Delhi

StateCommission

A/1045/2014

PRAMOD TYAGI - Complainant(s)

Versus

THE M.D., BHARTI AIRTEL LTD. - Opp.Party(s)

12 Feb 2015

ORDER

  IN THE STATE COMMISSION

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 12.02.2015

 

First Appeal No. – 1045/2014

 

 

Pramod Tyagi

Son of Sh. Charan Singh Tyagi

Resident of H.No.-122, Gali No. 4,

Phase-9, Shiv Vihar,

Delhi-110094

Through: “The Social Spirits”

H.O:D-23 LGF Jangpura Extn. Delhi

                                                                                         ….Appellant

 

Versus

 

The Managing Director,

Bharti Airtel Ltd.

Bharti crescent,

1, Nelson Mandela Road

Vasant Kunj, Phase-2

New Delhi

                                                                                  …….Respondent

 

CORAM

 

Justice Veena Birbal, President

Salma Noor - Member

 

1.  Whether reporters of the local newspaper be allowed to see the judgment?

2.  To be referred to the reporter or not?

 

Salma Noor, Member

 

1.              By this appeal the appellant has challenged order of the Distt. Forum (S/W) dated 21.08.2014 in complaint case DF-VII/493/2013/558-559 in which the Ld. District Forum has dismissed the complaint for want of jurisdiction of Consumer Forum.

2.           Brief facts of the case are that the appellant/complainant paid Rs. 1000/- and provided copy of his driving license to avail the facility of mobile number portability from Idea Cellular to Bharti Airtel; the idea cellular SIM card stopped working from the mid night of 29.03.2013 but the SIM card of Bharti Airtel was not activated; this resulted in loss of connectivity which caused him harassment, mental agony inconvenience, professional loss and economic loss.

3.             Aggrieved complainant/appellant filed a complaint before the District Forum.

4.               Notice was issued to the OP/respondent. OP contested the case, the arguments on behalf of the OP are that the dispute raised by the complainant in the complaint pertains to mobile bills. The decision of Hon’ble Supreme Court in General Manager, Telecom versus M. Krishnan and another dated decided on 1/9/2009 applied to the present complaint and the remedy available with the complaint is to invoke arbitration jurisdiction under section 7B of the Indian Telegraph Act, 1885. The complaint, therefore, should be dismissed. Reliance is also placed upon Lokesh Parasher versus M/s Idea Cellular Ltd. Revision Petition number 3780 of 2011 decided by National Consumer Disputes Redressal Commission, New Delhi on 20.04.2012 relying upon M. Krishnan’s case (supra). The copy of the order passed by honourable Supreme Court in SLP (civil) No. 24577/2010 in Parkash Verma versus Idea Cellular Ltd. and another is also filed to show that on 1/10/2010, the honourable Supreme Court dismissed the special leave petition against the order of National Commission in a similar matter.

               The arguments on behalf of complainant was that the  Department of Telecommunication has already clarified that M. Krishnan’s case (supra) does not apply to the Private Service Providers. Therefore the complaint is maintainable and the application should be dismissed.  

5.              After hearing the counsel for both the parties, the District Forum dismissed the complaint of the complainant and passed the following order:

               “In General Manager Vs. M. Krishnan; 2009(4) R.C.R. (Civil) 8 : 2009(5) Recent Apex Judgments (R.A.J.) 500 : 2009(8) SCC 481 : 2010 AIR (SC) 90 the Honorable Supreme Court has held:

           “6-7. 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. Section 7-B of the Telegraph Act reads as under:

“S 7B Arbitration of Disputes:-

  Except as otherwise expressly provided in this Act, if any disputes 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 of such determination by arbitration and shall, for the purpose 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 dispute under this Section.

              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.

Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules.

              It is well settled that the special law overrides the general law. Hence, in our opinion the High Court was not correct in its approach.

              In Chariman, Thiruvalluvar, Transport Corporation Vs. Consumer Protection Council, (1995)2 SCC 479 it was held that the National Commission has no jurisdiction to adjudicate upon claims for compensation arising out of motor vehicles accidents. We agree with the view taken in the aforesaid judgment.”

Section 4 of the Act gives exclusive privileged to the Central Government in respect of Telegraphs, the power to grant licenses within India. Section 3 (1AA) defines, in short, the word “Telegraph” as given below:

             “telegraph” means any appliance, instrument, material or apparatus used or capable of use for transmission of 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”.

               The complaint is made in respect of the mobile phone with the sim card, which comes within the definition of Telegraph stated before.

                As regards the argument on behalf of the complainant that Department of Telecommunication by the Office Memorandum dated 04.02.2014 clarified that M. Krishnan’s case (Supra) does not apply to all cases. The subsequent clarification of Department of Telecommunication, vide letter dated 03.07.2014 of Mr. R.S. Rana Assistant Supreme Court only reflects the correct legal position in the matter. Therefore, office memorandum and dated 04.02.2014 relied upon by the complainant does not apply in view of the said subsequent clarification, dated 03.07.2014 by the same department, the copy of which is filed on behalf of OP. The effect of judgment of honourable Supreme Court cannot be nullified by any department observations or clarifications. The review of judgment of Supreme Court can only be done by the Supreme Court.

             M. Krishnan’s case was followed in another case of the OP company titled Jayaprakash, Panjeta Vs Vodafone ESSAR South Ltd. and another in the Revision Petition number 2365/2011 relied upon by the OP decided by the honourable National Consumer Disputes Redressal Commission on 30/4/2014 and it was held that the judgment of honourable Supreme Court was binding and the Revision Petition filed against the OP company was dismissed. In Lokesh Parashar Vs M/s Ideas Cellular Ltd. the Revision Petition number 3780 of 2011 decided by National Consumer Disputes Redressal Commission, New Delhi on 20.04.2012, the honourable National Consumer Disputes Redressla Commisison, while dismissing the revision petition following M. Krishnan’s case (supra) has also indicated that in another case of Parkash Verma Vs Idea  Cellular Ltd. and another the Revision Petition number 1703 of 2010 was dismissed by it on 21.05.2010  and the special Leave Petition filed by the petitioner before the Apex Court was dismissed on 01.10.2010 by honourable Supreme Court. Therefore, M. Krishnan’s case (supra), is consistently being followed by Honorable National Consumer Disputes Redressal Commission and we are bound to obey the directions and the observations in these cases and are compelled to hold that the present complaint is hit by Section 7B of the Act and we agree with the contentions of the learned counsel for OP company that the present complaint is not maintainable.

              In view of the above, the application is allowed and the complaint filed by the complainant against the OP is dismissed for want of jurisdiction of this Forum. The copy of the order be sent to both the parties by registered post free of cost”.

6.                We have heard Sh. Rakesh Mahajan at the admission stage. The appellant submission is that the Department of Communication has already clarified on 04.02.2014 that M. Krishnan’s case (supra) does not apply to the private service providers. But this objection of the appellant is not sustained because the subsequent clarification of Department of Telecommunication vide letter dated 03.07.2014 of Mr. R.S. Rana Assistant Director General (PJL) that any observation by the Supreme Court can be modified by Supreme Court only reflects the correct legal position in the matter. Hence, the office memorandum dated 04.02.2014 relied by the appellant does not apply. Further as not in the judgment  of Ld. District Forum, M Krishnan’s case was filed by the National Commission in Jaya Prakash Panjets Vs. Vodaphone ESSAR South Ltd. and in ___________Vs. R.P. 2365/11 and the Revision Petition filed were dismissed.

8.            Therefore, the argument of appellant not being subscriber and that his case is not barred does have any force. Once payment of Rs. 1000/- has been for transfer of subscription from the scheme of portability of number between the service providers, he cannot the plea of not being a subscriber.

9.                   As discussed above we are of the view that the Ld. District Forum has rightly held that Consumer Forum is bound by the law laid down by the Hon’ble Supreme Court in M. Krishnan’s case (Supra). Therefore, the position of law as laid down by the Hon’ble Supreme Court in General Manager Telecom Vs M. Krishnan and Another decided on 01.09.2009 clearly applies to the present appeal and the remedy available to the appellant is to invoke the arbitration clause under section 7B of the Indian Telegraph Act, 1985.

10.                  In view of the legal position discussed above, we hold that the District Forum has rightly dismissed the complaint of the complainant for want of jurisdiction. Appeal is dismissed in limini.

                A copy of this order be sent to the parties free of costs as per rule.

                File be consigned to record room.

(Justice Veena Birbal)

President

 

 

(Salma Noor)

Member