Dt. 07.08.2015

JAGANNATH BAG, MEMBER

          This Revision Petition has been filed against order No.12 dated 08.08.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit II in CC No. 55 of 2014 , whereby the application of the OP challenging the maintainability of the complaint petition has been rejected.

          The Complainant’s case, in brief, is as follows:

          The Complainant purchased a TATA Docomo 3G Photon Connection, being No. 9230094852 on payment of a sum of Rs. 1800/- . He was verbally assured that the plan of Rs. 500/- per month with unlimited download usages has been provided, but the promised plan was not actually providedThough a complaint about non-activation of the plan was sent, no one attended the complaint. On 14.04.12 he sent a mail to Nodal Office of TATA Docomo, Kolkata and requested them to refund the money which he paid on 17.03.2012. In a mail the Customer Care Department on 16.04.12 informed that the service connection is barred from 05.04.12 due to high usage. The Complainant was asked to pay a sum of Rs. 745/- to enjoy uninterrupted service. On 09.08.2012 the Complainant received a notice stating that the complainant defaulted in making payment of Rs.3,111/- up to August 9 , 2012. On 12.10.12 the Complainant sent a reply to the notice of OPNo.1 dated 09.08.12 asking inter alia to refund Rs. 1800/- to the Complainant. He made several visits to the TATA Docomo Customer Care Service Manager , Kolkata and also OP No. 2 . Thereafter, on 08.04.13 he met Service Manager, Nodal office, Kolkata and showed all relevant papers and also submitted a letter with a request to take necessary step to refund the money. But, no action has been taken by the OPs. Accordingly, a complaint has been filed before the Ld. Forum below  with prayer for direction upon the OPs to refund the sum of Rs.1800/- with interest @ 10% p.a. from the date of purchase of the 3G Photon connection till realization of the same and compensation of Rs. 50,000/- for harassment , mental agony etc, apart from cost of litigation.

          The OP filed a petition challenging the maintainability of the complaint which was heard by the Ld. Forum below along with the written objection filed by the Complainant. After hearing of both parties and upon perusal of materials on record, Ld. Forum below observed that OP referred to Section 7B of the Indian Telegraph Act according to which an arbitrator would settle any dispute regarding telephone matters. Ld. Forum observed that the dispute in hand was not between a consumer and the telegraph authority. Further, the OP TATA Tele Services Ltd. is to be guided by the Telecom Regulatory Authority Act of India of 1997 and as per provision of Section 14 of the Act complaint of an individual consumer is maintainable before a Consumer Disputes Redressal Forum. The maintainability petition was rejected with a cost of Rs. 3,000/- payable to the Complainant.

          Being aggrieved by order of the Ld. Forum below, the revisionist has come up with the prayer for direction to set aside the impugned order.

          Ld. Advocate appearing for the revisionist submitted that as per Section 7B of the Indian Telegraph Act, any dispute relating to telephone matter is to be settled through arbitration proceedings which has been categorically mentioned by the Hon’ble Apex Court in General Manager , Telecom vs- M. Krishnan and another. . Ld. Forum’s order suffers from legal infirmity and be set aside.

          Ld. Advocate appearing for the OP/Complainant submitted that as per section 7B of the Indian Telegraph Act if there is any dispute in regard to Telephone bills/telephone lines/ device  between an individual customer and the Telegraph  Authority, arbitration process may be resorted to, but in the present case , the service provider TATA Tele Services Ltd. has not been declared as the Telephone Authority by any Govt. notification or circular. Hence, Section 7B of the Indian Telegraph Act  is not attracted. Ld. Forum below has rightly observed that Section 3 of the Consumer Protection Act is very much applicable and the complaint is maintainable for adjudication by the Consumer Forum .The impugned order deserves to be upheld.

                                 Decision  with Reasons

          We have  gone through the revision petition together with copies of the impugned order , the petition of complaint , the application challenging maintainability of the complaint case among other documents.

          The point for consideration  before us  is whether the order of the Ld. Forum below dated 08.08.2014 disposing of the maintainability petition filed by OP No. 1 in the compliant matter suffers from legal infirmity or jurisdictional error.

          The Complainant purchased a TATA Docomo 3G Photon connection for a sum of Rs.1800/- being No.9230094852. After purchase of the connection, the Complainant realized that the 3G connection plan given to the Complainant was different from what was offered by the service provider over  telephone which act was an unfair trade practice. In fact he was provided with ‘New Photon Max 1.5 GB @750 per monthly rental’ instead of unlimited download facility at a monthly rent of Rs. 500/-  Accordingly, he filed a complaint with a prayer for direction to refund the sum of Rs. 1800/- with interest @ 10% from the date of purchase of the 3G photon connection together with compensation of Rs. 50,000/- and litigation cost.

          The OP/Respondent challenged the petition of complaint on the ground that the petition was not maintainable before the Consumer Forum, as such dispute is to be settled through arbitration as per Section 7B of the Indian Telegraph Act. Ld. Forum below held that the dispute in question happens to be not between an individual customer and the Telegraph Authority, but between an individual customer and a private teleservice provider who are not the Telegraph Authority as defined under the Indian Telegraph Act.

          As per Section 3(6) of the Indian Telegraph Act - telegraph authority means 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 the Act.

          It has been clarified by the Department of Telecommunication letter dated 24.01.2014 under number 2 /17 /2013 – policy-1 that power of the telegraph authority have neither been vested nor are available to private telecom service providers and BSNL. Therefore, recourse to Section 7 (b)  in case of disputes between Consumers and private service providers and BSNL would not be available.

          We have  no hesitation to hold that the Ld. Forum below has rightly decided that the dispute in question is maintainable under Section 3 of the Consumer Protection Act. 

        Ld. Forum below has rightly dealt with the matter and there is no reason for interference with the order. As a result, the revision petition does not succeed. Hence,

                                      Ordered

That the revision petition be and the same is dismissed on contest . The impugned order is confirmed. There shall be no order as to costs.