Robin Banerjee,

son of Anu Banerjee, 15/1, Umesh Banerjee Lane, P.O. Howrah, P.S.  Shibpur,

District –Howrah,PIN – 711101.------------------------------------------------------------------  COMPLAINANT.

-          Versus   -

The Manager Vodafone,

Essar East Limited,

5, M.G. Road, P.O. & P.S. Howrah, District – Howrah,

PIN – 711101, 11, Dr. U.N. Brahmachari Street, P.S. Shakespeare Sarani,

Kolkata – 700017. -----------------------------------------------------------OPPOSITE PARTY.

                                                P   R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

Member       :     Smt. Jhumki Saha.

                                                 F  I   N   A    L       O   R   D    E     R

1.                  Dissecting the complaint it is collected that the present consumer dispute

filed by Rabin Banerjee issuing mobile connecting activities against mobile no. 9830302464 by the O.P namely Manager, Vodafone ESSAR East Ltd.

2.                  Facts reveals that Rabin Banerjee paid Rs. 1123/- through cheque no.

95398 to Vodafone ESSAR East Ltd. for lifetime service and the same was duly received on the dated 16-06-2008 and subsequently disconnected by the O.P. and the request had been made by the complainant to restore the connectivity of the said mobile connection, but all the attempts are in vain. Moreover, the O.P. did not care to reply and finally finding no other alternative the petitioner filed the instant case as he suffered harassment, mental agony and also loss in his  business activities;  prayed relief and compensation from the Forum in connection with this complaint petition.

3.                  To counteract the complainant’s case and alleged story O.P. by filing a

written version asserted that the complainant has no legal right to sue this complaint to the Forum whereby such an application is not maintainable to be tried at any court including District  Forum under C.P. Act, 1986 as  mentioned U/S 7B of the Indian Telegraph Act, 1885 wherein any dispute arisen out shall be determined by the Arbitrator appointed by the Central Government and the question of deficiency in service or negligence on the part of the O.P. does not arise. In such circumstances, it  prayed for dismissal of the complaint accordingly.

4.               Upon pleadings of both parties three points arose for determination :

i)         Whether the case is maintainable under C.P. Act, 1986 ?

ii)         Whether O.P. was negligent in activities and caused  deficiency in    

            service by not  taking due care for linking  the existing system

            with the Vodafone net work ?

iii)        Whether the complainant is  entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

5.         All  the points are  taken up together for consideration. On proper scanning of the argument as advanced by the agents of both parties and also reviewing the material documents as filed by the parties, we have searched out some of the discrepancies as per complaint which are to be decided in this case to arrive at just conclusion. On merit it has been pleaded that the mobile connection / connectivity of the complainant was suspended in relation to the various malpractices / illegal charges as pleaded by the complainant, the O.P. has pleaded the following points :

i)                    The instant petition is not maintainable at any court made as per the provision laid down under C.P. Act, 1986.

ii)                  The said complaint petition has been decided U/S 7B of the Indian Telegraph Act, 1885 where the dispute shall be determined by Arbitration to an Arbitrator appointed by the Central Government.

6.   We have heard the ld. Councils for the complainant  and the O.Ps. and thereby the concerned case records submitted by the parties.

7.   The ld. Council of the O.P. during arguments submitted that in view of Section 7B of the Indian Telegraph Act 1885, the jurisdiction of the Forum has been barred as per Apex  Court order. Before relying upon the above we have to ventilate the laws / legislature enactments by the Parliament / authority on the question relating to the jurisdiction of the Consumer Forum. Section 7B of the Indian Telegraph Act resolved the dispute through Arbitration by appointing Arbitrator which is related to telegraph line, appliances or apparatus and that the telegraph authority are referable to Arbitration which is defined ( herein Telegraph Authority ) U/S 6, means the  Directorate General ( P & T ) and including any officer empowered by the D.G. to perform  the function of the telegraph authority under this Act, and for which Department of P & T later on department of  Telecommunication was set up and called as Telegraph Authority under Indian Telegraph Act as per record. The O.P. has failed to show any rules, regulations or provisions as to how the licensee like spice communication and ideal cellular has come into the definition of Telegraph Authority. Moreover, the dispute involved in the present case is not between the Telegraph Authority and the complainant ; it is between the lincensee to whom the licence has been issued U/S 4 of the Telegraph Act for manning and providing mobile telecom services by Central government. Even from the perusal of the proforma licensee agreement it reveals that it has been specifically mentioned in the said agreement that any dispute between consumer and licensee regarding the Telephone Services will be between the licensee and the consumer and the licensee i.e., Central Government or Telegraph Authority would not be in any manner involved or liable for the same. In this case powers of the telegraph authority have not been delegated to the licensee for the purpose of Section 7B of the  Telegraph Act ( referring Clause no. 31.5 of  Customer Service ). 

8.   Moreover, the dispute relating to telegraph line, appliance etc. are referable to arbitration through arbitrator, but the present dispute is not related to telegraph line appliances or apparatus rather the dispute in question is regarding various unfair trade practice adopted by the O.P. and the wrongful levying of certain illegal charges in the bill amount and the said dispute is squarely covered under the provision of C.P. Act, 1986.

9.   Previously the telephone services were solely and exclusively established and maintained by the Central Government but with the passage of time and with the advancement of the technology, certain private operators have been given licences for controlling and regulating  their working. The telecom regulatory authority of India Act, 1997 was passed. Under the said Act  the jurisdiction of the  C.P. Act to entertain the dispute between individual consumer and mobile services provider has been specifically recognized.

10. Under the C.P. Act,1986 the Consumer Forum was established. Under the Act it has got the jurisdiction not only to pass direction and award, compensation and damages to the individual consumer but the Forum can also issue direction and order for payment of compensation, keeping in view the interest of the consumer at large. For which it is a fit case where we feel it necessary to issue direction to the O.P. keeping in view the interest of numerous consumers. 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 legislation has caused a consumer friendly legislation for better protection of the consumer  rights and the remedy is available at the door step of the consumer as a District  Consumer Forum have been established.

11. Moreover, it is to be pointed out  that the O.P. only pleaded on his behalf that the complaint against that authority is not maintainable and nothing else has been explained. So when such type of statutory authority fails to act, the poor consumer is left with no alternative than to involve the jurisdiction of the Consumer  Forum established for the purpose of protection  of the consumer rights. 

      Therefore, we are of the view that this is a fit case where prayer of the complainant shall be allowed. Accordingly  the  points are disposed of.               

Hence,

                                    O     R     D      E      R      E        D

      That the C. C. Case No.  98 of 2013 ( HDF 98 of 2013 )  be  allowed on contest against o.p.  with litigation  costs of Rs. 2,000/-.

      The O.P. is hereby directed to restore the connection of the complainant within 30 days from the date of this order.

      The O.P. is also directed to pay a  compensation of Rs 10,000/- for adopting such type of unfair trade practice against which caused  mental tension and prolonged harassment of the complainant.

      The complainant is at liberty to put the decree into execution after expiry of the appeal period.

      Supply the copies of the order to the parties, as per rule.      

DICTATED  &    CORRECTED

BY   ME.  

  (   P. K. Chatterjee )                                                          (    P. K. Chatterjee)

  Member,  C.D.R.F.,Howrah.                                       Member,  C.D.R.F.,Howrah.

        (  T.K. Bhattacharya  )

   President,  C.D.R.F.,Howrah.