1.      Idea Cellular Ltd. (Erstwhile Spice Communication Ltd.). A company registered under the Companies Act having its registered office at Suman Tower, Plot No.18, Sector 11, Gandhi Nagar 382 011 (Gujarat) and Punjab Circle Regional Office at C-105, Phase VII, Industrial Focal Point, Mohali 160055 (Punjab) through its Authorized Signatory Senior Manager Legal Mr. Manoj Madan.

2.     Idea Cellular Ltd.(Erstwhile Spice Communication Ltd.), Sector 35-C, Chandigarh, through its constituted attorney.

                                                                   .…Appellant

                                      Vs.

Ram Singh s/o Sh. Ram Kishan, Resident of H.No. 2929, Sec.49-D, Chandigarh.

                                                                             …. Respondents

BEFORE:   JUSTICE SHAM SUNDER, (Retd.) PRESIDENT

                MRS. NEENA SANDHU, MEMBER

Argued by:           Sh. Vishal Gupta, Adv. for the appellants.

                             Respondent exparte.

MRS. NEENA SANDHU, MEMBER

     This is an appeal filed by the appellants/Opposite Parties against the order, dated 31.10.2012 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as District Forum only) vide which, it allowed  the complaint in the following manner;

“10.     Keeping in view the foregoings, we allow this complaint against the Opposite Parties, jointly and severally, and direct them to pay Rs.10,000/-  to the Complainant for the harassment caused to him due to the deficient services rendered by them in not de-activating the ‘provided services’, despite repeated requests. The Opposite Parties are also directed to de-active the said caller tone, internet & any other service for which the amount is being unnecessarily deducted and also activate the DND service forthwith and not raise any further bill for the same to the Complainant. The Opposite Parties shall also pay Rs.5,000/- to the Complainant towards costs of litigation.

11.           In addition to the above, since the Opposite Parties have clearly indulged in an unfair trade practice, and may have caused loss to innumerable unidentifiable consumers by such practice, we feel that it will be in the interest of justice to grant punitive damages in terms of Section 14(hb) of the Consumer Protection Act, 1986. Therefore, we impose                punitive damages on the Opposite Party to the tune of Rs.20,000/-. The said amount be deposited by the Opposite Parties with the State Legal Services Authority, U.T. Chandigarh. A receipt to this effect is required to be deposited in the office of this Forum by the Opposite Parties.

12.                  The aforesaid order be complied with by the Opposite Parties, within a period of 30 days from the receipt of its certified copy, failing which they shall pay the awarded amount of Rs.10,000/-, along with interest @12% per annum from the date of this order, till the date of realization, besides paying Rs.5,000/- as cost of litigation.” 

2                             Briefly stated, the facts of the case, are that the Complainant had purchased a pre-paid connection (Mobile No.9592819159) from the Opposite Parties in February, 2011. At the time of purchase, no facilities i.e. caller tone, internet facilities or any other facilities were opted for by the Complainant. It was stated that when the Complainant found that the entire amount deposited by him for getting his account re-charged was being deducted, he approached the Customer care of the Opposite Parties in August, 2011 to know about the reason for deduction and he was told that the amount had been deducted, as he had availed of the service of caller tone etc. though he had not asked for any such service. It was further stated that due to this wrong deduction by the   Opposite Parties, the Complainant stopped getting his account recharged. It was further stated that the Complainant had requested the customer care of the Opposite Parties a number of times, but no steps were taken to stop the wrong deduction. It was further stated that as the grievance of the Complainant was not redressed, he sent a legal notice dated 12.8.2011 to the Opposite Parties regarding unwanted caller tone, blocking of unwanted messages and unwanted calls, besides stopping of deduction of the re-charge amount, but to no avail. Hence this complaint was filed.

3                   Joint reply was filed by the Opposite Parties, wherein, they took up a preliminary objection, that the complaint was not maintainable, as per the law laid down by the Hon’ble Apex Court in case titled as General Manager, Telecom Vs. M. Krishnan & Another, (2009) 8 SCC 481 wherein it was held that when there is a special remedy provided under Section 7-B of the Indian Telegraph Act, regarding the disputes, with regard to telephone bills, this Forum will have no jurisdiction under the Consumer Protection Act, 1986 to adjudicate upon the dispute. It was denied that the complainant received any unwanted calls and messages on his Mobile No. 9592819159. It was further stated that the Complainant did not subscribe to ‘do not disturb’ (DND) service on his number till date. It was admitted that the mobile connection was issued to the complainant. It was further stated that the complainant got his caller tone service activated by way of SMS on 18/5/2011. All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of the   Opposite Parties nor they indulged into unfair trade practice.

4                   The parties led evidence, in support of their case.

5                   None appeared on behalf of complainant when the arguments were heard. Hence after hearing the Counsel for the Opposite Parties and on going through the evidence on record, the. District Forum allowed the complaint, as stated in the opening para of this order

6                   Aggrieved by the order, passed by the learned District Forum, the appellants/ Opposite Parties have filed the instant appeal. 

7                   We have heard Counsel for the appellants, and, have perused the record, carefully.

8                   The learned Counsel for the appellant, submitted that the District Forum had no jurisdiction to entertain and try the case as per the law laid in the judgment of the Apex court titled as General Manager Telecom Vs. M Krishnan. He further submitted that the complainant himself got the caller tone activated by way of SMS on 18.5.2011. The same is evident from Annexure R-3. He further submitted that unwanted calls or message had never been sent to the complainant. in spite of the fact that the complainant had not got himself registered with DND page (5). He further submitted that the Opposite Parties received legal notice alongwith the complaint only and thereafter disconnected the service permanently.  It was further submitted that these facts had not been fairly appreciated by the District Forum and it wrongly allowed the complaint vide the impugned order, which is liable to be set aside.

9                   No doubt, the District Forum dismissed the complaint regarding non-payment by relying upon General Manager Telecome Vs. M. Krishnan & Another and allowed the complaint regarding the second allegation of not rendering service as per the request of the complainant for deactivation of the caller tone by ignoring the law laid down by the Hon’ble National Commission in case of Prakash Verma Vs Idea Cellular Ltd. & Anr. (Revision Petition No.1703 decided on 21.5.2010  by placing reliance upon the judgment of the Apex Court titled as General Manager, Telecom Vs M.Krishnan & anr,(2009)8SCC481,  wherein it was held that any dispute between the subscriber and the telegraph authority could be resolved by taking recourse to arbitration proceedings only,  and the same was upheld by the Apex Court in case titled as  Prakash Verma Vs Idea Cellular Ltd. & Anr. (Civil Appeal No. 24577 of 2010 decided on 1.10.2010. Recently, this view was again reiterated by the Hon’ble National Commission in case of Lokesh Parashar Vs. M/s Ida Cellular Ltd. and another (Revision Petition No.3780 of 2011) decided on 20.4.2012,  by placing reliance on the aforesaid Judgments of the Apex Court. 

10                        The law laid down in the aforesaid judgments of the Apex Court is binding on all the Subordinate Courts as also the Consumer Foras. Thus the District Fourm had no jurisdiction to entertain and adjudicate upon any disputes between the subscriber and the Telegraph Authority. Such a dispute could only be adjudicated upon by the Arbitrator under Section 7B of the Indian Telegraph Act as per the law laid down by the Apex Court in the aforesaid cases. Hence the District Forum went wrong in not appreciating the principle of law, laid down, in the aforesaid cases, that any dispute between the subscriber and the Telegraph Authority could only be resolved by the Arbitrator under Section 7B of the Indian Telegraph Act and not under the Consumer Protection Act, 1986. The District Forum thus, wrongly allowed the complaint.  The order impugned is liable to be set aside        

11             In view of the above, we find merit in the appeal. Accordingly the same is allowed with no order as to costs. The order of the District Forum is set aside and the complaint is dismissed.

12                Certified Copies of this order be sent to the parties, free of charge.