JUDGMENT 29.11.2010 Justice Pritam Pal, President 1. The aforementioned two appeals arise out of one and the same order dated 1.10.2009 passed by the District Consumer Forum- I, U.T. Chandigarh whereby complaint bearing No.466 of 2009 filed by Sh.Sunil Kumar was allowed with costs of Rs.1100/- and Opposite party was directed to pay to the complainant Rs.10,000/- as penalty for adopting unfair trade practice and causing him harassment and monetary loss. The order was directed to be complied with by OP within a period of 30 days from the date of receipt of its certified copy, failing which it was made liable to pay interest @12% p.a. from the date of filing of the complaint i.e. 2.4.2009 till the date of realization. 2. In fact appeal No.671/2009 has been filed by M/s Bharti Airtel Ltd. – Opposite party for setting aside the impugned order whereas appeal No.589/2009 has been filed by Sh.Sunil Kumar, complainant for enhancement of compensation. Since, in both these appeals common questions of law and facts are involved, so, we are deciding these appeals by this common judgment. 3. The parties hereinafter shall be referred to as per their status before the District Consumer Forum. 4. In nutshell, the facts culminating to the commencement of these two appeals may be recapitulated thus ; The complainant was subscriber of Mobile Connection No.9872345464 provided by OP Company and on receiving a massage from OP to play a contest & win a Skoda Octavia Car, he participated in the same from Dec., 2008 to Feb., 2009 and scored 1600 points which was also intimated to him by OP through different messages. Thereafter, complainant visited the office of OP several times and also sent e-mails to know about the status of the said game as well as its winner but no response was given to him . It was alleged that OP instead of declaring the winners of said contest, again sent a message to the complainant on 16.2.2009 to play a contest and win Skoda Car. The OP Company had charged Rs.6/- per minute for participating in the said contest and in scoring 1600 points the complainant had to spend a huge amount but inspite of that the OP failed to disclose the outcome of said contest as well as its winner. Complainant then served a legal notice dated 10.3.2009 through his counsel upon OP but to no effect. Hence, alleging deficiency in service and unfair trade practice on the part of OP, complainant filed complaint before the District Forum. 5. On the other hand, OP contested the complaint before the District Forum and filed reply inter-alia stating therein that the OP had conducted “Airtel Dhamaka Contest” from 17.11.2008 to 14.2.2009 for its subscribers in Punjab, Haryana and Himchal Pradesh and the winner was to be selected from 20 top scorers through a lucky draw. It was stated that the complainant was not even in the top 50 scorers and the minimum score of top twenty subscribers was 15030 and maximum was 112030 whereas the complainant had scored just 1600 points. It was further stated that the lucky draw which was widely reported in the newspapers was conducted in the presence of an independent Judge i.e. Mr.Harpreet Singh Brar, Deputy Advocate General, Punjab and the winner Inderpal Singh was selected on the basis of said draw. The draw was fair & transparent. It was pleaded that though OP was not under any obligation to inform the winner, yet complainant was informed that the winner will be intimated through call or message. The complainant was further asked to visit nearest Airtel Showroom or to dial 53030 for more details. It was stated that contests such as Airtel Dhamaka Contest were special value added premium rate services and special tariff was applicable on such service which was duly conveyed to the complainant and other participants. Pleading that there was no deficiency in service or unfair trade practice on the part of OP, a prayer was made for dismissal of the complaint. 6. The District Consumer Forum after going through the evidence and hearing the counsel for parties allowed the complaint as indicated in the opening part of this judgment. Aggrieved against the said order, opposite party as well as complainant have come up in their respective appeals. 7. We have heard learned counsel for the parties and gone through the file carefully. At the very outset, the learned counsel for Bharti Airtel Ltd. - Opposite party submitted that the District Fora under the Consumer Protection Act had no jurisdiction to try and decide the dispute between the telecom service provider and its subscriber as such matters against telecommunication services are not maintainable in view of judgment of Hon’ble Apex court in General Manager, Telecome Vs M.Krishnan & another (2009) 8 SCC 481. He further submitted that in another case of mobile connection titled Prakash Verma Vs Idea Cellular Ltd. & Anr. (Revision Petition No.1703 of 2010) the Hon’ble National Commission by relying upon the said Judgment of Hon’ble Supreme Court dismissed the petition by observing that the Judgment of the Supreme court is binding on all the subordinates courts and there is no scope for interference. The petitioner then preferred SLP No.24577/2010 against the said order of Hon’ble National Commission. However the said SLP was dismissed by the Hon’ble Supreme court vide its order dated 1.10.2010. Against this submission and observations made in the above stated rulings, complainant could not show any law. Thus, we have no option but to hold that the Fora under the Consumer Protection Act,1986 have no jurisdiction to entertain and adjudicate upon such disputes of telecommunication services as it has been held by the Hon’ble Supreme court in above said rulings that there is implied bar to invoke the provisions of Consumer Protection Act in view of Section-7B of the Indian Telegraph Act and any dispute between the subscriber and the telegraph authority can be resolved by taking recourse to arbitration proceedings. 8. Therefore, in view of the law settled by the Apex court in the matter , the appeal filed by OP is accepted and that of complainant is dismissed. Consequently, the impugned order dated 1.10.2009 passed by the District Forum is set aside and complaint is dismissed being not maintainable in the Fora. 9. Before parting with this order, it is observed that complainant would be at liberty to knock at the door of the appropriate Forum having jurisdiction over the matter, in accordance with law.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | , | | 
