Delhi

South West

CC/124/2015

MR. NITIN GUPTA S/O, SHRI KHUSHI RAM GUPTA - Complainant(s)

Versus

M/S, BHARTI AIRTEL LTD - Opp.Party(s)

09 Jul 2015

ORDER

            CONSUMER DISPUTES REDRESSAL FORUM (S/W)

GOVT. OF N.C.T OF DELHI

LOCAL SHOPPING COMPLEX, SHEIKH SARAI, NEW DELHI-110017

 

NO.DF-VII/124/2015/                                                     Dated :

 

In the matter of :

 

Mr. Nitin Gupta,

S/o Shri Khushi Ram Gupta,

D-39, Chattarpur Enclave,

Near Aggarwal Dharamshala,

New Delhi-110074.                                                                             ….Complainant

 

Versus

 

M/s Bharti Airtel Ltd.,

Bharti Cresent, 1,

Nelson Mandela Road,

Vasant Kunj, Phase-II,

New Delhi-110070.                                                                             ….Opposite Party

 

 

(S.K. SARVARIA, PRESIDENT)

 

O R D E R

 

 

This, complaint is filed by the complainant U/s 12 of the Consumer Protection Act, 1986 (in short Act) regarding alleged traumatic experience faced by the Complainant. In this connection, the Complainant gave first request on 4.9.14 for porting out twice numbers from Vodafone to Airtel due to major network problem. One number belongs to his father i.e., 9811283590 and the second number is of Complainant i.e., 9899038590. As the UPC code it has validity for 15 days only from its generation date, Complainant tried a lot to get Airtel services activated till 18.9.14 but could not succeed due to Vodafone’s objection with regard to contractual obligations. The complainant has also prayed for Rs.60,000/– towards compensation to the Complainant for the mental agony and harassment caused to the Complainant alongwith Rs. 5000/- as litigation charges also in the due course.

 

We have heard the Complainant , and have gone through the relevant provisions of law.

 

In General Manager, Telecom v. M. Krishnan , : 2009(4) R.C.R.(Civil) 8 : 2009(5) Recent Apex Judgments (R.A.J.) 500  : 2009(8) SCC 481 : 2010 AIR (SC) 90 relied upon by learned counsel for the OP the Hon’ble Supreme Court has held:

                 "6-7. 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 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-section (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.

                 8. 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.

9. In Chairman, Thiruvalluvar Transport Corporation v. 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."

 

Section 4 of the Act gives exclusive  privileged to the Central government in respect of Telegraphs, the power to grant licences within India. Section 3 (1AA) defines, in short, the word "Telegraph"  as given below:

 

“ 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”.

The complaint is made in respect of the device which comes within the definition of Telegraph stated before.

 

The term "Telegraph Authority" as defined in Section 3 (6) mean 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. Therefore, the word "Telegraph authority" includes the officers empowered by Director-General of post and Telegraph also. The "Telegraph officer" is defined in Section 3 (2) of the Act, and includes the person employed temporarily or permanently in connection with Telegraph established, maintained or worked by the Central government or by a person licensed under this Act. Therefore, by virtue of this definition of Telegraph officer a person employed permanently or temporarily with licensed person under the Act is also a Telegraph officer. So, by implication, the licensed service providers like the OP would come within the definition of "Telegraph authority" and  the provisions of Section 7B of the Act are applicable between the disputes of said service provider and the person claiming deficiency in service against him, with regard to Telegraph lines or Telegraph, dues, etc.

 

 

M. Krishnan's case was followed  in another case of the OP company titled Jayaprakash, Panjeta  versus Vodafone ESSAR South Ltd and another in the Revision Petition number 2365/2011 decided by Hon’ble National Consumer Disputes Redressal Commission on 30/4/2014 and it was held that the judgement of Hon’ble Supreme Court was binding and the Revision Petition filed against the OP company was dismissed. In Lokesh Parashar versus M/S, Idea CellularLtd the Revision Petition number 3780 of 2011 decided by National Consumer Disputes Redressal  Commission, New  Delhi  on  20/4/2012, the Hon’ble National Consumer Disputes Redressal Commission, while dismissing the revision petition following M. Krishnan's case (supra) has also indicated that in another case of Parkash Verma versus Idea cellular Ltd and another the Revision Petition number 1703 of 2010 was dismissed by it on 21/5/2010 and the Special Leave Petition filed by the petitioner before the Apex Court was dismissed on 1/10/2010 by Hon’ble Supreme Court. Therefore,  M. Krishnan's case (supra), is consistently being followed by Hon’ble National Consumer Disputes Redressal Commission and we are bound to obey the directions and the observations in these cases and are compelled to hold that the present complaint is hit by Section 7B of the Act and we hold that the present complaint is not maintainable.

 

 

In view of the above, the complaint filed by the complainant against the OP is dismissed for want of jurisdiction of this Forum.

 

 

 

 

 

 

 

 

 

 

 

·         One true copy each of this order be sent to the concerned parties by registered post.

 

 

• This order be sent to server (www.confonet.nic.in).
• The file be consigned to the Record Room.

 

 

Order Pronounced on

 

 

 

 

(S.S. SIDHU)                                        (HARSHALI KAUR)                              (S.K.SARVARIA)

  MEMBER                                        MEMBER                                                 PRESIDENT