Delhi

New Delhi

CC/303/2014

Pankaj Hirani - Complainant(s)

Versus

M/S. Reliance Communications Ltd - Opp.Party(s)

07 Apr 2017

ORDER

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI),

 ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

                                       NEW DELHI-110001

 

Case No.C.C./303/2014                                Dated:

 

In the matter of:

PANKAJ HIRANI

S/o Mr. Arjundas,

R/o Building No. S-9, Flat No. J                          

Parampuri, Uttam Nagar,

New Delhi-110059

Office A-8, Green Park (Main)

New Delhi-110016.                                             ……..COMPLAINANT

 

 

      

VERSUS

 

 

M/S RELIANCE COMMUNICATION LTD.

Reliance Centre

Maharaja Ranjit Singh Marg,

New Delhi-110002                                             ...OPPOSITE PARTY

 

 

 

 

 

 

MEMBER: NIPUR CHANDNA

ORDER

       The case of the complainant is that he had received an offer of the OP vide e-mail dated 30/11/13 wherein I-Phone 5s 16 GB was offered at a price of Rs. 2999/- per month along with unlimited voice minutes STD and Local, 3G internet, unlimited Roaming and SMS (3000 SMS per month) for 24 months.

       It is stated by the complainant that Mr. Siddharth Anand and Mr. Sanjeev Jain officials of OP also agreed for porting of existing Airtel connection of complainant to Reliance Network and then activation in Rs.2,999/- I Phone 5s Unlimited Plan on his number i.e. 91-9958665797.

       It is alleged by the complainant that on the assurance of porting by the OP complainant purchased I-Phone 5s 16 GB Gold Model RSN/ESN NO. 358030057911294 and payment was made through Standard Chartered Credit Card  to M/s Reliance Communication Ltd. i.e. OP on 22/11/13, which was duly acknowledged by OP.  It it stated by the complainant that as per the plan Bank will make the payment to OP on behalf of complainant and will charge Rs. 2,999/- per month for 24 months from the complainant for the alleged plan.

       It is further alleged by the complainant that OP had given his trial sim card after 7 days from the date of purchase to check the network availability in his office, but as he installed the sim card, he found that no network of OP is available in his office. He immediately lodge the complaint with the OP vide phone as well  through SMS dated 29/11/13, but received no response from OP.  It is alleged by the complainant that OP had charged for plan on high charges i.e. Rs. 3094.77 rather the offer was  given at Rs. 2,999/-.

       The complainant wrote various e-mails regarding the high charges of the plan as well as non-availability of network, but nothing has been done by OP to resolved the issue.      

       It is further alleged by the complainant that vide his e-mail dated 13/01/14 sent to the office of OP, he called upon the OP to terminate the deal and refund the money back, on this e-mail officials of OP responded and assured that on 17/1/14 network booster will be installed in his premises, but the same was installed on 22/01/14. Again the Airtel Connection was not ported to Reliance network and assured plan was not given to him.

It is alleged by the complainant that despite several mails, letters and reminders. OP failed to provide the plan to him and as such he sent Legal notice to the officials of OP.  After receiving legal notice, OP assured the complainant that cancellation of deal and refund of amount will be done soon.  OP fails to fulfill its promise. Complainant therefore approach this Forum for the redresaal of his grievance.

Complainant has been initially contested by OP. WS was filed by OP wherein it is stated that the present complaint is not maintainable before this Forum in view of the judgment of Apex court titled as General Manger, Telecome Vs. M. Krishnan bearing Civil Appeal No. 7687/2004 dated 1/9/2009.

In the rejoinder complainant has relied upon the circular dated 30/01/2014 issued by Govt. of India, Ministry of Communication and IT Department of Tele Communication and circular dated 07/03/2014 issued by Ministry of Consumer Affairs, Food and Public Distribution Department of Consumer Affairs.

Both the parties have filed the evidence by way of affidavit.

We have heard arguments in advanced at the bar and have persued the record.

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 network plan offered at a price of Rs. 2999/- per month which include unlimited voice minutes STD and Local, 3G internet, unlimited Roaming and SMS (3000 SMS per month) for 24 months of mobile phone services,  which comes within the definition of Telegraph.

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 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.

 

Much reliance is placed by the complainant upon the circular dated 30/01/2014 issued by Govt. of India, Ministry of Communication and IT Department of Tele Communication and circular dated 07/03/2014 issued by Ministry of Consumer Affairs, Food and Public Distribution Department of Consumer Affairs, but in our view these circular issued by the concerned Department of Govt. of India cannot over ride the view taken by Hon’ble Supreme Court in M. Krishanan case (Supra) which is consistently being followed by Hon’ble Nation Commission. The law interpreted by Hon’ble Supreme Court can be reviewed by Hon’ble Supreme Court it self and not by Departmental Circular. Therefore, the two circulars dated 30/01/2014  and 07/03/2014 do not help complainant.

 

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

 

                                       (NIPUR CHANDNA)                                  (H M VYAS)

                                                   MEMBER                                               MEMBER