of the cellular connection, 9961594144 from 18.10.2009,to 25.10.2009 along with compensation of Rs. 2,500/- to the complainant within 15 days from the date of receipt of the order, failing which the complainant is allowed to realize Rs. 5,000/- from the opposite parties along with interest @12% P.A. from today till the realization of the whole amount. The first respondent is the complainant and the second respondent is the second opposite party in the complaint.  The complainant’s case is that on 16.10.09, his mobile card was lossed when it was kept in his pocket while his mobile phone was given for repairing.  Thereafter he dialed to the said number which was answered by somebody who told him that the sim card will be returned to the complainant.  But it was not returned by the holder inspite of the assurance made by him. So he made the complaint to Adoor Police and intimated the loss of the sim  card to the second opposite party.  Later, the second opposite party issued a duplicate sim card to the complainant. Thereafter on 18.10.2009, the complainant gave application to the second opposite party for getting call details of his lost sim card from 18.10.2009  to 25.10.2009.  The second opposite party assured that call details will be received by the complainant within 30days by registered post.  But they have not sofar provide the call details requested by the complainant. While so the complainant approached the second opposite party on 22.9.2010 and enquired about his application for the card details. At that time, the second opposite party had given a mobile number 9847920917 and asked the complainant to make a call to that number for getting call details and accordingly the complainant called to that number, they have not given a proper reply.  But he received a call list on 5.10.2010 from the opposite parties by registered post.  The call details are for the period from 1.9.2010 to 23.9.2010. The said call is not required to the complainant and it is not the requested call details.  The complainant’s requirement is call details from 18.10.2009 to 25.10.2009.  But the opposite parties not sofar giving the call details requested to the complainant.  But the said act of the opposite party is deficiency in service which caused financial loss and mental agony to the complainant.  Hence this complaint for an order directing the opposite parties to issue call details from 18.10.2009 to 25.10.2009 along with compensation of Rs.10,000/- The opposite party appeared and contended that the complaint is not maintainable before the Forum below in the light of the ruling of the Hon’ble Supreme Court in Civil Appeal No. 7687/04. Further the first opposite party denied that the disputed mobile connection is not in the name of his complainant and this opposite party had not received any complaint from the complainant regarding the loss of the sim card.  The opposite parties never issued any disputed sim card to the complainant and they had not received any request from the customer of this mobile number of the card details of October, 2009.  But it was admitted the opposite party have received request for the call detail from the complainant from 18.10.2009 to 25.10.2009 during December, 2009.  Accordingly the opposite party has sent the requested call details on 14.1.2010 by registered post.  It is also submitted that the call details from 1.9.2010 to 22.9.2010 was also given as per the request received from their channel.  According to the first opposite party this complaint is devoid on merit and they have not committed any deficiency in service to the complainant.  With the above contentions the first opposite party prayed for the dismissal of the complaint. 

          2.  In the evidence consisted of the oral testimony of Pw1 and Pw2 and marked Exts. A1 & A2 by the complainant.  No witness was examined and no exhibits marked from the part of the opposite party.  A1 is the call details for the cellular number of the complainant from 1.9.2010 to 23.9.2010 issued by the opposite parties.  A2 is the Petitioner’s Receipt No. 1601/09 dtd.21.6.2009 from the Adoor Police Station to the complainant. The Forum below interpreted all the judgment of the Hon’ble Supreme court of India in a way that the complainant’s grievances can be adjudicated through the arbitration clause provided under the Section 7B of the Indian Telegraph Act 1885.  The Forum below found that the opposite parties failed to prove that they are also entitled to get benefits of the above as per the  said  Supreme court decision and Section 7B of the Indian Telegraph Act 1885.  There is no mention either in the decision of the Hon’ble Supreme Court or Indian Telegraph Act with private service providers like the first opposite party who committed the deficiency in service is also covered in the Ruling and in the Telegraph Act, the Forum bellow also discussed that Consumer Protection Act was passed by the Indian Parliament in the year 1986.  The Indian Telegraph Act was passed on 1885.   As per Section 3 of the Consumer Protection Act., there is  an additional section 3 additional powers to  redress the grievances of the consumers and it is not in derogation of the provisions of another law  for the time being enforce for redressing the grievances of the consumers.

          3.  We heard in detail the appeal.  The main contention placed by the counsel for the appellant regarding the maintainability of the complaint as per the decision of the apex court in the consumer Forum.  He argued the appeal on the grounds of appeal memorandum that the Forum below beyond the jurisdiction and dis obeyed the interpretation of the statute held by the apex court of  India, the Supreme court.  The counsel for the appellant prays for allowing the appeal and also to set aside the impugned order passed by the Forum below.

          4.  This Commission heard in detail and perused the entire evidence adduced by both sides.  There is no evidence adduced by the opposite parties.  But even though the complainant produced the document A4, which is the call details for the cellular number of the complainant on 1.9.2010to 23.9.2010 which is issued by the opposite parties.  It is a cordial rule that any trader or a company if any bound to provide any details which required as per the Section 6(3) of the Consumer Protection Act.  It is the right to consumer information.  In a post paid commission the service providers are usually providing the call details in their bills.  But it is not mentioned about whether this connection is post paid or pre paid?  Whatever may be it is the duty of the opposite party to provide call details to the subscriber.  This Commission is not ready to accept the interpretation of the Forum below regarding the decision of the Hon’ble Supreme court in connection with Section 7B of the Indian Telegraph Act. 1885.  The Forum below found that it is applicable only in the BSNL and not applicable to the private service providers.  It is incorrect, both BSNL and the private cellular service providers are functioning as per the Section 7B of the Indian Telegraph Act. 1885. It is need not mentioned whether it is applicable to the BSNL or to the profit service providers  by the decision of the Supreme Court before came in to existence the BSNL  , Government  The sanction for the private cellular service providers also given by the  ministry of Telecommunication. The  BSNL is a public sector undertaking which established as per the provisions of the companies Act.  Earlier there was a Telecom department under the ministry.

          5.      In the circumstance, the interpretation of the Forum below is incorrect and we have serious hesitation to accept this view of the Forum below.  There is no doubt that the Forum below passed the order without jurisdiction.  The Forum below had taken an attempt to compare the C.P. Act and Indian Telegraph Act in such a way.  But the Forum below or Commission is not having any extra ordinary jurisdiction just like Supreme Court and High court.  It is the duty of the Forum (the fact finding body) to obey the directions of the Hon’ble  High Court and Supreme court .  The order passed by the Forum below is quiet illegal.  This Commission decided to interfere in this impugned order passed by the Forum below.  The Forum below is not a Judicial body.  It is only a quasi-judicial body.

          In the result, the appeal is allowed and set aside the impugned order passed by the Forum below.  The appellant is directed to appoint an arbitrator to redress this dispute as per the Section 7(b) of the Indian Telegraph Act, 1885 as per the direction of the Hon’ble Supreme Court.  The points of the appeal discussed one by one and answered accordingly. 

This commission do so.

                                  M.K. ABDULLA SONA:  ACTING PRESIDENT

 

                                 A. RADHA       :  MEMBER

st

 

 

 

 
 
[ SRI.M.K.ABDULLA SONA]
PRESIDING MEMBER

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