Sunday, 26 April 2015

When consumer forum can decide dispute relating to Sim deactivation?

We find that the said provision is in respect of dispute between the telegraph authority and the person for whose benefit the line, appliance or apparatus has been provided. Present dispute is not between the telegraph authority and Mr.Rajesh. Here the present complaint is filed by Rajesh against Bharati Airtail Ltd. In view of the definition of Telegraph authority as given in Section 3 Sub-section (6) of the Telegraph Act. Bharati Airtel Ltd. is not a telegraph authority and hence, Section 7(B) of the Telegraph Act cannot be attracted in the present matter. As per the said definition as telegraph authority means the Director-General of Posts and Telegraphs and includes any officer empowered by him to perform all or any of the functions of the telegraph authority under the Indian Telegraph Act, 1885. It is material to note in the authority relied by the Opponent the said complaint was filed against General Manager, Telegraph, which can come under the definition of Telegraph Authority. Thus, on this count itself the said authority is not helpful to the present case.

State Consumer Disputes Redressal Commission
Shri Rajesh Ramesh Shende vs Bharti Airtel Ltd. on 24 March, 2014
Citation;2015(2)ALLMR(JOURNAL)103
1. Being aggrieved by the order in Consumer Complaint No.447/2009 passed by the District Consumer Disputes Redressal Forum, Pune, dismissing the complaint, the present appeal has been preferred by the original Complainant.
 
2. The facts necessary for deciding this appeal can be summarized as under:
One Rajesh Shende, the original Complainant and present appellant (hereinafter referred to as Rajesh for short) purchased in November, 2006 Sim Card No.9960700900 (hereinafter referred to as said number for short) from the Opponent Bharati Airtel Ltd., original Opponent and present Opponent (hereinafter referred to as Opponent for short). As per the Complainant, suddenly on 15.04.2008, Rajesh got some phone calls on the said number and the calls were requesting him to activate various dial tones/tunes for their respective mobile numbers. On enquiry Rajesh came to know from the callers that the said number was published and provided via SMS and advertisement by the Opponent when told to the Opponent qua said problem, the Opponent told that the said problem will be sorted out by Opponent. When the harassment continued day and night, Rajesh was constrained to register F.I.R. on 19.04.2008 with Deccan Police Chowkey under the Deccan Police Station ,Pune. On 08.05.2008 the Opponent deactivated said number without any intimation to Rajesh. Then complaint was filed by Rajesh against the Opponent with the prayer that declaration be given that the Opponent has acted in negligence and arbitrary manner. The Opponent be directed to pay an amount of Rs.10,99,625/- to Rajesh along with interest @15% per annum for mental agony.
 
3. The Opponent resisted the complaint by filing written version and not disputed that Rajesh had purchased the said Sim bearing No9960700900 from the Opponent and denied other contentions. The Opponent has contended that the consumer Forum has no jurisdiction to entertain the complaint and prayed for dismissal of the Complainant.
 
4. After hearing of the matter the District Forum dismissed the complaint by concluding that Consumer Forum has no jurisdiction to entertain the complaint.
Being aggrieved by the said order of dismissal this appeal has been preferred by Rajesh.
 
5. Considering the submissions made before us and considering the record and scope of the appeal following points arise for our consideration and our findings thereon are as under:
   
Points   Findings  
(i) Whether consumer forum has jurisdiction to entertain the complaint?
 
:
Yes.
(ii) What order?
 
:
As per final order below:
 
REASONS:
Point No.(i):
 
6. Ld.Advocate for the opponent contended that Consumer Forum has no jurisdiction to entertain the complaint of the present nature. Ld.Counsel has relied on authority reported in III (2009) CPJ 71 (SC), (General Manager, Telecom V/s. M. Krishnan & Another. Ld.Advocate for the Opponent has submitted that in view of the observations of their Lordships of Honble Apex Court in the said authority, the Consumer Forum has no jurisdiction to entertain the complaint of the present nature.
Ld.Advocate for the Rajesh has submitted that the said authority is not helpful to Opponent in the present matter for the reason that the said complaint was in respect of the bill of the telephone.
 
7. After studying the said authority we find that in the said dispute was regarding non-payment of telephone bill for telephone connection provided to the Respondent No.1 in the said matter and because of non-payment of the bill telephone connection was discontinued. It is against the said act of disconnection the complaint was filed against General Manager, Telecom. It was held in the said authority that Consumer Forum has no jurisdiction to entertain the said complaint.
 
8. We find that said authority is not helpful to the Opponent in the present matter for the reasons that the facts in the said matter are different. In the said matter there is a reference to Section 7(b) of the Indian Telegraph Act 1885, which reads as under:
7B Arbitration of disputes - (1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph 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 arbitration and shall, for the purposes 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 this section.
We find that the said provision is in respect of dispute between the telegraph authority and the person for whose benefit the line, appliance or apparatus has been provided. Present dispute is not between the telegraph authority and Mr.Rajesh. Here the present complaint is filed by Rajesh against Bharati Airtail Ltd. In view of the definition of Telegraph authority as given in Section 3 Sub-section (6) of the Telegraph Act. Bharati Airtel Ltd. is not a telegraph authority and hence, Section 7(B) of the Telegraph Act cannot be attracted in the present matter. As per the said definition as telegraph authority means the Director-General of Posts and Telegraphs and includes any officer empowered by him to perform all or any of the functions of the telegraph authority under the Indian Telegraph Act, 1885. It is material to note in the authority relied by the Opponent the said complaint was filed against General Manager, Telegraph, which can come under the definition of Telegraph Authority. Thus, on this count itself the said authority is not helpful to the present case.
 
9. It is material to note that five members of this Commission have passed an order in Appeal No. Appeal No.185/1999, Appeal No.1743/2003, Appeal No.101/2009, Appeal No.692/2007, Appeal No.162/2012, Revision Petition Nos.11/2011 to Revision Petition Nos.13/2011 & Miscellaneous Application No.MA-155/2011 in Appeal No.266/2011, wherein the said authority of General Manager, Telecom V/s. M. Krishnan & Anr. was discussed. Judgement in the said authority was delivered by Division Bench of the Apex Court. In the judgement of this Commission by five members it was observed that three Judges Bench of the Apex Court has considered the jurisdiction of the Consumer Fora in the light of the provisions of Employees State Insurance Act, 1948 which is a Central Act in the matter of Kishore Lal V/s. Chairman, Employees State Insurance Corporation.
This case was decided by the Apex Court on 08/05/2007 i.e. subsequent to the judgement of the Apex Court in the matter of Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. M. Lalitha (Dead) through L.Rs. & Ors. After having considered the provisions of the Employees State Insurance Act, 1948, in Para 17, the Apex Court has observed that - It has been held in numerous cases of this Court that the jurisdiction of a consumer forum has to be construed liberally so as to bring many cases under it for their speedy disposal. In the case of M/s. Spring Meadows Hospital and Another v.
Harjol Ahluwalia and Another, AIR 1998 SC 1801, it was held that the CP Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. The Act being a beneficial legislation should receive a liberal construction. In State of Karnataka v. Vishwabarathi House Building Co-op. Society and Others, AIR 2003 SC 1043, the Court speaking on the jurisdiction of the consumer fora held that the provisions of the said Act are required to be interpreted as broadly as possible and the fora under the CP Act have jurisdiction to entertain a complaint despite the fact that other fora/courts would also have jurisdiction to adjudicate upon the lis. These judgments have been cited with approval in paras 16 and 17 of the judgment in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha and Others, (2004) 1 SCC 305. The trend of the decisions of this Court is that the jurisdiction of the consumer forum should not and would not be curtailed unless there is an express provision prohibiting the consumer forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the consumer forum would not be barred and the power of the consumer forum to adjudicate upon the dispute could not be negated. In the said judgement after having analyzing the dispute, at the end of Para 20, the Apex Court has observed that - Further, it can be seen that any claim arising out of and within the purview of the Employees Insurance Court is expressly barred by virtue of sub-section (3) to be adjudicated upon by a civil court, but there is no such express bar for the consumer forum to exercise the jurisdiction even if the subject matter of the claim or dispute falls within clauses (a) to (g) of sub-section (1) of Section 75 or where the jurisdiction to adjudicate upon the claims is vested with the Employees Insurance Court under clauses (a) to (f) of sub-section (2) of Section 75 if it is a consumers dispute falling under the CP Act. Thus, while considering the cases of simultaneous jurisdiction available and the cases where the Civil Courts jurisdiction is barred, the Apex Court has found that the decision more specifically given in the case of Secretary, Thirumurugan Co-operative Agricultural Credit Society V/s. M. Lalitha (Dead) through L.Rs. & Ors. is proper and approved. Not only that the Apex Court further expressed that there should be a specific bar as against the Consumer Fora. Simplicitor there is a bar to the Civil Courts to entertain dispute is not sufficient to bar the jurisdiction of the Consumer Fora. Thus, consistently the Apex Court while considering Section 3 of Consumer Protection Act, 1986 has interpreted holding jurisdiction in favour of Consumer Fora in a case where simultaneous remedies are available to a party, namely, regular remedy available under the existing law and simultaneous remedy available under the Consumer Protection Act, 1986 in spite of fact whether the Act which provides a regular remedy is a Central Act and/or a State Act.
 
10. In the judgement delivered by five members of this Commission observed in paragraph 20 that the last judgement which we have referred to, namely, Kishore Lal V/s. Chairman, Employees State Insurance Corporation is delivered by three judges Bench of the Apex Court. However, all these judgements have not been considered in the matter of General Manager, Telecom V/s. M. Krishnan & Anr. by the Apex Court. We find ourselves bound by the judgement of the larger Bench in absence of any distinction made out by the Apex Court so that we should refrain to follow the judgement of Kishore Lal V/s. Chairman, Employees State Insurance Corporation. 
 
11. In view of the above discussion it is clear that the Consumer Forum has jurisdiction to entertain the complaint filed by Rajesh against the Opponent Bharati Airtel Ltd. Hence, we answer the Point (i) accordingly.
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12. In view of the answer of Point No.(i) it is necessary to set aside the order passed by the District Forum and to remand the matter for deciding all other aspects of the matter. Hence, we proceed to pass the following order:
 
ORDER    
(i)            Appeal is allowed.
 
(ii)            Order under appeal is quashed and set aside.
 
(iii)            Consumer Forum has jurisdiction to entertain the complaint. The matter is remanded to District Forum, Pune for deciding the matter on other aspects of the matter.
 
(iv)            In the circumstances of the matter no order as to costs.
 
(v)            Consumer Complaint being old one, it be decided expeditiously.
 
(vi)            Parties to appear before the Forum on 21/04/2014.
 
Pronounced on 24th March, 2014.
[HON'ABLE MRS.
Usha S. Thakare,] Presiding Judicial Member     [HON'ABLE MR. P.B.
Joshi] Judicial Member     
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