Consumer Protection Council, Rourkela
Hon’ble Supreme Court, in “General Manager, Telecom Vs. M.Krishnan & Another”, in its judgement, pronounced on 1-9-2009, in an appeal No.7687 of 2004 filed by the BSNL, held that the Indian telegraph Act was a special law and its provisions would prevail over a general law like the consumer Protection Act, 1986.
"It is a settled law that general law must yield to special law", observed the bench and noted that there was a remedy prescribed under section 7B of the telegraph Act for resolution of all the disputes regarding telecom through arbitration. The bench said since there was a specific remedy prescribed, it would oust the jurisdiction of consumer courts.
But, in a consumer complaint filed before the Hon’ble District Forum, Ferozepur, Punjab, decided on 11-9-2009, the Forum held that a subscriber of telephone/mobile phone connection has a right to approach the Consumer Fora established under the Consumer Protection Act for the redressal of their grievances as the Consumer Protection Act is a special legislation enacted for the protection of consumer rights, in spite of the fact that the counsel for BSNL contested the case on the ground that the Consumer Forum has no jurisdiction to entertain a dispute relating to telecommunications services in view of the recent Judgement of the Supreme Court in General Manager, Telecom Versus M. Krishnan and others .
The entire judgement is reproduced below and it is hoped that this will help the consumers and advocates to pursue cases for deficiency in service of telecom service providers. Our sincere thanks to Sri V.T.Venkatraram, Advocate & Consumer Activist of Chennai, who forwarded this order and to Sri Sanjay Garg, President, District Forum, Ferozepur, Punjab, who shared his valuable thoughts about Consumer Protection Act.
Member : S. Tarlok Singh
C.C. No.180 of 2009
Date of Institution: 9.4.2009
Date of Decision: 11.9.2009
Bharat Sanchar Nigam Limited, Telecom (Mobile), Ferozepur Cantt,
O R D E R
SANJAY GARG, PRESIDENT:-
Complainant Lakhbir Singh has filed the present complaint against Aman Arora Telecom (herein after referred to as opposite party No.1) and Bharat Sanchar Nigam Limited (herein after referred to as opposite party No.2) pleading that the complainant got a mobile telephone connection No.94645-59188 from opposite party No.1 after paying Rs.200/- on 6.2.2009 and at that time the complainant had given his proof of identity i.e. one snap and photo copy of voter card to opposite party No.1. Opposite party No.1 issued a SIM card of the above said mobile connection to the complainant and told that the validity of the same would be three months with the value of Rs.100/- talk time. After that the said mobile connection was activated and it was running up to 1.3.2009, but on 2.3.2009, opposite party No.1 disconnected the connection of the complainant. On enquiry, the complainant came to know that his mobile connection has been disconnected for want of identity proof. On 3.3.2009, the complainant again submitted the same proof i.e. one snap and one photo copy of the voter card to the opposite parties and opposite party No.2 promised that the mobile connection in question will be activated again up till evening of the same day. Thereafter, the complainant made several requests to the opposite parties, also served a legal notice dated 28.3.2009 upon the opposite parties regarding the above said negligence and deficiency in service, but the opposite parties have neither paid any heed to the requests of the complaint nor given any reply to the notice. Pleading deficiency in service on the part of the opposite parties, the complainant has claimed Rs.20,000/- as compensation for mental agony, pain and harassment and Rs.2200/- as litigation expenses.
2. Notice of the complaint was given to the opposite parties, who appeared and filed their separate written replies to the complaint. Opposite party No.1, in its written reply, has pleaded that the complainant got a mobile telephone connection No.94639-59188 from opposite party No.1 on 6.2.2009 and had given his identity proof i.e. one snap and photo copy of voter card and opposite party No.1 issued SIM card of the mobile connection and told that as per the norms and conditions of the company, the validity was of three months with talk time worth Rs.100/-. After obtaining the proof required for the connection, the same was forwarded to BSNL for activation of the connection and the said connection was activated. It has been further pleaded that after submission the identity proof, the connection in question was activated by the BSNL and opposite party No.1 has got no role to play thereafter. The verification of the identity proof is done by the company and in case of negative verification, the company can seek the identity proof other than the furnished at the time of getting the connection. Denying any deficiency in service on the part of opposite party No.1, dismissal of the complaint has been prayed for.
3. Opposite party No.2, in its written reply, has pleaded that opposite party No.1 is not an authorized agent of opposite party No.2 rather M/s Aneja Enterprises, Jalalabad (W) is the authorized dealer. Prepaid mobile connections are given to consumers after the completion of requisite formalities and the dealer is to activate the same. The SIM in question was given to M/s Aneja Enterprises and not to opposite party No.1. It has been further pleaded that the said SIM is in working condition. Other allegations of the complaint have been denied.
4. Parties led evidence.
5. We have heard the complainant in person and learned counsel for the opposite parties and have also gone through the file.
6. At the outset, the learned counsel for opposite party No.2 has produced a recent judgement of the Hon’ble Supreme Court of India styled as General Manager, Telecom Versus M. Krishnan & Another, Civil Appeal No.7687 of 2004, decided on 1.9.2009 and submitted that in view of the above said authority, this Forum has no jurisdiction to entertain and decide the present complaint.
7. So before adjudicating the matter on merits, it has become necessary to decide as to whether this Forum, established under the Consumer Protection Act, has jurisdiction to entertain the disputes relating to mobile connections. The Hon’ble Supreme Court of India in the above said judgement has held that under Section 7-B of the Indian Telegraph Act, 1885, the disputes concerning any telegraph line, appliance or apparatus are required to be referred to an Arbitrator appointed by the Central Government. Relying upon another authority of the Hon’ble Supreme Court styled as “Chairman, Thiruvalluvar Transport Corporation Versus Consumer Protection Council, (1995) 2 SCC 479”, the Hon’ble Supreme Court of India has further held that special law overrides the general law.
8. In full respect to the Hon’ble Supreme Court of India, before relying upon the above said authority, we would like to discuss another law/legislature enactments made by the Parliament and also the various other authorities on the question relating to the jurisdiction of the Consumer Forums.
So far the provisions of The Indian Telegraph Act, 1885 are concerned,
under Section 3 (1AA), the word ‘Telegraph’ has been defined as under:-
10. The instrument named telephone, through which one person could directly talk with another person at a distant place without seeing personally face to face, was invented by Alexander Graham Bell in the year 1876. In 1878, the first telephone exchange was established at New Haven. In the year 1882, first telephone exchange was opened at Calcutta in India having only 93 subscribers. In the year 1885, when the Indian Telegraph Act was enacted, telephone facility was not available to the people at large in India. Through telegraph system, certain messages were used to be conveyed through signs, signals and sounds etc. Even the facility was not available to people at large, but was used in emergency cases through the specialized facility offered by the Government authorities. With the advancement of technology, new inventions were made and landline telephone services were made available to the consumers at large. Thereafter, mobile telephone technology stepped into to serve the people and it was indeed a revolution in the field of telecommunication.
11. Section 3 (1AA), as reproduced above, was introduced in the said Act in the year 1961 by way of amendment to the parent Act of 1885. In the year 1961, the mobile technology had not been developed in India. Mobile phones were formally launched in India in August, 1995. With the advancement of the technology, the facility of phones reached to the consumers at large. With the changed circumstances, the law relating to telecommunication has also been changed and it must be changed with the changed circumstances, otherwise the legal system would fall flat and the people would become violators of law.
Several mobile service providers have been granted licenses to provide
mobile telephone services to the consumers. To regulate the telecommunication
services, adjudicate disputes, dispose of appeals and to protect the interest
of service providers and consumers of the telecom sector and for matters
connected therewith, the Parliament has passed “The Telecom Regulatory
Authority of India Act, 1997”. Under the Telecom Regulatory Authority of
India Act, 1997, the ‘telecommunication services’ have been defined, which
for the purpose of facilitation is reproduced as under:-
Under the said Telecom Regulatory Authority of India Act, 1997, a provision
has been made for establishment or incorporation of an authority namely
Telecom Regulatory Authority of India to regulate the functioning of telecommunication
service providers and other matters including and relating to mobile telephones
also. Under Section 14 of the said Act, a provision has been made for establishment
of Appellate Tribunals to adjudicate any dispute relating to the telecommunication
services. For the purpose of facilitation, Section 14 of the Telecom Regulatory
Authority of India Act, 1997 is reproduced as under:-
14. From the bare perusal of the above said provisions, now it is clear beyond doubt that the telephone services and to be more Cellular mobile telephone services have been specifically covered under the Telecom Regulatory Authority of India Act, 1997 and the provisions of the said Act are in addition to the previous Indian Telegraph Act, 1885. From perusal of Section 14 (b), it is very much clear that even when a consumer approaches the Consumer Disputes Redressal Forum, then the provisions of the Telecom Regulatory Authority of India Act, 1997 or the jurisdiction of the Appellate Tribunals established under the Telecom Regulatory Authority of India Act, 1997 ceases, rather the provisions of the Consumer Protection Act get precedence over the powers vested with the Appellate Tribunals established under the Telecom Regulatory Authority of India Act, 1997.
The Telecom Consumers Protection and Redressal of Grievances Regulations,
2007 have come into force vide Notification dated 4th May 2007 and have
been published in Gazette of India. Under Regulation No.1 Clause (3), it
has been provided that these regulations shall apply to –
Section 25 of the above said Regulations is very much relevant, which for
the sake of convenience is reproduced as under:-
Section 27 of the above said Regulations is also very much important, which
for the sake of convenience is reproduced as under:-
18. From the bare perusal of the above said Regulations framed by the Telecom Regulatory Authority of India exercising the powers conferred upon it under Section 36 and Section 11 of the Telecom Regulatory Authority of India Act, 1997, it is abundantly clear that the provisions of the Consumer Protection Act, 1986 prevail over the Telecom Regulatory Authority of India Act, 1997 and the jurisdiction and powers of the Consumer Disputes Redressal Forums are over and above the jurisdiction and powers of the Tribunals established for the purpose of adjudication of disputes relating to telecommunication services.
19. It is settled law that the law enacted by the Parliament cannot be changed or made useless by judicial interpretation. The provisions of the enactments have to prevail over the judicial decisions. The question of interpretation comes only when the provisions of legislative enactments are either not clear, ambiguous or cannot depict the true meaning. When the provisions of the legislative enactments are plain, clear and unambiguous, then these cannot be negativated through judicial interpretation. Reliance can be placed upon various authorities of the Hon’ble Supreme Court of India on this point. The Hon’ble Supreme Court in “State of U.P. & Others Versus Jeet S. Bisht & Anr., 2007 (3) CLT 10”, wherein the Hon’ble Supreme Court has specifically held that court cannot add or substitute word in a statute. By judicial verdict the court cannot amend the law made by the Parliament or State Legislature. It has been further held by the Hon’ble Supreme Court in the said authority that mere a direction of the Hon’ble Supreme Court without laying down any principle of law is not a precedent. It is only where the Hon’ble Supreme Court lays down a principle of law that will amount to a precedent. The courts are subordinate to law and not above the law.
So far the question as to whether the Consumer Protection Act, 1986 is
a special legislation or a general law, the Hon’ble Supreme Court of India
has given its view in various authorities, some of which we will discuss
hereinafter. However, before discussing the authorities, we would like
to discuss certain provisions of the Consumer Protection Act, 1986.
21. So from the perusal of the above said provisions of the Consumer Protection Act, 1986, it is quite clear that the provisions of the Consumer Protection Act, 1986 apply to all type of goods and all services availed by the consumers against consideration paid or promised. Section 1 (iv) of the Consumer Protection Act, 1986 is of wide connotation.
The Hon’ble Supreme Court of India in “Secretary, Thirumurugan Co-operative
Agricultural Credit Society Versus M. Lalitha (Dead) through LRs. and others,
2004 (1) CLT 456”, wherein an objection was raised as to the jurisdiction
of the Consumer Disputes Redressal agencies in view of the bar/arbitration
clause contained in Section 90 and Section 156 of the Tamil Nadu Co-operative
Societies Act, 1983, the Hon’ble Supreme Court of India has held that merely
because the rights and liabilities are created to the appellate society
under the Co-operative Societies Act, 1983 and Forums are provided for
adjudicating the dispute between them, it cannot take away or exclude the
jurisdiction conferred on Forum under the Consumer Protection Act, 1986
expressly and intentionally to serve a definite cause in terms of the objects
and reasons of the Act. The Hon’ble National Commission was held right
in holding that the view taken by the Hon’ble State Commission that the
provisions under 1983 Act relating to reference of disputes to arbitration
shall prevail over the provisions of 1986 Act, is incorrect and untenable.
The authority Chairman, Thiruvalluvar Transport Corporation Versus Consumer
Protection Council, (1995) 2 SCC 479, relied upon in the authority General
Manager, Telecom Versus M. Krishnan & Another (supra), has been discussed
and distinguished by the Hon’ble Supreme Court in the above said authority.
The Hon’ble Supreme Court in para 11 and 12 of the judgment has observed
23. The Hon’ble Supreme Court of India in “Neeraj Munjal and Others Versus Atul Grover (Minor) and another, 2005 (3) CLT 30”, in para 10 and 11 of the judgment has held that the courts could not deprive the parties from a remedy, which is otherwise available to them in law. It has been further held that a court of law has no jurisdiction to direct a matter to be governed by one statute when provisions of another statute are available.
24. In “State of U.P. & Others Versus Jeet S. Bisht & Anr., 2007 (3) CLT 10” (supra), the Hon’ble Supreme Court has held that the Consumer Protection Act, 1986 has been enacted for better protection of the interest of the consumers. The said Act is in addition to and not in derogation of the provisions of the any other law for the time being in force. The Act not only provides for new rights for the citizens of India in their capacity as consumers, it envisages their empowerment in this behalf. It is indisputably the solemn duty of the executive of both the Government of India and also the Government of State to implement the provisions of the Act in true letter and spirit. The Hon’ble Supreme Court in the above said authority has further held that the Consumer Protection Act embodies a certain value in protecting the interest of the consumers in the age of consumerism and the institution of consumer Fora is a specific mission in that behalf.
25. In “State of Karnataka Versus Vishwahharathi House Building Coop. Society and others, 2003 (2) CLT 3”, where the constitutionality of the Consumer Protection Act, 1986 was challenged on various grounds, the three Judges Bench of the Hon’ble Supreme Court of India has held that the provisions of the Consumer Protection Act clearly demonstrate that it was enacted keeping in view a long felt necessity of protecting the common man from wrongs where for the ordinary law for all intent and purport had become illusory. In terms of the said Act, a consumer is entitled to participate in the proceedings directly as a result whereof his helplessness against a powerful business house may be taken care of. The Hon’ble Supreme Court of India further held that by reason of the said statute (Consumer Protection Act), quasi-judicial authorities have been created at the District, State and Central levels so as to enable a consumer to ventilate his grievances before a Forum where justice can be done without any procedural wrangles and hyper-technicalities. One of the objects of the said Act is to provide momentum to the consumer movement. While referring to the several provisions of the Consumer Protection Act and also discussing the various authorities, the Hon’ble three Judges Bench of the Supreme Court of India further held that by reason of provisions of Section 3 of the Act, the said Act supplements and not supplants the jurisdiction of the civil court or other statutory authorities. The Hon’ble Supreme Court of India while relying upon another authorities styled as “Fair Air Engineers Versus N.K. Modi, (1996) 6 SCC 385” and “Satpal Mohindra Versus Surindra Timber Stores, (1999) 5 SCC 696” has specifically held that the provisions of the said Act are required to be interpreted as broadly as possible. It has jurisdiction to entertain a complaint despite the fact that other Forum/courts would also have jurisdiction to adjudicate upon the matter.
26. The Hon’ble Supreme Court of India in “Ghaziabad Development Authority Versus Balbir Singh, 2004 (2) CLT 628”, has held that the Consumer Protection Act has a wide reach and the Commission has jurisdiction in case of services referred by the statutory and public authorities. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Hon’ble Supreme Court in the said authority further held that matters, which require immediate attention, should not be allowed to linger on. The consumer must not be made to run from pillar to post. Where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation.
In Kishore Lal Versus Chairman, Employees’ State Insurance Corporation,
2007 (4) SCC 579, the Hon’ble Apex Court has observed:-
The Hon’ble Supreme Court in “Fair Air Engineers Pvt. Ltd. & ANR. Versus
N.K. Modi, III (1996) CPJ 1 (SC)” has held:-
29. The Hon’ble Supreme Court of India in “Lucknow Development Authority Versus M.K. Gupta, 1994 (1) CLT 1” has observed that a legislation which is enacted to protect public interest from undesirable activities cannot be construed in such narrow manner as to frustrate its objective. It has been further observed in the said authority that any attempt to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and spirit behind it. The Hon’ble Supreme Court of India has further observed that truly speaking it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions scrutinized, as public accountability is necessary for healthy growth of society.
In “General Manager, Telecom Versus M. Krishnan & Others” (supra),
the Hon’ble Supreme Court has held that the special law prevails over the
general law. But the point whether the Consumer Protection Act is a special
enactment or a general law has not been discussed. On the other hand, in
view of the other judgements, reference of which has been given above,
the Hon’ble Supreme Court has declared the Consumer Protection Act as a
special legislation. Time and again it has been held by the Hon’ble
Apex Court of country that where a law is declared after thorough discussion,
only then it is held as a binding precedent and not otherwise.
31. The Hon’ble National Commission in “Union of India and Others Versus Jagdamba Rice Mills, 1993 (1) CLT 705, while discussing Section 7-B of the Indian Telegraph Act and referring to the authority styled as Santokh Singh Versus Divisional Engineer Telephones, Shilong, AIR 1990 Ghuwahati 47, has observed that the Government of India has itself taken a policy decision to the effect that all the requests and reference to Arbitration under the Indian Telegraph Act shall be rejected and Arbitrator shall be appointed only in such cases where subscriber approaches a court with a request for arbitration and court orders for the same. So when the Government of India to be more specific Telecom Authority itself is not willing to refer the dispute concerning the telegraph apparatus etc. to the Arbitrator except upon the orders of the court, then it does not behoove to the opposite parties to raise an objection under Section 7-B of the Telegraph Act.
32. Now, it is also a settled law that where two interpretations of statute/law are possible, then the one favouring the consumer is to be taken. Moreover, in case of petty consumer disputes, to direct a poor consumer to approach the Central Government for appointment of an Arbitrator for the adjudication of his small dispute, would be just the denial of justice to him especially when the legislature has enacted a consumer friendly legislation for better protection of the consumer rights and the remedy is available at the door step of the consumer as the District Consumer Forums have been established at every District head quarter of a State.
33. The Consumer Forum established under the Consumer Protection Act, 1986 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 and all other Forums fall subordinate to it. It is now clear that the Consumer Protection law is not a general law, but a special law enacted for the better protection of the interests of the consumers. Where there is a deficiency in service and unfair trade practice, the provisions of the Consumer Protection Act, 1986 can be invoked irrespective of any other statute dealing with the same matter. The remedy under the Consumer Protection Act is an additional and special remedy. Moreover, even as per the provisions of the Telecom Regulatory Authority of India Act, 1997, the provisions of the Consumer Protection Act, 1986 prevail upon the other provisions/enactments relating to telecommunication. So we hold that the Fora established under the Consumer Protection Act has jurisdiction to entertain the matter concerning the disputes relating to telecommunications.
34. Now coming to the merits of the case, the connection of the complainant was disconnected without any notice. However, opposite party No.1, who is the dealer, has pleaded that he has no role to play in the disconnection of the connection of the complainant after the activation of the same. The disconnection, if any, has been done by opposite party No.2. Opposite party No.2 i.e. Bharat Sanchar Nigam Limited, who is the telecom service provider, has pleaded that in fact the connection is working and it was Charged/extended for validity in last month. However, no reason has been given as to why the connection of the complainant was disconnected. After the filing of the present complaint, opposite party No.2 has restored the services, but without any intimation to the complainant and the complainant could not use the said connection because he was under the impression that his SIM is not working. The complainant has definitely suffered loss and harassment at the hands of opposite party No.2. Opposite party No.2 has failed to give any explanation for the deficiency in service on their part. Opposite party No.2 is thus grossly deficient in service and is liable to be burdened with exemplary costs. In view of this, this complaint is allowed and opposite party No.2 is directed to activate the connection of the complainant for a period of another three months with due intimation to the complainant without charging any extra sum for the same. Opposite party No.2 is further directed to pay a sum of Rs.10,000/- to the complainant for the loss and harassment suffered by him. Opposite party No.2 is further directed to pay a sum of Rs.2000/- as litigation expenses to the complainant. The orders be complied with within a period of thirty days from the date of receipt of its copy. File be consigned to the record room.