FINAL ORDER/JUDGEMENT

SHRI ASHOKE KUMAR GANGULY, MEMBER

This is an application u/s.12 of the C.P. Act, 1986.

The complainant has been using the SIM No.9007136666 of the OPs.  The complainant requested the OP 2 to provide call details for the period from 01.02.2018 to 14.02.2018  vide letter dated 15.02.2018 of the above SIM No being used by him.  The OP2 responded vide letter 19.02.2018 but did not provide the call details. The complainant sent legal notice dated 02.03.2018 to the OP2. The OP2 thereafter by a letter dated 14.03.2018 intimated the complainant that they are unable to provide itemised call details and voice / call recordings. They also stated that they will provide itemized hard copy bill (Duplicate) for 02/2018 by 19.08.2018 at the registered address. They also stated in the letter that call details record are confidential and they cannot share the CDR as public documents. The complainant however is not agreed with the views of the OP and opines that call details on his own mobile no. is not public document. The OP delivered copy of monthly bill for 02/2018 to the complainant on 15.03.2018 except the incoming call details. The complainant differs on the point that when the outgoing calls, STD,ISD, SMS etc. is possible , then why the incoming call details will not be provided. Being aggrieved by the conduct of the OPs the complainant has filed the complaint in the commission with the prayers as detailed in the petition.

The OP 1 has contested the case by filing the W/V contending inter alia that the case is not maintainable in its present form. It is harassive, frivolous and devoid of merit. There is no cause of action against the OP1 and there is no deficiency of service  committed by the OP1 .As such the case should be dismissed against the OP 1.

The OP2 has filed their W/V with their submission that  Vodafone Mobile Service Limited has been granted License by Department of Telecommunications, Govt. of India under Sec4(1) of the Indian Telegraph Act,1885. The said License has been amended as Unified License(UL) w.e.f 20.10.2008. The OP submits that Telecommunication Industry is a regulated/controlled industry comprehensively regulated by the Telegraph Act, DoT License, Rules and Regulations issued by theDoT, the Telecom Regulatory Authority of India Act and related rules and regulations framed there under.

By virtue of Section 27 and 15 of the TRAI Act, the jurisdiction of Civil Courts to entertain matters which falls within the jurisdiction of the TRAI and TDSAT respectively, has been expressly excluded.

Moreover, the OP refers to the judgement of the Hon’ble Supreme Court of India vide Civil Appeal No. 7687 of 2004 decided on 01.09.2009 in the matter of General Manager Vs M.Krishnan where the relevant observation of the Hon’ble Apex Court is

“ There is a special remedy provided in Section 7B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then remedy under Consumer Protection Act is by implication barred.”

Article 141 of the Constitution of India reads as under: “ The law declared by the Supreme Court shall be binding on all courts within the territory of India.”

The decision of the Hon’ble NCDRC in the case of Prakash Verma Vs Idea Cellular (RP No. 1703 of 2010) to hold that disputes between a private service provider and a customer have to be referred to arbitration under Section 7B of the Indian Telegraph Act as already pronounced by the Hon’ble Supreme Court of India.

The OP submits that it is well settled law that where a special law (i.e., the TRAI Act) deals with an issue, the general law dealing with  same subject will have no application. The TRAI Act being a complete code impliedly excludes the provisions of the Competition Act with respect to the telecom industry as explained by the Hon’ble Bombay High Court in the matter Ashok Organic Industries Ltd., Vs Asset Reconstruction Company (India) Ltd.,(2008) 3 Comp LJ 261,

The complainant approached the OP2 to provide the call details for 02/2018 of his mobile No.9007136666. The OP 2 replied to such request and explained their inability to provide call details to the complainant as per clause 8(4) of the license agreement between the Deptt. Of Telecommunication (DoT) and the telecom service provider, i.e. the OP2 pertaining to security conditions which the OP2 is obliged to maintain. The aforesaid clause 8(4) speaks as follows :

“ The call detail records for outgoing calls made by those subscribers making large number of  outgoing calls day and night to the various telephone numbers with normally no incoming calls, should be analyzed …………”

The OP 2 asked the complainant to approach relevant investigative authority , so that , in pursuance to relevant orders from the investigative /legal authorities/agencies the OP 2 would be able to provide the complainant with the requested call details. The complainant instead of doing this, sent legal notice demanding the call details both incoming and outgoing calls with voice recording for the said period. Sharing of  confidential information of incoming calls is against the guidelines of TRAI and the privacy of its customers is the utmost priority of Opposite Party No.2.

Points for Determination

In the light of the above pleadings, the following points necessarily have come up for determination.

1)  Whether the OPs are deficient in rendering proper service to the Complainant?
            2)  Whether the OPs have indulged in unfair trade practice?

           3)  Whether the complainant is entitled to get relief or reliefs as prayed for?

Decision with Reasons

Point Nos. 1 to 3 :-

The above mentioned points are taken up together for the sake of convenience and brevity in discussion.

            We have travelled over the documents placed on record. The complainant & the OPs have filed their respective Evidence supported by affidavit. The OPs have submitted their BNAs.

On perusal of the records it is observed that the complaint is basically not providing the incoming call details to the complainant by the OP2 under Mobile No.9007136666 owned by him. The contention of the complainant is that he owns the mobile and pays applicable charges to the OPs for using the mobile for which he is entitled to get the details of both incoming and outgoing calls including voice recordings and others generated in his own mobile number.

The OP 2 in their detailed deliberation has proved that the Consumer Commission is not the place for adjudication of such type of complaint when there is appropriate authority to deal with such disputes. The Hon’ble Supreme Court of India in their judgment under Civil Appeal No.7687 of 2004 decided on 01.09.2009 in the matter of General Manager Vs M.Krishnan has observed that  ‘there is a special remedy provided in section 7B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred.’. 
                 The Hon’ble NCDRC also holds the same  opinion of the Hon’ble Supreme Court in the matter of Prakash Verma vs Idea Cellular ( RP No. 1703 of 2010 ). In view of the above Judgment of the Hon’ble Supreme Court of India which is recognized as the law of the land  and binding on all counts within the country as per Article 141 of the Constitution of India, this Commission has no jurisdiction to adjudicate the matter.

It is also well settled law that Special law (here it is TRAI Act) overrides General Law.

            More over the OPs submission is very much clear. They cannot go beyond the rules and regulations as prescribed by the procedure of TRAI and other Govt. Authorities. They are duty bound to follow the rules. For Security sake they cannot share all information  out of their own. Even though they requested the complainant to approach  proper authority/authorities  for the details which he  was asking for and only as per the approval of those appropriate authority/authorities they will be in a position to provide the same. The complainant did not comply the same for which the OPs could not be held liable.

Considering all the above we are of the view that the complainant has failed to establish the case against the OPs.

All the points under determination are answered accordingly.

In the result, the Consumer Complaint fails

Hence,

Ordered

That the complaint case be and the same is dismissed on contest against the OPs without any costs.

Copy of the judgment be delivered to the parties free of cost as per the C.P. Act and

Judgment be uploaded in the website of the Commission for perusal of the parties.