Delhi

StateCommission

A/10/628

VODAFONE ESSAR MOBILE SERVICE LTD. & ANR. - Complainant(s)

Versus

PAWAN SHARMA - Opp.Party(s)

19 Mar 2015

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision : 19.03.2015

First Appeal No.628/2010

(Arising out of the order dated 28.06.2010 in Complaint Case No. 526/2010 passed by District Consumer Disputes Redressal Forum, Barracks Kasturba Gandhi Marg, New Delhi)

       

 

1. Vodafone Essar Mobile Services Ltd.

C-48, Okhala Industrial Area

Phase-II, New Delhi-110020

Through Authorised Signatory

2. M/s Hutchison Max Paging (P) Ltd. (Importer)

Peninsula Corporate Park, Ganpatrao

Kadam Marg, Lower Parel

1.  

Though Authorised Signatory                        …Appellants

                                                      

VERSUS

Sh. Pawan Sharma

R/o B-13, Vikram Nagar

Feroz Shah Kotla

Behind Express Building

New Delhi-110002                            ......Respondent

 

CORAM

Salma Noor, Member

N P Kaushik, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment? Yes

2.      To be referred to the reporter or not? Yes

N P Kaushik, Member (Judicial)

Judgment

1.      The appellant Vodaphone Essar Mobile Services Ltd. has impugned the orders dt. 28.06.2010 passed by the Ld. District Forum VI, New Delhi. Vide impugned orders the District Forum had passed the following directions:

“a. OPs will refund Rs. 32,000/- being the price of the handset and complainant will return the old defective handset with accessories to the OPs.

b. On account of mental agony and harassment, OPs will pay Rs. 15000/- (Rupees Fifteen Thousand) to the complainant as compensation.

c. OPs will also pay Rs. 5000/- (Rupees Five Thousand) to the complainant towards the costs of litigation”.

2.      Facts in brief are that the complainant Sh. Pawan Sharma purchased a BlackBerry-9000 mobile phone with accessories for an amount of Rs. 32,000/-.  Warranty period was one year.  Initial grievance of the complainant was that the mobile set used to switch of and do not started within one month of the purchase had stopped working.  Upon this the OP replaced the handset on 13.05.2009. The changed handset too was defective. It had to be sent to the service centre of the OP twice. Despite repairs the OP could not rectify the defect.  On 19.01.2010 the complainant visited OP-1 who issued a job sheet.  Despite retain the handset for three months, the defect could not be cured.  Frustrated with the service of the OP, complainant failed complaint in the District Forum.
3.      OP did not appear and was proceeded against ex-parte.
4.      Ld. District Forum observed that after purchase in April-May 2009/2010 the handset was replaced by the OP on 13.05.2009 the changed set also did not work despite two visits to the OP the defect could not be cured. Complainant visited the OP on 19.01.2010 the handset was delivered on 12.04.2010 defects continued.  On the basis of unrepeated evidence, Ld. Trial Forum allowed the complaint and passed the directions reproduced above.  In its present appeal Vodaphone Mobile Services Ltd. and Anr. relied upon the case of the General Manager Telecom V/s M.Krishnan decided by the Apex Court in Civil No. 7687/2004 on 01.09.2009.  The relevant portion of the aforesaid case law is reproduced below:

“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-s. (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 service 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.”

5.      It is a matter of common knowledge that the system of communication by way of telegraph is an outdated one.  Government of India has officially closed the telegraph network.  Indian Telegraph Act related to the transmission by way of telegraph.  The said act is also in the pipeline of the being repealed. Be that as it may, the disputes under the Telegraph Act are between consumers on the one hand and the department of telegraph on the other.  Telegraph Service never remained in the hands of corporate houses.  As on date there are a large number of corporate houses providing mobile telephone service.  Consumer Protection Act 1986 was enacted for the better protection of interests of the consumers.  The provisions of the Consumer Protection Act 1986 are in addition to the provisions of the any other law for the time being in force.  The law is provided in Section 3 of the Consumer Protection Act 1986.  The consumers of mobile phone services who are crores and crores in number would be required to hire the services of arbitrators for petty cases, which they may not resort to.  We are, therefore, of the considered opinion that the appeal filed by the appellant is devoid of merits.  The same is hence dismissed.
6.      Copy of the order be made available to the parties free of costs as per rules and thereafter the file be consigned to Record Room.
7.      FDR, if any, deposited by the appellant be released as per rules.

 

(Salma Noor)

•  

 

 

(N P Kaushik)

Member (Judicial)

6.