AT HYDERABAD.

FA  75 of 2011  against  C.D. 775/2009, Dist. Forum-II, Hyderabad

Between:

Shaji M. K.

Plot No. 67, ‘Kedaram’

H.No. 1-4-172/67/1

Lake View Residency

Sainikpuri, Secunderabad.                         ***                         Appellant/

                                                                                                Complainant

And

1)  The Telecom Regulatory Authority of India

(TRAI), Rep. by its Secretary

Mahanagar Doordarshan Bhavan

Jawaharlal Nehru Marg

Next to Zakir Hussain Marg

New Delhi.

2)  M/s. Tata Teleservices Ltd.

Rep. by its Chief Operating Officer

Shop No. 5-6-92, KLK. Estates

Fateh Maidan Road

Opp. Fateh Maidan Stadium

Hyderabad.

3)  Dheeraj Chatlani

Nodal Officer

M/s. Tata Teleservices Ltd.

Shop No. 5-6-92, KLK. Estates

Fateh Maidan Road

Opp. Fateh Maidan Stadium

Hyderabad.

4)  Ramakrishna S.

Appellate Authority

M/s. Tata Teleservices Ltd.

Shop No. 5-6-92, KLK. Estates

Fateh Maidan Road

Opp. Fateh Maidan Stadium

Hyderabad.

5)  The Senior Divisional Personal Officer

South Central Railway,

Secunderabad Division

Sanchalan Bhavan,

Secunderabad

6)  The Senior Divisional Financial Manager

South Central Railway

Secunderabad Division

Sanchalan Bhavan,

Secunderabad                                             ***                         Respondents/

                                                                                                Opposite Parties

Counsel for the Appellant:                          P.I.P

Counsel for the Resps:                               M/s. Poonam  Ashok Goud (R1)

M/s. C. Niranjan Rao (R2 to R4)

                                                                   M/s. Vijaya Sagi (R5 & R6)

CORAM:

                         HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

          &

          SMT. M. SHREESHA, MEMBER

WEDNESDAY, THIS THE TWELFTH DAY OF OCTOBER TWO THOUSAND ELEVEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          ***

1)                Appellant is unsuccessful complainant.

2)                The case of the complainant in brief is that he was a subscriber of Tata Indicom mobile connection.    It was standing in the name of    South Central Railway (R5 & R6)  his employer under the category of   Closed User Group (CUG).  It was in turn allotted to him  under the scheme within the CUG the calls are free; however, personal calls outside the CUG are chargeable.  When he intended  to have value added pack SMS MAX,  the Tata Indicom directed him to submit through South Central Railway, on which he made a request to Tata Indicom.  They had activated the SMS MAX package on 23.12.2006 however charged Rs. 1/- per SMS as applicable in normal course.   When he complained  he was informed that no such package could be granted to corporate connections.  Therefore he requested to permit him  to use value added package without collecting the amount.   The deductions from monthly bills from CUG were irregular and higher than what was due from him.    Despite his request to stop sending SMSs and tele-calls to his number while confirming activation of DND (Do Not Disturb) he continued to receive them.   No action was taken by TRAI (R1).   He complained through e-mails etc.  A belated reply was given by stating that the complaints have to be handled by the service provider.   Fed up with unsolicited commercial communications he requested the customer care of Tata Indicom for stoppage of sending SMSs and tele-calls to his number.  He complained to the Nodal Officer through e-mails etc.  However, no relief was extended.  In fact he was directed to pay Rs. 18,450.52 without any authority.    An amount of Rs. 1,139/- has been deducted in the bills towards SMS charges.    Alleging that receipt of unsolicited commercial communications despite his request for exclusion of his connection under DND  amounts to deficiency in service.  He prayed for disconnection of phone service for tele marketers and award compensation of Rs. 6 lakhs towards repeated disturbance of his privacy, wastage of time and costs.

3)                R1 (TRAI) resisted the case on the ground that the complaint is not maintainable under the Consumer Protection Act.   The TRAI Act itself provides an appellate authority empowering to adjudicate disputes between service provider and a group of consumers.    It is neither a  seller of goods nor service provider.    The consumer fora  cannot  issue directions or orders against  statutory bodies vested  with legislative and regulatory functions as held by  State Consumer Disputes Rederssal Commission,  Chandigarh in  F.A. No. 37/2009  by its order dt.  6.5.2009.    Therefore it prayed for dismissal of the complaint with costs. 

4)                R2 to R4 (Tata Indicom) equally resisted the case.    The consumer fora have no jurisdiction in regard to the dispute raised by the complainant.   He did not obtain connection from it at any point of time.  There was no relationship of trader, customer or consumer between them.    The South Central Railway had taken the connection by virtue of an agreement between them.   It has been providing the telephone connections as per the terms and conditions and collecting charges as provided therein.   The Hon’ble Supreme Court in General Manager, Telecom Vs.  M. Krishnan held that the consumer fora have no jurisdiction to decide the issues arising under Indian Telegraph Act, and the customers have to approach the arbitrators for redressal of their grievances.   While obtaining the telephone connection it has opted for various services that are being provided by  Tata Indicom viz., inter circle dialling, international dialling, SMS service etc.   They are available to the entire package.   As per the usage of the facilities the charges will be levied.   The agreement provides for collection of these charges.   There is no fault on its part in providing the SMS service facility, and levying charges as per the terms of the contract.   The complainant is neither entitled to the amount nor compensation.    Therefore it prayed for dismissal of the complaint with costs.  

5)                R5 & R6 Officers of South Central Railway equally resisted the case.   No relief  was claimed against them, and  as such they  are not necessary parties.   No cause of action has arisen against them.     They have collected  money from the  salary of the complainant and credited the same  to the account of R2 to R4 against the bills  raised by them from time to time.   No notice was issued as required u/s  80 of C.P.C., and therefore prayed for dismissal of the complaint with costs. 

6)                The complainant in proof of his case filed his affidavit evidence and got Exs. A1  & A2 marked  while the opposite parties filed their affidavit evidence and  Exs. B1 & B2 were marked on behalf of  R 2 to R4. 

7)                The Dist. Forum after considering  the evidence placed on record  opined that  the complainant did not file  the bills  in order to show that there were discrepancies  and that  he has not taken up the case with his employer at any time.  At any ate by virtue of Section 7(B) of the Indian Telegraph Act,   and in the light of  decision of Hon’ble Supreme Court  in General Manager, Telecom Vs. M. Krishnan reported in AIR 2010 SC 90   the complaint is liable to be dismissed  and accordingly dismissed. 

8)                Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.   It ought to have seen   that Tata Tele Services Ltd.  ought not to have allowed  unsolicited commercial communications to him, more so,  when he had registered his name  with   NDNC registry.     Un-necessary charges were credited  to his account.   Therefore, he was entitled to the amount besides compensation and costs. 

9)                The complainant during the course of arguments filed additional evidence to receive  statement  showing  usage charges payable by the employees, information furnished under  RTI Act etc., marked as Exs. A3 to A7.    These documents  were obviously filed in order to get over the comment made by the Dist. Forum that he did not file these documents  in order to show  that un-necessary amounts were credited to his account. 

10)              The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

11)              It is not in dispute that the complainant being an employee of South Central Railway extended facility of  mobile telephone connection from M/s. Tata Tele Services,   wherein he had CUG facility.   Alleging that contrary to the terms of the contract  between the South Central Railway  and Tata Teleservices  the latter  has been  collecting amounts  by issuing bills.  When he sought for those bills,  they did no furnish, and that  amounts to deficiency in service.    He is a consumer as defined under   Telecom Consumers  Protection & Redressal  of  Grievances  Regulations 2007.   He is a subscriber  though  there exists no formal agreement between him and Tata Tele Services.  By virtue of above regulations he shall be deemed to be a consumer entitled to file the complaint.    R1 TRAI  is a service provider.  It  had to verify before extending the facilities.    He is the end user and consumer of the phone.   The document dt.  6.9.2006  authorizes  automatic recovery from his salary towards  any private calls made, WLL, CUG  phone etc.    Having accepted value added package  viz., SMS MAX  by  R2 to R4,   they ought to have  refunded the excess amount deducted.   Alleging all this amounts to deficiency in service  on the part of respective departments viz., TRAI, R2 to R4  Tata Tele Services  as well as South Central  Railway, he sought for compensation. 

12)              It is  an undisputed fact  that R1 TRAI  is constituted under Telecom Regulatory Authority of India Act.   The Act itself provides an appellate authority empowering to adjudicate disputes between service provider and a group of consumers.   It is vested  with  both legislative and regulatory functions.  By no stretch of imagination  it can be termed as service provider nor a complaint can be filed against  it before the consumer fora complaining deficiency in service on its part in regard to disputes arising  under the said Act.    The questions whether the complainant is entitled to free SMSs and  other benefits  under the package  entered into by his employer  R5 & R6  with Tata Teleservices  and whether he could recover the amount  that has  been collected  are to be determined under the provisions of Consumer Protection Act  are  covered by decision of the Hon’ble Supreme Court  in  General Manager, Telecom Vs. M. Krishnan reported in AIR 2010 SC.     Their Lordships’ after considering the  remedy provided u/s 7B of the Indian Telegraph Act  opined that the Dist. Forum has no jurisdiction.    Since the question of jurisdiction has been raised by the  opposite party, and by virtue of  decision of  Hon’ble Supreme Court  being the law of the land  we must hold  this Commission has no jurisdiction to entertain the complaint.    We have to take cognizance of  the said decision.  Their Lordships’ opined :

“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:- “ 7B 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 or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specifically 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-s. (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.”

13)              In regard to  mobile phones  also  the  Hon’ble Supreme Court reiterated the above said decision in  Prakash Varma Vs. Idea Cellular Ltd. reported in 2011 CTJ 489 (SC).   Their Lordships’  upheld the orders of National Commission  in dismissing the complaint  recoursing to Section  7-B of the Telegraph Act.

14)              When the Hon’ble Supreme Court  opined that the Consumer Fora have no jurisdiction to entertain the  dispute nor adjudicate the matter  even  if the complainant has let in evidence, we may not be able to appreciate  the question whether he was entitled to  free SMS package or  that  excess amounts that said to have been collected from him  and that the bills were incorrectly sent cannot be gone into.  If this is permitted  it amounts to transgressing  the judgement of the Hon’ble Supreme Court.   We do not intend to advise  but the complainant can as well approach the appropriate forum  as directed by the Hon’ble Supreme Court.  We do not see any merits in the appeal.

15)              In the result the appeal is dismissed.  No costs. 

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

12/10/2011

*pnr

“UP LOAD – O.K.”