Chandigarh

StateCommission

A/221/2016

Vodafone Mobile Service Ltd, - Complainant(s)

Versus

Yatin Gupta and Anr. - Opp.Party(s)

Vishal Gupta and Amit Gupta

27 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Appeal No.	:	221 of 2016
Date of Institution	:	25.07.2016
Date of Decision	:	27.07.2016

 

1. Vodafone Mobile Services Ltd. (Earlier known as Vodafone South  Ltd.)(A company registered under the Companies Act), having its registered office at C-48, Okhla Industrial Area, Phase-II, New Delhi and Branch Office at SCO 57-59, Ist Floor, Sector-17-C, Chandigarh through its Authorized Representative.

 

2. Circle Head, Vodafone Mobile Services Ltd. (Earlier known as Vodafone South Ltd.)(A company registered under the Companies Act), having its registered office at C-48, Okhla Industrial Area, Phase-II, New Delhi and Branch Office at SCO 57-59, Ist Floor, Sector-17-C, Chandigarh

 

……Appellants

V e r s u s

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

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

                                                      ….Respondent

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

Proforma-Respondent

 

 Appeal under Section 15 of the Consumer Protection

           Act, 1986.

 

BEFORE:      JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                       

 

Argued by:        Mr.Vishal Gupta, Advocate for the appellants.

                     

                        

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

         This appeal has been filed by Opposite Parties No.1 & 3 against an order dated 9.6.2016, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short the Forum only),  partly allowing a complaint filed by respondent No.1/complainant.   

2.        Respondent No.1/complainant is a subscriber to mobile phone connection with the appellants. He is residing and having  his office at  House No.3059, Blood Donor’s Society, Sector-50-D, Chandigarh.  When he subscribed to mobile phone connection, referred to above, an assurance was given by the representatives of the appellants that in Sector-50, Chandigarh the signal strength was very sound. When the said  fact turned out to be  incorrect, respondent No.1/complainant started making complaints to the Vodafone Customer Care complaining about problem of audio disturbance at the time of voice calling. When his complaint was not sorted out, on 11.7.2015, he wrote an email to the appellants indicating his problem. He also made a request that on account of existence of above difficulties, let his mobile phone be ported out.
3.         On receipt of the above complaint, representatives of the appellants asked him to wait till they correct the snag indicated. Thereafter his  mobile connection started problem of call dropping, signal fluctuation, voice crackling  etc.  It was his case that on account of above problems, he suffered a loss in running of  his profession as an advocate. When respondent No.1/complainant failed to get any relief from the appellants, he filed a consumer complaint before the Forum by alleging deficiency in providing service on the part of the appellants and respondent No.2. 
4.        Upon notice, reply was filed. Jurisdiction of the Forum to hear the complaint was challenged. It was further stated that no cause of action has accrued to respondent No.1 to file a complaint. In the alternative, it was stated that  the respondent/complainant may avail remedy under the  special Statutes governing the subject in dispute.   It was further stated that the dispute, if any,  can be referred to an arbitrator as per the statutory provisions.  It was further averred that qua signal strength, requisite benchmark was available in Sector-50, Chandigarh.  It was denied that there was any deficiency in providing service.  It was further stated that to augment the signal strength, additional tower cannot be provided in the area, in question, on account of the policy of the Chandigarh Administration.
5.         Both the parties led their respective evidence.
6.          The Forum, on analyzing the pleadings, evidence and arguments raised by both the parties, held the appellant guilty of deficiency in providing service and vide impugned order following relief was granted to respondent No.1/complainant;

(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. 

            Directions were further issued to comply with the order within one month from the date of receipt of its certified copy, failing which, interest was ordered to be paid on the above awarded amounts.

7.       Counsel for the appellants has vehemently contended that there was no deficiency in providing service as the  minimum standard qua signal strength was being  maintained by the appellants.   It was further said that the dispute, if any, can be referred to an arbitrator and further the Forum has no jurisdiction to entertain and try the complaint on account existence of special statute like Telegraph Act etc. It is prayed that appeal be allowed and order under challenge be set aside.

8.           The Forum negatived the argument raised by the appellants that on account of special statute the Forum has no jurisdiction, by observing as under ;

“ 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.” 

          The view taken by the Forum is perfectly justified and is supported by the ratio of judgment of the Hon’ble
Supreme Court titled as National Seeds Corporation Ltd. Versus M.Madhusudhan Reddy & Anr I(2012)CPJ1(SC).

9.          It was also rightly said that  remedy under Section-3 of the Consumer Protection Act is an additional remedy. Reliance placed by the appellants on the ratio of judgment in case of Cellular Operators Association of India and Others Vs Telecom Regulatory Authority of India and Others 2016 AIR(SC)2336  does not rightly find favour with the Forum because the above judgment deals  altogether to a different issue.

10.        The contention of the Counsel for the appellants that on account of maintaining requisite standard qua signal strength deficiency in service cannot be attributed to it, is devoid of any force. It is on record that when on request made, problem faced by the respondent/complainant was not remedied, he sent an email to the appellants on 22.7.2015 (A-1). Reply thereto was received through email from representative of the appellants stating that low coverage at the site in question was on account of cluster of buildings in the area.   It was further stated that  to augment signal strength, time schedule to install a tower cannot be given. It was also stated  that efforts are being made to sort out the problem.  It was further said  that coverage strength in a particular location depends upon variation due to physical obstructions, geographic  conditions and external factors etc. In the said email, it is nowhere said that minimum signal strength was being maintained in the area in question. Many excuses were put on to hide deficiency in service on the part of the appellants.  Before the Forum also, no scientific/technical data was  placed on record to show  that the cluster of buildings was responsible for low coverage in the area in question. Whether signal strength is weak, as alleged by the respondent No.1/complainant is virtually admitted by the appellants in email dated 22.7.2015(A-1).   It is clearly stated in the email that at the relevant time problem could not be sorted out on account of inability to install a tower. It was also rightly said by the Forum that the complaint was genuine.

11.          In view of the facts given above, no case is made out   by the appellants, to make any  interference, in the order under challenge.        

12.        For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District  Forum is upheld.

13.        Certified copies of this order, be sent to the parties, free of charge.

14.       The file be consigned to Record Room, after completion.

Pronounced.

27.07.2016                                                 Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

                                                                  Sd/-

(DEV RAJ)

MEMBER

 

 

 

 

JS