Bharat Sanchar Nigam Ltd. vs Bhupinder Singh Bhargava, Advocate

Permod Kohli, J.—This Letters Patent Appeal is directed against the judgment dated 19.02.2004 passed by the learned Single Judge of this

Court in OWP No. 528/02 whereby writ petition of the appellant against the judgments of the State Commission and Divisional Forum constituted

under the J&K Consumer Protection Act, has been dismissed in limine.

Admitted facts as emerge from the record are that the telephone connection of the respondent was disconnected allegedly for non-payment of

dues. The respondent pleaded payment of the bills, however, ignoring his plea telephone was disconnected. The respondent approached the

Divisional Forum against the action of the appellant and it was during the pendency of the proceedings before the Divisional Forum, the respondent

admitted having received the payment and restored the telephone connection. The Divisional Forum after the parties led their evidence passed

order dated 31.01.2001 awarding an amount of Rs. 15,000/- as compensation, refund of rental for the period 17.01.1998 till 2nd June, 1998 and

also cost of litigation which was assessed at Rs, 1000/-. An appeal preferred before the State Commission came to be rejected. Aggrieved of the

orders of the Forum and State Commission, the appellant preferred the writ petition, which too resulted in dismissal in limine.

The only point canvassed before us is that the Consumer Forum has no jurisdiction to entertain the complaint and pass an award in view of the

specific provisions of the Section 7B of the Telegraphs Act which interalia prescribed statutory arbitration in respect to all the disputes relating to

telegraph line, appliance or apparatus arising between the telegraph authority and the person for whose benefit the line, appliance or apparatus is or

has been provided. To support his contention he relied upon the judgment of this court passed in OWP No. 303/98 dated 23.02.2001 and the

judgment dated 16th July 2002 passed in LPA (OW) No. 124/01. In the judgment dated 23.02.2001, the learned Single Judge has held that the

remedy of arbitration u/s 7B of the Telegraphs Act should be resorted. The Hon'ble Division Bench of this Court relying upon the judgment of

Kerala High Court reported in General Manager, Telecom District, Trivandrum and Others Vs. Consumer Disputes Redressal Forum, Trivandrum

and Another, declined to interfere in the order of the learned Single Judge on the ground that disconnection of the telephone for non-payment is not

deficiency in service. It cannot be disputed where a telephone is dis-connected for non-payment and restoration is sought by offering payment,

Consumer Forums are not entitled to exercise jurisdiction as it does not amount to deficiency in service. The telegraph authorities are not obliged to

provide service if the consumer has faulted.

We have carefully gone through the aforesaid judgment. The case before the Division Bench was regarding disconnection of telephone for non-

payment and the Hon'ble Court was of the view that it does not amount to any deficiency in service and Forum and the Consumer Protection Act

cannot decide such dispute. In the present case the facts are altogether different. Here is a case where telephone was disconnected for the alleged

non-payment of dues, though the bills said to be unpaid stood paid at the time of disconnection of telephone. The only question that needs

consideration does it amount deficiency in service. The deficiency in service is defined u/s 2(g) of the J&K Consumer Protection Act which reads

as under:

2(g) ""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 services.

The case in hand clearly falls within the scope and ambit of ""deficiency in service"" and thus the Consumer Forum is entitled to exercise the

jurisdiction in respect to such deficiency in service.

Apart from the fact that action of the respondent amount to deficiency in service, section 3 of the Consumer Protection Act specifically provided

that the provision of Act shall be in addition to and not in derogation of the provisions of any other law. For the purpose of brevity it is quoted as

follow:

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.

In view of the clear provisions of the aforesaid Section, Forum created under the Consumer Protection Act provide remedy in addition to other

remedies available to a person under any other law. Mr. Gupta has not been able to refer to any provision of Telegraphs Act including Section 7B

which creates an embargo upon the jurisdiction of any other Forum Created under a valid law. Assuming a person has tow remedies available; one

u/s 7B and other under the Consumer Protection Act even then it should be left to choice of the aggrieved person to avail the appropriate remedy.

Admittedly, the Consumer Protection Act was enacted when the Telegraphs Act was already in existence. The remedies provided under this Act

are in addition to the remedies available under the Telegraphs Act or for such matters so many other laws in existence. Therefore, intention of the

legislature appears to be clear and loud. If a case falls within the purview of the deficiency in service as defined under the Consumer Protection

Act, Forum created under this Act is entitled to exercise jurisdiction, notwithstanding the fact that another Forum is also available since there is no

exclusion of jurisdiction of the Consumer Forum under the Telegraphs Act for/such a dispute, the contention of Mr. Gupta is without any force.

The Apex Court in a case of Skypak Couriers Ltd. Vs. Tata Chemicals Ltd., held as under:

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.

In view of the above, we are of the considered opinion that the Consumer Protection Forum has the jurisdiction to entertain the dispute relating

to the telephones provided the same falls within the definition of the ""deficiency in service"". The case in hand is one of such case.

It is lastly submitted on behalf of the appellant that the amount of compensation awarded by the Consumer Forum is on the higher side. Learned

Single Judge has also rejected this contention. The telephone of the respondent remained disconnected for about six months and it was restored

only when the respondent placed on record the material to show that he had deposited the bills. We do not feel that the amount award is

excessive.

We do not find any valid ground for interference with the impugned judgment. Appeal is accordingly dismissed.