BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD

FA NO. 76 OF 2015 AGAINST CC NO.328 OF 2014

ON THE FILE OF DISTRICT FORUM-II,  HYDERABAD

Between:

Dr.Eunice L.Chawngthu

C/o Advocate Ravinder,

1-8-702/51,

Nallakunta, Hyderabad – 500 044.

… Appellant/Complainant

And

You Broadband India Private Limited,

III-Floor, Gouri Plaza,

Opposite Begumpet Police Station,

Begumpet, Hyderabad – 500 016.

… Respondent/Opposite party

Counsel for the Appellant          :         Party in person

Counsel for the Respondent       :         Served with notice.            

Coram                  :

Hon’ble Sri Justice B.N.Rao Nalla   …      President

&

Sri Patil Vithal Rao  …           Member

Friday, the Fifth day of August

Two thousand Sixteen

Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)

***

1)       The unsuccessful complainant Dr.Eunice L.Chawngthu filed this appeal against the orders dated 09.04.2015  of the District Forum-II, Hyderabad made in C.C.No.328 of 2014, which was filed by her seeking direction to the opposite party to return the deposited amount of Rs.900/- and the sum of Rs.1,249/- towards broadband connection charges together with interest @ 25% per annum and also to pay compensation of Rs.80,000/- for the willful loss and inconvenience caused to her.

2)       For the sake of convenience, the parties are described as arrayed in the complaint.

3)       The case of the complainant, in brief, is that the complainant was the customer and opened account with the Opposite party by paying Rs.1,249/- through cheque on 29.01.2014 for internet services, for a period of three months, to which receipt bearing CRF No.YOUF No.532249 was passed.  Internet services were installed only on 05.02.2014 which became faulty immediately with frequent disconnections, resulting which she complained to customer care No.040-66444473 on 05.02.2014 and spoke to Mr.Pramod.  At his instructions, she called 98667788 where she was again instructed to send SMS to 9227792200, which she complied.  It was assured by the personnel of OP that the wires attaching the modem were faulty and that they would replace it shortly.

4)       On 05.02.2014 at 11.06 AM, the OP sent the following SMS to the complainant “you are registered as You Broadband customer.  For checking account details, please log on to www.youbroadband.in.  For any assistance call on 9866077898.”  Again she received another SMS at 6.05 PM as follows: “dear customer your complaint is addressed.  Please check & if NOT satisfied send the following SMS YOU <space> UNSLV <space> 2014020409226 to 09227792200.”  Immediately complainant followed the request and sent SMS as instructed, but she failed to get any response.  However, at 6.09 PM she received SMS from the opposite party as follows: “we have registered your complaint.  The same shall be attended on priority.  Your new request id is 2014020515302.  Thanks for your cooperation.”  She was forced to call the customer care on 03.03.2014 where she was put on hold for 11 minutes and there was absolutely no internet from morning onwards.  On 04.03.2014 there was no internet service from 1 pm onwards.  Whenever she called the opposite party personnel, instead of giving response, she was put on hold for long periods, which cost her huge mobile bill.

5)       Again, on 15.04.2014, the Opposite party sent the SMS as follows: “we are pleased to inform that our services in your area are up now.” proving that there was indeed non-availability of internet services prior to 15.04.2014.  On 18.04.2014 the OP sent the similar SMS proving that there was indeed non-availability of internet services prior to 18.04.2014. 

6)       After making repeated calls, the opposite party made the complainant to wait her at home for several occasions, suddenly the employee of opposite party by name Sunil came while she was taking lunch upon which she asked him to wait.  No sooner she finished her lunch, she called him and who appeared to have been adjusting the modem and went outside stating that he has to check the connection outside, ran out and never returned.  In spite of repeated complaints, there was no improvement in internet services.

7)       Complainant also paid the modem advance amount to the Opposite party in addition to internet charges.  For calling the opposite party personnel, atleast, she could have spent Rs.200/- and she could use internet only for 7 days in December 2013 and 14 days in January 2014, altogether for 21 days.  She had spent her valuable working hours calling the OP customer care people repeatedly who made her to wait and put on hold for long time.  As the Complainant could not use the internet, she suffered greatly.  Though the OP assured to return the modem advance amount, they failed to. 

8)       Instead of providing the internet services, the Opposite party harassed the complainant, mentally caused torture, made to suffer emotionally by running from pillar to post and was made to spend large amount of efforts and money to chalk out the present complaint, which amounts to deficiency in service on the part of the opposite party.  The Complainant suffered from poor connectivity, frequent disconnections, disruption and wrong accounting of internet usage hours.  Alleging deficiency in service on the part of the Opposite party, the Complainant approached the District Forum seeking directions as mentioned above.

9)       Opposite party was called absent on 12.12.2014, hence the Forum below held the “service sufficient”.

10)     During the course of enquiry before the District Forum, in order to prove her case, the complainant filed her evidence affidavit and got marked Exs.A1 and A2 and on behalf of Opposite party, none was examined and no documents were filed.  Complainant advanced her oral arguments.  

11)     The District Forum after considering the material available on record, dismissed the complaint opining that that under settled principle of law any dispute comes under the Telegraph Act, the Consumer Forum has no power to dispose of the matter and hence decided the complaint as not maintainable and accordingly dismissed the complaint. 

12)     Aggrieved by the said order, the Complainant preferred this appeal stating that the Forum below did not bother to appraise of the latest decisions rendered all over India, but proceeded in lackadaisical manner by applying the outdated ideas which have no relevance to the case.  The Forum below treated the case as a serious criminal case not heeding the fact that the Consumer Protection Act is a welfare legislation enacted to protect the rights of consumers against unscrupulous traders thereby refusing to penalize the opposite party.  Hence, the appellant prayed to allow the appeal by setting aside the order of the District Forum and to allow the complaint as prayed for. 

13)     Having served with notice, the Respondent failed to make its appearance and failed to controvert the allegations of the Appellant.

14)     The point that arises for consideration is whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner?  To what relief ?

15)     The Appellant/Complainant in person argued that as per Sec.7B of Indian Telegraph Act, 1885, provisions under the said section are to the effect that the cases arising and are pertaining to the Telegraph Act cannot be entertained by any court and that the disputes arising between any consumer and the authorities under the said Act are to be adjudicated through arbitration and the above statutory position or legal position is clarified by the Central Government which was accepted and acted upon by the National Consumer Disputes Redressal Commission in RP No.1228/2013 pronounced on 02.05.2014 and R.P.No.677/2011 pronounced on 11.09.2014.   According to the said orders of the National Commission, the disputes arising between the consumers and the telecom authorities are permissible to be adjudicated by the authorities under the Consumer Protection Act, 1986.  Therefore, the complainant had submitted that she had rightly approached the Forum below by filing complaint in C.C.No.328/2014 that was decided by the said Forum on 09.04.2015 against her.  In the circumstances, the appellant prays that the impugned orders dt.09.04.2015 passed by the District Forum-II, Hyderabad in CC No.328/2014 may be set aside by allowing the appeal.

16)     In its Judgment, the forum below relied on the Judgment of Apex Court reported in III (2009) CPJ 71 (SC) in the case of General Manager, Telecom vs. M.Krishnan & anr., according to which the disputes arising between the consumer and telegraphic authorities cannot be adjudicated by the authorities under the C.P. Act, 1986 except as under Sec.7B of the Telegraph Act through arbitration.  It further observed that “it is well settled that the special law over rides the general law.”  It also relied on another Judgment reported in (III) 2013 CPJ 135 NC in the matter of Ramesh Kumar Rohilla Vs. Bharti Airtel Ltd., and (III) 2013 CPJ 271 (NC) in the matter of Tapas Kumar Roy Vs. BSNL & anr.,  In both these matters, the dispute was with respect of arrears of telephone bills and inflated telephone bills wherein the Hon’ble National Commission observed that there is a special remedy provided in Section 7B of Indian Telegraph Act regarding disputes in respect of telephone bills.  Basing on the above judgments, the forum below dismissed the complaint as not maintainable. 

17)     A perusal of the record goes to show that the Appellant/Complainant filed the complaint complaining that in spite of payment of internet charges, the Opposite party failed to provide the service uninterruptedly instead harassed her and caused inconvenience.  Ex.A1 is the copy of customer registration form dated 29.01.2014 showing payment of Rs.1,249/- for internet connection for a period of (90) days with bandwidth of 1 mbps, under “you max silver 1 mbps” plan.  Ex.A2 is the copy of receipt for Rs.900/- acknowledged by the Opposite party employee on 01.02.2014 towards modem deposit from the Complainant agreeing to return in full by 15.03.2014.  The Complainant narrated the sequence of interruption caused to the internet service in her complaint.  Admittedly, to controvert the same, Opposite party had not entered into any defence, at least, to deny the averments of the complaint which may benefit in its favour.  As there was no response from the Opposite party to her frequent phone calls and complaints, as an enlightened citizen, the Appellant knocked the doors of forum below for redressal of her grievance.

In this regard, it is relevant to refer to Section 7B of Indian Telegraph Act, which reads as under:

“S. 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.”

From the above, it is clear that the dispute concerning any telegraph line, appliance or apparatus should arise between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been provided relates to the telegraph authority and the person availing such services.  In the case on hand, the Respondents herein are not the ‘telegraph authority’ as defined under the Act.  In this regard, The Hon’ble High Court of Delhi in the case of JK Mittal Vs. Union of India & Ors, in W.P.(C) 8285/2010 & C.M.No.21319/2010 explained in crystal clear terms as to who and who is not is the ‘telegraph authority’ as defined in the Indian Telegraph Act.  It is observed therein as follows:

“7. The submission is that respondent No.2 is not a telegraph authority within the meaning of the Indian Telegraph Act, 1885.  The expression “telegraph authority” has been defined under Section 3(6) to mean “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”.  He submits that respondent no.2 does not come within the definition of the expression “telegraph authority”.  Therefore, the statutory arbitration under Section 7B cannot be invoked.  Consequently, the said remedy is not a bar to the maintainability of a consumer claim under the Consumer Protection Act. 

8. Learned counsel for the petitioner submits that the Parliament, while enacting the Finance Act, 1994, - whereby service tax was introduced, defined the expression “telegraph authority” as meaning the telegraph authority under clause (6) of Section 3 of the Indian Telegraph Act, 1885, and including a person who has been granted a license under the first proviso to sub-section (1) of Section 4 of that Act.

12. Having heard learned counsels for the parties, I am of the view that the impugned order dated 22.09.2010 passed by the State Commission cannot be sustained, as it erroneously holds that the consumer complaint of the petitioner was barred by Section 7B of the Indian Telegraph Act.   It is clear that the respondent no.2 is not a telegraph authority.  The bar under Section 7B, if at all, could have applied, had the dispute arisen between the petitioner and a telegraph authority, which the respondent No.2 is not.  Merely because respondent No.2 is a licensee under Section 4 of the Indian Telegraph Act, it does not confer on it the status of a telegraph authority.  If the intendment of Director General of Posts & Telegraph were to confer the status of the Telegraph Authority upon the licensees under Section 4, the Director General of Posts & Telegraph, which comes under the Central Government could have issued the requisite notification under Section 3(6) of the Indian Telegraph Act, which has not been done.  The Parliament was conscious of the fact that there could exist a licensee(s) by virtue of Section 4 of the Indian Telegraph Act.  However, it has not chosen to fasten the statutory arbitration on the licensee or its consumer under Section 7B.  Else, while mentioning the Telegraph Authority, the legislature could easily have included the “licensee” as one of the parties to an arbitration dispute under Section 7B of the Indian Telegraph Act. 

14. The Supreme Court has given a broad interpretation to Section 3 of the Consumer Protection Act, in the light of the clear expression used by the Parliament, which states that the Consumer Protection Act shall be in addition to and not in derogation of the provision of any other law for the time being in force.  Mere existence of an arbitration agreement, assuming there is one between the petitioner and respondent no.2, would not bar the maintainability of a consumer claim, as held by the Supreme Court in Secretary, Thirumurugan Cooperative Agricultural Credit Society (supra).

15. Accordingly, the impugned order is set aside.  It is held that the petitioner’s consumer claim is maintainable before the District Forum.  The District Forum is, therefore, directed to entertain and consider the said claim on its merits.”

The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case of Bharti Hexacom Ltd., Vs. Komal Prakash and another in M.A.No.204 of 2014 in R.P.No.1228 of 2013, decided on 02.05.2014 has clearly clarified the meaning of “Telegraph Authority” as follows:

“We may also note that the main point on which notice in this revision petition was issued was with regard to the maintainability of the complaint, in view of the Judgment of the Hon’ble Supreme Court in General Manager, Telecom V.Krishnan & Anr [(2009) 8 SCC 481].  However, subsequently, vide a letter dated 24.01.2014, the Government of India, Ministry of Communication & IT, while responding to the communication received from the Secretary, Department of Consumer Affairs, Government of West Bengal on 07.10.2013, in relation to the Hon’ble Supreme Court’s judgment in M.Krishnan (supra), has clarified that the said decision involved a dispute between the Department of Telecommunications (DoT), which was a “Telegraph Authority” under the Indian Telegraph Act, as a service provider prior to the hiving off of telecom services into a separate company viz., Bharat Sanchar Nigam Limited (BSNL).  However, as the powers of a “Telegraph Authority” are now not vested in the private telecom service providers, as is the case here, and also in the BSNL, Section 7B of the said Act will have no application and, therefore, the Forums constituted under the Consumer Protection Act, 1986 are competent to entertain the disputes between individual telecom consumers and telecom services providers.

In the light of the said clarification, the complaint before the District Forum was clearly maintainable and the objection of the petitioner in this regard is bereft of any merit.  For the aforesaid reasons, the revision petition is dismissed.”

18)     Viewed from any angle, in the facts of the case on hand, the Respondent is not the “telegraph authority” as defined under the Act, as such, the provisions of Section 7B of the Indian Telegraph Act are not applicable to it.  Hence, the complaint of the Appellant is maintainable before the District Forum.  Therefore, the Forum below erred in understanding the meaning and content of the word “Telegraph Authority” and thereby arrived at a wrong conclusion in returning the verdict ‘that it had no jurisdiction and the complaint is not maintainable.’  As far as deficiency of service is concerned, there was no occasion for the Appellant to knock the doors of the forum below complaining deficiency in service on the part of the Respondent in providing the internet connection, particularly with specific dates.  Admittedly the same is not denied or controverted by the opposite party having served with notice in the forum below as well before this Commission.  In these circumstances, an inference has to be drawn that on account of non-providing of internet service, the Appellant filed the complaint which is challenged under this appeal. 

19)     It is to be stated that the stance taken by the forum below that it has no jurisdiction and that the complaint is not maintainable in view of the Judgment rendered by the Hon’ble Apex Court in Civil Appeal No.7687 of 2004 in the case of General manager, Telecom Vs. M.Krishnan & anr., is not justified in view of the facts in the case on hand.  It failed to understand the meaning and content of the Judgment and thereby came to an erroneous conclusion.  That, a prima-facie case is made out that the Respondent committed deficiency in service to the Appellant and acted irresponsibly rendering themselves liable for payment of appropriate compensation for causing inconvenience, harassment and agony to the Appellant.

20)     As rightly argued by the Appellant, there is deficiency in service on the part of the Respondent in providing the internet service.  Hence, we are not inclined to accept with the decision rendered by the Forum below and accordingly set aside the same.  Admittedly, the Appellant utilized the internet services for a period of (21) days as is evident from her own pleadings in the complaint before the forum below.  In such a circumstance, it is improper to order for refund of the entire internet charges.  The plan to which the Appellant opted is for a period of (90) days, of which, the Appellant had already utilized the internet service for a period of (21) days.  In the circumstances, it would be appropriate to order for refund of Rs.957/- being the unused number of days.  The Opposite party even failed to refund the modem deposit after expiry of (90) days as agreed and it also failed to participate in the proceedings before forum below as well as before this Commission so as to elicit any truth which would be beneficial in its favour.  All the facts stated supra manifestly establish the apathy and callousness on the part of the opposite party.

21)     In the above facts and circumstances, the order of the District Forum is set aside and the point framed for consideration in paragraph No.13, supra, is answered accordingly. 

22)     In the result, the appeal is allowed and the order of the District Forum dated 09.04.2015 passed in C.C.No.328/2014 is set aside directing the Respondent to refund the amount of Rs.957/- towards unused internet charges (covered by Ex.A1) and to refund Rs.900/- received towards modem deposit (covered by Ex.A2), and also to pay an amount of Rs.25,000/- as compensation to the Appellant for non-rendering the service and for not rectifying the frequent disconnection of internet service to the Appellant, thereby causing deficiency in service, mental agony and inconvenience, etc., and to pay costs of Rs.5,000/-.  Time for compliance : four weeks. 

MEMBER             PRESIDENT

  Dt.05.08.2016

JBNRN (P) & PVR (M)

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