This revision is directed against the order of the State Commission Delhi dated 12.02.2015 in First Appeal No.1045/2015.

2.         Briefly stated, the facts relevant for the disposal of the revision petition are that petitioner filed consumer complaint alleging that in March 2003, he was approached by the representatives of the opposite party Ms. Bharti Airtel Limited.  They persuaded him to get post paid mobile connection of the opposite party company and he was assured that in that event he would be  able to port his mobile no.9711001376 from the earlier provider “Idea Cellular” to “Airtel”.  The complainant, therefore, applied for airtel connection subject to portability of the number and completed the necessary formalities including deposit of Rs.1000/- as security.  The opposite party provided the complainant with airtel sim card no. 8991101202295575031h-2 and assured him that the sim card would start working within few hours after blocking of Idea Service Provider’s card.  That on 29.03.2013, Idea Cellular deactivated the connection but the sim card issued by the opposite was not activated.  The complainant contacted airtel customer care service on several occasions but to no avail.  According to the complainant, he is a professional and because of non availability of his mobile phone, he suffered heavy professional and economic loss due to lack of connectivity.  The complainant served a legal notice dated 03.04.2013 but the opposite party failed to activate his connection with number portability.   Claiming this to be deficiency in service, the petitioner filed consumer complaint seeking compensation of Rs.1,00,000/- towards harassment, mental agony and inconvenience.

3.         The opposite party on being served with the notice filed application seeking dismissal of consumer complaint as not maintainable in view of judgment of Supreme Court in the matter of General Manager, Telecom Vs. M Krishnan and Another in Civil Appeal No. 7687 of 2004 decided on 01.09.2009.

4.         The District Forum after hearing the parties and relying upon the judgment of the Supreme Court in M.Krishnan’s case, allowed the application and dismissed the complaint on ground of maintainability.

5.         Aggrieved by the order of the District Forum, the complainant preferred appeal before the State Commission Delhi.  The State Commission on consideration of record and submissions made on behalf of the complainant dismissed the appeal.  Being aggrieved, the petitioner has approached this Commission in revision.

6.         Respondent despite of service of notice of revision petition opted not to appear.  Therefore, we have heard ex parte arguments in this case.

7.         Learned counsel for the petitioner has contended that orders of the Fora below are based upon incorrect reading of Section 7 (B) of Indian Telegraph Act, 1885 and the judgment of the Supreme Court in the matter of General Manager, Telecom Vs. M Krishnan & Another (2009) 8 SCC 481.

8.         Hon’ble Supreme Court in the matter of G.M. Telecom vs. M. Krishnan & Anr. (2009) 8 SCC 481 considered Section 7 (B) of the Indian Telegraph Act and observed as under:

“In our opinion when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred. Section 7-B of the Telegraph Act reads as under:-

"S. 7B Arbitration of Disputes :-

(1) Except as otherwise expressly provided in  3 this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person or 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 specifically for the determination of that dispute or generally for the determination of disputes under this Section.

(2) The award of the arbitrator appointed under sub-s. (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court."

Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules.

It is well settled that the special law overrides the general law. Hence, in our opinion the High Court was not correct in its approach.  4

In Chairman, Thiruvalluvar Transport Corporation Vs. Consumer Protection Council (1995) 2 SCC 479 it was held that the National Commission has no jurisdiction to adjudicate upon claims for compensation arising out of motor vehicles accidents. We agree with the view taken in the aforesaid judgment.”

9.         On reading of the above, it is clear that the view taken by the Supreme Court is that since Section 7 (B) of the Telegraph Act provides a special remedy, the remedy under the Consumer Protection Act is barred by implication. On perusal of Section 7 (B) reproduced in the order of the Supreme Court we find that the statute provided that in case of a dispute concerning the telegraph line, appliance or apparatus between the telegraph authority and the person for whose benefit the line, appliance or apparatus is provided, the dispute shall be decided by arbitration. Now the question is whether the dispute raised by the petitioner in the consumer complaint falls within the ambit of the dispute referred to in Section 7 (B) of the Telegraph Act. On bare reading of the complaint it is clear that the dispute raised by the petitioner is not a dispute regarding any telegraph line, appliance or apparatus but it is pure and simple dispute of deficiency in service on the part of the opposite party i.e. failure to activate the connection despite of the fact that the opposite party has received consideration for the connection with the promise of portability of the number issued by the previous service provider. The judgment of the Supreme Court in M Krishnan’s case is not applicable to the facts of this case. The Fora below have failed to appreciate this aspect of the matter. Therefore, the impugned orders cannot be sustained.

10.       In view of the discussion above, we allow the revision petition, set aside the orders of the Fora below and remand the matter back to the District Forum to decide the consumer complaint on merits after giving opportunity to the opposite party to file written statement in response to the complaint.

11.       Petitioner to appear before the District Forum on 16.5.2017.