Oral Order : (T. Ashok Kumar, Member)
1. This is an appeal preferred by the unsuccessful complainant as against the orders dated 13.09.2013 in CC 1051/2011 on the file of the District Consumer Forum III, Hyderabad. For convenience sake, the parties as arrayed in the complaint are referred to as under :
2. The brief facts of the complaint are that the complainant who is a practicing advocate is having a pre-paid connection with Mobile No. 9848284738 for life time validity with opposite parties since long time. He left for US on 14.4.2011 and returned to India On 6.7.2011. On return from USA he tried to call his relatives and friends but services to his Mobile phone aforesaid were temporarily disconnected when he contacted the customer care centre of the opposite party personally he was informed that his phone number was released in the market and promised to get the same activated within one week but it was not so activated. Therefore he got issued a legal notice calling upon the OP to activate the services to his phone number 9848284738 and pay Rs.25,000/- compensation as the disconnection of service to his mobile phone was without prior notice and it amounts to deficiency in service but his claim was not considered and hence the complaint for such reliefs.
3. OP resisted the complaint by filing written version and the gist of the said version is as under :
The Consumer Forum has no jurisdiction to entertain the present complaint in terms of the judgment of Honble Supreme court of India in SLP ( Civil ) 24577/2010. The opposite party while providing the pre-paid Mobile telephone services to the complainant it also provided certain terms and conditions and as per clause 9 of the terms and conditions mentioned in the application form the customer who has opted for long validity tariff of six months and more is liable to get disconnected if he/she fails to recharge his or her connection with a minimum of Rs.200/- for every six months or fails to meet any other tariff condition at the time of the purchase and as per clause 10 of the terms and conditions aforesaid in addition to the above if the connection is not used for outgoing and /or incoming usage for three continuous months IDEA cellular limited reserves the right to deactivate the number and as per the electronics records maintained by the OP it has found that the complainant had neither originated nor received any calls/sms on his mobile bearing No. 9848284738 from 14.4.2011 to 6.7.2011 and that consequent to not using the services provided by the opposite party to the complainant for more than 90 days continuously the opposite party had sent sms on 21.5.2011 stating that âur number is not in use since last three months. As per the terms of activation, it is liable to get churned. Start using this number within seven days to avoid termination of servicesâ. In spite of such a request made by the opposite party the complainant failed to utilize the services of the opposite party and voluntarily violated the terms and conditions accepted by him. Therefore the OP had no other option except to initiate the process of barring the services on the mobile bearing No. 9848284783 on 13.6.2011 the complainant filed the complaint with malafide intention and is liable to be dismissed as not maintainable and thus prayed to dismiss the complaint.
4. Both sides filed evidence affidavit reiterating their respective pleadings and Ex. A-1 to A3 were marked on behalf of the complainant and no documents were marked for the OP.
5. Having heard both sides and considering the evidence on record, the District Forum dismissed the complaint for want of jurisdiction.
6. Feeling aggrieved with the said order the unsuccessful complainant filed this appeal on several grounds and mainly contended that the District Forum erred in appreciating the facts of case and evidence on record, provisions of law so also is dismissing the complaint relying upon irrelevant judgment and thus prayed to allow the appeal, set aside the impugned order and consequently to allow the complaint.
7. This Commission at the admission stage itself heard the appellant/complainant in person and without giving notice to the respondent/opposite party reserved the matter for orders.
8. Now the point for consideration is whether the order of the District Forum is vitiated either in law or on facts?
9. There is no dispute that the complainant is having a prepaid connection with Mobile No. 9848284738 for life time validity ie up to 2014 and that the service was disconnected to his mobile phone in the month of June, 2011. The opposite party raised jurisdiction point contending that consumer forum has no jurisdiction to entertain the present complaint and relied upon a decision of Honble Supreme Court of India in SLP ( Civil ) 24577/2010. It is common knowledge that the cell phone mobile service being provided by the Opposite party is governed by the provisions of Indian Telegraph Act. In a decision reported in between General Manager, Telecom Vs. M. Krishnan reported in AIR 2010 SC page 90 the Honble Supreme Court of India after considering the remedy provided U/s. 7-B of the Indian Telegraph Act held that the Consumer Forum has no jurisdiction to entertain the complaint. In the said decision, Their Lordships have held that
â 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: - â7-B 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-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court.ââ
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10. It is well settled that the special law overrides the general law. Relying upon the said decision several cases were decided by this Commission including FA 563/12 and FA 111/2007 were decided holding that Consumer Forum and consequently this Commission has no jurisdiction to entertain the disputes pertaining to the telephones, internet etc. The decision of the Honble Apex court is binding on this Commission. The Complainant did not satisfy this Commission with any latest contra decisions of the Honble Supreme Court of India in the said context. Therefore , in the circumstances of this Case, this Commission is satisfied to hold that Consumer Fora have no inherent jurisdiction to entertain the complaint and thus rightly dismissed the complaint and there are no reasons to interfere with such an order by this Commission.
11. Very specifically the OP pleaded in the counter, that as per clause 9 of terms and conditions of customer application the customer who had opted for long validity tariff of six months and more is liable to get disconnected if he or she fails to recharge his or her connection with minimum of Rs.200/- every six months or fails to meet any other tariff condition at the time of purchase so also that as per clause 10 of the terms and conditions in addition to the above if the connection is not used for three continuous months OP service provider reserves the right to deactivate the number and that as per electronic record maintained by the OP found that the complainant did not originate or receive any calls/sms on his mobile bearing No. 9848284738 from 14.4.2011 to 6.7.2011 and that The OP also contended that sms dt. 21.5.2011 was given to him advising to start using the number within seven days to avoid termination of service the complainant did not utilize the services nor he pleaded that he has been utilizing the services during the said period. The said specific version has not been controverted by the complainant by filing rejoinder. Therefore, for the purpose of this Case, the said contention of the OP is accepted as true and thus we are convinced to hold that the complainant violated terms and conditions of the customer application form and therefore rightly the OP discontinued service. . According to the complainant, he was not available in India and therefore question of his using the said cell phone connection did not arise. It is not his case that he kept the mobile in his house at Hyderabad and that inmates used the said mobile services during the relevant period. Hence satisfied to hold that the complainant violated terms of the customer application form and therefore disconnection of service was justified. Thus, viewed in any point, the appeal is devoid of merit and is liable to be dismissed.
12. In the result, the appeal is dismissed confirming the order of the District Forum and consequently the complaint stands dismissed. No order as to costs.