Sri Shyamal Gupta, Member

This Appeal is directed against the Order dated 13-02-2014 of the Ld. District Forum, Howrah in C.C. No. 214/2013 whereof the complaint has been partly allowed.

Brief facts of the complaint case are that on 08-03-2013, Complainant opted for unlimited data plan of the OP No. 1.  At that time, he was given to understand that under the said plan, he would be required to pay only a sum of Rs. 700/- per month and there would be no other additional charges for usage of internet.  After expiry of one month and a week, he did not receive any bill from the OPs.  Thereafter, all on a sudden, he was surprised to receive a message from the OP No. 1 showing an outstanding amount of Rs. 1,071.93 being usage charge of internet for the first month.  The Complainant then immediately rushed to the office of the OP No. 2, who asked him to pay Rs. 700/- in full and final settlement of the bill.  Accordingly, the Complainant paid Rs. 700/- on 03-05-2013.  Thereafter, the OP No. 1 sent its second bill on 06-05-2013 claiming Rs. 1,202.27 from the Complainant.  From the said bill, the Complainant discovered that the excess amount of Rs. 371.93 was not reduced by the OP No. 1, rather, a sum of Rs. 100/- was charged as late payment charge and subsequently, the service connection of the Complainant was disconnected by the OP No. 1. So, the Complainant again rushed to the office of the OP No. 2 but the service connection is yet to be restored.  Hence, the complaint.

In its defence, it is stated by the OP No. 1 that the present dispute is not a fit case for adjudication under the Consumer Protection Act, 1986 in view of the provisions laid down u/s 7B of the Indian Telegraph Act, 1885.  Accordingly, it prayed for summary dismissal of the complaint.

Decision with reasons

We have heard the parties at length and gone through the material on record, including the citations referred to in the matter.

The Ld. Advocate, appearing on behalf of the Appellant strongly disputed the authority of the Ld. District Forum to adjudicate the complaint citing Sec. 7B of the Indian Telegraph Act.  He further argued that the Department of Telecommunication had no authority to assail the decision of the Hon’ble Supreme Court which, according to the Ld. Advocate, could only be done by a larger or subsequent Bench of equal strength of the Hon’ble Court. 

We, however, totally disagree to such proposition of the Ld. Advocate.  A bare reading of the cause title of the case law cited (GM Telecom v. M. Krishnan & Ors.) is suffice to discern that in Krishnan’s case, the Hon’ble Court was dealing with a dispute between a consumer and the General Manager, Telecom, who happened to be a ‘Telegraph Authority’ being a Department of Telecommunication Officer.  However, in the case in hand, the dispute involves an individual consumer and a private telecom service provider.  Therefore, no parallel can be drawn in between the two cases. 

That apart, there can be no dispute as to the fact that DoT is competent enough to decide whether or not to confer the status of an ‘Authority’ upon a private telecom service provider/licensee within the meaning of 7B of the Indian Telegraph Act. It is the sole discretion of the Department concerned, how it intends to classify telecom licensees and such policy decision is binding on the telecom service providers/licensees.  It is to be kept in mind that nowhere in the above referred decision, the Hon’ble Court made any such observation that the said decision is applicable in respect of private service providers too. Therefore, while the DoT, at its wisdom, spelt out the status of private service providers in unambiguous term, whether the Appellant liked it or not, it was obligatory on its part to accept the hard reality sportingly because licence conditions stipulates so.

Another noticeable distinction is that arbitration under the Telegraph Act is in respect of any telephone line, appliance and apparatus, which is missing in case of mobile connections.  From this angle too, it can be reasonably argued that Sec. 7B has got no applicability in case of disputes surrounding a mobile connection.

There are innumerable decisions of larger Benches of the Hon’ble Apex Court where it has been held that provisions of the Consumer Protection Act have to be broadly interpreted.  Therefore, as long as, there is no specific bar by law, one is free to take recourse to this beneficial legislation for the purpose of redressal of one’s grievance. 

Most importantly, Sec. 14 of the TRAI Act, 1997 specifically empowers the Consumer Fora to adjudicate the dispute of any individual consumer against the telecom service provider. Needless to say, this includes billing disputes as well. There is catena of judgments of the Hon’ble Supreme Court where it has been held that Court cannot, in exercise of its judicial power, encroach into the field of legislation. In this regard, we may profitably refer to the decision of the Hon’ble Supreme Court in P. Ramachandra Rao v. State of Karnataka [(2002) 4 SCC 578] in which the Hon’ble Court has recognised the limits of judicial power in a constitutional democracy. In another decision, a three- Judge Bench in Union of India & Anr. v. Deoki Nandan Aggarwal [1992 Supp. (1) SCC 323] held that Courts cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. Quite predictably, vide its Memorandum no. 2-17/2013-Policy-I dated 04-02-2014, the Department of Telecommunications (Policy-I Section) under the Ministry of Communications & IT, Govt. of India, opined that since District Fora are already having jurisdiction, fresh promulgation of ordinance was not required.  According to the DoT, District Consumer Forum is competent to deal with the disputes between individual telecom consumers and telecom service providers. In crystal clear term, the DoT clarified that powers of the telegraph authority have neither been vested nor are available to private telecom service providers.  Therefore, recourse to 7B in case of disputes between consumers and private service providers would not be available.

In view of this, we are fully in consonance with the decision of the Ld. District Forum in this regard.

Regarding the merit of the case, we find that after complying with all the due formalities, the Respondent No. 1 opted for the unlimited data plan on 08-03-2013.  Yet, the Appellant failed to activate the plan on that day itself.  If indeed there was any technical problem in doing so, the Respondent No. 1 ought to be properly apprised of the same.  That being not done by the Respondent No. 2, the Appellant cannot abdicate vicarious liability.  Further, there is nothing to show that the validity of the said plan started with effect from the date when such plan was actually effected. This is tantamount to unfair trade practice. Whether the excess sum was refunded later on or not, does not take away the fact that the Respondent No. 1 suffered immensely due to the lapses on the part of the Appellant/Respondent No. 2.  It is also noticed that the Appellant abruptly disconnected the concerned connection of the Respondent No. 1 without serving any prior notice which was another glaring act of its deficiency in service.

Accordingly, the Ld. District Forum rightly allowed the complaint and we have no qualms upholding the same.

The Appeal, accordingly, fails.

Hence,

O R D E R E D

The Appeal stands dismissed with a cost of Rs. 20,000/- being payable by the Appellant to the Respondent No. 1.  The impugned order is hereby affirmed.