Ramesh Kumar Rohilla vs Bharti Airtel Ltd.

IN this revision petition, there is challenge to order dated 15.11.2011, passed by Delhi State Consumer Disputes Redressal Commission, (short, "State Commission") vide which appeal of the petitioner/complainant was dismissed. The grievance of petitioner is that his mobile No. 9818070874 has been debarred for outgoing calls since 21.8.2010. It is also alleged that the same was disconnected on 6.9.2010 for incoming calls by the respondent/opposite party. However, mobile phone services were restored on 14.10.2010 for four days. Again outgoing calls were restricted on 18.10.2010. Finally, it was permanently disconnected on 9.11.2010. It is further alleged that respondent has disconnected the mobile service without any valid reasons. Petitioner has made the payment of their each and every bill till date.

RESPONDENT after receipt of the notice, filed an application challenging the maintainability of the complaint itself, before the District Forum. District Forum, vide order dated 19.2.2011 held: Hence, Section 7B of the Indian. Telegraph Act, 1885 is applicable in the present case and the jurisdiction of Consumer District Forum is barred as per the decision of the Apex Court and, therefore, the complaint is not maintainable and is hereby dismissed for want of jurisdiction. However, the complainant may approach the concerned authorities for appointment of their Arbitrator to decide the dispute between the parties.

BEING aggrieved, petitioner filed an appeal before the State Commission which dismissed the same, vide its impugned order observing as under: In our view the order passed by the District Consumer Forum has to survive because the Hon''ble Supreme Court in case of General Manager, Telecom v. M. Krishnan and Anr., : AIR 2010 Supreme Court, has clearly held that the disputes relating to telephones and telegraph activities the Consumer Forum has no jurisdiction.

In view of the above, we dismissed this appeal, upheld the order passed by District Forum -VII, Local Shopping Centre, Phase - II, Sheikh Sarai, New Delhi -17. No order as to the cost.

HENCE , this revision petition. We have heard the learned Counsel for the parties and gone through the record.

LEARNED Counsel for the petitioner in its submissions has wholly relied upon the decision of J.K. Mittal v. Union of India & Ors., W.P. (C) 8285/2010 & CM No. 21319/2010 decided on 6.2.2012, by Delhi High Court. In this case, it was held by the High Court that mere existence of arbitration agreement would not bar the maintainability of the consumer claim.

ON the other hand, learned Counsel for the respondent has solely relied upon the decision of Hon''ble Apex Court, reported as General Manager, Telecom v. M. Krishnan and Anr., : VII (2009) SLT 160 : III (2009) CPJ 71 (SC) : (2009) 8 SCC 481. In M. Krishnan (supra), the Court held: 5. In our opinion, when there is a special remedy provided in Section 7B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred.

Section 7B of the Telegraph Act reads as under:

7B: Arbitration of Disputes - -(1) Except as otherwise expressly provided in this Act, if any telegraph line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specifically 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.

Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules.

It is well settled that the special law overrides the general law. Hence, in our opinion the High Court was not correct in its approach. In Thiruvalluvar Transport Corpn. v. Consumer Protection Council, it was held that the ''National Commission has no jurisdiction to adjudicate upon claims for compensation arising out of motor vehicles accidents''. We agree with the view taken in the aforesaid judgment.

THE judgment of Apex Court is binding on us and we respectfully follow the same. Even, otherwise, as per documents placed on record by the petitioner himself, he is a defaulter and arrears were due at the time when mobile connection was permanently disconnected. As per disputed bill placed (at page 158 of paper book) which is for the period 17.9.2010 to 16.10.2010, the amount due was Rs. 3,532.26 and previous balance of Rs. 3,309.23 has also shown. There is nothing on record to show as to when this previous balance due, was paid by the petitioner. Therefore, petitioner himself is a defaulter.

IT is well settled that under Section 21(b) of the Consumer Protection Act, 1986 (for short ''Act'') the scope of revisional jurisdiction is very limited. Under Section 21 of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. M/s. United India Insurance Co. Ltd., : II (2011) CPJ 19 (SC) : IV (2011) SLT 303 : 2011 (3) Scale 654, has observed; Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion, there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.

THUS , no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21(b) of Act Since, two Fora below have given detailed and reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction. Under these circumstances, we find that the consumer complaint filed by the petitioner before the District Forum was wholly misconceived and devoid of any merit and has no legal force. Hence, we dismiss the present revision petition with cost of Rs. 10,000 (Ten thousand only).

PETITIONER is directed to deposit the cost of Rs. 10,000, by way of demand draft in the name of ''Consumer Welfare Fund'' as per Rule 10A of Consumer Protection Rules, 1987, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization. List on 31.5.2013 for compliance.