FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER
This is an application U/s.12 of the C.P. Act, 1986.
The petitioner is an IDAS Officer serving Government of India & presently posted in Lebanon on deputation in the United Nation as a representative of Govt. of India. Prior to departure he visited the Vodafone Customer Care Centre at Park Street, Kolkata and requested for the best plan suitable to him for ISD Roaming in Labanon for his mobile no. 9674970674. The customer care executive of Vodafone advised the petitioner to opt for Super 249N Plan with the following tariffs :-
- Outgoing call to India @ Rs.58/- per minute
- Incoming call to India @ Rs.30/- per minute
- Local Call in Lebanon @ Rs. 30/- per minute
- Outgoing SMS to India from Lebanon @ Rs.15/- per SMS.
- Incoming SMS as free of charges irrespective of any location. The customer care executive also affirmed that besides the above charges there is no other / hidden charges. They also confirmed that they have exclusive tie up with local Lebanon based company as an International Roaming Partner and as such there will be no connectivity problem in Lebanon.
The petitioner accordingly preferred the Super 249 N Plan on good faith and got it activated on 06.04.2018.
But on reaching Lebanon he found that there was no connectivity in his mobile within the Lebanon city. Only when he is visiting the outskirt of Lebanon bordering Israel, his mobile got connected with one Israeli Company named Israel Partnlsrael for incoming international roaming calls and another Israeli Company called Israel – cellcIsrael for outgoing international roaming calls and outgoing SMS ( as evident from itemized calls in the Bill for the period from 21.04.2018 to 20.05.2018.
While in the outskirt of Lebanon bordering Israel for incoming calls the rate charged was @ Rs.70/- perminute instead of @ Rs.30/- per minute as informed to him by Customer Care Executive of Vodafone .
For outgoing calls the rate charged was @ Rs.140/- per minute instead of @ Rs.58/- per minute as informed earlier. The petitioner was also charged for missed calls which fact was not disclosed to the petitioner by the Customer Care Executive of Vodafone. As a result three inflated bills were charged amounting to Rs.2158.73, Rs.4121.74 and Rs.1909.24. The petitioner was agreed to register himself for the International Roaming Pack scheme under Super 249N plan of Vodafone with the expectation that there would be an exclusive tie-up between Vodafone and the local Lebanon based company. As a result there would be no problem of connectivity at Lebanon. The petitioner had already paid the Bill of Rs.2158.73 for the period from 06.04.2018 to 20.04.2018. But outgoing service from the mobile of the complainant has been barred by Vodafone on 22.05.2018. The petitioner sent mail to the call centre on 27.05.2018 for charging inflated bills as already mentioned. But the t customer care executive of the OP informed vide mail that the outgoing service has been barred on 22.05.2018 due to credit limit crossed and requested to pay Rs.622/- to activate outgoing service. Being dissatisfied with the attitude of the customer care the complainant sent mail to the nodal officer stating all the facts. In reply one Sri Arindam Sharma of Vodafone told that in Lebanon the roaming partner with whom they have the tie up is Libencell/MTC and requested him to contact with them to enjoy the service. It was also mentioned in the said reply that there was no billing discrepancy. The petitioner again took up the issue with the Vice-President, Customer service, Vodafone East Limited. The mobile no. 9674970674 was the official mobile no. and barring of the outgoing service created various problems to discharge his official duties entrusted by the Govt. of India and also there was huge problem in the communication with his family members as well as the bank authority where the said mobile no. was registered. The faulty bill issued to him is also a reason for exceeding the credit limit. However the grievance details was again forwarded to Sri C.P. Joshi Appellate Authority Officer of Vodafone to seek redressal. Sri Joshi had informed that in Lebanon the roaming partner with whom they had tied up is Libancell/ MTC.But, the reality is Lebanese Govt. has terminated the BOT Contract with the Libancell following a dispute which is pending in the International Arbitration Court in Paris. The contract stands terminated with effect from 01.09.2002 which fact is available in public domain. As such Libancell is presently not operational in Lebanon and exercise for manual latching onto the network of Libancell to get the desired connection is a false and concocted story. After a considering period one colleague of Mr. CP Joshi in India took up the matter with the concerned authorities of Vodafone and accepted the views of the petitioner and told that Vodafone is in coordination with another local network partner to provide connectivity to the petitioner. Even after the lapse of one and half month from the last communication from the Vodafone neither the complainant was further informed nor he has got any alternate network provider. The cause of action arose on 22.05.2018. Being aggrieved and dissatisfied by the conduct of the OP the petitioner has approached the Commission for justice and relief as mentioned in the complaint petition.
The OPs. no.1 to 4 have contested the case by filing WV contending inter alia that the complaint petition is not maintainable in law for misjoinder and non-joinder of necessary parties. Sunil Sood, Managing Director and CEO, Vodafone India limited is impleaded as OP no.4 though he has no contractual relation with the complainant. For information, Vodafone East Limited stood amalgamated with Vodafone Services limited through statutory process. Thereafter the Vodafone Mobile Services Limited got amalgamated with Idea Cellular Limited w.e.f. 31.08.2018 as per provision of the Company Act,2013. The name of the transferee company that i.e. Idea Cellular Ltd. has been changed to Vodafone Idea Ltd. w.e.f. 31.08.2018. The brand name Vodafone Idea in currently Kolkata Service area is operated by Vodafone Idea Ltd.
As per submission of the OP the complaint is not maintainable in law or in facts. Moreover, this commission has no jurisdiction in view of Hon’ble Apex Court Judgment passed in the case of General Manager, Telecom Vs. M Krishnan and Anr. Vide Civil Appeal no.7687 of 2004 Reported in (2009) 8 Supreme Court cases 481 and further reiterated in the case of Prakash Verma vs. Idea Cellular Ltd. and Anr. Passed in SLP(Civil) No(s). 24577 of 2010 upheld the judgment of Hon’ble Supreme Court passed in the General Manager, Telecom mentioned above to entertain, try and dispose of the said complaint.
The Judgment in Civil Appeal No. 7687 of 2004 between General Manager, Telecom vs M. Krishnan & anr. which speaks,
‘’In our opinion when there is a special remedy provided in section 7B of the Indian Telegraph Act regarding disputes in respect of Telephone Bills, then the remedy under the Consumer Protection Act is by implication barred.
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.’’ The Ops. further submit that complaint if at all tenable is to be placed before the statutory arbitrator who is to be appointed U/s 7 B of the Indian Telegraph Act or to be appropriate forum under the Telecom Consumers Complaint Redressal Regulation, 2012. Which even provides for appellate authority U/s 9 of the said Regulation.
The Hon’ble NCDRC in Judgment under Sr. Post Master, GPO vs Akhil Bharatiya Grahak Panchayat cited in (1995) 2 CPJ 230 (NC) made the following observation
“ The learned Counsel for the Petitioner rightly argued that Section 3 of the Consumer Protection Act only provides additional remedy for the redressal of a grievances but if the remedy is barred under any other law, no relief can be granted under the Act.” Here in the instant case Section 6 of the Indian Post Act prevails over the Consumer Protection Act.
The OPs. further submit that redressal mechanism has been prescribed under the Special Act Telecom Regulatory Authority of India(TRAI). The TRAI Act is the legislation w.e.f. 20.02.1997 by an Act of Parliament, to regulate Telecom Services, including fixation/revision of tariffs for Telecom Services which were earlier vested in the Central Govt. The Telecom Consumer Complaint Redressal Regulation,2012 is formulated as per Section 36 and 11(1) of the Telecom Regulatory Authority of India Act, 1997 by the TRAI which holds good in such type of Special discords. Section 19 of this Regulation is in perimateria with Section 3 of the CP Act which only provides additional remedy.
Hence, the Jurisdiction of the Consumer Forum in handling the Cases against the Telecom Service Provider had been laid down by the Hon’ble Supreme Court and Hon’ble National and State Forum and the same is being followed since 2009 till date. Moreover, the Super 249 Plan is an unlimited Local and STD Mins + 1GB Deta free Plan and is applicable from home network only. This plan does not extend to the benefits of the International Roaming. The said fact has been communicated to the Complainant through mail dated 08.06.2018. The OPs. vide mail dated-26.05.2018 informed the Complainant that outgoing Service has been barred on 22.05.2018 due to Credit limit crossed and requested to pay Rupees 622.00/- to activate outgoing Service which was not duly responded by the Complainant. Since the super 249 N plan does not provide International Roaming facilities the rate quoted by the Complainant has no relation with super 249 N plan.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OPs are deficient in rendering proper service to the Complainant?
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the complainant is entitled to get relief or reliefs as prayed for?
4) Whether this Commission has jurisdiction to entertain the Complaint petition
Decision with Reasons
Point Nos. 1 to 4 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion.
We have travelled over the documents placed on record. Both parties have submitted their evidence on affidavit and also their BNA The complainant has filed reply to the questionnaire set forth by the OPs..
While perusing the records it is observed that the complainant Mr. Hanuman Yadav was having a complaint against the OP Vodafone Company for not providing proper service under his mobile no. 9674970674 at Lebanon inspite of having the Super 249 N Plan of the OPs. The complainant has repeatedly reiterated that the Super 249 N Plan offered by the officials of the OPs was for International Roaming facilities also but could not produce any document to that effect. Moreover, the OPs have submitted document vide email dated-08.06.2018 stating therein that super 249 N plan does not offer any IR call rate/ usage benefits. They have stated in the said mail that International Roaming Service @Rs.149/- is active on the said Mobile no. However since no IR pack is active, the usages have been charged as per standard rates in the April 2018 and May 2018 bills. The OPs vide mail dated-26.05.2018 made it clear that the outgoing Service has been barred w.e.f. 22.05.2018 due to credit limit crossed and requested to pay Rs.622/- to activate outgoing Service which was however not paid by the complainant.
The OPs have several times submitted that the District Commission has no jurisdiction to deal with the complaint as per the order of the Hon’ble Supreme Court vide Judgment dated 01.09.2009 in Civil Appeal No. 7687 of 2004 in the matter of General Manager, Telecom Vs. M.Krishnan & Anr. where the specific direction of the Hon’ble Apex Court is ‘’When there is a special remedy provided in Section 7B of the Indian Telegraph Act. regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred.
As per section 7B of the Indian Telegraph Act 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.
The Hon’ble Apex Court in the said judgment has further mentioned that ‘’It is well settled that the special Law overrides the General Law.’’
The Hon’ble NCDRC has opined in the matter of senior Post Master, GPO Vs. AkhilBharitya Grahak Panchayat cited in (1995) 2 CPJ 230 (NC) that ‘’Consumer Protection Act provides additional remedy for the redressal of a grievance but if the remedy is barred under any other Law, no relief can be granted under the Act.’’ Here in the instant Case Indian Post Act prevails over the Consumer Protection Act. Since the findings, observations and directions of the Hon’ble Supreme Court are the Law of the Land, the above mentioned judgment of the Hon’ble Court is very much binding on us. Accordingly, DCDRC has no authority and jurisdiction to go in the subject matter of any complaint relating to telecom service. In view of the above we are unable to adjudicate the impugned complaint under CC No. 436 of 2018.
All the points under determination are answered accordingly.
In the result, the Consumer Complaint fails.
Hence,
Ordered
That the Complaint Case is dismissed on contest against the OPs. without any cost .
The Judgment be uploaded to the website of the Commission forthwith for perusal of the parties.
