GUJARAT STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, AHMEDABAD
Honble Mr. Justice K.J. Vaidya, President &
Dr. Jatin P. Vaidya, Member
T.U. MEHTA—Appellant
versus
AHMEDABAD TELECOM DISTRICT & ANR.—Respondents
Appeal No. 269 of 1996—Decided in March, 1998

Headnote:(i) Telephones - Consumer Protection Act, 1986 - Sections 2 and 14 - Indian Telegraphs Act, 1885 - Section 9 - Applicability - Telephone service - Deficiency in Whether Section 9 of Telegraph Act, 1885 is attracted in matters of telephone services ousting jurisdiction of Consumer Act - (No) - Consumer Protection Act being the special and social welfare legislation, being later in time, to be given due preference Repeal by implication.

       Held: Section 9 of the Telegraph Act in no way overshadows and ousts the jurisdiction of the Consumer Disputes Redressal Forum constituted under the Act in entertaining and, deciding the complaint against the Telecom Department in matter of alleged deficiency in service. Not only this but further in our opinion when the question of applicability and jurisdiction of Forum under the special and social welfare legislation like Consumer Protection Act, 1986 arises which is later in the point of time and is unfortunately pitted against an old Act where the social welfare objective is not in focus, the reformative special, social welfare Act borne out of special concern and anxiety for the suffering consumers by the Parliament it has got to take necessary precedence pushing back the applicability of an old Act. In other words, when the question arises as to out of two Acts which is applicable in the facts and circumstances of the particular case, the Act which is special progressive and later in point of time needs to be given due preference, otherwise it would create such an anamalous situation where the thoughtless mechanical application of old Act would make later Act as if ultravires violating some constitutional provision. Now, once this position is made abundantly clear, then by virtue of the definition meaning of the words consumer, consumer disputes deficiency in service as given in Section 2(1)(d), 2(1)(c) and 2(1)(g) read with Section 2(1)(o) of the Act, the person who is the subscriber of telephone is by all means entitled to the special protection and relief under the Act, and Section 9 of the Telegraph Act to that extent stands repealed applying the doctrine of special social welfare stands privilege and precedence so as to harmoniously interprete and enhance the object of social well-being. (Para 8)

       The respondent department cannot be allowed to take rough and ready, stock and convenient shelter under the old and irrelevant provisions of Section 9 of the Telegraph Act to screen and protect its administrative inefficiencies, negligence and callous attitude towards its consumers. If this is allowed to be done, the whole purpose of the Consumer Protection Act would be torpedoed and lost, encouraging the inefficiency and callousness of the Telecom Department all around the country, and the grievances made in the said regard would be simply reduced to the "cry in wilderness" where "Rule of Law and justice" would stand eclipsed and/or rendered impotent. (Para 8.1)

       (ii) Telephones - Consumer Protection Act, 1986 - Sections 2(1)(g), 14 - Deficiency in service Complaint alleging telephone of appellant remained unattended and thereby out of order for 16 days Defence of Department of cable fault due to heavy rains - Vague and general defence - Heavy burden lies upon the Department to prove it to the satisfaction of Consumer Forums - Department was under legal obligation to bring on record the relevant material.

       Held: The department was guilty of deficiency in service for as many as 16 long days. If the Department is not put· to the stricter proof regarding the cable fault beyond any manner of doubt there is every likelihood that in number of cases the dust-in-eye attempt would be made in all such cases by the Department to screen their inefficiency and deficiency in service in the name of general and omnibus defence of cable fault could not be repaired immediately because of the circumstances beyond control like heavy rains etc. etc. etc. and thereby lightly getting away with impunity. In this view of the matter when the standard of the telephone services are declining fast and further indeed when there appears to be none in the department to regulate and control these falling standards immediately coming to the rescue of the consumers of telephone services. The Consumer Agencies like the District Forum and the State Commission are all the more further more insist upon the Department to lead convincing evidence to refute the charge of inefficiency in service proving it beyond doubt. It is here that it is the duty of each and every Consumer Disputes Redressal Forum to stand by the cause of public justice - for the consumers - and insist upon the department to prove its defence by producing before it material in support of the same not permitting them idling away time by trotting out some lame mechanical general defence/excuses. All Consumer Disputes Redressal Forums have to take special care in seeing that it is not misguided by the telephone department in view of of late alleged bad name it has earned in the public in the matter of services rendered. Further. Mr. Mehta to certain extent is indeed right when he submitted that if rains do not disturb the telephone lines in other countries as they do most repeatedly in this unfortunate country and that too on such a large scale it is reasonable to infer that the lines are defectively laid down and or the adequate staff and infrastructure is not provided for which fact by itself is sufficient and self-evident enough of gross negligence insufficiency and deficiency in service. We wholly agree. (Para 9)

       (iii) Telephones - Deficiency in service - Central Government requested to take steps for eliminating as far as possible chances of deficiency in service with corresponding increase in efficiency of the department to meet with challenging situations. (Para 10)

       (iv) Telephone - Deficiency in service - Telephone remaining out of order for number of days - Rebate in rent ordered by the Department Compensation claim - Whether maintainable - (Yes) - Criteria for granting rebate" and that of granting of compensation on various grounds stands entirety on a different footing - Merely because the department has given rebate in the rent on ground of telephone remaining out of order - That by itself is not a ground sufficient to justify denia~.1 of compensation - If charge is proved complainant is entitled to reasonable damages and compensation as prayed for.

       (Para 11)

       (v) Telephone - Deficiency in service - Telephone remaining out of order for number of days - Telephone fault not attended in time - Compensation claim - Powers of consumer forum in awarding some fixed standard minimum amount per day by way of compensation - Sufferer - Consumer is entitled to rough and ready compensation at least at the rate of Rs. 150/- per day by way of general compensation for proved deficiency in service - This amount would be independent and irrespective of complainant bringing on record evidence to prove other claims.

       Held: Over and above the rebate granted by the department for the telephone remaining out of order and default not attended to immediately, we hold that the sufferer - Consumer if the grievance is brought home (exempting the department of liability for first twenty four hours unless grave consequential damages suffered in the meantime) is entitled to rough and ready compensation at least at the rate of Rs. 150/- per day by way of general compensation for the proved deficiency in service. This indeed would be irrespective of the fact whether the consumer has brought on record necessary evidence to justify and claim other compensations to the extent extensively prayed for in the complaint such as (i) the loss of occupational, professional or business gain and (ii) mental shock, and suffering, (iii) the cost of proceedings etc. etc. We make it clear that this amount would be independent and irrespective of the complainant bringing on record evidence to prove his other claims. However, if ultimately, the complainant is in a position to convince the consumer Fora regarding his other compensation claims and if that amount is sizeable and granted the minimum amount prescribed here may in its discretion be dispensed with in that case. We make it clear that this attempt of ours should not be misunderstood and confused alleging as if tresspassing in the legislative field. Not the least. In fact, what we here aim at is to merely wake up the Consumer Forums to its just discretion to award minimum compensation on general count also in the c matter of deficiency in service in not t attending to the fault and restoring the telephone services in time in appropriate cases when the said grievance is brought home. (Para 12)

       (vi) Telephones - Consumer Protection Act, 1986 - Sections 2, 14 - Deficiency in service - Telephone remaining out of order for about 16 days - Telephone fault not attended in time - Complainant subscriber was retired Chief Justice of the High Court, a senior Advocate practising in Supreme Court Amount of compensation to be awarded - Complainant appellate submitted that he had come in appeal more for public cause than against denial of compensatory relief to him - Award of Rs. 25,000/- as reasonable compensation with interest @ 12% - Rs. 2,500/- awarded as costs - Telephone Department to pay, cost of Rs. 2,500/- to Consumer Education and Research Society original complainant. (Paras 14.1 & 14.2)

       Result : Appeal allowed.

       IMPORTANT POINT

       In cases of deficiency in telephone services, once the department takes vague and general defence of cable fault due to heavy rains, heavy burden lies upon the department to prove the same to the satisfaction of Consumer Forums.