BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

O R D E R

SRI.P.V.SINGRI, PRESIDENT

This complaint is filed by the complainant under Section 12 of Consumer Protection Act, 1986 against Opposite Parties (herein after referred as OPs) alleging deficiency in service and sought a direction to OP to furnish clear telephone connection and Rs.10,000/- as damages for the harassment cost to her.

2.  The brief averments made in the complaint are as under:

The complainant has a telephone bearing landline No.23302065 which is registered in her name at No.5, 8^th Main, 8^th Cross, Shivanagar, Rajajinagar and Bangalore-10.  That the complainant has made an application on 05.04.2013 for transfer of the above said telephone connection from No.5, 8^th Main 8^th Cross, Shivanagar, Rajajinagar, Bangalore-10 to No.38, Ambarish Nilaya, Kachohalli, Dasanapura Hobli, Lakshmipura Post, Bangalore North.  The complainant has been made to run from pillar to post by the OP and till date no action is taken and the telephone connection has not been transferred and connected to the new address.  The OPs are                    dilly-dallying the matter till today.  The OPs have not even bothered to inform the complainant that the details regarding the reason for the delay in not shifting telephone connection.  Therefore, the complainant got issued a notice on 18.05.2013 calling upon to OPs to shift the telephone connection immediately.  However, the OPs have not complied with the demand made in the notice.  Therefore the complainant was forced to approach this Forum.

3. In response to the notice issued, OPs appeared through their Advocate and filed their version contending in brief as under:-

The present complaint is not maintainable and this forum has no jurisdiction to entertain the complaint.  In view of the judgement of the Hon’ble Supreme Court in CA/7687/2004 (General Manager, Telecom Vs. M.Krishna and another) wherein it has been observed that any such dispute pertaining to phone bills, apparatus etc., will have to be settled by an arbitration.  The complaint is also not maintainable in view of the judgement of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.2910/2008 (Tapas Kumar Roy Vs General Manager, BSNL Jharkhand and another). Admittedly, the complainant is a subscriber under OP having telephone bearing No.23302065.  The complainant had sought for shifting of the said telephone from No.5, 8^th Main, 8^th Cross, Shivanagar, Rajajinagar and Bangalore-10 to No.38, Ambarish Nilaya, Kachohalli, Dasanapura Hobli, Lakshmipura Post, and Bangalore North.  That on the receipt of the shifting application, the field unit outdoor officer inspected the premises and found that it is not feasible to shift the telephone in question to the said address.  The same was intimated to the complainant.  The office copy of the CDR report for non-feasibility is produced.  That the place where the complainant sought for the shifting of the telephone is not covered by CDMA-3G signal as the place is more than 5 Kms away from Anjanapura BTS.  That the shifting will be completed as soon as the area becomes feasible.  The complainant was apprised of the non-feasibility.  The OP has not made the complainant to run from pillar to post and these allegations are false and baseless.   The OP has taken appropriate action on receipt of the shifting request.  Since the area where the shift is requested is not feasible, the shifting is not been effected.  That the consequent to the inspection done once again the area was found to be technically not feasible.  Accordingly OB was referred to Commercial Officer(West) for further correspondences where waiting list will be maintained.  For the reasons mentioned above there is no deficiency in service on the part of the OP. 

4. For the aforesaid reasons, the OPs prays for dismissal of the complaint.

5. The complainant to substantiate the allegations made in the complaint, filed her affidavit evidence in lieu of oral evidence.  The OP filed the affidavit evidence of one Sri.M.S.Hiremugadur, AGM (Legal) Bangalore Telecom District.  Both the parties have submitted the written arguments. 

6. The points that arise for our determination in this complaint are as under:

1. Whether, the OP proves that this Forum has no jurisdiction to entertain the present complaint?

2. If not, whether the complainant proves the deficiency of service on the part of the OP as alleged in the complaint?

3. If So, what relief/order the complainant is entitled to?

7. Perused the allegations made in the complaint, so also in the sworn testimony of the complainant.   Perused the averments made in the version and sworn testimony of the OP.   Also, perused the written submissions filed by both the parties and various documents produced by both the parties.  Also heard oral arguments advanced by the learned advocate for OP.
8. Our answer to the above points:

9. POINT No.1 & 2:  The first and foremost objection that was raised by the OPs regarding jurisdiction of this Forum in entertaining the present complaint.  The learned advocate for the OP referring to Section 7-B of Indian Telegraph Act argued that any dispute regarding any telephone line, appliance or apparatus arise between the telegraph authority and the subscriber such dispute shall be determined by arbitration and for the purpose of such determination the said dispute shall have to be referred to the arbitrator appointed by the Central Government either specifically for the determination of such dispute or generally for the determination of disputes under Section 7-B of the Indian Telegraph Act and not this Forum.  Therefore, he argued that this Forum as no jurisdiction to entertain the present complaint in view of the provision contained in Section 7-B of the Indian Telegraph Act.

S.7-B of Indian Telegraph Act deals with Arbitration of Disputes reads as under:-

1.  Except as otherwise expressly provided in the 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. 

10. The plain reading of Section 7-B, extracted above makes it clear that the disputes like the one on hand has to be determined by an arbitrator appointed under Section 7-B of the Indian Telegraph Act.  When there is a specific remedy provided under Section 7-B of the Indian Telegraph Act regarding the disputes the remedy under the Consumer Protection Act as by implication is barred.  The learned advocate for the OP in support of his arguments placed reliance on the judgement rendered by the Hon’ble Supreme Court in case between General Manager, Telecom vs. M.Krishnan and others reported in 2009 AIR SCW 5631.  Perused, the said judgement.   The Hon’ble Supreme Court in a similar dispute, referring to Section 7-B of Indian Telegraph Act has opined that Consumer Disputes Redressal Forum do not have jurisdiction to entertain a dispute like the one on hand.  The Hon’ble Supreme Court has also observed that Rule 13 of Telegraph Act provides that all service related to telephone are subjected to telegraph rules.  Further the Hon’ble Supreme Court has also opined that the special law over rides the general law.  Therefore, the present dispute cannot be entertained.  Therefore, we are of the opinion that the complainant cannot invoke the provision of Consumer Protection Act 1986. 

11. The learned advocate also placed reliance rendered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.2910/2008.  The Hon’ble National Commission placing reliance of the above referred judgement of the Supreme Court has opined that the dispute concerning to telephone lines and bills have to be determined by an arbitrator as provided under Section 7-B of the Indian Telegraph Act.  In view of the ratio laid down in the above said authorities we are of the opinion that the present complaint is not maintainable in this Forum and the same is liable to be dismissed.

12. Furthermore it is apparent from the averments made in the version as well as sworn testimony of the OP coupled with the document produced go to show that the telephone of the complainant was not shifted to her new address because of non-feasibility.  We do not find any deficiency on the part of the OP in not entertaining the shifting request of the complainant.  In view of the finding of Point No.1, Point No.2 does not survive for determination.

13. POINT No.3:  The order could not be passed within the stipulated time due to heavy pendency.  In the result we proceed to pass the following:-

ORDER

1.     The complaint filed by complainant under section 12 of the Consumer Protection Act, 1986 is dismissed. 

2.    The parties to bear their own cost.

3.     Furnish free copy of this order to both the parties.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 7^th day of November 2015)

MEMBER                                                              PRESIDENT

NRS* 

C.C.No.1208/2013

Complainant                          -       Smt.D.Sulochana

                                                    W/o.B.R.Srinivas,

-vs-

Opposite Parties                    _        The Chief General Manager,

                                                    BSNL, Bangalore Telecom                     District,

Witness examined on behalf of the complainant dated 27.09.2013

1. Smt.D.Sulochana

Witnesses examined on behalf of the OP dated 29.10.2013

1. Sri.M.S.Hiremugadur AGM (Legal)

MEMBER                                                              PRESIDENT