BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                               Dated this the 28^th of February 2011

PRESENT

                                             SMT. ASHA SHETTY           :   PRESIDENT

                                                                SMT.LAVANYA M. RAI       :   MEMBER

                                                               SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.117/2010

(Admitted on 27.03.2010)

Mr.K.Prasad Bhandary,

Advocate,

Aged about 30 years,

Co. Shakeel Mazhar,

Gandhi Circle,

Opp: University College,

Hampankatta,

Mangalore  575 001.            …….. COMPLAINANT

(Advocate for the Complainant: Sri.Vijaya Kumar B)

          VERSUS

1. The Chief Manager,

Reliance Communications Ltd.,

Essel Center, 3 Floor,

M.G. Road, Kodialbail,

Mangalore  575 003.

2. The Chief Manager,

Reliance Communications Ltd.,

Thane Belapur Road,

Koparkhairane,

Navi Mumbai – 400 710.                      ……. OPPOSITE PARTIES

(Advocate for the Opposite Parties: Sri.K.S.Udayanarayana).

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

Complainant submits that, he is a practicing advocate, customer of the Opposite Party by using the post paid mobile phone connection bearing mobile No.9342014578 since about 4 years.  It is stated that, on 30.1.2010 at night hours when he tried to place call from his cell, he was unable to place any calls from the above said connection to any other number.  He used to receive a response ‘please contact customer care’.  It is stated that, the Opposite Parties barred the incoming and outgoing calls from the SIM of the above cell number.  The very next day the Complainant contacted the customer care, the customer care personnel of the Opposite Parties gave one or the other reason stating that, his phone connection was suspended due to excess billing and request for termination. Accordingly the phone connection was terminated etc. etc but the problem of the Complainant was not attended by the Opposite Parties and his cell number was disconnected from 30.1.2010 till 04.02.2010.  Thereafter, the Complainant issued a legal notice, on receipt of the notice the Opposite Parties have reinstalled the phone connection on 04.2.2010 at evening hours. 

Further stated that, the Complainant opted a tariff plan is NJ 249.  As per the above plan the Complainant is having a free usage of Rs.249/-, whatever calls he made he is entitled to get Rs.249/- deduction in every bill.  But in the bill dated 09.02.2010 the deduction of free usage was not done according to the plan, only Rs.216/- was deducted which was contrary to the agreed plan and the Opposite Parties are liable to give a sum of Rs.33/- to the Complainant.  The disconnection of the Cell phone between 30.1.2010 till 4.2.2010 amounts to deficiency and because of the above acts the Complainant was put to inconvenience and harassment and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay a sum of Rs.50,000/- as compensation, Rs.33/- being the balance deduction in the bill, Rs.1,000/- being the cost of Lawyer’s notice and Rs.5,000/- as cost of the proceedings.

2.       Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version and raised a preliminary objection stating that, in the light of the judgment delivered by Hon’ble Supreme Court of India in Civil appeal No.7687/04 (2009 AIR SCW 5631) and subsequent common order of Hon’ble State Commission, Chennai, the complaint is not maintainable and this FORA has no jurisdiction to entertain this complaint.  It is further stated that, the complaint is liable to be dismissed for non-joinder of proper and necessary party. 

Apart from the above, it is submitted that, in order to comply with the subscriber verification requirements laid down by the Department of telecommunications, the Opposite Party is bound to keep the proper information as to the authenticity of the subscriber and do timely validations.  It is mandatory for the Opposite Party to ensure that, genuine customers are using the questioned service connections especially in post-paid service connections.  During the said process of verification either personal verification or telecalls will be taken up to questioned numbers, if Opposite Party founds that the said connection is not used by particular customer, they will intimate the particular customer through SMS and phone calls to validate the said connection.  If the customer fails to validate the same, the services will be barred to the said connection.  In the instant case, the services to the Complainant’s mobile was barred due to tele-negative verification.  Since the Complainant failed to validate himself as customer, the services were barred to his mobile and stated that, there is no deficiency and denied other allegations made in the complaint and prayed for dismissal of the complaint. 

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complaint is maintainable before this FORA and this FORA has jurisdiction to entertain the complaint?

2. Whether the Complainant proves that the Opposite Parties committed deficiency in service?

3. If so, whether the Complainant is entitled for the reliefs claimed?

4. What order?

4.         In support of the complaint, Sri.Prasad Bhandary (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   Complainant produced 5 (five) documents as listed in the annexure.   One Sri.K.S.Gopinath (RW1), Constituted Attorney of the Opposite Party Company filed counter affidavit but RW1 has left the service and thereafter one Sri.Krishnamurthy (RW2), Constituted Attorney of the Opposite Party Company filed counter affidavit and answered the interrogatories served on him.  Opposite Parties produced two (2) documents as listed in the annexure.  Both parties produced notes of arguments.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                       Point No.(i): Negative.

                       Point No.(ii) to (iv): As per the final order.  

Reasons

5.  Point No. (i) to (iv):

The Opposite Party raised a preliminary objection stating that, this FORA has no jurisdiction to try the above disputes in the light of the judgment of the Hon’ble Supreme Court of India in Civil appeal No.7687/04 (2009 AIR SCW 5631) and subsequent common order of Hon’ble State Commission, Chennai, relied and produced the citations before this FORA. 

However, we have already come accrossed the above citations.  No doubt, the Lordship of the Apex Court in General Manager, Telecom Vs. M. Krishnan and another have ruled that, in view of Section 7-B of the Telegraph Act, the dispute relating to telecom service should be decided only by the Arbitrator appointed by the Central Government and that all services relating to telephone are subject to Telegraph Rule and therefore this kind of cases cannot be decided by the consumer FORA.  The relevant observation in the judgment reproduced herebelow:-

“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”. Thus, a plain reading of the above judgment would suggest undoubtedly that when there is a special remedy under the Telegraph Act, the aggrieved party must seek relief only under the authority appointed or nominated under Section 7-B of the Telegraph Act and he is barred from approaching the consumer FORA.  The reasons assigned by the Apex Court is “it is well settled that the special law overrides the general law”, for which, they referred the decision of the Apex Court in “the Chairman Tiruvalluvar Transport Corporation versus The Consumer Protection Council” reported in “I (1995) CPJ 3 (SC)”. 

Further, the Section 7-B reads thus:-

“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 for whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially 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-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any court”.

Section 3 of the Telegraph Act defines, “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”.  Thus, the expression of telegraph, as defined in the Telegraph Act shall include telephones and all kind of telecommunication services, either internet or shifting the telephone or excess bill, are all related to telegraph line or with reference to apparatus etc. 

          Basing on the principles laid down by the Apex Court as well as the provision of law, and also the another ruling reported in State Consumer Disputes Redressal Commission, Haryana, Panchkula reported in 2011 CTJ 2010 (CP) (SCDRC) in Bharti Airtel Limited and another versus Karan Singh Pannu and Others held as under:-

“Mobile phone – Jurisdiction – Consumer Protection Act, 1986 – Indian Telegraph Act, 1885 – Section 7-B – Complainant was the consumer of mobile phone services provided by the Opposite Parties – His outgoing service barred allegedly without any intimation – District Forum allowed the complaint - Compensation awarded – Appeal – As held by the Supreme Court in the case titled General Manager, Telecom versus M.Krishnan and Another when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding the telephone billing disputes then the remedy under the Consumer Protection Act is by implication barred – Appeal accepted, dismissing the complaint.

Basing on the above authorities as well as the provision of law, we are of the considered opinion that the expression of telegraph defined in the telegraph Act, it includes all kinds of telecommunication services and as such the complaint filed by the Complainant before this FORA is not maintainable and the jurisdiction of the Consumer Forum is barred.

            In view of the above observation, the complaint is hereby dismissed with a liberty to the Complainant to approach the authority mentioned in the Hon’ble Apex Court judgment to resolve their controversy involved in this case.  No order as to costs.

6.       In the result, we pass the following:                          

ORDER

          The complaint is dismissed with a liberty to the Complainant to approach the authority mentioned in the Hon’ble Apex Court judgment to resolve their controversy involved in this case.  No order as to costs.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.

(Page No.1 to 9 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 28^th day of February 2011.)

PRESIDENT             MEMBER                 MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Sri.Prasad Bhandary – Complainant.

Documents produced on behalf of the Complainant:

Doc. No.1: 09.01.2010: Original bill for the period from 9.12.2009 to 08.01.2010.

Doc. No.2: 09.02.2010: Original bill for the period from 09.01.2010 to 08.02.2010.

Doc. No.3: 02.02.2010: Copy of the Lawyer’s notice issued to the Opposite Parties.

Doc. No.4: 06.03.2010: Letter issued to the postal authority.

Doc. No.5: 17.03.2010: Letter issued by the postal authority.

Witnesses examined on behalf of the Opposite Parties:

RW1 – Sri.K.S.Gopinath, Constituted Attorney of the Opposite Party Company.

RW2 – Sri.Krishnamurthy, Constituted Attorney of the Opposite Party Company.

Documents produced on behalf of the Opposite Parties: 

Doc. No.1: Duplicate copy of the bill for the period from 09.01.2010 to 08.02.2010.

Doc. No.2 : Tariff Plan NJ 249 along with call rates.

Dated:28.02.2011                            PRESIDENT