BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 08th of March 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.228/2010
(Admitted on 28.08.2010)
Miss Suraksha R. Shetty,
Do. Ramesh Shetty,
Flat No.G-D, Tranquil Heights,
Arya Samaj Road, Balmatta,
Mangalore. …….. COMPLAINANT
(Complainant: In person)
VERSUS
1. The Managing Director,
Air Tel Show Room,
Near A.B.Shetty Circle,
Mangalore.
2. The Commercial Manager,
Air Tel Show Room,
Near A.B. Shetty Circle,
Mangalore. ……. OPPOSITE PARTIES
(Advocate for the Opposite Parties: Sri.B.J. Mahesh).
***************
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:
The Complainant purchased the cell phone at Pai Electronics Private Limited Mangalore and the Opposite Parties supplied the SIM for the cell phone by collecting necessary fee. While giving connection to the cell phone the Opposite Parties executed necessary papers which the Complainant agreed to execute and accordingly the necessary papers were executed and thereafter started enjoyment of the SIM issued by the Opposite Parties.
It is stated that, in the month of May 2010 the Complainant was put to trouble on account of de-activation of outgoing calls from the cell phone. The Complainant visited the showroom of the Opposite Parties, the Opposite Parties in turn assured that they would set-right the problem but the Opposite Parties failed to keep up their promises. All efforts of the Complainant became infructuous and thereafter gave a representation dated 24.05.2010 to the Opposite Parties but the Opposite Parties despite of receiving representation not set-right the problem but cell phone connection disconnected even the receiving incoming calls. The Complainant immediately approached the Opposite Parties but the Opposite Parties did not give response and stated that the service rendered by the Opposite Parties amounts to deficiency 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 take suitable action on the Opposite Parties in the interest of justice and equity.
2. Version notice served to the Opposite Parties by RPAD, Opposite Parties appeared through their counsel filed version and stated that the present dispute raised by the Complainant is not maintainable in view of the judgment rendered by the Hon’ble Supreme Court of India in Civil Appeal No.7687/2004 dated 01.09.2009 and another reported in 2009 AIR SCW-5631. As per the said judgment, the dispute raised by the subscriber and the Telecom Service provider, the remedy available for the subscriber is under Section 7-B of the Indian Telegraph Act and this FORA has no jurisdiction to entertain the complaint.
The another submission of the Opposite Parties is that, the mobile number 9980062238, the said connection has not been provided in the name of the Complainant, the said connection is standing in the name of one Sheena with effect from 03.09.2009 as such the Complainant is not the consumer to file this complaint under the C.P. Act and further stated that, as per the regulations dated 23.03.2009 instructed all the private cellular service provider to strictly adhere to the process of address verification and in the event of any mismatch in the address/identity of the subscriber the licensees should proceed to deactivate the connections. In this case, there is no compliance with regarding submission of required documents on the part of the subscriber, the mobile connection has been disconnected. It is submitted that, the Complainant is using the mobile connection bearing No.9900813890 which is standing in her name. The No.9980062238 she is not the subscriber of the said number and stated that there is no deficiency 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:
- Whether the complaint is maintainable and this FORA has jurisdiction to entertain the complaint?
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Miss Suraksha R. Shetty (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her. Ex C1 to C10 were marked for the Complainant as listed in the annexure. One Mr.Prasanth N (RW1), working as Officer Legal of the Opposite Parties filed counter affidavit and answered the interrogatories served on him. 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):
As far as issue No.(i) is concerned, the Opposite Party raised a contention 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 appropriate authority 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 appropriate authority 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 08th day of March 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Miss. Suraksha R. Shetty – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 24.05.2010: Original representation informing the difficulty in making the outgoing calls through cell phone.
Ex C2 – 24.05.2010: Original representation requesting the Opposite Parties to supply the documents.
Ex C3 – 02.06.2010: Original representation informing the Opposite Parties alleging bar of all calls.
Ex C4 to C9 – 26.05.2010 & 02.06.2010: Original postal receipts (6 in numbers).
Ex C10 - : Original SIM allotment cover bearing SIM number, MSISDN number, IMS number along with original SIM Card cover.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Mr.Prasanth N, working as Officer Legal of the Opposite Parties.
Documents produced on behalf of the Opposite Parties:
Dated:08.03.2011 PRESIDENT
