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cell phone deficiency in service , consumer court has no jurisdiction= 5. In line with the judgement in the case of M. Krishnan (Supra), this Commission vide its order dated 21.5.2010 (Revision Petition No. No.1703 of 2010) in the case of Prakash Verma Vs. Idea Cellular Ltd. and Anr., dismissed the complaint filed by the petitioner holding that any dispute between the subscriber and the telegraph authority can be resolved by taking recourse to arbitration proceedings only. The Special Leave Petition filed by the petitioner was dismissed by the Apex Court vide its order dated 1.10.2010. In view of these judgements of the Apex Court which are binding on all the courts including Consumer Fora, no fault could be found with the impugned order. The order of this Commission in the case of Kumari Ambika Singh cannot provide any relief to the petitioner since in that case there was no reference to the aforesaid judgements of the Apex Court and the revision petition came to be dismissed in liminie and hence there was no point raised by the parties in respect of question of maintainability of the dispute under the Consumer Protection Act, 1986. In any case, the ratio laid down by the Apex Court in respect of the dispute under section 7B of the Indian Telegraph Act, as is the case with the present dispute as well, has to be followed and there should not be any doubt about it. The revision petition devoid of any merit, therefore, is liable for dismissal and the same is accordingly dismissed but with no order as to costs.

NATIONAL CONSUMER DISPUTES REDRESSAL

Idea Cellular Logo

Idea Cellular Logo (Photo credit: Wikipedia)

COMMISSION

NEW DELHI

 

REVISION PETITION NO. 3780 OF  2011

(Against the order dated 07.07.2011 in Appeal No. 862/2011 of the

 Haryana State Consumer  Disputes Redressal Commission, Panchkula)

 

Lokesh Parashar

Advocate

R/o Holiwara Mohalla

V.P.O., Tegaon and District

Faridabad (Haryana)

 

…….. Petitioner (s)

                

             Vs.

 

1.  M/s Idea Cellular Ltd.

A-30, Mohan Co-operative Industrial  Estate

Mathura Road

New Delhi-110044

 

Through Its Managing Director/Principal Officer

 

2. M/s Green Cellular

I-A/268, Neelam Bata Road

NIT, Faridabad

 

Through its Proprietor/Partner

 

…….. Respondent (s)

BEFORE:

 

               HON’BLE MR. ANUPAM DASGUPTA, PRESIDING MEMBER

               HON’BLE MR. SURESH CHANDRA,  MEMBER

 

For the Petitioner         :   Mr. Madhurendra Kumar, Advocate

 

Pronounced on :    20th April  2012

ORDER

 

PER SURESH CHANDRA, MEMBER

For the reasons stated in the application for condonation of delay, the delay of 25 days in filing the present revision petition is condoned.

2.       We have heard Mr. Madhurendra Kumar, learned counsel for the petitioner and perused the record.

3.       Briefly put, the petitioner obtained a mobile connection of the respondent No.1 Company bearing No.9911950795 through respondent No.2. According to the petitioner, at the time of obtaining the connection, he was assured that the validity of the mobile was upto February 2007. Later on, he got it extended upto July 2007 after making some payments. It is the grievance of the petitioner that the respondents did not provide the cellular phone services to him and hence he filed a complaint before the District Forum, Faridabad alleging deficiency in service on the part of the respondents who were made OPs 1 & 2 respectively. Upon notice, the respondents contested the consumer complaint and filed their written statement disputing the correctness of the averments made in the complaint of the petitioner.  During the pendency of the complaint, the respondents also moved an application under Order 7 Rule 11 CPC for dismissal of the complaint on the ground that the Consumer Forum has no jurisdiction to try the complaint which was maintainable before the Arbitrator as provided in section 7B of the Indian Telegraph Act. Referring to the  judgement of the Apex Court in the case of General Manager, Telecom Vs. M. Krishnan and Anr. [(2009) CPJ 1062] and another judgement of the Apex Court in the case ofPrakash Verma Vs. Idea Cellular Ltd. and Anr. (Civil Appeal No.24577 of 2010) the District Forum held that it did not have jurisdiction to try the complaint in question and hence dismissed the same as not maintainable vide its order dated 24.5.2011.  Aggrieved by this order of the District Forum, Faridabad, the petitioner challenged the same before the State Consumer Disputes Redressal Commission, Haryana (Panchkula), (‘State Commission’ for short) by filing an appeal before it. The State Commission upheld the order of the District Forum and dismissed the appeal of the petitioner vide its impugned order dated 7.7.2011 which is now under challenge through the present revision petition.

4.       We agree with the view taken by the District Forum and the State Commission to the effect that the present complaint is not maintainable before the Consumer Forum. This view is in accordance with the judgement of the Apex Court in the case of M. Krishnan and Anr. (Supra). Learned counsel for the petitioner has, however, contended that in a recent case of Kumari Ambika Singh Vs. Bharat Sanchar Nigam Ltd. (R.P. No.371 of 2011) decided on 28.2.2011, this Commission has entertained the revision petition involving a similar consumer dispute. He has further submitted that Proviso (B) to section 14 (a) (iii) of the Telecom Regulatory Authority of India Act, 1997 specifically provides that the complaints of individual consumers maintainable before the Consumer Fora under the Consumer Protection Act, 1986 shall continue to be dealt with by the Consumer Fora in spite of establishment of Appellate Tribunal under TRAI Act 1997. In view of this, learned counsel contended that the Fora below erred in holding that the dispute in question is not maintainable before them and hence the impugned order is liable to be set aside and hence the matter be sent back to them for fresh consideration in accordance with the provisions of law. We are not impressed by the contentions raised by counsel for the petitioner. Out of the two contentions, reference to the provisions of section 14 of the TRAI Act 1997 is not relevant since the same is in respect of the jurisdiction of Telecom Disputes Settlement and Appellate Tribunal from which the consumer complaints maintainable before the Consumer Fora under the Consumer Protection Act 1986 have been excluded. The only question for consideration in this case is as to whether a consumer complaint is maintainable before the Consumer Fora after the judgement of the Apex Court in the case of  M. Krishnan (supra) in which their Lordships of the Apex Court have made the following observations while accepting the appeal of the Telecom Department:-

“6. In   our    opinion    when       there   is    a     special    remedy provided        in   Section     7-B       of    the     Indian   Telegraph Act regarding disputes  in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred.  Section 7-B of the Telegraph Act reads as under:-

          “S. 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  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, be referred to an   arbitrator  appointed by  the  Central Government either specifically for the determination of that dispute or   generally  for  the  determination of disputes under this Section.

         (2)        The  award  of  the  arbitrator appointed  under sub-s. (1) shall be conclusive between the  parties to the dispute and  shall  not  be questioned in any Court.”

Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for   default  of    payment  under Rule 443  of  the Rules.

7. It is well settled that the special law overrides the general law.  Hence, in our opinion the High Court was not correct in its approach.”

5.       In line with the judgement in the case of M. Krishnan (Supra), this Commission vide its order dated 21.5.2010 (Revision Petition No. No.1703 of 2010) in the case of Prakash Verma Vs. Idea Cellular Ltd. and Anr., dismissed the complaint filed by the petitioner holding that any dispute between the subscriber and the telegraph authority can be resolved by taking recourse to arbitration proceedings only. The Special Leave Petition filed by the petitioner was dismissed by the Apex Court vide its order dated 1.10.2010.  In view of these judgements of the Apex Court which are binding on all the courts including Consumer Fora, no fault could be found with the impugned order. The order of this Commission in the case of Kumari Ambika Singh cannot provide any relief to the petitioner since in that case there was no reference to the aforesaid judgements of the Apex Court and the revision petition came to be dismissed in liminie and hence there was no point raised by the parties in respect of question of maintainability of the dispute under the Consumer Protection Act, 1986. In any case, the ratio laid down by the Apex Court in respect of the dispute under section 7B of the Indian Telegraph Act, as is the case with the present dispute as well, has to be followed and there should not be any doubt about it. The revision petition devoid of any merit, therefore, is liable for dismissal and the same is accordingly dismissed but with no order as to costs.

…………………………………….

(ANUPAM DASGUPTA)

PRESIDING MEMBER

 

 

……………………………………

(SURESH CHANDRA)

MEMBER

SS/   

 

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