DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
Palakkad, Kerala
Dated this the 30th day of November, 2011
Present : Smt.Seena.H. President
: Smt.Preetha G Nair, Member
: Smt.Bhanumathi A.K, Member Date of filing: 06/05/2011
CC / 63 / 2011
Sarafudheen. C.M,
S/o Muhammed,
House No. V/204,
Thachankode, - Complainant
Pudunagaram P.O,
Palakkad – 678 503
(BY ADV. JOHN JOHN)
Vs
1. The Nodal Officer,
Tata Tele Services Limited,
8th Floor, S.L. Plaza,
Palarivattom,
Kochi – 688 025
(BY ADV. P. MURALIDHARAN)
- Opposite parties
2. Haque,
Distributor Tata Indicom Tele Service (Old),
G.S.M Kerala, Authorized G.S.M
Mobile Service Centre,
Iqbal Manzil, Shornur Road,
Pattani Street, Nurani P.O,
Palakkad
(BY ADV. UNNIKRISHNAN)
O R D E R
BY SMT. BHANUMATHI. A. K, MEMBER
The case of the complainant:
The complainant is a customer of 1st opposite party since 16/08/2006 vide mobile No. 9249241370 as pre-paid connection.
On 11/03/2011, the complainant got recharged his phone for Rs. 25/- and the 1st opposite party informed the same to the complainant through SMS. Thereafter the complainant dialed only to the number 08973639988 and talked for 1.18 minutes. This call costs only 50 ps. Again the complainant was informed by the 1st opposite party through SMS that the entire amount had lost from his recharged amount except 79 paise. Further the complainant got SMS showing that from 75 paise 50 paise was deducted and the account of complainant remained with 29 paise only. So the complainant contacted the customer care executive. But they could not explain satisfactorily about the mental agony and financial loss due to the deficiency of service by the company.
On 05/04/2011 for taking the call details the complainant recharged with higher amount than the company demanded. This excess amount also lost in the same way. The complainant says that he has not requested for any extra package, welcome tones etc. Complainant further states that he had entrusted his mobile phone to the opposite party's show room at Palakkad for activating DND service and the same was returned without activating DND service.
The above mentioned act of opposite parties caused financial loss, mental agony to the complainant.
So the complainant seeking an order directing the opposite parties to pay an amount of Rs. 60,000/- as compensation.
Opposite parties entered appearance filed their version with the following contentions. 1st opposite party admits that the complainant is a customer of the opposite party and got recharged his phone and informed the same to the complainant. It is also admit that the opposite party charged only 50 ps for the call to the number 08973639988 with the call duration of 1.18 minutes. But the opposite party denies that the entire recharged amount from the complainant's account except 29 ps. had lost. 1st opposite party contents that the complainant used value added service using the connection. Company charges reasonable fees for the additional value added service activated by the complainant in his phone. It is stated that none of the service were activated without the permission of the customer. It is false to say that the complainant entrusted the phone to the opposite party's show room for activating DND service and the same was returned without activating the same. DND service is an additional facility which can be activated for the phone of the customer itself. There is no deficiency of service on the part of opposite parties and complaint may be dismissed with cost.
2nd opposite party contents that they are the unnecessary party and may be exonerated from the liabilities. Complainant has not charged any grievance against the 2nd opposite party. Complainant has not proved that the mobile phone is purchased from the 2nd opposite party.
Complainant and 1st opposite party filed their affidavits. 2nd opposite party has not filed any affidavit. Ext. A1 to A2 marked on the side of the complainant. No evidence is produced on the side of opposite parties.
Matter heard.
Issues to be considered are:
1. Whether the complaint is maintainable before the Forum?
2. Whether there is any deficiency of service on the part of opposite parties? If so,
3. What is the relief and cost entitled to?
Issue I
Opposite parties raised a question of maintainability in the light of the decision rendered by the Hon'ble Supreme Court in General Manager, Telecom Vs M. Krishnan and Another (2009) 8.Section 481, where in it was held that when there is a special remedy provided in Section 7B of the Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumerr Protection Act is by implication barred.
Before deciding the issue, we would like to discuss section 7B of the Indian Telegraph Act.
Section 7B
Arbitration of Disputes:- (1) 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 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 the sub-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any court.
A careful reading of the Section 7B of the Indian Telegraph Act reveals that the disputes relating to telegraph line, appliances or apparatus and too with the telegraph authority are referable to Arbitration.
The Telegraph authority has been defined under Section 3 (6) of the Indian Telegraph Act, which is reproduced as under:
Section 6: Telegraph authority means the Director General of posts and telegraphs, and includes any officer empowered by him to perform all or any of the functions of the telegraph authority under this Act.
Private telecom service providers like opposite parties are licensees and they cannot come under the definition of Telegraph authority. The disputes involved in the present case is not between the telegraph authority and the complainant. It is between the licensees to whom the licence has been issued under Section 4 of Telegraph Act for maintaining and providing mobile telecom service by Central Government and the complainant.
If the licensee fails to maintain/fulfil the condition of the licence agreement then the Telegraph Authority or the Central Government as the case may be can take action against the licensee including termination of his licence. The powers of the Telegraph Authority have not been delegated to the licensee for the purpose of section 7 B of Telegraph Act.
Even otherwise, the disputes relating to telegraph line, appliances or apparatus are referable to Arbitration.
But the present dispute is not related to telegraph line, appliances or apparatus.
Further in Spice Communication Pvt. Ltd Vs Gurinder Kaur & another 2010 CTJ 688 (CP) held that since the dispute of the private service providers with their individual consumers does not fell in the scope of Section 7B of the Indian Telegraph Act, 1885, therefore the private service providers cannot avail the benefit of the judgement of Hon'ble Supreme Court.
So the preliminary issue found in favour of the complainant.
Issue II & III
Complaint is filed for getting compensation from the opposite parties for mental agony and financial loss due to the deficiency of service on the part of opposite parties.
The complainant is a customer of 1st opposite party and recharged his phone and the opposite party informed the same to the complainant. The complainant dialed only to the number 08973639988 and talked for 1.18 minutes. Opposite party charged 50 ps only for this call. These facts are admitted by the opposite parties. The complainant says that again and again the messages came to the phone and at last there is only 29 ps in the recharged amount of the complainant. Ext. A1 reveals the same.
The main contention of the 1st opposite party is that the complainant used value added service using the connection. Opposite parties again states that none of the services were activated without the permission of the customers. But no document is produced to prove that the complainant has requested for additional value added services. So this contention cannot be considered. Complainant states that he had entrusted his phone for activating DND service in the opposite party's show room Palakkad and returned the same without activating DND service etc are not supported by documents.
From the above discussions we are of the view that opposite parties made deficiency of service on their part.
In the result complaint allowed. Complainant has sought no relief against 2nd opposite party. So 2nd opposite party is exonerated from the liabilities. We direct 1st opposite party to pay an amount of Rs. 2,000/- as compensation and Rs. 500/- as cost of the proceedings.
Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of receipt of order till realization.
Pronounced in the open court on this the 30th day of November, 2011
Sd/-
Smt. Seena. H
President
Sd/-
Smt. Preetha. G. Nair
Member
Sd/-
Smt. Bhanumathi. A. K
Member
A P P E N D I X
Exhibits marked on the side of the complainant
Ext. A1 -Copy of Usage Details of Tata Indicom cell (No.9249241370) from 11/02/2011 to 31/03/2011.
Ext. A2 - 3 Nos. of Top-Up Cards purchased by the complainant.
Exhibits marked on the side of the opposite parties
Nil.
Witness examined on the side of the complainant
Nil.
Witness examined on the side of the opposite parties
Nil.
Cost allowed
Rs. 500/- (Rs. Five hundred Only) allowed as cost of the proceedings.
