BEFORE THE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, CHENNAI
BEFORE
: Hon’ble Thiru Justice R.
REGUPATHI PRESIDENT
Thiru
A.K.
ANNAMALAI MEMBER
(JUDICIAL)
COMMON ORDER IN
F.A.NOs.623/2010, 847/2011, 528/2012
CMP.NO.730/2012 IN F.A.NO.66/2010
AND CCSR.NO.658/2012
DATED THIS THE 29th DAY
OF NOVEMBER 2012
F.A.NO.623/2010
(Against order in
CC.No.495/2008 on the file of DCDRF, Chennai (South)
J. Subramaniam
Advocate
18/24, Shivaji
Street (In person)
T. Nagar, Chennai – 600
017 Appellant/
Complainant
Vs.
The Manager
M/s. Bharati AIRTEL Ltd.,
Oceanic
Towers M/s.
M.B.Gopalan
101, Santhome High
Road Counsel
for
Chennai- 600
028 Respondent/
Opposite party
F.A.NO.847/2011
(Against order in
CC.No.129/2008 on the file of DCDRF, Chennai (South)
P. Chinnadurai
S/o. A. Palanichamy
Advocate Ms/A.Meenakshi
Sundaram
No.19/A,
Thiruvenkadapuram Main
Road Counsel
for
Chennai- 600
094 Appellant/
Complainant
Vs.
The General Manager
(Mobile Service)
M/s. Bharat Sanchar Nigam
Ltd.,
Chennai Telephones
Cellular Mobile Telecom
Services M/s.T.
Ravikumar
No.164, R.K. Mutt
Road Counsel
for
Chennai – 600
028 Respondent/
Opposite party
F.A.NO.528/2012
(Against order in
CC.No.35/2007 on the file of DCDRF, Tuticorin)
The General Manager
Bharat Sanchar Nigam
Ltd., M/s.
K.R. Ramesh Kumar
Palayamkottai
Road Counsel
for
Tuticorin – 628
003 Appellant/
Opposite party
Vs.
Rejina
W/o. Mr. Antony
1/20, King
Street M/s.
R. Ravi
Veerapandianpattanam Counsel
for
Tiruchendur, Thoothukudi
District Respondent/
Complainant
CMP.NO.730/2012 IN F.A.NO.66/2010
1. Sri
Karl Reddy
S/o.
Late C.Raghunath Reddy
‘The
Fair Havens’
966-A,
Kandal Bridle
Path Mr.J.Subramaniam
Udagamandalam-
643
001 Counsel
for
The
Nilgiris, Tamil Nadu Petitioner/
2nd Complainant
Vs.
1. The
General Manager Telecom
BSNL,
Nilgiris SSA, Coonoor- 643 101
The
Nilgiris, Tamil Nadu
2. The
Chief General Manager
Telecommunications
Tamilnadu
Circle BSNL
Chennai-
600 002
3. The
Chairman and Managing Director
BSNL,
Bharat Sanchar
Bhavan Mr.T.
Ravikumar
Harish
Chandra Mathur Lane,
Janpath Counsel
for
New
Delhi- 110
001 Respondents/
Opposite parties
CCSR NO.658/2012
Karl Reddy
‘The Fair Havens’
966-A, Kandal Bridle
Path Mr.V.T.Venkatram
Udagamandalam- 643
001 Counsel
for
The Nilgiris, Tamil
Nadu ……….Complainant
Vs.
1. Bharat
Sanchar Nigam Ltd.,
Harish
Chandra Mathur Lane,
Janpath
New
Delhi- 110 001
Rep.
by its Authorised Signatory
2. The
Chief General Manager, BSNL
Tamil
Nadu Circle
80,
Anna Salai, Chennai – 600 002
3. The
General Manager, Telecom BSNL
Nilgiris
SSA
Coonoor-
643
002 …..Opposite
parties
Theses
petition coming before us for hearing finally today. Upon hearing
the arguments of the counsel on either side, perusing the documents, lower
court records, and the order passed by the District Forum, this commission made
the following order:
JUSTICE R. REGUPATHI, PRESIDENT
1. The
District Forum, and the office of this Commission, declined to entertain the
complaints preferred against various service providers of
telecommunication, under Sec.12 and 17 of Consumer Protection Act,
in view of Sec.7B of Indian Telegraph Act and the judgement of the Hon’ble
Supreme Court, in General Manager, Telecom Vs, M. Krishnan &
Another, reported in CTJ (2009) 1062.
2. The
allegation in general made by the complainants are that they have subscribed
for mobile phone/cellular phone with various service providers like BSNL,
Bharati AIRTEL Ltd., relating to the deficiency in service and unfair trade
practice in providing bills relating to excess billing, wrong calculation,
delay in providing service, warranty and other various grievances in providing
their services in general etc.
3. The
learned counsel for the complainant submitted that Sec.7B of Indian Telegraph
Act 1885, and judgement of Hon’ble Supreme Court, is not applicable to the
facts and circumstances of the case. On the other hand, the learned
counsel for the opposite parties contended that the decision of Hon’ble Supreme
Court is a binding precedent, and no other judgements, to prove contra is
available.
4. The
Indian Telegraph Act 1885 is a parent legislation, which was enacted more than
a century ago, and when such legislation was passed during those days, the
telecommunication was in a primitive stage, and the consumers and disputes were
not many. Providing service of such communications was fully
under the control of Government of India, and it has not been diversified and
developed as it exists today. Due to advancement of science and
technology for the past 127 years, the field of telecommunication developed in
such a greater extent, and the world has become a global village, on account of
that. The number of consumers utilizing the cellphone and telecom
facilities, in India, is reaching billions. Sec.7B of Indian
Telegraph Act 1885, is the only provision, which has been taken into
consideration by the Apex Court, when the judgement was pronounced by the
Supreme Court during the year 2009 (in General Manager Vs. M. Krishnan &
Another reported in 2009 CTJ 1062).
5. Several
Acts and Rules and notifications have been passed, by the Government of India,
including Consumer Protection Act, keeping in mind the varieties of the
disputes and complaints undergone by the consumers, on account of failure to
provide adequate facilities and service as promised. Millions of complaints are
to be redressed one way or the other. Complaints are being
redressed even by the service providers themselves to certain extent and other
complaints and grievances could not be redressed to the satisfaction of the
consumers, and in the net result the customers of the service providers of
telecommunication are helpless and running from pillar to post. The
above judgement of the Hon’ble Supreme court, decided during 2009 is handy for
the service providers including BSNL, and the ultimate result is that the
consumers could not get any redressal anywhere.
The following are
some of the legislations passed by the Government of India, after Indian
Telegraph Act 1885.
1. Wireless
Telegraph Act 1933
2. The
Telecom Regulatory Authority Of India Act, 1997
3. Information
Technology Act 2000
4. Indian
Telegraph (Amendment) Act 2003
5. The
Telecom Consumers Protection and Redressal of Grievances
Regulations,
2007
6. Consumer Protection Act
1986
In addition to the new
enactments, several notifications have been issued by the Government of India,
on various occasions, whenever necessity arises.
6. Before
looking into the relevant provisions of law, it is absolutely necessary to
demonstrate that the case decided during 2009 by the Apex Court is not
applicable to the present complaints. The Hon’ble Supreme Court
quoted Sec.7B of the Indian Telegraph Act 1885 and concluded that the dispute
shall be determined by arbitration, by an arbitrator, appointed by the Central
Government for determination of disputes, and the award passed by the
arbitrator shall be conclusive between parties to the dispute and shall not be
questioned by any Court.
7. Though
the judgement of the Hon’ble Supreme court was delivered during 2009,
unfortunately preexisting enactments like TRAI ACT 1997, were not placed for
consideration before the Supreme Court. One of the reason is that “no one
appears for the respondents (complainants) though they had been
served”. Infact this decision of the Supreme Court was delivered,
setting aside the judgement of a Full Bench of three judges of Kerala High
Court, confirming the jurisdiction of the Consumer Forum, in disputes related
to telecommunication. Though the Central Government enacted several
Acts, rules and notifications and several authorities have been appointed to
oversee the disputes of the consumers, and though the Ministry of
Telecommunication is aware of the judgement (CTJ (2009) 1062), no one evinced
any interest, to get clarification of the decision of Hon’ble Supreme Court,
and millions of complainants, who suffers every seconds are left in
lurch. For a country like India, having population of more than one
billion, how many “Arbitrators” can be appointed by the Central
Government? Though the father of our National says “A
customer is the most important visitor on our premises, he is not dependent on
us. We are dependent on him. He is not an interruption in
our work. He is the purpose of it. He is not an outsider
in our business. He is part of it. We are not doing him a
favor by serving him. He is doing us a favor by giving us an
opportunity to do”, who takes care of consumers? We are
worrying whether awareness programme is being conducted seriously, to educate
the availability of right to the grass root and, village level
consumers? When are we going to change the printed conditions in the
sale receipts “Goods
once sold will not be taken back”. When we will
be respected “after sale” like other developed countries?. Who will
bell the cats, indulging in unfair trade practice, giving misleading, false,
inducing advertisement through celebrities as Band ambassadors?
8. The
object and reason of The Telecom Regulatory Authority of India Act 1997 (TRAI)
are as follows:
An Act to provide for the establishment of the
Telecom Regulatory Authority of India and the Telecom Disputes Settlement and
Appellate Tribunal to regulate the telecommunication services, adjudicate
disputes, dispose of appeals and to protect the interests of service providers
and consumers of the telecom sector, to promote and ensure orderly growth of
the telecom sector (Substituted by Act 2000, S.2 for “Telecom,
Regulatory Authority of India to regulate the telecommunication service”
) and for matters connected therewith or incidental thereto.
Be it enacted by
parliament in the Forty-eighth year of the Republic of India as follows:-
Statement
of Objects and Reasons- In
the context of the national Telecom Policy, 1994, which amongst other things,
stresses on achieving the universal service, bringing the quality of telecom
service to world standards , provisions of wide range of services to meet the
customers’ demand at reasonable price, and participation of the companies
registered in India in the area of basic as well as value added telecom
services as also making arrangements for protection and promotion of consumer
interest and ensuring fair competition, there is a felt need to separate
regulatory functions from service providing functions which will be in keeping
with the general trend in the world. In the multi-operator situation
arising out of opening of basic as well as value added services in which
private operator will be competing with Government operators, there is a
pressing need for an independent telecom regulatory body for regulation of
telecom service for orderly and healthy growth of telecommunication infrastructure
apart from protection of consumer interest.
2. In
view of above, it was proposed to set up an independent Telecom Regulatory
Authority as a non-statutory body and for that purpose the Indian Telegraph
(Amendment) Bill 1995, was introduced and then passed by Lok Sabha on 6th August,
1995. At the time of consideration of the aforesaid Bill in Rajya
Sabha, having regard to the sentiments expressed by the Members of Rajya Sabha
and of the views of the Standing Committee on Communication which expressed a
hope that steps will be taken to st up a Statutory Authority, it is proposed to
set up the Telecom Regulatory Authority of India as a statutory
authority.
9. Sec.2
of The Telecom Regulatory Authority of India Act, 1997 (TRAI),
defines as follows:
“License”
means any person licensed under sub-section (1) of Sec.4 of the Indian
Telegraph Act, 1885, for providing specified public telecommunication services;
“member” means a member of the
Authority appointed under sub-Section (23) of Section 3 and includes the
Chairperson and Vice-Chairperson;
“notification” means a notification published in
the Official Gazette
“regulations” means prescribed by rules made
under this Act;
“service provider” means the Government and
includes a licensee;
“telecommunication
service” means service of any description (including electronic mail, voice
mail, data services, audio tex services, video tex services, radio paging and
cellular mobile telephone services) which is made available to users by means
of any transmission or reception of signs, signals, writing, images and sounds
or intelligence of any nature, by wire, radio, visual or other electro-magnetic
means but shall not include broadcasting services.
Chapter 4 of the TRAI Act deals with settlement
of disputes and Sec.14 reads as follows:
(1) If
a dispute arises, in respect of matters referred to in sub-section (2) among
service providers or between service providers and a group of consumers, such
disputes shall be adjudicated by a bench constituted by the Chairperson and
such bench shall consist of two members;
Provided that if
the members of the bench differ on any point or points they shall state the
point or points n which they differ and refer the same to a third member for
hearing on such point or points and such point or points shall be decided
according to the opinion of that member.
(2) The bench constituted under Sub-Section (1) shall
exercise, on and from the appointed day all such jurisdiction, powers and
authority as were exerciseable immediately before that date by any civil court
on any matter relating to:
i. technical compatibility and inter-connections
between service providers;
ii. revenue sharing arrangements between different
service providers
iii. quality of telecommunication services and
interest of consumer;
Provided that
nothing in this sub-section shall apply in respect of matters relating to
a) The monopolistic trade practice, restrictive
trade practice and unfair trade practice which are subject to the jurisdiction
of the Monopolies and Restrictive Trade Practices Commission established under
Sub-Section (1) of Sec.5 of the Monopolies and Restrictive Trade Praactices
Act, 1969;
b) The complaint of
an individual consumer maintainable before a Consumer Disputes Redressal Forum
or a Consumer Disputes Redressal Commission or the National Consumer Redressal
Commission established under Sec.9 of the Consumer Protection Ac, 1986;
c) Dispute between telegraph authority and anyother
person referred to in sub-section(1) of Sec.7B of the Indian Telegraph Act,
1885.
Sec.38 of TRAI says that the provisions of this
Act shall be in addition to the Provisions of Indian Telegraph Act 1885, and
Indian Wireless Telegraph Act 1933.
10. Therefore,
after enactment of TRAI, as per Sec.14(2) (b), the complaint of an individual
consumer is maintainable before the Consumer Disputes Redressal Fora, and
Consumer has got every right to file a complaint regarding
deficiency of service in telecommunication. Telecom Consumers
Protection and Redressal of Grievances of Regulations, 2007, the difficulties
faced by the consumers have been carefully taken into consideration and various
provisions have been incorporated, and they are:
Sec.1 (a) all
service provides (including Bharat Sanchar Nigam Limited and Mahanagar
Telephone Nigam Limited), being the companies registered under the Companies
Act, 1956 (1 of 1956) providing –
i. Basic Telephone service;
ii. Unified Access Service
iii. Cellular Mobile Telephone Service;
(b) all service providers (including the Bharat
Sanchar Nigam Limited and the Mahanagar Telephone Nigam Limited) providing
Broadband service:
Provided that
nothing contained in these regulations shall apply to an Internet Service
Provider whose turnover in any preceding financial year does not exceed rupees
five crores or whose total number of Broadband subscribers in any preceding
financial year does not exceed ten thousand numbers, as the case may be.
11. Sec.2 (h)
defines basic Telephone service, broadband call centre, cellular mobile
telephone service, internet service, License, manual, Nodal officer, Public
Switched Telephone Network, Unified Access Service, etc., and in particular
Sec.2(h) defines:
“consumer” means
a consumer of a service provider falling in clause (a) or clause (b) of
Sub-regulation (3) of regulation 1 and includes its customer and
subscriber;
12. In Chapter II, Sec.3 & 4 reads as
follows:
3. Establishment
of Call Centre: (1) Every service provider, falling in clause (a) or
clause (b) of sub-regulation (3) or regulation 1, shall, within sixty days from
the date of commencement of these regulations, establish a “Call Centre” for
redressal of grievances of its consumers, and, such Call Centre shall be
accessible to its consumers round the clock during all days in a week:
Provided
that the Consumer Grievance Redressal Mechanism, set up by the service
providers (including the Bharat Sanchar Nigam Limited and the Mahanagar
Telephone Nigam Limited) at Call Centre level in accordance with the
instructions of the government of India, Ministry of Communications and
Information Technology (Department of Telecommunications), Licensing Cell
(Basic Services Group) vide No.16-6/2005-BS-II dated the 22nd September,
2005, shall continue to be the Call Centre for the purposes of these
regulations:
Provided
further that a service provider, falling in clause (a) or clause (b) of
sub-regulation (3) of regulation1, who has been granted a license after the
commencement of these regulations, shall establish simultaneously with provision
of services, a Call Centre for redressal of grievances of its consumers.
Provided
also that a service provider, falling in clause (a) or clause (b) of
sub-regulation (3) of regulation 1, who is providing—
(a) different
services in a licensed service area, may, at its option, set up one or more
Call Centres, being common or separate, for such services being provided by it;
(b) services
in two or more licensed service areas, may, at its option, set up one or more
call Centres, being common or separate for one or more such service areas
(2) Every
service provider, falling in clause (a) or clause (b) of sub-regulation (3) of
regulation 1 shall
(a) employ
or engage sufficient number of officers or employees at its Call Centres
(b) earmark
or allot or establish a basic telephone or cellular mobile telephone number
having sufficient lines or connections to be called as the “toll free number”
or “consumer care number” or “help line number” or “special number”, as the
case may be, at its Call Centres.
(3) No
call charges or short message service charges shall be levied upon or payable
by its consumers for calls made, or short message service sent to the “toll
free number” or “consumer care number “ or “help line number” or “special
number”, as the case may be referred to in clause (b) of sub-regulation
(2).
(4) Every
service provider, falling in clause (a) or clause (b) of sub-regulation (3) of
regulation 1, shall immediately on establishment of its Call Centre, give,
through a public notice in a newspaper published in an Indian language in
circulation in the area in which such service provider is providing services,
and through the telephone bills if issued by the service provider, the contact
details including therein the “toll free number” or “consumer care number” or
“help line number” of such Call Centres in respect of each licensed service
area for which the Call Centres have been established and thereafter give such
public notice atleast in twelve months in the same manner;
Provided
that in case of change of Call Centres or change of its “toll free number” or
“consumer care number” or “help line number”, the same shall be intimated
through public notice and telephone bills if issued by the service provider, in
the same manner as provided in these regulations.
4. Procedure
for handling grievances by Call Centres: (1) Every service provider, falling in
clause (a) or sub-regulation (3) of regulation 1, shall ensure that the Call
Centres, immediately on receipt of a complaint from a consumer, --
(a) register
such complaint by allotting a unique identification number to be called the
docket number;
Provided
that a unique docket number assigned under sub-paragraph (2i) of paragraph 8 in
the Direction F.No.303-6/2006-QoS dated the 29th August 2006
before the commencement of these regulations, shall be the docket number for
the purpose of these regulations.
(b) communicate,
at the time of lodging the complaint, the unique identification number to be
called docket number, date and time of registration of the complaint, to the
consumer;
(c
) record details in respect of such complaint;
(d) intimate
to the consumer ,----
(i) through
telephone or other electronic means or anyother means; and
(ii) within
the time limit specified in regulation 5
The action taken
on the complaint ; and
(e) intimate
contact details of the Nodal Officer (including his name, telephone number and
address) to the consumer in case the consumer is not satisfied with the
redressal of his grievance or when requested by him.
13. Sec.6 to 9
reads as follows:
6. Appointment of
Nodal Officer- (1)
Every service provider, falling in clause (a) or clause (b) or sub-regulation
(3) of regulation 1, shall, within one month from the date of commencement of
these regulations, appoint or designate one or more Nodal Officers, in each of
its licensed service area for the purposes of these regulatins;
7. Redressal of
Consumer Grievances by Nodal Officers--- In
case a consumer is not satisfied the redressal of his grievance by the Call
Centre, such consumer may approach, by a letter in writing, or through
telephone, or web based online filing of complaints or through short message
service or through other electronic means and anyother means, the Nodal Officer
of the service provider for redressal of his grievance.
8. Handling of grievances of consumers by
Nodal Officers--- Every Nodal officer shall-----
(a) be accessible
to the consumers at the address made available by the public notice and
telephone bills, as referred to in clause (a) of sub-regulation (2) of
regulation 6;
(b) register
every complaint lodged by the consumers ;
(c) communicate,
within three days from the date of the receipt of the complaint, the unique
complaint number to the consumer.
(d) after
taking the remedial measures for redressal of the grievance or decision
thereon, intimate, within the time limit specified in regulation 9, the
remedial measure or decision taken, to the consumer.
9. Time limit for redressal of complaints by
Nodal Officer--- The Nodal Officer shall redress the complaints
of the consumer within ten days of the registration of the complaint under
clause (b) regulation 8;
Provided that
complaints relating to fault or disruption of service or disconnection of
service shall be redressaed within three days from the date of registration of
complaint under clause (b) regulation 8;
14. Sec.20 deals
with Manual of Practice for handling of consumer complaints, wherein
publication of manual of practice for handing consumer complaints have been
stated and Sec.22 deals with consumer grievance redressal mechanism by other
service providers and Sec.23 deals with inspection and auditing, wherein it has
been stated as follows:
“Every service provider, falling in clause (a) or
clause (b) of sub-regulation (3) of regulation (3) of regulation 1, shall
maintain complete and accurate records of redressal of grievances by its Call
Centre, Nodal Officers and appellate authorities
The
Authority may, if it considers it expedient so to do, and to ensure compliance
of the provisions of these regulations, by order, in writing direct any of its
officers or employees or through an independent agency appointed by the
Authority to –
15. Sec.25 reads as follows:
Right of
consumers to seek redressal under Consumer Protection Act, 1986 or anyother law
for the time being in force------
(1) The
provisions of these regulations are in addition to any right conferred upon the
consumers under the Consumer Protection Act, 1986 or any other law for the time
being in force.
(2) Any
consumer may, at any time---
(a) during pendency of redressal of his grievance,
whether by filing of complaint or appeal, under these
regulations; or
(b) before or after filing of complaint or appeal,
under these regulations.
Exercise
his right conferred upon him under the Consumer Protection Act 1986 or anyother
law for the time being in force and seek redressal of his grievance under that
Act or law.
16. Sec. 20 of the
Telecom Consumers Protection and Redressal of Grievances Regulations, 2007,
deals with Manual of Practice for handling of consumer complaints, wherein
publication of manual of practice for handling consumer complaints have been
stated, and Sec.22 deals with Consumer grievance Redressal Mechanism by other
service provider, and Sec.23 deals with Inspection and Auditing, wherein it has
been stated as follows:
(1) Every service
provider, falling in clause 9a) or clause (b) of sub-regulation (3) of
regulation 1, shall maintain complete and accurate records of redressal of
grievances by its Call Centres, Nodal Officers and appellate authoritie.
(2) The
authority may if it considers it expedient so to do, and to ensure compliance
of the provisions of these regulations, by order, in writing, direct and of its
officers or employees or through an independent agency appointed by the Authority”
17. Bharat Sanchar
Nigam Limited (BSNL), which is a public sector company, registered under the
Companies Act, and they are granted license by the Central Government, through
Department of Telecommunication under Sec.4 of Indian Telegraph
Act. Similarly, the other service providers also have been
granted license. The department of telecommunication is mainly
performing the role of licensor and policy maker. The Telecom
Regulatory Authority of India (TRAI) has been established to regulate
telecommunication service, and discharge various functions under the
Act. The service providers, being licensees, as per the license
conditions, if any disputes between such licensee and consumer arises regarding
the telephone services, it will be a dispute between the licensee and the
consumers, and the service providers are answerable to the
consumers. At the time of issuance of license, the following clauses
are included
2.2 The
LICENSEE shall clearly define the scope of Service to the subscriber(s) at the time entering into
contract with such subscriber(s). Any dispute with regard to the
service provided to the subscriber shall be a matter between the subscriber and
the licensee only.
31. Customer Service
31.5 Any
dispute, with regard to the provision of SERVICE Shall be a matter only between
the aggrieved party and the LICENSEE , who shall duly notify this to all before
providing the SERVICE. And in no case the LICENSOR shall bear any
liability or responsibility in the matter”.
18. When the
contemporaneous legislations and notifications in the field of
telecommunication are in existence, the provisions of Consumer Protection Act
also may have to be looked into carefully
Save as otherwise
expressly provided by the Central Government by notification, this Act shall apply to all goods and
services.
Service is defined under Sec.2 (1) (o) that
“Service means service of any description, which
is made available to potential (users and includes, but not limited to, the
provision of) facilities in connection with banking, financing, insurance,
transport, processing, supply of electrical or other energy, boarding or
lodging or both (housing construction) entertainment, amusement or the
purveying of news or other information, but does not include the rendering of
any service free of charge or under a contract of personal service.”
Sec.3 of CP Act defines that
Act not in derogation of anyother law - The
provisions of this Act shall be in addition to and not in derogation of the
provisions of the other law for the time being in force”
In
view of the above said mandatory provisions of the Consumer Protection Act,
1986, it is made quite clear that the provisions of the Consumer Protection
Act, 1986 apply to all type of goods and all services availed by the consumers
against consideration paid or promised.
From the
statement of objects and reasons and the scheme of 1986 Act, it is apparent
that the main object of the Act is to provide for better protection of the
interest of the consumer and for that purpose to provide for better redressal
mechanism through which cheaper, easier, expeditious and effective redressal is
made available to consumers. To serve the purpose of the Act,
various quasi judicial forums are set up at the district, State and National
level with wide range of powers vested in them. These quasi judicial
forums, observing the principles of natural justice, are empowered to give
relief of a specific nature and to award, wherever ‘appropriate compensation to
the consumers and to impose penalties for non-compliance of their orders.
As per Sec.3 of
the Act, the provisions of the Act shall be in addition to and not in
derogation to anyother provisions of anyother law for the time being in
force. Having due regard to the scheme of the Act and purpose sought
to be achieved to protect the interest of the consumers, better the provisions
are to be interpreted broadly, positively and purposefully in the context of
the present day scenario to give meaning to additional / extended
jurisdiction, particularly when Sec.3 seeks to provide remedy under
the Act in addition to other remedies provided under other Acts unless there is
clear bar”.
19. The Apex
court, in its various judgements, have confirmed the jurisdiction of the
Consumer Protection Act.
It
has been held that “the
provisions of the said Act are required to be interpreted as broadly as
possible. It has jurisdiction to entertain a complaint despite the
fact that other Forum/ courts would also have jurisdiction to adjudicate upon
the matter” in State of Karnataka Vs. Vishwahharathi
House Building Coop. Society and others reported in 2003 (2) CLT 3”
It
has been held that “Consumer Protection Act has a wide reach and the Commission
has jurisdiction in case of services rendered by the statutory and public
authorities. The provisions of the Act enable the consumer to claim
and empower the commission to redress any injustice done”, in “Gaziabad Development Authority Vs. Balbir
Singh, reported in 2004
(2) CLT 628”
The Hon’ble
Apex Court in its recent judgement in Dhanbir Singh Vs. Haryana Urban Development Authority reported
in III (2012) CPJ 1 (SC) has
held that
“The Consumer Protection Act was enacted to
provide for better protection of the interests of the consumers and for establishment
of Consumer Councils and other authorities for settlement of consumer disputes
and for matters connected therewith. Sec.3 declares that the
provisions contained in the Act are in addition to and not in derogation of the
provisions of any other law for the time being in force. There is no
provision in the Act which bars filing of a complaint by a consumer after
availing other statutory remedies. . If such person
falls within the definition of consumer under Sec.2(d) of Act then he can
directly file complaint under Secs.12, 17 and 21, as the case may
be. If the complaint is time bared, the consumer can seek
condonation of delay by filing an application under Sec.24 (A)(2).
20. The Hon’ble
Supreme Court, in the judgement relied on by the opposite party, reported in
CTJ (2009) 1062 (cited above), while discussing about the applicability of the
Acts, has held as follows:
“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”
Thereby meaning that the Indian Telegraph Act
is the Special Act and the Consumer Protection Act is the general
Act. The Indian Telegraph Act 1885 is the parent Act, and there is
no conflict or repugnancy between the Indian Telegraph Act 1885, and the
subsequent enactments like TRAI Act 1997 in the same
field. Therefore we conclude that the Consumer Protection Act, may
be suitable to the facts and circumstances of the case, relying on the
judgement reported in (2010) 11 Supreme Court Cases 629, wherein it has been
held as follows:
“Elaborate
procedure has been laid down for filing of the complaints and disposal
thereof. Since the Consumer Protection Act, 1986 is
a special statute enacted
by Parliament for better protection of the interest of consumers and wholesome
mechanism has been put in place for adjudication of consumer disputes, the
remedy of appeal available to a person aggrieved by an order of the State
Commission cannot but be treated as an effective alternative remedy”
21. We make it
clear, which answering the objections raised by the counsel for the service
providers, that we are not in any manner disagree with the judgement of Supreme
Court in the case decided in 2009 CTC 1062. We have carefully taken
into consideration the provisions of TRAI Act 1997, and subsequent other
contemporaneous legislations, made by the parliament in the recent days.
22. When the
contemporaneous legislations and notifications are available, it is
surprising to see the stand taken by the BSNL , a Public Limited Company and
other service providers, even today stating that Sec.7B of Indian Telegraph Act
is the only provision of law in redressal of complaints, and the complaints
before the Consumer Forum are not maintainable. The Ministry of
Telecommunication and Government of India are mute spectators and never evinced
any interest in getting the judgement of the Supreme Court
clarified. Inspite of enactments made by the parliament for the past
one decade, the benefit of such legislations were not passed on to the
suffering consumers and in a way helped the service providers, and this
Commission is bound to take serious note of the mandatory provisions of those
enactments and on application of the same, declare open the doors of Consumer
Fora to the dispute relating to telecommunication.
23. In view of the
foregoing discussions, decisions rendered by the Apex Court in plethora of
precedents confirming the applicability of the provisions of Consumer
Protection Act, and in view of the availability of various provisions of law
and recent enactments, in the field of telecommunication we are of the
considered opinion that the persons who avails the service on consideration
from service providers of telecommunication are considered to be a consumer,
and they are entitled to approach the Consumer Forum for the redresssal of
their grievances, and under such circumstances the view taken by the District
Forum, against the consumers, and the orders passed thereon are liable to be
set aside.
24. In the result, the appeals in
F.A.No.623/2010 and 847/2010 are allowed, setting
aside the orders passed by the District Forum viz. CC.No.495/2008 and
CC.No.129/2008 on the file of DCDRF, Chennai (South) respectively, and the
matters are remanded back to the District Forum concerned, for fresh disposal
according to law on merit. The District Forum is directed
to take the complaint on file, conduct trial, and pass orders on merit at the
earliest. Parties are directed to appear before the District Forum on
28.12.2012 for further instructions.
25. CMP.NO.730/2012
IN F.A.NO.66/2010 is allowed, additional documents are received subject to
proof and relevancy and marked as Ex.A31 to A34.
26. F.A.No.66/2010
is allowed setting aside the orders passed by the District Forum viz.
CC.No.3/2009 on the file of DCDRF, Udhagamandalam, and the matter is
remanded back to the District Forum, for fresh disposal according to law on
merit. The District Forum is directed to take the complaint on file,
conduct trial, consider the additional documents filed by the complainant, and
pass orders on merit at the earliest. Parties are directed to appear
before the District Forum on 28.12.2012 for further instructions.
27. F.A.No.528/2012
is dismissed, confirming order passed by the District Forum in CC.No.35/2007
dt.20.11.2009.
28. In
so far as CCSR No.658/2012 is concerned, the Registry is directed to take the
complaint on file, if it is otherwise in order.
29. Registry
is directed to circulate the copy of this order, to all District Fora.
A.K.
ANNAMALAI R.
REGUPATHI
JUDICIALMEMBER PRESIDENT
F.A.NO.66/2010
List of additional
documents filed by the appellant/ complainant
A31 19.12.2011 Reply
letter by Director (DHP0 & CPIO
A32 21.03.2012 Order
from DDG (PG)
A33 21.03.2012 Letter
from CPIO, TRA
A34 15.12.2012 Letter
from AGM, BSNL
A.K.
ANNAMALAI R.
REGUPATHI
JUDICIALMEMBER PRESIDENT
