Bharat Sanchar Nigam Limited vs JAGDISH PRASAD THAKUR

-THIS appeal by opposite party the Bharat Sanchar Nigam Limited (BSNL), arises from the order dated 25. 8. 2004 passed in C. C. No. 129/2004 by the District Consumer Disputes Redressal Forum, Seoni quashing the telephone bills of the months of January and February-2004 raised by the appellant BSNL against telephone connection No. 220935 of respondent-complainant, with direction to the appellant to raise fresh bill on the basis of average of previous bills of six months immediately preceding the date of bill in question.

THE disputed bill dated 11. 3. 2004 was raised for a sum of Rs. 3579 showing net chargeable calls 2645 besides free calls 100. The complainant has produced his bimonthly bills of the previous more than two years to show that at no point of time the bill of any two months had exceeded Rs. 1,000. He also represented against the said bill, but no action seems to have been taken by the appellant Corporation which defended the bill in question and it was contended that the bill has been raised on the basis of actual calls made by the complainant and recorded by the meter. The Forum however allowed the complaint in part and passed the order as aforesaid thus giving rise to this appeal. Mr. Rajeev Jain, learned Counsel for appellant Corporation besides assailing the impugned order on merits, raised plea of bar and it was contended that under Section 7-B of the Indian Telegraph Act, 1885, the dispute raised by the respondent-complainant could be resolved/determined only by arbitration and the jurisdiction of the District Forum was barred in the matter. He places reliance on the two decisions of the National Commission in the case of Divisional Engineer, Telecom Moradabad v. Virender Kumar, II (1997) CPJ 60 (NC) and in Gokulanand Sahay (Dr.) v. Chief General Manager and Others, III (2006) CPJ 368 (NC ).

None has appeared for the respondent in the case. We thus requested Mr. Deepesh Joshi, Advocate to assist the Commission more particularly on the question of jurisdiction of District Forum to hear such a complaint in the wake of provision of Section 7-B of Indian Telegraph Act, 1885.

AT the outset it may be observed that no such plea as to the bar of the jurisdiction of the District Forum was raised before the Forum below or even before this Commission in the memo of appeal filed by the appellant. However, the question being purely of law, we proceed to decide the same. Section 7-B of Indian Telegraph Act, 1885 reads thus: 7-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 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. A careful reading of the aforesaid provision would reveal that while it does provides for resolution by arbitration, of the dispute concerning any telegraph line, appliance or apparatus arising between the telegraph authority and the consumer, it nowhere bars the jurisdiction of any Court or Tribunal to entertain any such dispute. Further this provision is to be read and construed in the light of Section 3 of the Consumer Protection Act, 1986 which reads thus: 3. Act not in derogation of any other law-The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

HON''ble the Supreme Court in the case of Fair Air Engineers Pvt. Ltd. and Another v. N. K. Modi, III (1996) CPJ 1 (SC), while dealing with the import of Section 3 of the C. P. Act, in the wake of arbitration clause contained in the agreement between the parties and with reference to Section 34 of the Arbitration Act, held: accordingly, it must be held that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3, envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Mr. Suri, that the words "in derogation of the provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well-founded. The Parliament is aware of the provisions of the Arbitration Act and the Contract Act and the consequential remedy available under Section 9 of the Code of Civil Procedure, i. e. to avail of right of civil action in a competent Court of civil jurisdiction. Nonetheless, the Act provides the additional remedy. It would, therefore, be clear that the Legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these Forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the Forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate Forum for adjudication of the disputes would be otherwise those given in the Act. Apex Court in its subsequent decision in the case of Skypak Couriers, Ltd. Etc. , Etc. v. Tata Chemicals, Ltd. Etc. , Etc. , II (2000) CPJ 6 (SC)=iv (2000) SLT 494=85 (2000) DLT 634 (SC), reiterated: even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. This Commission in the case of Mukesh Trivedi v. Mandal Abhiyanta, Door Sanchar Vibhag, I (2003) CPJ 1 (MPSCDRC), relying on the aforesaid two decisions of the Apex Court held: in view of the law declared by the Supreme Court in Skypak Couriers Ltd v. Tata Chemicals Ltd. (supra), now it is well settled that Redressal Agencies have no jurisdiction to refer dispute pending before it, for a consensual adjudication by third person or even by an Arbitrator appointed under Section 7-B of the Telegraph Act. It is true that the Supreme Court decisions in the Fair Air Engineers and Skypak Couriers Ltd. (supra), and rendered with reference to an arbitration clause contained in the agreement between the parties, not with reference to any statutory provision like Section 7-B of the Indian Telegraph Act. But, that hardly matters. Provision for arbitration may be contained in a law or in an agreement between the parties. The ratio of the said two decisions is clear that even when there exists an arbitration clause (whether by way of an agreement or by provision of law), a complaint made by a consumer in relation to certain deficiency in service can always be heard by the Redressal Agencies constituted under the Consumer Protection Act. The decision of this Commission in the case of Mukesh (supra), is direct on this point. We thus over-rule the objection raised by learned Counsel for appellant BSNL and proceed to examine the case on merits.

AS already pointed out there was sudden spurt rather unusual spurt in the calls recorded in the bill dated 11. 3. 2004. In the previous two years i. e. 2002 and 2003, the maximum chargeable calls recorded were 464 and the bill raised was for Rs. 756 only. All other bills were for much lesser amount. Under the circumstances, it was quite natural for the complainant to entertain doubt as to the correctness of the bill in question and his complaint in this regard deserved to be investigated properly by the appellant. Guidelines for disposal of complaints like the one in hand, are contained in the Circular No. 4-59/85-TR, dated 9. 4. 1986 issued by Telegraph Department and reproduced in Swamy''s Treatise on Telephone Rules. This circular amongst other things provides: 6. 4 Once the complaint has been received very prompt action must be taken to investigate the same. For this purpose the prescribed officers must call for the following details from the officers-in-charge of exchanges concerned: (a) the record of fortnightly reading in respect of 6 preceding bimonthly periods and for all the available succeeding bimonthly periods; (b) an extract of fault card for the disputed period; and (c) spurt report, action taken on the same and the result thereof. This will include (a) observations in the Exchange and (b) any field investigations if carried out. In para 7. 2 of this circular it is further provided that if it is found, that there has been a spurt for reasons unknown or there is a reasonable doubt as to the possible faults on the metering circuit or the subscriber''s equipment or a reasonable doubt exists about the possibility of some mischief, the competent officer may grant suitable relief. In the instant case however no such action seems to have been taken by the officers of the appellant Corporation and the complaint of the respondent was rejected in a rather mechanical manner.

FOR the first time in appeal fortnightly meter reading details of the telephone connection of the respondent are filed and the permission was sought to take this document on record. However, this document even accepted on its face value does not evidence the compliance of the instructions contained in the aforesaid circular. It only deals with the three bimonthly bills for the period from 15. 9. 2003 to 29. 2. 2004 as against six bimonthly bills for the period of 12 months prior to and after the date of bill in question. As held by the National Commission in the case of Telecom District Manager, Hoshiarpur, Punjab v. Kamaljit Kaur, II (2005) CPJ 139 (NC)=2002 (1) CPR 84 (NC), the instructions contained in the aforesaid circular are meant for the benefit of consumers and have to be followed. Non-compliance of these instructions constituted deficiency on the part of the appellant BSNL and the bill in question was liable to be set-aside. For what we have said above, this appeal fails and is dismissed with no order as to the costs. Appeal dismissed.