D.o.F:27/08/09 D.o.O:14/05/2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC.198/09 Dated this, the 14th day of May 2010. PRESENT: SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SYAMALADEVI : MEMBER Madanan.T.V, R/at Mutticharal, Eriya PO, Kasaragod : Complainant (in person) 1.The Officer in charge Vodafone Essar Cellular Ltd.1046 Avanashi Road, Coimbatore.641018. 2. Manager, Vodafone Essar Cellular Ltd.1046 : Opposite parties Shanmugham Road, Ernakulam. (Adv.M.Ramaesh, Hosdurg) ORDER SRI.K.T.SIDHIQ : PRESIDENT Complaint in short is as follows: Complainant Madanan availed a Hutch Mobile connection now taken over by opposite parties on 2/7/07. Complainant deposited Rs.500/- as caution deposit for availing the connection. In Dec. 2008 and Jan 2009 he found some discrepancies with regard to tabulation in the monthly bill. Though he made a complaint with Vodafone service provider at Kanhangad, his complaint remained unattended. Apart from that the opposite parties collected Rs. 50/- by way late payment charges on 9/2/09 though as per the bill issued, he was given time up to 10/2/2009 for payment of bill without late payment charges. Since he noted an anomaly in the bill in dispute, he made only part payment and requested time for payment of balance after settling above said discrepancy. But ignoring his request the connection was terminated by opposite parties on 15/2/2009. Feeling aggrieved by this act the complainant filed this complaint seeking proper relief. 2. As per the version filed by Vodafone company the complaint is not maintainable in view of the Central Govt. directions conferring the status of Telegraph Authority on the opposite party. Apart from that the issue as to the maintainability of the complaint with regard to disputes in bills connection etc before the Forum has been decided conclusively by the Hon’ble Supreme Court of India and held that the complaint is not maintainable. Moreover the complainant had remitted only part payment. In fact part payment according to opposite parties is not tantamount to full payment. Hence he cannot be treated as eligible for reconnection of mobile connection. In the light of this, cheating and falsification of bills as alleged by the complainant are false. There is no fraudulent activity by the company. The complaint is frivolous and vexatious and liable to be dismissed with compensation and cost. 3. Complainant filed proof affidavit in support of his case. He is cross-examined by counsel for opposite party. Exts.A1 to A8 are marked. Opposite party did not adduce any evidence. 4.The important points to be considered in this complaint are - Whether the complaint is maintainable before the Fora?
- Whether there is any deficiency in service on the part of opposite parties?
- What order as to relief and costs?
5. Point No.1: The learned counsel for opposite party Sri.Ramesh relying on the decision of the Hon’ble Apex court in the case of General Manager BSNL vs. M.Krishnan and another in Civil Appeal No. 7687/2004 has tried to maintain that the complaint is not maintainable in view of the Arbitration clause provided in the Telegraph Act 1885. In the said decision the Hon”ble Apex court has held that in view of the special remedy provided in Sec. 7(B) of the Indian Telegraph Act 1885 regarding disputes in respect of telephone bills, the remedy under the Consumer Protection Act is by implementation barred. But we are unable to accept the said contention of the learned counsel for opposite parties. Firstly, as per Sec. 7 (B) of the Indian Telegraph Act 1885, the Central Govt. is the authority to appoint an arbitrator to settle the dispute between a private telecom service provider and the subscriber. During this period of Globalization, the Central government has adopted the policies of privatization and liberalization whereby the control of the government on various institutions are curtailed, liberated and privitasied. So we don’t think that the Central government had any business and interest in the settlement of disputes between a private telecom service provider and an individual consumer and therefore it is clear that the said provision Sec.7B of the Indian Telegraph Act is applicable only to the Central Govt. owned/ managed and controlled telecom service providers. 6. Secondly, the constitution of TRAI Act is another reason for not accepting the contention of the learned counsel for opposite party The TRAI Act 1997 amended in the year 2000 is a special act aimed to provide for the establishment of the TRAI (Telecom Regulatory Authority of India) and TDSAT (Telecom Disputes Settlement Appellate Tribunal) to regulate the telecommunication services, adjudicate the disputes, disposal of appeals and to protect the interests of service providers and consumers of the telecom sector. So when compared to consumer Protection Act 1986 and Indian Telegraph Act 1885 TRAI Act is a new and special act enacted to protect the interests of service providers as well as the consumers of Telecom sector. Sec.11 of the Act deals with the functions of TRAI and Sec.12 describes it’s powers to call for information, conduct investigations, etc Sec.14, deals with the establishment of TDSAT (Telecom Disputes Settlement Appellate Tribunal) to adjudicate any dispute between a licensor and licensee, between 2 or more service providers between a service provider and a group of consumers 7. Therefore, after the constitution of TDSAT all the disputes relating to the telecom sector shall be adjudicated before the TDSAT including the dispute between a telecom service provider and a group of consumers. But as per the proviso clause in Sec.14 TRAI recognizes the jurisdiction of the Consumer Fora constituted under Sec.9 the Consumer Protection Act with respect to the settlement of disputes between an individual consumer and a telecom service provider. In view of the above, we hold that Consumer Fora constituted under the Consumer Protection Act has got jurisdiction to try the complaints filed by individual consumers against telecom service providers. Hence, this point is answered against the opposite parties. 8. Point Nos. 2&3: The specific case of complainant Madhanan is that the opposite parties were not clarified the anomalies shown in the bills and they never attended his complaint made to different authorities of the opposite parties,instead they were go on issuing bills and abruptly disconnected his connection without redressing his grievances. One of specific case of complainant is that opposite parties collected Rs.50/- from him by way of late payment charges on 9/2/2009 whereas he was provided time to pay bill upto 10/2/2009 without any late payment charges. The opposite parties are quite silent about the collection of these charges. This is preposterous, illegal and unethical. It cannot be justifiable on any ground. Though the amount thereby collected is only 50 rupees that may be trivial as far as the opposite parties are concerned. But the anguish of the complainant is that instead of redressing his complaint the opposite parties abruptly disconnected his mobile connection. We find deficiency in service on the part of opposite parties in this regard. The opposite parties are therefore liable to compensate complainant on account of the loss, hardships and mental agony caused to him. Hence the complaint is allowed, the opposite parties are directed to refund the security deposit of Rs.500/- remitted by complainant together with a compensation of Rs.5000/- and cost of Rs.2000/-. Time for compliance is limited to 30 days from the date of receipt of copy of order. Failing which opposite parties shall further pay interest @12% per annum for Rs.5500/- from the date of complaint till payment. MEMBER MEMBER PRESIDENT Exts: A1- 12/3/09-Copy of bill A2-9/2/09- copy of paid bill A3- copy of receipt A4- copy of lawyer notice A5-copy of Acknowledgment A6-copy of lawyer notice from 2nd OP A7-copy of Reply notice to 2nd OP A8-copy of Receipt of the reply notice PW1- Madanan.T.V- complainant MEMBER MEMBER PRESIDENT eva
| | HONORABLE P.P.Shymaladevi, Member | HONORABLE K.T.Sidhiq, PRESIDENT | HONORABLE P.Ramadevi, Member | | 
