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SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, SURYA KANT, VIKRAM NATH, JJ.
Vodafone Idea Cellular Ltd. – Appellant
Versus
Ajay Kumar Agarwal – Respondent
Civil Appeal No 923 of 2017 (Arising out of SLP (C) No 28615 of 2016) WITH Civil Appeal No 1389 of 2022 & Civil Appeal No 4274 of 2016
Decided on : 16-02-2022
Consumer Protection Act, 1986 – Sections 2(g), 2(o) and 3 {Consumer Protection Act, 2019 – Section 100} – Indian Telegraph Act, 1885 – Section 7B – Post-Paid Mobile connection – Bill dispute – Under Section 7B, any dispute concerning a telegraph line, appliance or apparatus, between telegraph authority and person for whose benefit line, appliance or apparatus is or has been provided has to be determined by arbitration – Fact that remedy of an arbitration under Act 1885 is of a statutory nature, would not oust jurisdiction of consumer forum – Act of 1986 and its successor, Act of 2019 are subsequent enactments which have been enacted by Parliament to protect interest of consumers – Ouster of jurisdiction cannot be lightly assumed unless express words are used or such a consequence follows by necessary implication – Even if it is assumed that Act of 1986 is a general law, it is a settled position of law that if there is any inconsistency between two legislations, later law, even if general in nature, would override an earlier special law – Existence of an arbitral remedy will not oust jurisdiction of consumer forum – It would be open to a consumer to opt for 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 remedies which are provided under Act of 1986, now replaced by Act of 2019 – Definition of expression ‘service’ in Section 2(o) of Act of 1986 was wide enough to comprehend services of every description including telecom services – District Forum has jurisdiction to entertain and try complaint. (Paras 12, 16, 18, 20 and 21)
Facts of the case:
Present civil appeal arises from a judgment and order dated 26th May 2016 of the National Consumer Disputes Redressal Commission which was rendered in the exercise of its revisional jurisdiction. The issue is whether Section 7B of the Indian Telegraph Act, 1885 ousts jurisdiction of the consumer forum in deciding a dispute between a telecom company and a consumer.
Findings of Court:
Section 3 of the Act of 1986 clearly provides that the remedies available under the Act are in addition to the remedies available in other statutes and the availability of additional remedies would not bar a consumer from filing a complaint under the Act of 1986. Section 100 of the Act of 2019 corresponds to Section 3 of the Act of 1986.
Result : Appeal dismissed.
JUDGMENT :
Dhananjaya Y. Chandrachud, J
1. This civil appeal1[Civil Appeal No 923 of 2017] arises from a judgment and order dated 26 May 2016 of the National Consumer Disputes Redressal Commission2[“NCDRC”] which was rendered in the exercise of its revisional jurisdiction. The issue is whether Section 7B of the Indian Telegraph Act 1885 ousts the jurisdiction of the consumer forum in deciding a dispute between a telecom company and a consumer.
2. On 25 May 2014, the respondent instituted a consumer complaint before the District Consumer Disputes Redressal Forum3[“District Forum”], Ahmedabad alleging a deficiency of service on the part of the appellant. The complaint states that the respondent had a post-paid mobile connection and was paying an amount of Rs 249 as the monthly basic rent. The appellant was providing mobile telecom services to the complainant on the basis of which it was asserted that there exists a relationship of consumer and service provider. The complainant subscribed to an ‘auto pay’ system through a credit card issued by his bankers in terms of which, the appellant would receive the payment before the due date to facilitate the timely payment of bills. According to the complainant, the average monthly bill was in the vicinity of Rs 555. Copies of the previous bills for five months, until 8 November 2013 were annexed. For the period between 8 November 2013 and 7 December 2013, the respondent was billed in the amount of Rs 24,609.51. According to the respondent, this is an over-charge. The credit limit for the postpaid mobile connection was Rs 2,300 until the bill dated 8 November 2013, after which the credit limit was increased to Rs 2,800 for the bill which was generated on 8 December 2013. The respondent has denied undertaking excessive use of the connection, including towards internet facilities. It was alleged that as a prevalent practice, the mobile service provider must intimate the customer when the bill reaches 80 percent of the credit limit. The complaint contains a recital of the steps which were taken by the respondent by contacting the representatives of the appellant following which he registered a complaint on 22 December 2013. The respondent instituted the consumer complaint on 25 May 2014 seeking compensation in the amount of Rs 22,000 together with interest, besides consequential reliefs.
3. The appellant raised an objection to the maintainability of the complaint based on a judgment of a two-Judge Bench of this Court in General Manager, Telecom v. M Krishnan and Another, (2009) 8 SCC 481. The District Forum dismissed the application and directed that a written statement must be submitted by the appellant on all issues including on the issue of jurisdiction. It was observed that the appellant, a private service provider is not a ‘telegraph authority’ for the purposes of Section 7B of the Indian Telegraphic Act 18855[“Act of 1885”]; however, the issue of jurisdiction could not be determined without the filing of a written statement. In this context, it was observed:
The order of the District Forum was questioned before the State Consumer Disputes Redressal Commission6[“SCDRC” or “State Forum”], Gujarat. The SCDRC held by an order dated 30 November 2015 that the issue of jurisdiction could be raised as a preliminary issue. On merits, the SCDRC relied on the letter of the Department of Telecommunication dated 24 January 2014 where it was stated that the judgment in M Krishnan (supra) on Section 7B of the Act of 1885 would not be applicable to a private service provider since it is not a ‘Telegraph Authority”. For this purpose, reliance was also placed on Bharthi Hexacom Ltd. v. Komal Prakash, Misc Application No. 204/2014 in Revision Petition Application No. 12. The State For
(1) Section 7B of Indian Telegraph Act, 1885 do not oust jurisdiction of consumer forum in deciding a dispute between a telecom company and a consumer. Definition of expression ‘service’ in Section 2....
“Complaint can be instituted only where all the opposite parties are actually and voluntarily residing.”
The service provider must prove that a service was utilized for commercial purposes; absent such proof, a consumer retains protections under the Consumer Protection Act.
District Forum – District Forum who is required to dispose of the consumer case in accordance with the law but instead of doing job has failed to exercise its jurisdiction.
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