I am giving below a a note from Mombai Grahak Panchayath.M.G.P
This is a food for thought for you.
Consumer Protection Act is in need of Protection
B.S.N.L.Calicut had, in August 2001 disconnected the telephone of one Mr. Krishnan due to non-payment of a bill of Rs. 17103/-.Mr. Krishnan pursued his grievance about the bill with B.S.N.L. but was unsuccessful. He filed a complaint before the District Forum (D.F.) Calicut.The latter by its order dt. 16-11-2001 directed B.S.N.L. to restore the connection and pay the complainant Rs. 5000/- towards compensation along with 12% interest.B.S.N.L. then moved the Kerala High Cour (H.C.) – A single Bench of the H.C. dismissed B.S.N.L.’s Plea and directed it to approach the Kerala state consumer Disputes Redressal Commission. (C.D.R.C.) Failing to be ‘educated’ by this rebuff, the B.S.N.L. appealed before a Division Bench of the Kerala H.C. The latter referred the appeal to a full Bench. The Bench dismissed the petitions on 14-02-2003. B.S.N.L.then moved the Hon. Supreme Court (S.C.) and challenged the judgement of the Kerala H.C. The S.C. Bench. comprising of Hon. justice Markandey Katju and Hon. Justice A. K. Ganguly allowed the appeal. They observed that there is a remedy prescribed US 7 B of the Indian Telegraph Act. of 1885 for resolution of all disputes regarding Telecommunication, through arbitration.
Since the Telegraph Act is a special law, its provisions would prevail over a general law likeConsumer Protection Act (C.P.A.) – “It is setteled law that general law must yield to special Law. The remedy under the C.P.A. is barred by implication” they held. This, in effect, will take away the jurisdication of the consumer Fora to entertain disputes relating to telecom services. With due respect to the judges, one cannothelp observing that the judgement shows lack of application of judicial mind. In the first place, thereis no reference whatsoerer to the relevant From the Consumer Courts Consumer Protection Act is in need of Protection A more serious implication is that if the logic of the judgement is to be stretched further, all
services including professional services for which special legislation is available, eg Airlines,Railways, Insurance,Banking, medicine, Law etc.will be out of the
jurisdiction of the C.P.A.This will defeat the whole purpose of creating a special
legislation for a single window system for speedy,simple and inexpensive redressal of consumer grievances.provisions/clauses of the C.P.A. whose jurisdiction it has set to define. The definition of service states “service of any descripttion which is made availableto potential (users and includes, but not limited to,the provision of )facilities in connection with banking…., but does not include the rendering of any service free of change or under a contract of personal service. Telephone service does notqualify for either of the exceptions to the definition of a service. No where is it indicated that services which are ruled by a special legislation will be exempted from C.P.A.On the other hand, clause 3 of C.P.A. clearly states that “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.” This should clear any doubts about the applicabitily of C.P.A. in case of services for which special legislation is in force.Surprisingly, the judgement completely ignores and infact,
contradicts two earlier judgements of the Hon. S.C. viz. i) Fair Air Engineers VS. N. K. Modi and ii) Secretary,Thirumrugan Co.op. Agriculchral Credit Society Vs. M. Lalitha. In both of these judgements, the Hon. S.C. has held that above mentioned sec.3 of the C.P.A. imparts jurisdiction to the consumer Fora even in those cases where special Acts are in force. To quote from the judgements. “The Act (C.P.A.) intends to relieve the consumers of the cumbersome arbitration proceedings or civil action. ……… The Act creates a framework for speedy disposal of comsumer
disputes and an attempt has been made to remove the existing evils of the ordinery court system… The Act being a beneficial legislation should receive a Liberal construction.” On the other hand, the Hon. judges have relied on an earlier Judgement of the S.C. Viz Chairman, Thiruvallurar Transport Corp. VS. Consumer Protection Council, which is far from relevant in the instant case. The judgement is not only controversial and illconceived but its implications are disastrous . The
immediate effect of the order will be that all complaints regarding telephone services pending before the Consumer Fora throughout the country will be dismissed. The complainants will have to file them afresh before the arbitrators appointed by the Govt. Telephone service providers on their part will not only keep compliance of the orders of the fora on hold, but also apply for a review of the cases already disposed off by the Fora.A more serious implication is that if the logic of the judgement is to be stretched further, all services including professional services for which special legislation is available, eg Airlines, Railways, Insurance, Banking, medicine, Law etc. will be out of the jurisdiction of the C.P.A. This will
defeat the whole purpose of creating a special legislation for a single window system for speedy,simple and inexpensive redressal of consumer grievances. This reminds me of the early 1990 s when various professional bodies and service providers tried their best to be exempted from the C.P.A. However, thanks to the efforts of the consumer organigations and judicious interpretation of the Act by the National commission and the Hon.supreme court. The jurisdiction of the C.P.A. has not only remained in tact but has actually expanded. Since the instant judgement may start a regressive trend by making inroads in the jurisdiction of the Comsumer Fora, consumer organisations in the country must take up this issue and make an unequivocal demand for a review of the judgement. M.G.P. also plans to approach the
Central Govt. (Dept.of Consumer Affairs and Dept.of Law and Judiciary) to take a lead in the matter of review of the judgement.
- Lalita Kulkarni
Ex-member Mumbai District Forum
Monday, November 2, 2009
From the above we can see there is wide spread reaction to the judgement in the country . Atleast one pointed out to me that there is an appeal but he did not say where and when made. case no is 720/2009