BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

                                                Complaint No.CC/11/261  of 28.3.2011 

                                                Decided on:          8.9.2011

Paramjit Singh s/o Sh.Sardar Singh, Guru Mehar Industries, B-05,Focal Point, Patiala.

                                                                             -----------Complainant

                                      Versus

1.                 Vodafone SCO-7,First Floor, Opposite State Bank of Patiala, Bhupindra Road, Patiala.

2.                 Vodafone Essar Sough Limited, C-131,Industrial Area, Phase VIII, SAS Nagar, Mohali-160071, Punjab.

3.                 Vodafone Essar Mobile Services Ltd.,Regd.Office,C-48,Okhla Industrial Area, Phase-II, New Deli-110020,New Delhi.

                                                                             ----------Opposite parties.

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

Present:

For the complainant:     Sh.Harjit Singh, Advocate

For opposite parties:     Ex-parte.

                                         ORDER

D.R.ARORA, PRESIDENT

          It is the case of the complainant that he had purchased four cellular connection nos.9780080006, 9988888674, 9988000810 and 9888111102 from op no.1. Op no.2 is engaged in providing cellular/telephone mobiles services in the Telecom Circle of Punjab having its registered office at New Delhi i.e. op no.3 and circle office at SAS Nagar Mohali i.e. op no.2 and branch office at Patiala i.e. op no.1.

2.       The complainant was away to USA for some time. On return from USA, the complainant was surprised to know that his mobile No.9780080006 had been deactivated and rather issued to some other subscriber without the knowledge of the complainant.

3.       The complainant immediately approached op no.1 and complained about the deactivation of the said mobile number. Op no.1 regretted for the inconvenience and assured to redress the complaint of the complainant. The complainant visited the office of the ops for a period of 22-25 days but the ops went on putting in the matter off dilly dally under one or the other pretext. Ultimately, the complainant lodged his protest through e-mail dated 28.2.2011(Annexure A) with the ops but he received a vague reply from the ops in the form of Annexure B.It was stated by the ops that the aforesaid mobile phone has been suspended permanently on a request received from the complainant on account of the loss of sim card and that the same was de-activated on 18.2.2011 and realloted the same to other person as the complainant failed to trace the lost sim card after the suspension of the  aforesaid mobile phone no.

4.       It is averred by the complainant that his sim card was never lost nor he made any request to the ops to suspend the services of the aforesaid mobile phone temporarily. The sim card is still in the possession of the complainant.

5.       Again the complainant sent an e-mail dated 1.3.2011 (annexure-C) to the ops having dis agreed with the said response of the ops and having requested to restore his aforesaid mobile number but the ops again re reiterated their earlier plea vide annexure-D. Accordingly the complainant approached this Forum through the present complaint brought under Section 12 of the Consumer Protection Act,1986 (for short the Act).

6.       A notice was given to the ops but they failed to come present despite service. Accordingly they were proceeded against exparte.

7.       In the exparte evidence the complainant produced in evidence his sworn affidavit,Ex.C1 alongwith the documents,Exs.C2 to C5 and the learned counsel for the complainant closed the evidence.

8.       The complainant filed the written arguments. We have examined the same, heard the learned counsel for the complainant and gone through the evidence on record.

9.       We are of the considered view that the Forum does not have the jurisdiction to entertain the complaint of a mobile connection subscriber against the mobile phone operator in view of the law laid down by the Hon’ble Supreme Court in the case of the citation General Manager Telecom Vs. M.Krishnan & Another 2009 CTJ 1062. The Hon’ble Supreme Court  was pleased to observe that in our opinion when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding the disputes in respect of the telephone bills, then the remedy under the Consumer Protection Act is by implication barred. Section 7B of the  Telegraph Act reads as under:

(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 Section (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.

7. It is well settled that the special law overrides the general law. Hence, in our opinion the High Court was not correct in its approach.”

10.     However, the Hon’ble State Consumer Disputes Redressal Commission, Punjab Chandigarh in the case of the citation Spice Communication Pvt. Ltd. Vs. Gurinder Kaur and another  2010 CTJ 688(SCDRC) having made a detailed discussion of the provisions contained under Section 7B of the Indian Telegraph Act,1885 as also the definitions of ‘telegraph authority’ given in Section 3(6) ‘telegraph’ provided under Section 3(1)  and “telegraph line” provided under Section 3(4)of the Indian Telegraph Act,1885 observed ,

“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 services providers can not avail the benefits 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 and 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.”

11.     However, now the Hon’ble State Consumer Disputes Redressal Commission, Punjab Chandigarh in its judgment dated 24.2.2011 passed in appeal no.668 of 2005 M/s Bharti Cellular Ltd Vs. Sudarshan Kumar has having taken a note of the order dated 21.5.2010 passed by the Hon’ble National Commission in revision petition No.1703 of 2010 Parkash Verma Vs. Idea Cellular Ltd. & Anr. for the observations,

“Fora below have dismissed the complaint filed by the petitioner relying upon the judgment of Supreme Court in General Manager Telecom Vs. M.Krishnan & Anr.(2009)8 SCC 481 wherein it has been held that any dispute between the subscriber and telecom authority can be resolved by taking recourse to arbitration proceedings only.

          The judgment of the Supreme Court is binding in all the subordinate courts. There is no scope for interfering .Dismissed,”

held that in view of the later orders of the Hon’ble National Commission in case of the private mobile service providers, the judgment in M.Krishnan’s case(supra) of the Hon’ble Supreme Court is applicable to any dispute between the subscriber and the telegraph authority and it can be resolved only by taking recourse to the arbitration proceedings and therefore, the complaint in Fora  under the Consumer Protection Act,1986 is not maintainable.

12.     As a result of our aforesaid discussion, it would appear that in the light of the ratio of the citation General Manager Telecom Vs. M.Krishnan & anr(Supra) the Forum lacks the jurisdiction to entertain the complaint in respect of the dispute between the subscriber and the  service providers and the same can be resolved only by recourse to the arbitration proceedings. That being so the complaint is not maintainable before the Forum and the same is ordered to be filed.

Pronounced.

Dated:8.9.2011

                                                Neelam Gupta                  D.R.Arora

                                                Member                             President