Telecom users can directly approach to Consumer Forums: SC

HELD THAT

"It would be open to a consumer to opt for the remedy of arbitration, but there is no compulsion in law to do so and it would be open to a consumer to seek recourse to the remedies which are provided by The Consumer Protection Act, 2019."

The Supreme Court of India has passed the verdict on an appeal of Vodafone by which the Company had challenged the order of NCDRC (National Consumer Disputes Redressal Commission) by which it had firmed the view of State Consumer Disputes Redressal Commission that Section 7B of the Telegraph Act, 1885 would not be applicable to a private sector service provider since it is not a Telegraph Authority".

FACTS OF THE CASE

One Ajay Kumar Agarwal had, on May 25, 2014, instituted a consumer complaint before the District Consumer Disputes Redressal Forum, Ahmedabad, alleging a deficiency in service on the part of the Vodafone.

The complaint said Mr. Agarwal had a post-paid mobile connection and was paying ? 249 as the monthly basic rent and Vodafone was providing mobile telecom services to him on the basis of which it was asserted that there exists a relationship of consumer and service provider. 

Mr. Agrawal had subscribed to an "auto pay" system through a credit card issued by his bankers in terms of which Vodafone would receive the payment before the due date to facilitate the timely payment of bills. 

He alleged that the average monthly bill was in the vicinity of ?555 but for the period between November 8, 2013 and December 7, 2013, the respondent was billed for ?24,609.51. 

Mr. Agrawal alleged over-charging by Vodafone and moved the district consumer forum seeking compensation for Rs. 22,000 together with interest, besides consequential reliefs.

THE SUPREME COURT OF INDIA

The remedy of arbitration under the Indian Telegraph Act of 1885 is of a statutory nature would not oust the jurisdiction of the consumer forum in such matters, a bench of Justices-SC Bench said.

"It would be open to a consumer to opt for the remedy of arbitration but there is no compulsion in law to do so and it would be open to a consumer to seek recourse to the remedies which are provided under the (Consumer Protection) Act of 1986, now replaced by the Act of 2019," the bench said. 

The top court passed the verdict on an appeal of Vodafone by which the company had challenged an order of the National Consumer Disputes Redressal Commission (NCDRC) by which it had affirmed the view of the SCDRC that Section 7B of the Act of 1885 would not be applicable to a private service provider since it is not a 'Telegraph Authority".

In its recent order, the court said the insertion of the expression "telecom services" in the definition which is contained in Section 2(42) of the Consumer Protection Act of 2019 cannot be construed to mean that telecom services were excluded from the jurisdiction of the consumer forum under the earlier Act of 1986.

"On the contrary, the definition of the expression 'service' in Section 2(o) of the Consumer Protection Act of 1986 was wide enough to comprehend services of every description including telecom services," the bench said.

PLEASE NOTE THAT

Referring to a verdict from last year relating to home buyers, the bench said the court had invoked the doctrine of election, which provides that when two remedies are available for the same relief, the party at whose disposal such remedies are available, can make the choice to elect either of the remedies as long as the ambit and scope of the two remedies are not essentially different.

The bench noted that where Section 7B of the Indian Telegraph Act of 1885 applies, a statutory remedy of arbitration is provided. 

"The fact that the remedy of arbitration under the Act 1885 is of a statutory nature, would not oust the jurisdiction of the consumer forum. 

"The (Consumer Protection) Act of 1986 and its successor, the (Consumer Protection) Act of 2019 are subsequent enactments which have been enacted by Parliament to protect the interest of consumers. Hence, an ouster of jurisdiction cannot be lightly assumed unless express words are used or such a consequence followed by necessary implication," the bench said.

The bench refused to accept the submission of Vodafone Idea cellular Ltd that the specific incorporation of "telegraph services" in the Act of 2019 is an indicator that it was only as a result of the new legislation that telecom services were brought within the jurisdiction of the consumer fora. 

It said, "This submission cannot be accepted for the simple reason that the specification of services in Section 2(s) of the earlier Act of 1986 was illustrative. This is apparent from the use of the expression 'includes but not limited to'."

The top court said the specification of services in Section 2(s) of the erstwhile Consumer Protection Act was therefore not intended to be an exhaustive enumeration of the services which are comprehended within the definition.

"On the contrary, by adopting language which provides that the expression 'service' would mean service of any description which is made available to potential users, Parliament indicated in unambiguous terms that all services would fall within the ambit of the definition.

"The only exception was in the case of (i) services rendered free of charge; and (ii) services under a contract of personal service", it said.

The bench said the Consumer Protection Act of 1986 was a milestone in legislative efforts designed to protect the welfare and interest of consumers.

It noted that under Section 7B of the Indian Telegraph Act, any dispute concerning a telegraph line, appliance or apparatus, between the telegraph authority and the person for whose benefit the line, appliance or apparatus is or has been provided has to be determined by arbitration.

"Such a dispute has to be referred to an arbitrator appointed by the Central government either especially for the determination of that dispute or generally for the determination of the disputes under the Section."

CONCLUSION

The above judgement of Apex Court is an important judgement and this will limit and has brought services of telecom companies under provisions of the Consumer Protection Act, 2019. A subscriber enjoying services of telecoms companies is considered as a " Consumer" within the meaning of Section 2(7) of the Act,2019 and Telecom Services is considered as " Service" in the definition of Service under Act,2019. The Apex Court further said that a consumer or telecom service user have two remedies , first to go for arbitration as per provisions of Section 7B of the Indian Telegraph Act, 1985 or file complain before the consumer forums under provisions of the Consumer Protection Act, 2019.

DISCLAIMER: the article produced here is only for information and knowledge of readers. In case of necessity do consult with professionals for more clarification and understanding of the subject matter.

Footnotes

SECTION 2(7) of The Consumer Protection Act, 2019

It defines "Consumer " as follows; "consumer" means any person who-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

Explanation. -For the purposes of this clause, 

 (a) the expression "commercial purpose " does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

 (b) the expressions "buys any goods " and "hires or avails any services " includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

SECTION 2(42) of the Consumer Protection Act, 2019

"Service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.

SECTION 2(42) of the Consumer Protection Act, 2019  

"Deficiency " means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes;

 (i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and

 (ii) deliberate withholding of relevant information by such person to the consumer;

SECTION 7B IN THE INDIAN TELEGRAPH ACT, 1885

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.

(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.

PLESE NOTE THAT- section 7B(1) as mentioned above expressly provided that any dispute between the Telegraph Authority and the other person.