Date of hearing and Order :
Wednesday, the 18th day of November, 2015.
J U D G M E N T
The instant appeal u/s 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of complainant to impeach the order No.02 dated 27th June, 2013 passed by the Ld. Kolkata District Consumer Disputes Redressal Forum, Unit-I (for short, ‘Ld. District Forum’) in consumer complaint No.357 of 2013.
The appellant herein being complainant initiated the consumer complaint u/s 12 of the Act alleging that on 4.12.2012 he bought a Nokia Handset at a price of Rs.6,500/- being Model No.ASHA 313 from opposite party No.3 lying and situated at premises No.13 & 14, BBD Bag (East), P.P. Hare Street, Kolkata-700001. On the following day, he noticed that a used and old Handset was delivered to him. On 7.12.2012 he reported the matter to the Outlet who asked him to meet on 8.12.2012 and get refund of the entire money. However, again he purchased one Handset of same brand on 10.12.2012 from O.P. No.3 from their Sales Office at 228A, AJC Bose Road, Minto Park, P.S. Bhabanipur, Kolkata-700020. However, the said Handset was also found defective. Accordingly, the complainant has filed the complaint against O.P. for deficiency of service and prayed for certain relief like (a) a direction upon the O.P’s. to return Rs.6,500/- as the cost of the mobile set; (b) Rs.25,000/- as compensation for deficiency of service/unfair trade practices, harassment and mental agony and (c) litigation cost of Rs.5000/-, etc.
By the impugned order, the Ld. Kolkata DCDRF, Unit-I rejected the consumer complaint by holding that in accordance with the decision of the Hon’ble Supreme Court of India in connection with General Manager, Telecom-Vs- M. Krishnan & another reported in (2009) 8 SCC 481 it has no jurisdiction to entertain the same.
We have perused the materials on record and considered the submissions advanced by the appellant appearing in person as well as Ld. Advocate for the respondent.
It would be profitable to record that in the decision referred to above, it was held – ‘Where there is special remedy provided under section 7B of the Indian Telegraph Act, 1985 regarding disputes in respect of telephone bills then remedy under the Consumer Protection Act is by implication barred.’
In the case beforehand, the complainant has purchased a mobile Handset from Nokia made and he has initiated the consumer complaint on the ground of deficiency of service on the part of the service provider. Needless to say, the Nokia Handset was meant for manufacturing and selling to the customers. Therefore, the referred decision has no manner of application when there exists a dispute between the Telecom service provider and the consumers. In other words, it is within the competence of the Consumer Fora to entertain such cases of disputes.
For the reasons aforesaid, we are constrained to interfere with the order impugned as the same is not sustainable under the law.
In the result, appeal succeeds. However, considering the facts and circumstances, we do not make any order as to costs.
Consequently, the appeal is allowed on contest but without any order as to costs.
The order No.02 dated 27th June, 2013 passed by the Ld. Kolkata District Consumer Disputes Redressal Forum, Unit-I in connection with consumer complaint No.357 of 2013 is hereby set aside.
The parties are directed to appear before the Ld. District Forum on 18.12.2015 to receive further order from the said Court. The Ld. District Forum is requested to proceed with the case in accordance with the law.
Registrar of this Commission is directed to send a copy of this order to the President of the Ld. District Forum for information.
