Chandigarh

DF-I

CC/618/2015

Yatin Gupta - Complainant(s)

Versus

Circle head office- Vodafone South Ltd - Opp.Party(s)

In person

09 Jun 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/618/2015
Date of Institution	:	14/09/2015
Date of Decision	:	09/06/2016

 

Yatin Gupta, Advocate r/o # 3401, Sector 35-D, Chandigarh,

Office Address # 3059, Blood Donor’s Society, Sector 50-D, Chandigarh.

…..Complainant

V E R S U S

1.     Circle Head Office : Vodafone South Limited, C 131, Industrial Area, Phase VIII, Mohali 160071, India, through its CEO.

2.     Vodafone India Headquarters : Vodafone India Limited, Peninsula Corporate Park, Ganpatrao Kadam Marg, Lower Parel, Mumbai 400013, India.

3.     Branch Office : SCO 57-59, 1^st Floor, Sector 17-C, Chandigarh. Above CMC Hospital, Chandigarh 160017 through its Manager.

……Opposite Parties

 

QUORUM:	DR. MANJIT SINGH	PRESIDENT
	MRS.SURJEET KAUR	MEMBER

                               

                                                                       

ARGUED BY	:	Complainant in person
	:	Ms. Parminder Kaur, Counsel for OPs 1 & 2
	:	OP-3 ex-parte

                       

PER DR. MANJIT SINGH, PRESIDENT

1.         This consumer complainant under Section 12 [wrongly mentioned as Section 11 read with Section 2(c)] of the Consumer Protection Act, 1986 (hereinafter called the 1986 Act) has been brought by Sh. Yatin Gupta, complainant against Circle Head office : Vodafone South Limited and others, Opposite Parties (hereinafter called the OPs) on account of deficiency in service and unfair trade practice adopted by the OPs.

                The facts, in brief, are that between the months of May-June, 2013, the complainant was assured by the agent of the OPs that they have very strong signal network in whole of Chandigarh. The complainant was ensured that Vodafone is having good signals in Sector 50, Chandigarh where he is residing and having his office as an advocate. The complainant, from the day of using the connection, faced the problem of audio disturbance while voice calling and he has been constantly complaining to Vodafone Customer Care. On 11.7.2015, the complainant wrote an email to Vodafone about the same and even requested to port his number, but, the executives of the OPs asked him to wait till they take out the solution. However, the problem of the complainant was not solved. The complainant complained about call dropping/signal fluctuation/voice crackling/weak signals etc. The complainant, who is a practising advocate, and is also a trustee of an NGO called Pride Foundation, was being harassed and has suffered a loss in his practice. Finding no other alternative, the complainant approached this Forum and claimed compensation to the tune of Rs.1.00 lakh for mental agony he has gone through and also a sum of Rs.22,000/- as litigation expenses.

2.         OPs 1 & 2 appeared and filed their written statement taking the preliminary objections that the complainant has failed to disclose any cause of action as regards the deficiency in service; the complaint is barred by jurisdiction and the complainant has got efficacious and alternate remedy provided under the special statutes i.e. the Indian Telegraph Act, 1885, Indian Wireless Telegraph Act, 1993 and Telecom Regulatory Authority of India Act, 1997.  It is further pleaded that as per Section 7-B of the Indian Telegraph Act, except as otherwise expressly provided in the Act, if any dispute concerning any telephone line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by the arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under the section. It is further pleaded that as per Rule 413 of the Indian Telegraph Rules, the services relating to the telephones are subject to Telegraph Rules. Reliance has been placed on the judgment in the case titled as Raag Rang Vs. G.M. Delhi Telephones, 1997 5 SSC 345-AIR 1997 SC 2653 where writ petition with regard to the dispute as to making of payment of telephones due was held not maintainable.  Reliance has also been placed on another judgment in Senior Post Master, G.P.O. Vs. Akhil Bharatiya Grahak Panchayat (1995) 2 CPJ 230 (NC) wherein the Hon’ble National Commission made the following observations: “The learned counsel for the petitioner rightly argued that section 3 of the Consumer Protection Act only provides additional remedy for the redressal of a grievance but if the remedy is barred under any other law, no relief can be granted under the Act.” Reliance has also been placed on the judgment dated 1.9.2009 of the Hon’ble Supreme Court  in Civil Appeal No.7687 of 2004 wherein it has been held that Section 7-B of the Indian Telegraph Act provides for resolution of consumer disputes through arbitration and the remedy under the Consumer Protection Act is by implication barred. The Hon'ble Supreme Court also observed that the special law overrides the general law.  It is further pleaded that as per the terms and conditions of the licence, the company is duly meeting the parameters of the quality of service as to be complied by the service provider.  It is further pleaded that every cellular mobile telephone service provider shall meet and monitor the benchmarks for cellular mobile telephone service for indoor coverage the signal strength street level shall be > -75 dBm and In-vehicle shall be >-85 dBm and as such no harassment or mental agony has occurred to the complainant. It is further pleaded that the notification dated 9.3.2015 of the Chandigarh Administration for the Chandigarh Policy on Towers for Mobile telephone and Data services supersedes the order dated 5.6.2008 issued by the Chief Administrator, U.T, Chandigarh and there are restriction of locations, footprints and height of the mobile towers. The OPs prayed for dismissal of the complaint.
3.         OP-3 did not appear despite due service, therefore, it was proceeded ex-parte vide order dated 9.2.2016.
4.         Rejoinder was filed by the complainant denying all the averments in the written statement of the OPs.
5.         The parties led evidence in support of their contentions. 
6.         We have gone through the record, including the written arguments, and heard the arguments addressed by complainant in person and learned Counsel for OPs 1 & 2.
7.         The complainant, who is a practising advocate, argued that from the very beginning, the quality of the signal to his mobile phone is very poor. There is frequent call drops, signal fluctuations, voice crackling and weak signals and, as such, he suffered a huge loss in his profession and also has to face harassment and mental agony due to the deficiency in service provided by the OPs.  He argued that he was assured that a good quality signal network is being provided in whole of Chandigarh and he was also assured that in his Sector 50, Vodafone is having good signals.  He argued that in spite of making repeated requests, the deficiency in service has not been made good.  The network provided by the OPs, having the weak signals, is causing harassment.
8.         The learned counsel for OPs 1 & 2 argued that the District Forum has no jurisdiction to try this complaint and as per Section 7-B of the Indian Telegraph Act, the dispute is to be referred to the Arbitrator. As such, on this sole ground, the complaint is liable to be dismissed.  She argued that there are a number of judgments which lay down that Indian Telegraph Act is a special statute which will prevail upon the 1986 Act.  As such, the remedy, if any, to the complainant is under the Indian Telegraph Act. Reliance has also been placed on the judgment of the Hon’ble Supreme Court in Cellular Operators Association of India & Ors. Vs. Telecom Regulatory Authority of India & Ors., Civil Appeal No.5017 of 2016 decided on 11.5.2016. 
9.         It is not disputed that the complainant is a consumer and the OPs are the service providers. In the present case, the dispute is about the deficiency in service by the OPs and there is no other dispute. There is no doubt that the Indian Telegraph Act is a special statute and Section 7-B of the Indian Telegraph Act provides for reference of the matter to the arbitrator.  Under the 1986 Act, the remedy provided to the consumer is an additional remedy. It is the option of the consumer to adopt the remedy under a special statute or under the 1986 Act. Even a consumer can avail the remedies under a special statute as well as under the 1986 Act.  Even if the matter can be referred to the arbitrator, then also the complainant has remedy under the 1986 Act.  The 1986 Act is the only Act which has the power to provide compensation to a consumer.  The Indian Telegraph Act has no such provision for providing compensation for deficiency in service. Other disputes in regard to the transmission etc. can be settled under the provisions of the Indian Telegraph Act, but, the dispute about the deficiency in service and payment of compensation can only be decided under the 1986 Act. Though, in the reply, certain judgments have been relied upon, but, since in the present case, the dispute is only about deficiency in service, so the only remedy available to the complainant is under the 1986 Act and the said judgments do not bar the remedy of the consumer under the 1986 Act. 
10.         The District Forum established under the 1986 Act, does not exercise jurisdiction upon each and every matter, rather the jurisdiction of the Consumer Forum can be invoked only on the matters/disputes where the consumer element is involved. So when a dispute where the rights of the consumers are to be adjudicated there only the consumer courts, specially enacted for the said purpose, have the jurisdiction. Where there is a deficiency in service and unfair trade practice, the provisions of the 1986 Act can be invoked irrespective of any other statute dealing with the same matter. The remedy under the 1986 Act is an additional and special remedy. The judgment of the Hon’ble Supreme Court in Cellular Operators Association of India Vs. Telecom Regulatory Authority of India (supra) does not relate to deficiency in service or unfair trade practice. It relates to charging of amount with regard to call drops by the cellular operators. So, we have no hesitation to hold that this Forum has the jurisdiction to try this complaint irrespective of the provision of arbitration, as provided under Section 7-B of the Indian Telegraph Act.
11.         No doubt, it is pleaded by the OPs that the coverage strength of a particular location is subject to variation due to physical obstructions, geographic conditions and external factors which the company puts the best efforts to cater its finest services always, but, in the present case, there is no evidence what were the physical obstructions, geographic conditions and external factors which were responsible for the weak signals or imperfect or low coverage in the said area. In the email dated 22.7.2015 (Annexure A-1), sent to the complainant, it is pleaded that there is low coverage at the site as there are cluster of buildings in the area.  However, this reason does not hold good because Sector 50 of Chandigarh is a well planned sector and there is no haphazard construction. It cannot be said that the cluster of buildings in the area is responsible for the low coverage.  In Sector 50, the height of the buildings is similar to other sectors of Chandigarh.
12.         Whether the complainant is getting weak signals or not, the answer has been given by the OPs themselves in the email dated 22.7.2015 (Annexure A-1). The OPs have admitted that there is low coverage at the site of the complainant, but, pleaded that it was because of cluster of buildings in the area. This explanation, that low coverage is because of cluster of buildings in the area, is without any substance. So, it is proved that in the area where the house of the complainant is located, there is low coverage of the network of the OPs.  This email further proves that there is requirement of installation of a tower but due to delay in getting the permission from the Government and local authority, the tower is not installed.  In the email the OPs have specifically mentioned as under :

“We truly understand your concern and value your relationship with us and hence request you to please bear with us till any modification is done over the issue being faced by you.”

So, this fact proves that the OPs admitted the difficulties faced by the complainant because of low coverage in the area and weak signals and network and the OPs were also not in a position to immediately resolve the problem.  Hence, there is no evidence till now that the OPs have installed the tower to improve the connectivity in the area of Sector 50, Chandigarh. 

13.         The complainant has pleaded that on the assurance of the OPs that there would be strong signals and strong network in the area, he purchased the connection and this version of the complainant cannot be disbelieved because had there been no such assurance by the OPs or good quality signals, there was no reason for the complainant to purchase their connection.  Since the OPs themselves are admitting that the problem of the complainant cannot be solved because of the difficulties faced by them in installing the tower, so it can be said that the complainant was kept in dark when he was offered the connection and thereafter the OPs have failed to provide the proper services, as required, to the complainant. Thus, the OPs adopted unfair trade practice by keeping the complainant in dark and they also remained deficient in services as they could not provide the proper connectivity to the complainant.
14.         No doubt it is argued by the learned counsel for the OPs that the signal strength provided by the OPs is as per the terms and conditions of the licence and the company is duly meeting the parameters of the quality of service as to be complied by the service provider. However, the terms and conditions of the licence is an agreement between the OPs and the competent authority. The complainant is not bound by the requirement of the signal strength which was required by the OPs to obtain the licence. The complainant has right to receive the good quality of signals not only in his area, but, even in his house, office and even inside the house.  If the OPs have failed to provide good quality of signals to the complainant, then they are definitely deficient in service.
15.         The OPs were interested in expanding their subscriber base without having the proper infrastructure for providing the good quality signals. The OPs were interested only in grabbing money from their customers like the complainant without properly ensuring that the quality of connectivity being provided is as promised and does not suffer from any problems.  The OPs have not suggested how they can improve their connectivity of signals i.e. either by installing the towers/boosters or by any other mode.   From the email sent by the OPs, it transpires that the installation of a tower is required which required the approval of the competent authorities.  So, this Forum cannot order the OPs to install a tower or a booster.  
16.         There is no doubt that the OPs have adopted unfair trade practice while inducing the complainant to get their connection and have been deficient in providing proper services. The complainant obtained the connection in the year 2013, but, no complaint was made about deficiency in service. In the month of April 2015, the OPs expressed their inability to improve the connectivity in the area, but the complainant continued the services and did not shift to any other cellular operator.  So, it can be presumed that though adequate services were not provided by the OPs, but, the services of the OPs were not too poor.  Had the complainant faced much difficulty in the connectivity, he must have shifted to some other cellular operator. Since the complainant has been continuing with the OPs and availing the services, OPs cannot be held responsible to refund whole of the charges received by them.  However, taking into consideration all the facts and circumstances of the case, OPs can be asked to refund 25% of the amount received by them since 11.7.2015, when the complainant made the complaint and cause of action arose. The complainant can also be suitably awarded compensation for the harassment and mental agony suffered by him.
17.         In the light of the above discussion, we are of the opinion that the present complaint deserves to succeed. The same is accordingly partly allowed. The OPs are directed as under :-

(i)     To overhaul the account of the complainant and refund 25% of the total amount received by them since 11.7.2015;

(ii)    To pay Rs.10,000/- as compensation for mental agony and harassment caused to the complainant;

(iii)   To pay Rs.5,000/- as costs of litigation. 

18.         This order be complied with by the OPs within one month from the date of receipt of its certified copy, failing which they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of filing of the present complaint till realization, apart from compliance of direction at Sr.No.(iii) above.
19.         Before parting, we will like to mention that the complainant has been awarded compensation as well as refund of 25% of the amount paid by him because the complainant was kept in dark by the OPs when he obtained the connection.  But, now the complainant knows what type of services can be provided by the OPs to him.  If the complainant still continues with the connection of the OPs, he will do so at his own risk and responsibility and would not be allowed to say in future that the action of the OPs amounts to unfair trade practice and there is deficiency in service. If the complainant is not satisfied with the services of the OPs, he has the option to port to some other cellular operator.
20.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

		Sd/-	Sd/-
09/06/2016		[Surjeet Kaur]	[Dr. Manjit Singh]
hg		Member	President