Mobile phone users can approach consumer forum for deficiency in service: SC

The bench noted that where Section 7B of the Indian Telegraph Act applies, a statutory remedy of arbitration is provided

The Supreme Court has held that an individual facing any deficiency in telecom services can approach consumer forums directly with his complaint against the company.

The fact that the remedy of arbitration under the Indian Telegraph Act of 1885 is of a statutory nature would not oust the jurisdiction of the consumer forum in such matters, a bench of Justices DY Chandrachud, Surya Kant and Vikram Nath said.

"It would be open to a consumer to opt for the remedy of arbitration, but there is no compulsion in law to do so and it would be open to a consumer to seek recourse to the remedies which are provided under the (Consumer Protection) Act of 1986, now replaced by the Act of 2019,” the bench said.

The top court passed the verdict on an appeal of Vodafone by which the company had challenged an order of National Consumer Disputes Redressal Commission (NCDRC) by which it had affirmed the view of SCDRC that Section 7B of the Act of 1885 would not be applicable to a private service provider since it is not a ‘Telegraph Authority”.

In its recent order, the court said that the insertion of the expression ‘telecom services’ in the definition which is contained in Section 2(42) of the Consumer Protection Act of 2019 cannot be construed to mean that telecom services were excluded from the jurisdiction of the consumer forum under the earlier Act of 1986.

“On the contrary, the definition of the expression ‘service’ in Section 2(o) of the Consumer Protection Act of 1986 was wide enough to comprehend services of every description including telecom services”, the bench said.

Referring to a verdict from last year relating to home buyers, the bench said that the court had invoked the doctrine of election, which provides that when two remedies are available for the same relief, the party at whose disposal such remedies are available, can make the choice to elect either of the remedies as long as the ambit and scope of the two remedies are not essentially different.

The bench noted that where Section 7B of the Indian Telegraph Act of 1885 applies, a statutory remedy of arbitration is provided.

“The fact that the remedy of arbitration under the Act 1885 is of a statutory nature, would not oust the jurisdiction of the consumer forum.

"The (Consumer Protection) Act of 1986 and its successor, the (Consumer protection) Act of 2019 are subsequent enactments which have been enacted by Parliament to protect the interest of consumers. Hence, an ouster of jurisdiction cannot be lightly assumed unless express words are used or such a consequence followed by necessary implication”, the bench said.

The bench refused to accept the submission of Vodafone Idea cellular Ltd that the specific incorporation of “telegraph services” in the Act of 2019 is an indicator that it was only as a result of the new legislation that telecom services were brought within the jurisdiction of the consumer fora.

It said, “This submission cannot be accepted for the simple reason that the specification of services in Section 2(s) of the earlier Act of 1986 was illustrative. This is apparent from the use of the expression ‘includes but not limited to".

The top court further said that the specification of services in Section 2(s) of the erstwhile Consumer Protection Act was therefore not intended to be an exhaustive enumeration of the services which are comprehended within the definition.

“On the contrary, by adopting language which provides that the expression ‘service’ would mean service of any description which is made available to potential users, Parliament indicated in unambiguous terms that all services would fall within the ambit of the definition.

"The only exception was in the case of (i) services rendered free of charge; and (ii) services under a contract of personal service”, it said.

The bench said that the Consumer Protection Act of 1986 was a milestone in legislative efforts designed to protect the welfare and interest of consumers.

It noted that under Section 7B of the Indian Telegraph Act, any dispute concerning a telegraph line, appliance or apparatus, between the telegraph authority and the person for whose benefit the line, appliance or apparatus is or has been provided has to be determined by arbitration.

“Such a dispute has to be referred to an arbitrator appointed by the Central Government either especially for the determination of that dispute or generally for the determination of the disputes under the Section”, it said.

One Ajay Kumar Agarwal had, on May 25, 2014, instituted a consumer complaint before the District Consumer Disputes Redressal Forum, Ahmedabad alleging a deficiency in service on the part of the Vodafone.

The complaint stated that Agarwal had a post-paid mobile connection and was paying an amount of Rs 249 as the monthly basic rent and Vodafone was providing mobile telecom services to him on the basis of which it was asserted that there exists a relationship of consumer and service provider.

Agrawal had subscribed to an ‘auto pay’ system through a credit card issued by his bankers in terms of which, Vodafone would receive the payment before the due date to facilitate the timely payment of bills.

He alleged that the average monthly bill was in the vicinity of Rs 555 but for the period between November 8, 2013 and December 7, 2013, the respondent was billed for Rs 24,609.51.

Agrawal alleged over-charging by Vodafone and moved district consumer forum seeking compensation to the amount of Rs 22,000 together with interest, besides consequential reliefs.

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