DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.371 of 18-08-2010 Decided on 05-01-2011
Pritam Singh, aged about 51 years, son of Sh.Sandhura Singh, resident of Sanguana Basti, Gali No.1, H.No.11697, Bathinda. .......Complainant
Versus
Vodafone Essar South Limited, C-131, Mohali Industrial Area, Phase-VIII, Mohali, through its M.D./Chairman. Vodafone Essar South Limited, The Mall, Bathinda, through its Authorized Person.
......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt. Vikramjit Kaur Soni, President. Dr. Phulinder Preet, Member. Sh.Amarjeet Paul, Member. Present:- For the Complainant: Sh.Resham Singh, counsel for the complainant. For Opposite parties: Sh.Kuljit Pal Sharma, counsel for opposite parties.
ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended up-to-date (Here-in-after referred to as 'Act'). The brief facts of the complaint are that the complainant is holding the mobile connection bearing No.96461-00406 of Vodafone company and the said mobile connection was being used by the complainant as per his requirement. The complainant never requested the opposite parties to provide any internet services to the said mobile connection of the complainant either through any written request or through any message but the opposite parties suo-moto, provided the internet service on the said mobile connection of the complainant, without any prior message and without consent of the complainant. The complainant has never used the said internet service and had repeatedly requested the opposite parties to disconnect the said internet service but to no effect rather the opposite parties have been issuing the bills to the complainant each and every month without any reason. The complainant had visited the office of the opposite party No.2 time and again and requested to disconnect the said internet facility on the connection of the complainant but his requests remained unheard. The opposite parties issued a bill dated 21.06.2010 for a sum of Rs.1,244.95/- and the opposite parties have stopped/barred the outgoing facility to the said mobile connection of the complainant w.e.f. 20.07.2010 and have also stopped the incoming facility to the said mobile connection of the complainant w.e.f. 30.07.2010 and now the complainant is unable to use the said mobile connection. The complainant has also got issued a legal notice to the opposite parties on 05.08.2010 calling upon them to restore the incoming and outgoing facility to the abovesaid connection and also to quash the alleged demand but to no effect. Hence, the complainant has filed this complaint. 2. The opposite parties have submitted their preliminary objections that the present complaint is liable to be dismissed on the basis of the law laid down by the Hon'ble Supreme Court in case titled General Manager, Telecom Vs. M.Krishnan and Ors., in which, the Hon'ble Supreme Court has held that when there is a special remedy provided under Section 7-B of the Indian Telegraph Act, then there is no remedy under the Consumer Protection Act. The complainant is disputing the bill dated 21.06.2010 which is only of Rs.297/-, the rest amount of Rs.744.95/- is of previous pending amount which was due towards the complainant and the same not paid by the complainant. The complainant himself being a defaulter cannot have any equity in his favour. The opposite parties have further pleaded that the Voice Mail services were activated on the request of the complainant himself and as such, he is liable to pay the charges of voice mail services. No waiver is applicable. The complainant has failed to pay the previous balance and as such, a sum of Rs.1244.95 paise became due and thereafter, the payment of Rs.500/- was made by the complainant. The company has right to suspend the services on account of non-payment of bill by the complainant. The opposite parties have further pleaded that as per the agreement of the Hon'ble Courts at Delhi have got jurisdiction and Court at Bathinda has no territorial jurisdiction. 3. Parties have led their evidence in support of their respective pleadings. 4. Arguments heard. Record alongwith written submissions submitted by the parties perused. 5. The case of the complainant is that he had never requested the opposite parties to provide internet services on his mobile connection and has neither given any written request or sent any message but the opposite parties of their own have provided internet services to the mobile connection of the complainant without taking any consent. The complainant was neither in need of the said internet connection nor the same is possible on the mobile phone which is being used by the complainant i.e. Nokia 1100. He has never used the said internet connection and repeatedly requested the opposite parties to disconnect the said internet connection but the opposite parties have not paid any heed to his requests. On 21.06.2010, the opposite parties have raised a demand of Rs.1,244.95/-. The complainant again requested the opposite parties to disconnect the internet facility on the mobile connection of the complainant and withdrawal the said impugned demand as he has never availed the internet facility. The officials of the opposite parties stopped/barred the outgoing facility on the said connection on 20.07.2010 and after 10 days i.e. on 30.07.2010, also barred the incoming facility on the said mobile connection. 6. The opposite parties have taken the support of the law laid down by the Hon'ble Supreme Court in India in case titled General Manager, Telecom Vs. M.Krishnan and Ors., in which, the Hon'ble Supreme Court has held that when there is a special remedy provided under Section 7-B of the Indian Telegraph Act, then the remedy under the Consumer Protection Act. Further, the explanation of this section has been clearly provided by the Hon'ble State Consumer Disputes Redressal Commission, Punjab in case titled Spice Communication Pvt. Ltd Vs. Gurinder Kaur and another in First Appeal No.1172 of 2009, wherein, it has been held in para Nos.11,12,22,26&27 that:- “11. Section 7-B of the Indian Telegraph Act, 1885 read as under:- Section 7B Arbitration of Disputes- 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. The award of the Arbitrator appointed under Subsection (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court.
12. Section 7B of the Indian Telegraph Act, 1885 is applicable if a dispute arises between the telegraph authority and the person for whose benefit the line/appliance or apparatus was or was being provided. 22. Similarly proviso (B) to section 14(a) of the TRAI Act protects the provisions of the Consumer Protection Act, 1986 by providing that the provisions of this Act shall not apply to any complaint filed by an individual consumer before the District Forum/State Commission/National Commission. From this angle also it is clearly proved that the private service providers are neither governed by the provisions of Section 7B of the Indian Telegraph Act, 1885 nor the jurisdiction of the District Forum over the private service providers is ousted rather it is protected. 26. Since the dispute of the private service providers with their individual consumer does not fall in the scope of Section 7-B of the Indian Telegraph Act, 1885, therefore, the private service providers cannot avail the benefit of the judgment of the Hon'ble Supreme Court in M.Krishnan & another's case (supra). 27. In view of the discussion held above, it is held that the private service providers are not covered by the judgment of the Hon'ble Supreme Court in M.Krishnan & another's case (supra) and the consumers/customers have the right to challenge the actions of the private service providers by filing complaints under the Consumer Protection Act, 1986.” Where, the dispute arises between the private party being a service provider. The Consumer Fora has a jurisdiction to try and entertain the present complaint. The contention of the complainant is that the opposite parties have themselves provided him a facility of internet without any request and it has been demanding the amount on account of internet services and has barred the outgoing and incoming facilities. The opposite parties have provided internet facility to the complainant instead of that they are talking about the voice mail services which was being opted by the complainant and the bill which was issued to him on the basis of his being a defaulter of previous bills. No record has been produced on file by the complainant that internet services are provided to him. The opposite parties have also not placed on file any evidence that any voice mail service has been provided to the complainant. Moreover, his dynamic credit limit was to the tune of Rs.5,000/- as per Ex.C-6, whereas, his bill was of Rs.1244.95/- dated 21.06.2010 out of which he had already paid Rs.500/- Ex.C-6. Hence, curtailing his facility of outgoing and then of incoming services, amount to deficiency in service. Therefore, this complaint is accepted with Rs.500/- as cost and compensation and the opposite parties are directed to restore the outgoing and incoming facilities to the mobile connection of the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of this order. 7. A copy of this order be sent to the parties concerned free of cost and file be consigned for record. '
Pronounced in open Forum (Vikramjit Kaur Soni) 05.01.2011 President
(Dr. Phulinder Preet) Member
(Amarjeet Paul) Member
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