Delhi

New Delhi

CC/323/2016

Jagdish Singh Chauhan - Complainant(s)

Versus

M/S. Idea Cellular Ltd. - Opp.Party(s)

30 Nov 2017

ORDER

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI), ‘M’ BLOCK, 1^STFLOOR,

VIKAS BHAWAN, I.P.ESTATE,

NEW DELHI-110002.

 

 

Case No.TC/323/16                                Dated:

 

 In the matter of:-

Jagdish Singh Chauhan

A-402, Sector 10/33,

Dwarka, New Delhi- 110075.

 

                                                …..Complainant

 

Versus

 

Idea Cellular Ltd.

Corporate Affairs,

1005-1006, Kailash Building,

26, Kasturba Gandhi Marg,

New Delhi.

 

.…… Opposite Parties

PRESIDENT: S.K. SARVARIA

 

                                                     ORDER

The gist of the complaint is that the complainant was a prepaid user of Idea Mobile bearing NO. 9990983853. He used to pay for full talk time in advance for making calls and sending SMS, and he never opted for use of any services and had not consented OP for deducting amount from his prepaid deposit account for any other services except for making calls and sending SMS. It is alleged by the complainant that on 29.07.2010 at 16.25 p.m. he received the SMS IZ- 55456 saying that your subscription to IDEA VOICE CHAT MONTHLY is renewed @ Rs. 30 for one month, he asked OP as to how and why the alleged service was activated and the payment was also deducted without his consent, OP assured that dispute will be resolved soon. It is alleged by the complainant that despite assurance, OP again charged Rs. 30/- against IDEA VOICE CHAT MONTHLY. It is further alleged by the complainant that despite assurance when the OP again deducted the amount from his prepaid account, he sent and e.mail dt. 2/09/2010 and asked the OP to deposit deducted amount in prepaid recharging account with admissible interest on or before 0.09.2010 failing which treat it a notice u/s 80 CPC. In its reply to the e.mail, OP assured complainant that said services has been deactivated as per request, but denied to refund the amount deducted. It is alleged by the complainant that he sent legal notice dt. 18.09.2010 upon OP, asking it to give the reason regarding as to why the above Idea Monthly chat was activated without his consent, whether the chat services are used by him, and requested the OP to redeposit the deducted amount with admissible interest on or before 23.09.2010. It is further alleged by the complainant that vide notice dated 03.10.10, he intimated the OP that instead of refunding the previous amount, further amount was deducted from his prepaid account on account of Idea voice Chat, despite giving assurance by it regarding the deactivation of the services with effect from 02.09.2010. It is alleged by the complainant that till the deactivation request is considered, the staff and agent of the OP again renewed the so called services without his request and amount continued to be deducted from his prepaid account without his fault. This act of amounts to deficiency in services, hence, this complaint.  

Complaint has been contested by OP. In its Written Statement, OP had taken the preliminary objection that the present dispute raised by complainant is with respect to billing issue as well as for the value added services, hence, not maintainable before this Forum and prayed for the dismissal of the complaint.

The complainant has filed rejoinder affirming the content of complaint & denying all allegations & contentions of the OP. Both the parties have filed their respective evidence by way of affidavits and also the written arguments.

We have given due consideration to the material placed before us and the arguments of both the parties.

The entire issue involved in the complaint case is regarding non-deactivation of the Idea Voice Chat Services. The OP has relied upon the judgment dated 01/09/2009 of Hon’ble Supreme Court in the case of General Manager telecom V/s M. Krishan & another.

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 Idea Voice Chat i.e. value added services 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 titled Jayaprakash, Panjeta versus Vodafone ESSAR South Ltd and another in the Revision Petition No. 2365/2011 decided by Hon’ble National Consumer Disputes Redressal Commission on 30/4/2014 and it was held that the judgment 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 Cellular Ltd the Revision Petition number 3780 of 2011 decided by Hon’ble 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 so are compelled to hold that the present complaint is hit by Section 7B of the Telegraph Act. `

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 post.

This order be sent to server (www.confonet.nic.in ). 

The file be consigned to the Record Room.

 

Order Pronounced on                              .

 

 

(S K SARVARIA)

 PRESIDENT

 

                                                     (H M VYAS)                                     (NIPUR CHANDNA)

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