D.o.F:30/3/11
D.o.O:31/5/12
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.77/2011
Dated this, the 31st day of May 2012
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.RAMADEVI.P : MEMBER
SMT.BEENA.K.G : MEMBER
Haris .C.H, S/o A.K.Abdul Khader,
Proprietor , AIM Distributors,
CPXV/281 G ,Chambalam Road, : Complainant
Berka, Po.Chengala, Kasaragod.
(Adv.Bendhad Kunhi Mahin,Kasaragod)
1. Sreejith, Zonal Operations Head,
Bharti Airtel Ltd(Kerala Circle),
St.Avenue NH Bypass, Kundanoor Junction,
Maradu Po, Kochi-682304.
2. Bharti Airtel Ltd , represented by its,
Chief Operating Officer,Mr.Manoj Murali,
St.Avenue NH Bypass, Kundanoor Junction,
Maradu Po, Kochi-682304.
3.Mr.Hari, Customer Service Delivery Head-Zonal : Opposite parties
Bharti Airtel Limited,Zonal office,Simax Tower, Below SBI-
Life Insurance , West Nadakkavu, Calicut-6.
4.Mr.Bhagyesh, Risk Head-Verification
Bharti Airtel Limited,Zonal office,Simax Tower, Below SBI-
Life Insurance , West Nadakkavu, Calicut-6.
5. Mr.Naveen Pillai, Area Sales Manager, North Zone,
Bharti Airtel Limited, Simax Tower, Below SBI-
Life Insurance , West Nadakkavu, Calicut-6.
(Adv.Srikanth Shetty,Kasaragod for Ops 1 to 5)
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
The complaint is as follows:
Complainant is the proprietor of AIM Distributiors dealing with the business of mineral water, essence of soft drinks ,curry powder, bottles and plastics. He is having a staff strength of 40 persons in the establishment. To communicate with staff members complainant availed closed user group(CUG) connection from opposite parties after submitting necessary documents. The complainant requested 3 fancy numbers for him and two of his managers. Opposite parties agreed to provide it free of cost. But later they collected Rs.30,000/- for the fancy numbers. On submission of the documents the officials visited complainant’s firm and satisfied with the infrastructure and amenities available in the firm. All the 30 CUG mobile connections were activated on 7/12/10. But opposite parties disconnected all the 30 connections on 15/1/2011. This has caused dislocation of business among staff members who desperately disillusioned. The business activities are broken and substantial loss and damages have been sustained to his firm. On 1/2/11 all external contacts and communications were severed. The contact numbers saved in the SIM directory were erased by opposite parties. Therefore the complaint alleging deficiency in service on the part of opposite parties with a prayer for the restoration of all CUG connections disconnected with a compensation of Rs.10,00,000/- for the disruption of business activities and cost of Rs.15,000/-.
2. In response to the notices issued by registered post all opposite parties appeared through counsel. Version is filed by opposite parties 1&2. Opposite parties 3 to 5 adopted the version of opposite parties 1&2.
According to opposite parties 1&2 the complaint is not maintainable in view of the decision of the Hon’ble Supreme Court in the case of General Manager Telecom vs. M.Krishnan reported in 2009(8) SCC 481 and also and also in view of the decision of Hon’ble National Commission in the case of Prakash Varma vs. Idea Cellular Ltd . In both cases it has been held that the dispute between a telegraph authority and its subscriber can only be resolved through arbitration in view of Sec. 7B of Indian Telegraph Act.
On merits it is contended as follows:
The complainant is residing and having business in Kasaragod . But he taken the connection from Alleppey District through Devi Communication who is a necessary party to the proceedings. All the connections are company paid lines out of which 5 connections were fancy numbers which are worth Rs.50,000/- in the market. At the time of availing the connection it was told that the fancy numbers were for the use of Manager of his company. As per DOT guidelines the subscriber verification is mandatory. An initial verification was conducted by the company’s executive by visiting address given by the complainant in the application form before activation of the connection and complainant showed a shop as per the address proof submitted at the time of availing the connection where in there was a firm by name AIM Distributors. Therefore all connections were activated . Thereafter 5th opposite party came to know that the complainant who had visited one of the Airtel Office in Kannur asking for fancy numbers and company rejected his proposal as there is lots of conspiracy behind fancy numbers like reselling the fancy numbers for higher amounts etc. In view of the above said incident 5th opposite party again initiated another physical verification of the address and found that company’s name board has been disappeared. The address verification team further found that all the 5 fancy numbers which were supposedly used by the Manager of the company were switched off. Immediately after getting feed backs from the address verification team the 5th opposite party cross checked whether there was any usage in the 30 numbers taken by the complainant and found that minimal usage which was very unnatural for a company conducting business. Therefore on the basis of negative address verification these numbers were disconnected. Prior to disconnection of the numbers the complainant was duly informed that the numbers availed by him will be deactivated due to address verification failure and the deposit of Rs.30,000/- paid to the company for the fancy numbers will be refunded on submission of proper ID proof which was provided at the time of availing the connections. As per DOT guidelines issued by Govt. of India, Ministry of Communication and IT Department of Telecom, New Delhi verification of identity of submission is mandatory and if the same on verification found insufficient and not genuine company has every right to disconnect the service to prevent such misuse of mobile connections by terrorists and criminals. There is no deficiency in service and in fact the complainant has misrepresented and availed the connection with malafide intentions to make unlawful gains for himself and hence the complaint is liable to be dismissed.
3. The complainant filed proof affidavit in support of his case and Exts.A1to A10 marked. On behalf of opposite parties 1 to 5, P.Bhagyesh OP.NO.4 filed affidavit and ExtsB1 to B11 marked through him. Both sides heard at length and the documents perused carefully.
4. The following are the points arose for consideration in this dispute
1. Whether the dispute here in is maintainable before the Forum
2.Who is a telegraph authority?
3.. Whether the opposite party is a telegraph authority?
4. Whether there is any deficiency in service on the part of opposite parties?
5.. What is the order as to relief and cost?
5. Issues 1 to 4 are discussed together since they are interlinked each other.
The learned counsel for the opposite parties filed IA 219/11 disputing the maintainability of the complaint before the Forum. The order in the said IA is deferred for discussion in the final order.
6. The learned counsel for the opposite parties submitted that in view of Sec.7 B of the telegraph Act 1885 the complaint is not maintainable before the Forum since this is a dispute between a telegraph authority and its subscriber. He relied on the following decisions in support of his defense.
General Manager Telecom vs. M.Krishnan rendered by the Hon’ble Apex Court in CA 7687/2004 Prakash Varma vs. Idea Cellular Ltd in RP No1703/2010 of Hon’ble National Disputes Redressal Commission.
7. In both cases the dictum law down is that the dispute between a subscriber and a telegraph authority ‘can be resolved by taking recourse to arbitration proceedings only In view of Sec.7B of the Indian Telegraph Act 1885
8. So who is a telegraph Authority has to be decided first.
The telegraph authority has been defined in Sec.3 (6) of Indian Telegraph Act 1885 as under:
3(6) 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 this Act:
Similarly the word telegraph" has been defined in Sec 3(1) of Indian Telegraph Act as under
3(1)telegraph" means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of. any nature by wire, visual or other electro- magnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means”
Similarly the word telegraph line" has been defined in Sec 3(4) of Indian Telegraph Act 1885 as under
3(4) telegraph line" means a wire or wires used for the purpose of a telegraph, with any casing, coating, tube or pipe enclosing the same, and any appliances and apparatus connected therewith for the purpose of fixing or insulating the same:
9.. The definition reproduced above clearly reveal that provisions of Sec 7B of the Indian Telegraph Act would be applicable only if the dispute is pending between the Director General of Posts and telegraph or his nominee on the one side and the person for whose benefit the line, appliance / apparatus are being provided ie. the consumers on the other.
10. Now the question arises is whether the opposite party, a private mobile service provider is a Telegraph Authority within the meaning of Sec.3(6) of Indian Telegraph Act 1885 or in other words are they the Director General of Posts and telegraph or are they the officers empowered by him to perform all or any of the functions of the telegraph authority under the Indian Telegraph Act 1885,
11. The Private Service Providers are the licenses to operate private mobile lines under Sec.4(1) of the Indian Telegraph Act 1885. Therefore they cannot be equated with the Director General of Posts and telegraph nor they can be termed as the officers appointed by the Director General of Posts and telegraph to discharge the function of the telegraph authority. They are only the licensees. Therefore any dispute between a licensees and their consumer is not covered by the provisions of Sec.7B of the Indian Telegraph Act 1885.
12. It can be looked from another angle also. The functioning of the private mobile operation is regulated by the provisions of the Telecom Regulatory Authority of India Act 1997.
Under the said Telecom Regulatory Authority of India Act, 1997, a provision has been made for establishment or incorporation of an authority namely Telecom Regulatory Authority of India to regulate the functioning of telecommunication service providers and other matters including and relating to mobile telephones also. Under Section 14 of the said Act, a provision has been made for establishment of Appellate Tribunals to adjudicate any dispute relating to the telecommunication services. For the purpose of facilitation, Section 14 of the Telecom Regulatory Authority of India Act, 1997 is reproduced as under:- “ Establishment of Appellate Tribunal – The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal to –
(a) adjudicate any dispute –
(i) between a licensor and a licensee;
(ii) between two or more service providers;
(iii) between a service provider and a group of consumers:
Provided that nothing in this clause shall apply in respect of matters relating to –
(A) the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of Section 5 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969);
(B) the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986);
(C) dispute between telegraph authority and any other person referred to in sub-section (1) of section 7B of the Indian Telegraph Act, 1885 (13 of 1885)”.
13. From the bare perusal of the above said provisions, now it is clear beyond doubt that the telephone services have been specifically covered under the Telecom Regulatory Authority of India Act, 1997 and the provisions of the said Act are in addition to the Indian Telegraph Act, 1885. From perusal of Section 14 (b), it is very much clear that even when a consumer approaches the Consumer Disputes Redressal Forum, then the provisions of the Telecom Regulatory Authority of India Act, 1997 or the jurisdiction of the Appellate Tribunals established under the Telecom Regulatory Authority of India Act, 1997 ceases, rather the provisions of the Consumer Protection Act get precedence over the powers vested with the Appellate Tribunals established under the Telecom Regulatory Authority of India Act, 1997.
14. The Telecom Consumers Protection and Redressal of Grievances Regulations, 2007 have come into force vide Notification dated 4th May 2007 and have been published in Gazette of India. Under Regulation No.1 Clause (3), it has been provided that these regulations shall apply to –
“(a) all service providers including Bharat Sanchar Nigam Limited and Mahanagar Telephone Nigam Limited, being the companies registered under the Companies Act, 1956 (1 of 1956) providing –
(i) Basic Telephone Service;
(ii) Unified Access Services;
(iii) Cellular Mobile Telephone Service.”
“ Definitions – In these regulations, unless the context otherwise requires -
The ‘Basic Telephone Service’ has been defined under Section 2 (g) of the above said Regulations. The meaning of ‘consumer’ has also been defined. For the sake of convenience, Section 2 (d), 2 (g) and 2 (h) of the above said Regulations are Reproduced asunder:-
(d) “Basic Telephone Service” covers collection, carriage, transmission and delivery of voice or non-voice messages over licensee’s Public Switched Telephone Network in licensed service area and includes provision of all types of services except those requiring a separate licence;
(g) “Cellular Mobile Telephone Service” -
(i) Means telecommunication service provided by means of a telecommunication system for the conveyance of messages through the agency of wireless telegraphy where every message that is conveyed thereby has been, or is to be, conveyed by means of a telecommunication system which is designed or adapted to be capable of being used while in motion;
(ii) Refers to transmission of voice or non-voice messages over Licensee’s Network in real time only but service does not cover broadcasting of any messages, voice or non-voice, however, Cell Broadcast is permitted only to the subscribers of the service,
(iii) In respect of which the subscriber (all types, pre-paid as well as post-paid) has to be registered and authenticated at the network point of registration and approved numbering plan shall be applicable;
(h) “consumer” means a consumer of a service provider falling in clause (a) or clause (b) of sub-regulation (3) of regulation 1 and includes its customer and subscriber.”
15. Section 25 of the above said Regulations is very much relevant, which for the sake of convenience is reproduced as under:
“ Right of consumers to seek redressal under the Consumer Protection Act, 1986 or any other law for the time being in force –
(1) The provisions of these regulations are in addition to any right conferred upon the consumers under the Consumer Protection Act, 1986 (68 of 1986) or any other law for the time being in force.
(2) Any consumer may, at any time –
(a) during pendency of redressal of his grievance, whether by filing of complaint or appeal, under these regulations; or
(b) before or after filing of complaint or appeal, under these regulations, exercise his right conferred upon him under the Consumer Protection Act, 1986 (68 of 1986) or any other law for the time being in force and seek redressal of his grievance under that Act or law.”
14. Section 27 of the above said Regulations is also very much important, which
for the sake of convenience is reproduced as under:-
“27. These regulations not to apply in certain cases –
Nothing contained in these regulations shall apply to any matter or issue for which-
(a) any proceedings, before any court or tribunal or under the Consumer Protection Act, 1986 (68 of 1986) or any other law for the time being in force, are pending; or
(b) a decree, award or an order has already been passed by any competent court or tribunal or authority or forum or commission, as the case may be.”
16. From the bare perusal of the above said Regulations framed by the Telecom
Regulatory Authority of India exercising the powers conferred upon it under Section 36 and Section 11 of the Telecom Regulatory Authority of India Act, 1997, it is abundantly clear that the provisions of the Consumer Protection Act, 1986 prevail over the Telecom Regulatory Authority of India Act, 1997 and the jurisdiction and powers of the Consumer Disputes Redressal Forums are over and above the jurisdiction and powers of the Tribunals established for the purpose of adjudication of disputes relating to telecommunication services.
17. It is settled law that the law enacted by the Parliament cannot be changed or made useless by judicial interpretation. The provisions of the enactments have to prevail over the judicial decisions. The question of interpretation comes only when the provisions of legislative enactments are either not clear, ambiguous or cannot depict the true meaning. When the provisions of the legislative enactments are plain, clear and unambiguous, then these cannot be negativated through judicial interpretation. Reliance can be placed upon various authorities of the Hon’ble Supreme Court of India on this point. The Hon’ble Supreme Court in “State of U.P. & Others Versus Jeet S. Bisht & Anr., 2007 (6) SCC 586, wherein the Hon’ble Supreme Court has specifically held that court cannot add or substitute word in a statute. By judicial verdict the court cannot amend the law made by the Parliament or State Legislature. It has been further held by the Hon’ble Supreme Court in the said authority that mere a direction of the Hon’ble Supreme Court without laying down any principle of law is not a precedent. It is only where the Hon’ble Supreme Court lays down a principle of law that will amount to a precedent. The courts are subordinate to law and not above the law.
18. So far the question as to whether the Consumer Protection Act, 1986 is a special legislation or a general law, the Hon’ble Supreme Court of India has given its view in various authorities, some of which we will discuss hereinafter. However, before discussing the authorities, we would like to discuss certain provisions of the Consumer Protection Act, 1986.
“1. Short title, extent, commencement and application –
(1) This Act may be called the Consumer Protection Act,1986.
1(4) Save as otherwise expressly provided by the Central Government by notification, this Act shall apply to all goods and services.
2. Definitions – (1) In this Act, unless the context otherwise Requires --
(o) “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board, or lodging or both housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
3. Act not in derogation of any other law – The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”.
19. So from the perusal of the above said provisions of the Consumer Protection Act, 1986, it is quite clear that the provisions of the Consumer Protection Act, 1986 apply to all type of goods and all services availed by the consumers against consideration paid or promised. Section 1 (4) of the Consumer Protection Act, 1986 is of wide connotation.
20. The Hon’ble Supreme Court of India in “Secretary, Thirumurugan Co-operative Agricultural Credit Society Versus M. Lalitha (Dead) through LRs. and others,1986-2004 CONSUMER 7844(NS), wherein an objection was raised as to the jurisdiction of the Consumer Disputes Redressal agencies in view of the bar/arbitration clause contained in Section 90 and Section 156 of the Tamil Nadu Co-operative Societies Act, 1983, the Hon’ble Supreme Court of India has held that merely because the rights and liabilities are created to the appellate society under the Co-operative Societies Act, 1983 and Forums are provided for adjudicating the dispute between them, it cannot take away or exclude the jurisdiction conferred on Forum under the Consumer Protection Act, 1986 expressly and intentionally to serve a definite cause in terms of the objects and reasons of the Act. The Hon’ble National Commission was held right in holding that the view taken by the Hon’ble State Commission that the provisions under 1983 Act relating to reference of disputes to arbitration shall prevail over the provisions of 1986 Act, is incorrect and untenable. Chairman, Thiruvalluvar Transport Corporation Versus Consumer Protection Council, (1995) 2 SCC 479, relied upon in the authority General Manager, Telecom Versus M. Krishnan & Another (supra), has been discussed and distinguished by the Hon’ble Supreme Court in the above said authority. The Hon’ble Supreme Court in para 11 and 12 of the judgment has observed as under:-
“(11) From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi judicial forums are set up at the district, State and National level with wide range of powers vested in them. These quasi judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever ‘appropriate, compensation to the consumers and to impose penalties for non-compliance of their orders.
(12) As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional /extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar”. So as per the above said authority, despite provisions for referring the dispute to arbitration in the certain Acts/Laws, the object and purpose of the Consumer Protection Act cannot be frustrated as the provisions of the Consumer Protection Act are in addition and not in derogation of any other law in force.
It was further held by the Hon’ble Supreme Court that if parties approach both the Forums created under any other Act and the 1986 Act (Consumer Protection Act, 1986), it is for the Forum under the 1986 Act to leave the parties either to proceed or avail the remedies before the other Forums depending upon the facts and circumstances of the case.
21. The Hon’ble Supreme Court of India in “Neeraj Munjal and Others Versus Atul Grover (Minor) and another, 1986-2004 CONSUMER 7438(NS), in para 10 and 11 of the judgment has held that the courts could not deprive the parties from a remedy, which is otherwise available to them in law. It has been further held that a court of law has no jurisdiction to direct a matter to be governed by one statute when provisions of another Statute are available.
22. In “State of U.P. & Others Versus Jeet S. Bisht & Anr., 2007 (6) SCC 586 (supra), the Hon’ble Supreme Court has held that the Consumer Protection Act, 1986 has been enacted for better protection of the interest of the consumers. The said Act is in addition to and not in derogation of the provisions of the any other law for the time being in force. The Act not only provides for new rights for the citizens of India in their capacity as consumers, it envisages their empowerment in this behalf. It is indisputably the solemn duty of the executive of both the Government of India and also the Government of State to implement the provisions of the Act in true letter and spirit. The Hon’ble Supreme Court in the above said authority has further held that the Consumer Protection Act embodies a certain value in protecting the interest of the consumers in the age of consumerism and the institution of consumer Fora is a specific mission in that behalf.
23. In “State of Karnataka Versus Vishwabharathi House Building Coop. Society and others, 1986-2004 CONSUMER 7415(NS), where the constitutionality of the Consumer Protection Act, 1986 was challenged on various grounds, the three Judges Bench of the Hon’ble Supreme Court of India has held that the provisions of the Consumer Protection Act clearly demonstrate that it was enacted keeping in view a long felt necessity of protecting the common man from wrongs where for the ordinary law for all intent and purport had become illusory. In terms of the said Act, a consumer is entitled to participate in the proceedings directly as a result whereof his helplessness against a powerful business house may be taken care of. The Hon’ble Supreme Court of India further held that by reason of the said statute (Consumer Protection Act), quasi-judicial authorities have been created at the District, State and Central levels so as to enable a consumer to ventilate his grievances before a Forum where justice can be done without any procedural wrangles and hyper-technicalities. One of the objects of the said Act is to provide momentum to the consumer movement. While referring to the several provisions of the Consumer Protection Act and also discussing the various authorities, the Hon’ble three Judges Bench of the Supreme Court of India further held that by reason of provisions of Section 3 of the Act, the said Act supplements and not supplants the jurisdiction of the civil court or other statutory authorities. The Hon’ble Supreme Court of India while relying upon another authorities styled as “Fair Air Engineers Versus N.K. Modi, III 1996 CPJ(SC) and “Satpal Mohindra Versus Surindra Timber Stores, (1999) 5 SCC 696” has specifically held that the provisions of the said Act are required to be interpreted as broadly as possible. It has jurisdiction to entertain a complaint despite the fact that other Forum/courts would also have jurisdiction to adjudicate upon the matter.
24. The Hon’ble Supreme Court of India in “Ghaziabad Development Authority Versus Balbir Singh, 1986-2004 CONSUMER 8287(NS) 2004 (2) CLT 628”, has held that the Consumer Protection Act has a wide reach and the Commission has jurisdiction in case of services referred by the statutory and public authorities. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Hon’ble Supreme Court in the said authority further held that matters, which require immediate attention, should not be allowed to linger on. The consumer must not be made to run from pillar to post. Where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation.
25. In Kishore Lal Versus Chairman, Employees’ State Insurance Corporation, 2007 (4) SCC 579, the Hon’ble Apex Court has observed:-
“It has been held in numerous cases of this Court that jurisdiction of the Consumer Fora has to be construed liberally so as to bring many cases under it for their speedy disposal. The Act being a beneficial legislation, it should receive a liberal construction.”
26. The Hon’ble Supreme Court in “Fair Air Engineers Pvt. Ltd. & ANR. Vs N.K. Modi, III (1996) CPJ 1 (SC)” has held:-
“Accordingly, it must be held that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Mr. Suri, that the words “in derogation of the provisions of any other law for the time being in force” would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. The Parliament is aware of the provisions of
the Arbitration Act and the Contract Act and the consequential remedy available under Section 9 of the Code of Civil Procedure i.e. to avail of right of civil action in a competent Court of civil jurisdiction. Nonetheless, the Act provides the additional remedy”.
27. The Hon’ble Supreme Court has further held that in view of the object of the Act and by operation of Section 3 thereof, it would be appropriate that these Forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve all the consumers of the cumbersome arbitration proceedings or civil action unless the Forums at their own and on the peculiar facts and circumstances of a particular case come to the conclusion that the appropriate Forum for adjudication of the disputes would be otherwise those given in the Act.
28. The Hon’ble Supreme Court of India in “Lucknow Development Authority Vs M.K. Gupta, AIR 1994 SC 787 has observed that a legislation which is enacted to protect public interest from undesirable activities cannot be construed in such narrow manner as to frustrate its objective. It has been further observed in the said authority that any attempt to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and spirit behind it. The Hon’ble Supreme Court of India has further observed that truly speaking it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions scrutinized, as public accountability is necessary for healthy growth of society.
29. In “General Manager, Telecom Versus M. Krishnan & Others” (supra), the Hon’ble Supreme Court has held that the special law prevails over the general law. But the point whether the Consumer Protection Act is a special enactment or a general law has not been discussed. On the other hand, in view of the other judgments, reference of which has been given above, the Hon’ble Supreme Court has declared the Consumer Protection Act as a special legislation. Time and again it has been held by the Hon’ble Apex Court of country that where a law is declared after thorough discussion, only then it is held as a binding precedent and not otherwise.
30. His Lordship Markandey Katju, J. in “State of U.P. Versus Jeet S. Bisht” (supra), in para No.66 and 67 of the judgment has observed as under:
“66. It is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent.
67. In Municipal Committee, Amritsar Vs. Hazara Singh, AIR 1975 SC 1087, the Supreme Court observed that only a statement of law in a decision is binding. In State of Punjab Vs. Baldev Singh, 1999 (6) SCC 172, the Court observed that everything in a decision is not a precedent. In Delhi Administration Vs. Manoharlal, AIR 2002 SC 3088, the Supreme Court observed that a mere direction without laying down any principle of law is not a precedent. In Divisional Controller, KSRTC Vs .Sahadeva Shetty, 2003 (7) SCC 197, this Court observed as follows:
“….. The decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent judge is the principle, upon which the Case was decided…..”.
31. The Hon’ble Supreme Court in the case of Bhavanagar University vs Palitane Sugar Mills Pvt Ltd reported in (2003)2 SCC 111 has held that a little difference in facts and additional facts may make a lot of difference in the precedential value of decision.
32. The Hon’ble National Commission in “Union of India and Others Versus Jagdamba Rice Mills, I (1992) CPJ 90(NC), while discussing Section 7-B of the Indian Telegraph Act and referring to the authority styled as Santosh Singh Versus Divisional Engineer Telephones, Shilong, AIR 1990 Ghuwahati 47, has observed that the Government of India has itself taken a policy decision to the effect that all the requests and reference to Arbitration under the Indian Telegraph Act shall be rejected and Arbitrator shall be appointed only in such cases where subscriber approaches a court with a request for arbitration and court orders for the same. So when the Government of India to be more specific Telecom Authority itself is not willing to refer the dispute concerning the telegraph apparatus etc. to the Arbitrator except upon the orders of the court, then it does not behoove to the opposite parties to raise an objection under Section 7-B of the Telegraph Act.
33. Now, it is also a settled law that where two interpretations of statute/law are possible, then the one favoring the consumer is to be taken. Moreover, in case of petty consumer disputes, to direct a poor consumer to approach the Central Government for appointment of an Arbitrator for the adjudication of his small dispute, would be just the denial of justice to him especially when the legislature has enacted a consumer friendly legislation for better protection of the consumer rights and the remedy is available at the door step of the consumer as the District Consumer Forums have been established at every District head quarter of a State.
34. The Consumer Forum established under the Consumer Protection Act, 1986 does not exercise jurisdiction upon each and every matter, rather the jurisdiction of the Consumer Forum can be invoked only on the matters/disputes where the consumer element is involved. So when a dispute where the rights of the consumers are to be adjudicated there only the consumer courts, specially enacted for the said purpose, have the jurisdiction and all other Forums fall subordinate to it. It is now clear that the Consumer Protection law is not a general law, but a special law enacted for the better protection of the interests of the consumers. Where there is a deficiency in service and unfair trade practice, the provisions of the Consumer Protection Act, 1986 can be invoked irrespective of any other statute dealing with the same matter. The remedy under the Consumer Protection Act is an additional and special remedy. Moreover, even as per the provisions of the Telecom Regulatory Authority of India Act, 1997, the provisions of the Consumer Protection Act, 1986 prevail upon the other provisions/ enactments relating to telecommunication. So we hold that the FORA established under the Consumer Protection Act has jurisdiction to entertain the matter concerning the disputes relating to telecommunications.
35. The Hon’ble Maharashtra State Commission in the case of Reliance Energy Ltd vs. Abdul Manaf Shaikh reported in I (2010 CPJ 17 relying of the dictum laid down in the case of Kishore Lal’s case cited supra as well as in the case of Dhulabai vs. State of Madhya Pradesh & Anr. Reported in AIR 1969 SC 78 has held that the decision rendered by Hon’ble Apex Court in General Manager Telecom vs M Krishnan & Anr. is per incuriam since it is passed ignoring the decisions of larger bench in the above cited judgments.
36. Whether the opposite party can appoint arbitrator to settle the disputes between them and their customers is queried by AUSPI an Association of Unified Telecom Service Providers of India with the Govt of India in the wake of the decision of the Honble Supreme Court in CA7687/2004. The said association on Oct.2009 submitted a letter to the Department of Telecommunications seeking some clarifications in the light of the judgment of the Hon’ble Apex Court in the case of General Manager Telecom vs. M.Krishnan and Another. The following queries/ clarifications were sought:-
“ ( a) Are Private and Public service providers are telecom authorities and provisions of Sec 7B applicable on them? And
(b) Can private and public service providers as telecom authority appoint arbitrators for arbitration of disputes?”
The Department of Telecommunications vide its letter dt.07-32/2007- PHP (Pt) dtd 19th Oct 2009 has specifically clarified that neither the private nor the public service providers falls in the definition of Telegraph Authority. For the sake of convenience letter dated 19/10/2009 issued by the Ministry of Telecommunications is hereby reproduced as under:-
No.7-32/2007-PHP (Pt)
Govt. of India
Ministry of Communications & IT
Department of Telecommunications,
1205,Sanchar Bhawan, Ashoka Road,New Delhi.
Dated 19th October 2009
To
Sh. S.C.Khanna,
Secretary General , AUSPI, B-601
Gauri Sadan, 5, Halley Road, New Delhi-1100001.
Subject:- Supreme Court Judgment regarding Telecom Consumers
cannot approach Consumer Forums for billing disputes.
Sir,
Kindly refer to your letter No.AUSPI/13/2009/141/dtd 1/10/2009 seeking clarification on the subject cited above. The clarification is given below.
| Point | Clarification |
(a) | Are Private and Public service providers are telecom authorities and provisions of Sec.7B applicable on them? | No. Private and Public service providers are not Telegraph Authority. Further only Central Govt. can appoint Arbitrator under Sec.7B of the Indian Telegraph Act. |
Yours faithfully,
/Sd/
(Misha Bajpal)
Assistant Director General (PI +P)
Tel 23036027”
The reference of the above said queries as well as the reply of the Department of Telecommunications also finds mentioned in the website of the AUSPI (www.auspi.in)Telecom bytes Oct.2009.
37. From the above discussion it is manifest clear that neither the public nor the private mobile service providers are Telegraph Authorities. Ext.B1 is a copy of License Agreement executed between Ministry of Communication Department of Telecommunications, Telecom Commission and Bharat Cellular Limited. The recitals of Ext.B1 shows that it is a license issued by virtue of the provisions of Sec.4 of the Indian Telegraph Act. This license will no way confer any authority on the opposite parties to act as a telegraph authority as provided under the Telegraph Act. Ext.B1 further provides that it is governed by the TRAI Act 1997 also. TRAI Act 1997 recognises the right of a consumer to agitate under the Consumer Protection Act as described supra.
38. Issue No.5:
According to the complainant he has been provided with 30 CUG connections by the opposite parties after submitting the necessary documents of identity proof. However numbers of the said connections are not mentioned in the complaint. Ext.B5 shows the said numbers. In which 3 fancy numbers are also seen. They are 9633399999,9633888888,9633355555. The specific case of the opposite parties is that the address given for obtaining CUG connections were fake and the fancy mobile connections availed through Devi Communications Alleppey were for the purpose of resale since mobile fancy numbers have a higher price in market. According to opposite parties the final address verification subsequently after providing the connections were found negative and hence they were disconnected. But the contentions of opposite parties are not acceptable.
39. Ext.A9 is the copy of the license issued by the Secretary of Chengala Grama Panchayath to the complainant for starting his business by name AIM Distributors in Building No.15/281 GF of the said Panchayath. Ext.A10 is the certificate of Registration issued under the Kerala VAT. Rules 2005 for his establishment by name AIM Distributors.
40. Exts.A1&A2 pay in slips shows that complainant deposited Rs.30,000/- to Devi Communications for availing the CUG connections. Ext.A3 are the monthly bills issued in 30 connections and Ext.A4 series are the monthly payment receipts. A5 series are Airtel sim cards.
41. Exts.A6 series are 25 monthly bills of Idea Cellular Connections provided to AIM Distributors which are availed after the disconnection of the CUG connections of the opposite parties. Ext.A7 is the business brochure and Ext.A8 is the copy of the visiting cards of M/s AIM Distributors. It is pertinent to mention that Ext.A3 series bills are sent by post and all of them are served in the firm of the complainant. Had the contention of opposite party is correct then the bills ought not have been served by the postal authorities for want of the Firm in the particular building.
42. From the above documents and the evidence let in by the complainant it is clear that complainant is running an establishment by name M/s AIM Distributors. The Ext.A6 series mobile bills issued from Idea Cellular Ltd shows that complainant availed another set of CUG connections from Idea Cellular Ltd. So what emerges is that complainant is a genuine business man and the mobile connections were intended for his business activities.
43. As alleged by the opposite parties had the connections availed were solely for the purpose of reselling the fancy numbers for higher rates, then the complainant ought not have availed another set of CUG connections from Idea cellular Ltd in which there are no fancy numbers.
44. The defense taken by the opposite parties are not sustainable factually and legally. The contention that the complainant availed CUG connections from Devi Communications Alleppy and hence they are necessary parties to the proceedings is not sustainable. In cross examinations DW1 deposed that there is no bar for taking connections from any agencies in Kerala.
45. For the illegal disconnections of the CUG connections of the firm if the complainant, opposite parties relying in Ext.B3 copy of circular dtd.10/5/2005. But the said circular emphasizes for the proper identity verification before selling the SIM cards. The opposite parties have no case that the CUG connections were provided without any identity proof. So the said defense is also very feeble and not sustainable.
46. As afraid by the opposite parties, after getting mobile connections by submitting necessary identity proof if the customer involves in any disruptive terrorist activities, it is a matter of concern of the nation and separate governmental agencies are deputed to enquire into it and no mobile service provider can predict how and for what purposes their customers will use the mobile phones. The liability of the service provider in respect of such activities ceases when they issuing sim cards after obtaining necessary identity proof of the customer. So the alleged third verification of the address of the complainant is only for the purpose of barring his CUG connections solely for the purpose of repossessing the fancy numbers and to distribute it for higher amounts.
47. Though DW1 denied that the connections were barred for resale of the fancy numbers for higher amount and to make money unlawfully. In Ext. B10 complaint dtd.22/2/2012 it is seen mentioned that the 5 fancy numbers provided to the complainant which worth Rs. 50,000/- in the market. It appears that Ext.B10 is filed as a reprisal to the instant complaint.
48. From the above it is clear that the opposite parties disconnected the CUG connections provided to the complainant illegally and solely for the purpose of reselling the fancy numbers for higher amounts and the complainant happened to be a victim of the deficiency in service rendered by opposite parties. No doubt barring CUG connections of a business firm abruptly will disrupt its business activities putting its proprietor in much mental stress and agony and monetary loss. The opposite parties are therefore guilty of deficiency in service and they are liable to compensate the complainant.
The complainant deposited Rs.30,000/- as per Exts.A1&A2 for obtaining 30 CUG connections containing 3 fancy numbers. He is entitled to get the refund of said amount Rs.30,000/-. Apart from that he is also liable to get a reasonable compensation. We fix a global sum of Rs.50,000/- towards the compensation. Opposite parties are also directed to pay cost of Rs.5000/-. The opposite parties are further restrained from providing the fancy mobile phone numbers 9633399999,9633888888,9633355555 to any other customers In the event of providing the said numbers to any other customers then opposite parties shall be liable to pay Rs.50,000/- each to complainant for each of the fancy numbers. Time for payment is limited to 30 days from the date of receipt of copy of the order.
Exts:
A1&A2 pay in slips
A3 series – Airtel bills issued in 30 connections
A4 series monthly payment receipts.
A5 series-Airtel sim cards
A6 series - 25 monthly bills of Idea Cellular Connections
A7 - business brochure
A8- visiting cards of M/s AIM Distributors.
A9 - copy of the license issued by the Secretary of Chengala Grama Panchayath
A10 -certificate of Registration issued under the Kerala VAT.
B1-copy of license agreement
B2-Copy of Govt of India order No.13-24/6/ARB/Idea/2011-TR
B3-copy of circular issued by Govt of India No.800-04-2003-VAS/112.
B4- copy of customer relationship form
B5-cheque dishonoured print out
B6-copy of photo of building
B7- copy of cheque
B8-copy of return cheque advice
B9-Copy of endorsement of Alleppey police station
B10-copy of police complaint
B11-copy of SMS sent to complainant
PW1- Haris- complainant
DW1- P.Bhagyesh- OP.NO.4
Sd/ Sd/ Sd/
MEMBER MEMBER PRESIDENT
eva
/Forwarded by Order/
SENIOR SUPERINTENDENT
