FA No.482 OF 2009 AGAINST C.C.No.114 OF 2007 DISTRICT FORUM-II, EAST GODAVARI DISTRICT AT RAJAHMUNDRY

Between

Swathantra Hospital Private Limited

Represented by Ganni Kasimbhi W/o.Bhaskar Rao,

46 years, Executive Director,

Swatantra Hospital Private Limited,

Rajahmundry.                                              Appellant/Complainant 

       AND

General Manager,

Telecom District Telephone Exchange,

Rajahmundry.                                        …Respondent/Opposite Party

Counsel for the Appellant                  M/s.D.V.S.S.Somayajulu

Counsel for the Respondent               Mr.K.Mohan   

QUORUM:SRI R.LAKSHMI NARASIMHA RAO, HON’BLE MEMBER

                               AND

      SRI T.ASHOK KUMAR, HON’BLE MEMBER

WEDNESDAY, THE SIXTEENTH DAY OF NOVEMBER,

                     TWO THOUSAND ELEVEN

    Oral Order:(Per Sri R.Lakshmi Narasimha Rao, Hon’ble Member.)

***

1.     The complainant who had lost its case before the District Forum came in this appeal challenging the legality of the order passed by the District Forum on the following grounds:

i)                  The billing for the month of June2007 and July2007 of `66,929/- and `27,089/- in respect of the Telephone Connection Number 24004000 obtained for the personal use of the director under the Plan-9000(business) with unlimited usage, is excessive.

ii)                The bills for the month of June2007 and July2007 do not reflect the actual usage of the broad band internet connection.

2.     The Appellant Hospital obtained broad band internet connection under Plan-9000 (business)for the telephone connection number 2400400 from the respondent for the personal use of its directors. As per the Tariff Plan, unlimited usage is provided except for the upload and download of the items. The respondent issued bills  for the month of June 2007 and July 2007 of `66,929/- and `27,089/- respectively. On enquiry made by the appellant, the respondent informed it that the charges were levied for downloading and uploading of the programmes etc., The appellant requested the respondent to rectify the defect in the bills and the appellant got issued notice on 6-08-2007 which had failed to evoke any response from the respondent for rectifying the amounts mentioned in the bills.

3.     The respondent contended that on the back side of the telephone bill there will be information given regarding the website which would provide the account usage particulars. Enquiry facility is provided with toll free numbers 1957 or 12678 during working hours every day and the appellant can view the usage from time to time sessions wise.  The connectivity of the broadband is based on user ID and password which is unique in the network and no other person can use the account.  Customer user name is bounded to the port and the telephone number with STD code. The respondent had issued reply  dated 25-08-2007.to the notice of the appellant. The respondent informed the appellant that the change of plan cannot be effected in the middle of the month.

4.     The director of the appellant company, Ganni Kasimbhi has filed her affidavit and the documents, ExA1 toA5.The documents filed by the respondent had been marked as ExB1 toB7.

5.     The points for consideration are:

i)  Whether the complaint is maintainable under the provisions of the Consumer Protection Act?

ii)  Whether there is deficiency in service on the part of the respondent in issuing the bills for the months of October and Novemebr,2007 with the amounts for `66,929/- and `27,089/-respectivley?

iii) To what relief?

6.     Many of the facts are not in dispute. There is no disputing the fact that the appellant is a company and it had obtained telephone connection bearing number 2400400 and later broadband connection under the plan-9000(business) with unlimited browsing. The respondent had issued bill  for the month of June 2007 and July 2007 for `66,929/- and `27,089/- in respect of the Telephone Connection Number 24004000. The appellant questioned the correctness of the amount mentioned in the bills by getting issued notice dated 6-08-2007 for which the respondent replied through letter dated 25-08-2007. In his reply, the respondent had denied any mistake in the amount mentioned in the bills. The appellant claims the bills to be with excessive amounts whereas the respondent supports the correctness of the bills in all aspects.

7.     Before entering the discussion as to the correctness of the Bills in question, we have to dwell on the aspect of the maintainability of the complaint. The appellant is a Company and it has obtained the telephone connection as also the broadband connection . The appellant contends that the broad band connection was obtained for the personal use of its directors. In two landmark judgments, the Supreme Court had dealt with the jurisdictional aspect relating to service provided by the service provider under the provisions of the Consumer Protection Act. Both of the judgments had laid down principle prescribing the limits of the jurisdiction exercised by a Consumer Forum.

8.     In “Birla Technologies Ltd vs Neutral Glass and Allied Industries” reported in  2011 NCJ 390 (SC),  it was held that service provided by a service provider for commercial purpose is excluded from the ambit of Section 2(1) of the Consumer Protection Act and in “Telecom Manager vs Krishnan”  the dispute relating to a telephone connection is held  not to be a consumer dispute within the meaning of the provisions of the Consumer Protection Act.

9.     In Birla Technologies Ltd.,  the Hon’ble Supreme Court held that goods purchased and service utilized for commercial purpose do not come under the purview of the provisions of C.P. Act.  Section 2(1)(d) of the Consumer Protection Act excludes the person invoking its jurisdiction on account of the purchase of goods or utilization of service by him for any commercial purpose.

10.    The Supreme Court held that “ in view of the findings of the National Commission that the goods sold by the appellant to the respondent/complainant amounted to goods and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose”. 

11.    In Telecom General Manager’s case the Supreme Court held that:

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-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.

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.

12.    POINTS NO.2 AND 3  In the light of the finding that the complaint is not maintainable before the consumer fora, it is not necessary to discuss these points.

13.    In the result the appeal is dismissed confirming the order of the District Forum.  There shall be no order as to costs.

                                                                            Sd/-

                                                                         MEMBER

                                                                           Sd/-

                                                                        MEMBER

                                                                     Dt.16.11.2011

KMK*