Consumer Court Vs Indian Telegraph Act, 1885:

Section 2 ' any Court' does it include supreme court also?

1. remedy before cosumer forum is in addition to other remedies. the cosumer Act has supereding effect over telegraph Act.

2.  power of judicial review by high courts and supreme court can not be taken away by an satute. there fore, a finality clause in a statute is applicable to ordinary courts and not high court and supreme court.   it can not curtail the scope of judicial review otherwise it shall be in contradiction with fundamental rights. thus it can be said that in the context the term "court" does not include supreme court.

For appeal or Revision I do agree that there can not  be exclusion clause. But what about the determination of the originl case filed in contravention of section 7-B of the Telegraph Act of 1885? Can any court including the Consumer Court proceeds with the case by ignoring the mandates of section 7-B of the Act of 1885?

Telecom Service And The Consumer Protection Act
Before the enactment of the Consumer Protection Act, 1986, the subscriber could do no better than approach the High court for redressal of his grievances. The lower courts, would not further than order the department to order an arbitrator. Section 7B of The Indian Telegraph Act, 1885, provides for compulsory arbitration and bars their jurisdiction. It also lays down that the arbitrator shall be appointed by the central government which, in practice, means the Telecom Government. The arbitrator appointed by the department is usually, if not invariably, their own officer. This does not inspire confidence in the subscriber, an appeal from ceaser to ceaser, he is apt to feel. It is for this reason that the aggrieved subscriber preferred to move the High court in their writ jurisdiction for redress. Moreover, the High Courts could also provide interim relief that is beyond the jurisdiction of either the arbitrator or the civil courts. But now the Consumer Protection Act , 1986, which was enacted for the avowed purpose of providing cheaper and expeditious remedy to the consumers and for better protection of their interests, and has come handy to the consumers.

Excess Billing As A "Deficiency" In "Service"
The complaint under the Consumer Protection Act, 1986 can be made in respect of only those services that suffer from any deficiency. The term Deficiency has been defined in section 2(1)(g) of the Act. Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of the 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 service. The deficiency may be in quality , nature or manner of performance-

1) Which is required to be maintained by or under any law for the time being in force.
2) Which has bee undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

Thus , the deficiency in service may occur due to the violation of any standards as to quality , nature and manner of performance laid down in any of the existing laws. Negligence in rendering the services may also within the ambit of the act.

The court included telecom services under the ambit of service in the case of Union of India v. Nilesh Aggarwal the definition of service expressly states that it will take in service of any description which is made available to potential users other than service provided free of charge or under the contract of personal service. The non-mention of telephone facility in the inclusive portion of the definition is fno consequence in view of the very wide language written in the main part of the definition that takes in every form of the service. Admittedly, the telephone facility is not provided free of charge and hence the last portion of the definition which excludes service rendered free of charge does not get attracted nor are we concerned in this case with a contract of personal service.

Thus , Telecom also comes under the ambit of service as defined under the Consumer Protection Act,1986. And thus , if there is a deficiency in this service , a person can go to the Consumer forum for relief under the Law.

Excess Billing - Causes
The division Bench of Gauhati High Court has examined , in great detail , the problem of excess billing , its causes and the remedy available to a subscriber who becomes a victim of inflated billing. They identified the cause of the excess billing as follows:
a) The subscriber having used STD and not being conscious of the extent to which he used it.
b) A fault in the meter circuit , or some transient fault in the system
c) Possible deliberate mischief by other subscribers in league with the staff of the telecom department.

Study Of Evolution Of Law Through Different Case Laws
In Union of India v. Nilesh Aggarwal, a complaint was made averring that here were excess charges in the telephone bill. The Rajasthan State commission held that the complainant who is a subscriber is a consumer and the telephone service provided by the telecom department is a service for which he pays rent and over billing of telephone is deficiency in service within the meaning of the act.

The telecommunication department has issued the guidelines for disposal of complaints about excessive telephone bills. The guidelines lay emphasis on advance action in case of possibility of an excess billing complaint. The action to be taken includes -
a) meter reading being taken every fortnight
b) identifying all subscribers whose current fortnightly readings show a sudden spurt
c) and in case of such spurts being noticed , placing the telephone line on observation and deputing responsible staff to the subscriber's premises to check up that there has been no special occasion which might have given rise to such spurts.

The above guidelines are meant to gain the confidence of the subscribers. The National Commission has also held that these instructions are mandatory.

In Director of Agriculture v. General Manager Telephones the complainant received the monthly bill that was extremely more than the previous bills. The bill was excessive and unexplained. It was held to be deficiency in service.

In P.K Goel v. The General Manager, Telephone, District Jaipur Rajasthan State Commission , bills showed STD calls where as the complainant had got the facility disconnected. It was held to e deficiency in service and was given compensation. Same was held in. Bhoj Raj Dalmia v. General Manager, Calcutta Telephones.

In Divisional Manager, Calcutta Telephones v. Jasoda Devi Lakhotia , a complaint was filed against excess telephone bills. Telephone was disconnected without notice during pendency of complaint, it was held by the court to be illegal.

In Sardar Rawal Singh Bhatia v. Patna Telephones, it was held that the metering equipment remains under the possession of the department and not under the subscriber. In cases of dispute about the correctness of the equipment , he department should provide evidence that the metering equipment was not defective.

In District Telephone Engineer v, Sewa Ram , the complainant received an excessive phone bill that was ten times the earlier bills. No investigation was done by the opposite party in to the complaint. The state commission observed that when a consumer makes a complaint regarding excessive telephone billing, the telephone department has to investigate the complaint. That was not done in this case. Thus , there was deficiency in service.

Regarding the complaints , it was held in Mahanagar Telephone Nigam Ltd. V. West coast Industries and another , that merely sending a stereo type cyclostyled reply that necessary investigations have been completed and the associated equipment has been checked and found to be functioning normally there cannot be said to be a proper redressal of such complaints.

In General Manager Telecommunication v. G. Padmaja Rani, it was held that the meter reading registers must provide for the difference being noted. Somebody should be held personally responsible to identify and report all cases of spurt personally. Failure in this regard must be taken care of. If an excess billing complaint reveals a spurt , which had not been reported , suitable educational and disciplinary notice should be taken of the concerned staff.

In General Manager Calcutta Telephones v. Dr. Timir Baran Bhattacharjee, it was held that once the complaint has been received a 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 the exchanges concerned

a) the record of fortnightly reading in respect of preceding bi-monthly periods and for all the available succeeding bi-monthly periods
b) Any extract of fault card for the disputed period
c) And spurt report, action taken on the same and the result thereof. This will include observations in the exchange and any field investigations if carried out.

 

Dear Perumalji,

                                   That was excellent:: In the case of M/S Jutex a small Scale Industry Vs Telecom Divisional Manager,Panaji, the Bombay High Court ( Panaji Goa Bench) 1992 (2) CLJ 170, The Hon'ble High Court directed the petitioners to file an application to the department for arbitration within 48 hours: Yes, I do agree that section 7-B is like an appeal from Ceaser's wife to Ceaser but as long as the provisions remain in the statue book, we can not undermine the mandates of the statue, and we have to follow the same. Thus I am of the opinion that complaint can not be entertain except to refer the disputes to the arbitrators.

There are more to be discussed: In many Acts of the parliament, central Government appoints the arbitrators, special Court etc, does it also amount to appeal from Ceaser's wife to Ceaser?

in that case (before bombay high court)maintainability of application before forum would not have been in issue and writ petition would have been dissmissed on the ground of alternative remedy. I think it is not a precedent on the piont under discussion.

Lodge your complaint with these website may be your problem will be solved:

www.core.nic.in

www.consumercourt.in

 

Thanks

I think the answer to this question lies in Sec. 3 CPA which states that CPA is in addition to & not in derogation to any other law. So, I think sec.7B Tel. Act being a special statute, will prevail.

Dear Friends ! On this point now there is a decision of Supreme Court .   In    CIVIL APPEAL     NO. 7687        OF 2004 General Manager, Telecom   v.  M. Krishnan & Anr.   Decided on 1^st Sept, 2009,  the supreme court while setting aside a Full Bench   decision of Kerala  High Court , has  held jurisdiction of the consumer forum is barred by implication where remedy is provided under a special statute.

Consumer Courts can adjudicate telecom disputes.

in a consumer complaint filed before the Hon’ble District Forum, Ferozepur, Punjab, decided on 11-9-2009, the Forum  held that a subscriber of telephone/mobile phone connection has a right to approach the Consumer Fora established under the Consumer Protection Act for the redressal of their grievances as the Consumer Protection Act is a special legislation enacted for the protection of consumer rights, in spite of the fact that the counsel for BSNL contested the case on the ground that the Consumer Forum has no jurisdiction to entertain a dispute relating to telecommunications services in view of the recent Judgement  of the Supreme Court in  General Manager, Telecom Versus M. Krishnan and others .https://www.advantageconsumer.com/legal6.html

Indian Telegraph Act 1885 provides remedy for disputes by the way of arbitration. Consumer Protection Act provides remedy for disputes by the way of adjudication. Hence the consumer forum cannot be barred by implication where remedy is provided under a special statute because remedy under Indian Telegraph Act 1885 is by arbitration and not by adjudication. Hence CIVIL APPEAL NO. 7687 OF 2004 General Manager, Telecom v. M. Krishnan & Anr. Decided on 1st Sept, 2009, by Supreme Court would not apply.

dear friends,

pls find that after formation of corporations instead of going for a new act why 7B of the Telegraph act will be effective, and who shall appoint the arbitrtor and when no clear law about all such questions.

the court estblishes that a special law over rides the general law, so the cp act is not applicable but the telegraph act.

 the act of 1885 is required to be changed after formation of corporations, for the benefit of people at lage.