BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. R. SATHI : MEMBER

SMT. LIJU B NAIR : MEMBER

C.C. No: 111/2012 Filed on 18..04..2012

Dated: 30..07..2013

Complainant:

Ananthapadmanabhan. R., 83, Vinayaknagar, Neeramankara, Thiruvananthapuram.

(Party in person) Opposite parties:

1. Shyam Telecom Limited, 33-2092-D1, Peniel Manor, Sreekala Road, Vennala Post, Cochin – 682 028.

    

2. M.B. Kumar, Nodal Officer MTS, Kerala, Sistema Shyam Telecommunication Ltd., Ventura 4^th Floor, NH 47 Bye Pass, Anchumana, Edappally, Cochin – 682 024.

(By Adv. G.S. Kalkura)

This O.P having been reheard on 23..07..2013, the Forum on 30..07..2013 delivered the following:

ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant, upon offers and oral commitments made by opposite parties M/s. Sistema Shyam Telecommunication Ltd., accepted the Mobile Hand set of HTS with the connection and signed the agreement prepared by them, that complainant was not aware of the contents of the agreement as no copy of the same was sent to him, that complainant was informed that he can use the Mobile at free of cost for Rs. 1500/- calls, Rs. 1500/- messages and Rs. 1500/- worth of data usage of every month, that from the date of purchase the signal strength shown in the hand set was continuously fluctuating from zero to 60%, that upon checking by the opposite parties no further actions were taken, that there was a message from the MTS that the usage is chargeable and consumer has a free limit of Rs. 1500/-, that no bill was sent to him for the month of September and October and no intimation from the Company was received for the excess usage, that on 11^th November 2011 there was a call from MTS informing about the ECS return for an amount of Rs. 2175/-, that complainant was expecting an amount of Rs. 1500/- only and as there was no bill or intimation sent about the bill amount or excess usage, the ECS was returned without knowledge, that at the time of signing the agreement it was informed that complainant has to pay the bill every month manually and no ECS will be activated, but from the first month onwards the ECS was sent to his bank which was also not regular, that after complainant's continuous follow up and forwarding the message to their Nodal Office complainant received a mail on 25^th January, that the connection was disconnected and complainant was not able to use the same to avail free limit also and though complainant requested to close the account once for all no action was taken by the Company to do the same and still continuing to send the bill for Rs. 1500/- plus tax for the disconnected service, that the hand set is also having the complaint of touch screen sensing which was informed and not taken care of, that opposite parties had collected cheques from the complainant at the time of signing the agreement and invoice value is only Rs. 16,000/-. Hence this complaint to cancel the bill for unused disconnected period, to direct opposite parties to collect usage charges for the net usage at the prevailing rate of 40ps / MB and to take back the defective mobile set and to settle the matter in full.

2. The opposite parties, on being served, entered appearance and filed their version contending interalia that the complaint is not maintainable either in law or on facts, that the allegation that the complainant is conducting the business to earn his livelihood are denied, that the allegation regarding the speed of the internet facility and services rendered therein are all matters which are beyond the adjudicatory jurisdiction of this Forum, as it falls squarely under the provisions of Section 7B of Indian Telegraph Act as the same being a special Act, the provision of Consumer protection Act get superceded, that this Forum has no jurisdiction to entertain a dispute of this nature as alleged in the complaint. Hence opposite parties prayed for dismissal of the complaint.

3. The points that arise for consideration are:

1. Whether this Forum has jurisdiction to entertain this complaint?

2. Whether there is deficiency in service on the part of opposite parties?

3. Whether complainant is entitled to get any of the reliefs?

In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P3. In rebuttal, the Chief Operating Officer of the opposite parties has filed affidavit.

4. Points (i) to (iii) : Before we advert to the factual issues of the complainant an important legal aspect would crop up for decision and it pertains to the adjucation of the dispute by this Forum. In this context it would be relevant to mention the judgement of the Hon'ble Supreme Court in General Manager, Telecom Vs. M. Krishnan and Another reported in III(2009) CPJ 71 (SC) holding that a telephone dispute is not cognisable by Consumer Fora as the provision in Section 7-B of the Indian Telegraph Act would operate as impediment in resolution of telephone dispute. A careful perusal of the above referred Judgement discloses that dispute pertaining to telephone line (land line), appliances and apparatus would be covered by the provisions of Section 7B of the Indian Telegraph Act, that Section 7B of the Indian Telegraph Act reads as under: Section 7B arbitration of disputes (i) “Except as otherwise expressly provided in this Act, if any dispute concerning any telephone line, appliance or apparatus arises between Telegraph Authority and a 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 we referred to an arbitrator appointed by the Central Governement either specifically for the determination of that dispute or generally for the determination dispute under this Section. (ii) The award of the arbitrator under Sub Section (i) shall be conclusive between parties to the dispute and shall not be questioned in any Court”. In the aforesaid judgement it was held by Hon'ble Supreme Court that when there is a special remedy is provided under Section 7B of the Indian Telegraph Act regarding disputes in respect of telephone line appliance or apparatus then remedy under the Consumer Protection Act is by implication barred. It was held further that Rule 430 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. Initially opposite party raised the issue regarding the maintainability of the complaint by filing preliminary objection stating that all allegation regarding the speed of internet facility and services rendered there in are all matters which are beyond the adjudicatory jurisdiction to this Forum, as it falls squarely under the provisions of Section 7B of Indian Telegraph Act. Complainant raised objection to the submission of the opposite parties and relied on the decision of the Hon'ble Kerala State Consumer Disputes Redressal Commission in Idea Cellular Ltd. Vs P.P. Poulose 1 (2011) CPJ 463 in which the Hon'ble Kerala State Commission has observed that the provision, Section 7B is with respect to the disputes between the Telegraph Authority and the individual concerned and where the particular authority had the schemes of arbitration. Commission has also observed that there is nothing in the order (Supreme Court decision) to the effect that it applies to the private service providers. It is on the basis of the said observation made by the Hon'ble Kerala State Commission we came to the conclusion that the complaint is maintainable before this Forum. That after filing written version by the opposite parties, opposite parties furnished the decision of Hon'ble National Consumer Disputes Redressal Commission in Revision Petition No.2943 of 2012 between H.R Dhiman and the Manager, Idea Cellular Co. Ltd. The said decision states as under: “It is seen that the District Forum vide its Order dated 27/09/2011 dismissed the complaint of the petitioner against the respondent Company on the strength of the judgement of Hon'ble Supreme Court dated 01/09/2009 passed in the case of General Manager, Telecom Vs. M. Krishnan and Anr (AIR 2010 Supreme Court 90) in which it has been held that since special remedy has been provided in Section 7B of the Indian Telegraph Act in respect of such disputes, the Consumer Fora has no jurisdiction to deal with the dispute pertaining to the telephones and telegraphic activities. This view has been confirmed by the Apex Court in a later case of Prakash Varma Vs. Idea Cellular Ltd & Anr (Special Leave to Appeal (Civil) No. 24577/2010 dated 01/10/2010. Aggrieved by the Order of the District Forum, the petitioner filed an appeal before the State Commission which also came to be dismissed by the impugned order. Impugned orders of the Fora below being in line with the judgements of the Apex Court, we do not see any reason to interfere with the same. Consequently the revision petition stands dismissed in limine with no order as to costs”. Inview of the above decisions and law as observed by the Hon'ble Supreme Court and Hon'ble National Commission we are of the opinion that this Forum has no jurisdiction to adjudicate upon the claims arising out of internet services dispute. With due regard to the decision of the Apex Court and Hon'ble National Commission it has to be held that complaint is not maintainbale before this Forum. We need not discuss other points under consideration in the light of the findings on the first point.

In the result, complaint is dismissed as not maintainable before this Forum and complainant at liberty to approach appropriate authority for redressal of his grievance.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30^th day of July, 2013.

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G. SIVAPRASAD,

PRESIDENT.

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R. SATHI,

MEMBER

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LIJU B NAIR,

ad. MEMBER.

CC. No: 111/2012

APPENDIX

I. Complainant's documents:

P1 series : Copy of mobile bills

P1(a) : Copy of mobile bill from the date 01/10/2011 to 31/10/2011

P1(b) : " from 01/12/11 to 31/12/2011.

P2 : " retail invoice (Form 8B) Invoice No. KL/STL/8B/11- 12/11 dated 12-Jul-2011 issued by SHYAM TELECOM LIMITED.

P3 : " e-mails

II. Complainant's witness : NIL

III. Opposite parties' documents : NIL

IV. Opposite parties' witness : NIL

V. Court document : NIL

VI. Court witness : NIL

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PRESIDENT