R. Lakshminarasimha Rao, Incharge President
The opposite parties 2 and 3 are the appellants.
The complaint is filed for direction to the opposite parties 1 to 4 to restore the mobile connection of the respondent without collecting any charges, to pay a sum of Rs.45,000/- towards actual loss sustained by the complainant, to pay Rs.10,000/- towards compensation, a sum of Rs.500/- towards notice charges and Rs.2,000/- towards costs.
The case of the respondent is that being a technician, he purchased a Reliance Cellular phone Model No.LG-RD2030 in the month of August, 2003 under postpaid connecting by paying an amount of Rs.10,500/- and the appellants allotted mobile connection number 08671-310935 and the postpaid connection was converted to prepaid category with lifetime validity and he was allotted number 93478000095. The respondent submitted that on 28-5-2011, the appellants without prior intimation, disconnected the cellular phone connection and he incurred loss in his business and lost communication with his relatives, customers and friends.
The respondent submitted that he approached the appellants and they registered complaint No.3085640924 and failed to solve the problem inspite of several requests made by him. The respondent submitted that he being a physically handicapped person walks with the support of a stick and approached the 2nd appellant at Vijayawada for several times for restoration of his mobile connection and the 2nd appellant did not respond and therefore he got issued notice on 05-11-2011 demanding the appellants to restore his service connection. The notice sent o the first appellant returned and the appellants 2 and 4 received the notice and they did not respond and committed deficiency in service.
The appellants 1 and 3 proceeded exparte. Notice of 2nd opposite party was effected by substituted service and it was also proceeded exparte.
The respondent filed his affidavit and relied on Exs.A1 and A8.
The District Forum allowed the complaint directing the appellants 1 to 3 to jointly and severally restore the mobile connection of the respondent with same number i.e. 93478000095 and pay Rs.2,000/-, Rs.500/- towards paper publication charges, Rs.1,000/- towards costs of the complaint.
Feeling aggrieved by the order of District Forum, the opposite parties 2 and 3 preferred this appeal contending that the respondent did not fit in the description of consumer and avail any of the services of the appellants and therefore no deficiency in service could be attributed to the appellants. The opposite parties contended that the District Forum directed them to restore the service connection of the mobile of the complainant without verifying whether the complainant is holding the said service number in his name and prayed to allow the appeal.
The point for consideration is whether the order of the District Forum is vitiated by mis-appreciation of fact or law?
The respondent purchased mobile phone on 11.11.2003 and obtained post-paid connection which was subsequently converted into pre-paid connection and later it was disconnected on 28.5.2011. He got issued notice to the appellant company under Ex.A4 to A7 contending that the act of the appellants in converting the post-paid connection into prepaid connection without any intimation and subsequent disconnection as arbitrary and illegal, the respondent has filed the complaint and the District Forum allowed the complaint holding him entitled to restoration of the mobile connection.
We may state that though the jurisdiction of the Dist. Forum was questioned, the Dist. Forum did not choose to consider the contention. The Honble Supreme Court in General Manager, Telecom Vs. M. Krishnan reported in AIR 2010 SC 90 after considering the remedy provided u/s 7B of the Indian Telegraph Act opined that the Dist. Forum has no jurisdiction. Since the question of jurisdiction has been raised by the appellant, and by virtue of decision of Honble Supreme Court being the law of the land we must hold this Commission has no jurisdiction to entertain the complaint. We have to take cognizance of the said decision. Their Lordships opined :
œWhen 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:- œ 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.
It is well settled that the special law overrides the general law.
In regard to mobile phones the Honble Supreme Court reiterated the above said decision in Prakash Varma Vs. Idea Cellular Ltd. reported in 2011 CTJ 489 (SC). Their Lordships upheld the orders of National Commission in dismissing the complaint recoursing to Section 7-B of the Indian Telegraph Act.
In the light of decision of the Honble Supreme Court, the consumer fora have no jurisdiction to resolve the disputes arising under Indian Telegraph Act. We are of the opinion that the Dist. Forum has no jurisdiction, however the respondent can still pursue his remedy by invoking the provisions under Indian Telegraph Act. The period spent for prosecuting the matter before the Dist. Forum would be excluded for the purpose of reckoning limitation.
In the result, the appeal is allowed setting aside the order of the District Forum. The District Forum is directed to return the complaint along with material papers to be presented before appropriate Forum/Court. In the event complainant approaches the court/tribunal the period spent between the filing of the complaint and the disposal of the matter today by us will be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Honble Supreme Court in œTrai Foods Ltd vs National Insurance Company Ltd and others? reported in III (2012) CPJ 17?.