Revision Petition No.2254 of 2012.

3rd July 2019

Petitioner Counsel: Mr. VASU SHARMA Mr. SAURABH GARG
Respondent Counsel: Mr. LOKDEEP SHARMA
Act Name: Consumer Protection Act, 1986 Telegraph Act, 1885

Section :
Section 2 Consumer Protection Act, 1986 Section 3 Consumer Protection Act, 1986 Section 7B Telegraph Act, 1885

Cases Cited :
Paras 3, 5, 7, 12: General Manager, Telecom Vs. M. Krishanan & anr., 2009 ALL SCR 1873 : Civil Appeal No.7687/2004 (SC)
Paras 6, 12: D.P. Sharma Vs. Bharat Sanchar Nigam Ltd. & anr., Special Leave to Appeal (c) Nos.30531-30532/2015, Dt.4.9.2017 (SC)

JUDGEMENT

This revision petition has been filed by the petitioner Bharat Sanchar Nigam Limited & anr. against the order dated 20.3.2012 passed by the State Consumer Disputes Redressal Commission, Rajasthan, (in short ‘the State Commission’) in Appeal No.1687 of 2010 filed by the respondent/complainant against the order dated 29.06.2010 passed by the District Forum Consumer Protection, Jaipur, (in short ‘the District Forum’) in complaint No.1385 of 2008.

2. Brief facts of the case are that the respondent/complainant was having BSNL Broadband connection and it remained inoperative for 27 days as alleged by the complainant. The complainant filed a consumer complaint before the District Forum being complaint No.1385 of 2008 with following prayer:-
“1. That to compensate the mental agony, physical pain and economic loss, arising out of ceasing the Broad band internet connection by the respondents since 12.12.08 and also despite making complaint, not curing the same; a sum of Rs.4,00,000/- as compensation be got given to the complainant from the respondents.
2. That a sum of Rs.5,000/- towards cost of the complaint be got given to the complaint from the respondents.
3. That total amount of Rs.4,05,000/- (Rupees four lakh and five thousand only) be got given to the complainant from the respondents.”

3. The complaint was resisted by BSNL opposite party by filing the written statement. The District Forum, however, dismissed the complaint in the light of the judgment of the Hon’ble Supreme Court in Civil Appeal No.(S) 7687/2004 : [2009 ALL SCR 1873] General Manager, Telecom Vs. M. Krishanan and another.

4. Aggrieved by the order of the District Forum dated 29.6.2010, the complainant preferred appeal before the State Commission being Appeal No.1687/2010. The State Commission allowed the appeal and quashed the order of the District Forum on the ground that as provided under Section 3 of the Consumer Protection Act, 1986, the remedy under Consumer Protection Act, 1986 is an additional/alternate remedy. The operative portion of the order dated 20.3.2012 of the State Commission is as under:-
“After having considered entire facts and circumstances, the impugned order dated 29.6.2010 passed by the District Forum, Jaipur Ist cannot be sustained in the eyes of law and the same is hereby quashed and set aside. As already referred above the facts of the complaint are more or less have not been disputed so far. According, the appeal is allowed with a direction to the respondents to pay a sum of Rs.25,000/- to the appellant for mental agony and other expenses within thirty days. There will be no order to costs.”

5. Aggrieved by the order of the State Commission, the opposite party BSNL filed a revision petition being RP No.2254 of 2012. This Commission vide order dated 13.01.2014 allowed the revision petition No.2254 of 2012 and dismissed the complaint on the basis of the judgment of the Hon’ble Supreme Court in General Manager, Telecom Vs. M. Krishnan & anr. [2009 ALL SCR 1873] (supra) as under:-
“9. The judgment of Hon’ble Supreme Court is binding on us. We respectfully follow the same and consequently, we allow the present revision petition filed by the petitioner and dismiss the complaint filed by the respondent before the District Forum leaving it open to the respondent to get the law declared from the Hon’ble Supreme Court of India. 10. No order as to cost.”

6. Aggrieved with the above order of this Commission, the respondent/complainant filed Special Leave to Appeal (c) Nos (s). 30531-30532 of 2015, D.P. Sharma Vs. Bharat Sanchar Nigam Ltd. & anr., against this order before the Hon’ble Supreme Court and the Hon’ble Supreme Court vide its order dated 04.09.2017 allowed the SLP of the complainant as under:-
“Delay condoned.
In view of the decision rendered by the National Consumer Disputes Redressal Commission in Revision Petition No.1228 of 2013 decided on 2 nd May, 2014, we are of the view that the petition filed by the petitioner is maintainable.
Under the circumstances, we set aside the impugned judgment and order dated 13 th January, 2014 and remand the matter to the National Consumer Disputes Redressal Commission for consideration on merits.
The special leave petition is disposed of.
Pending application, if any, is disposed of.
The parties may appear before the National Commission on 10 th October, 2017.”

7. This Commission has been directed to decide the revision petition on merits. The Hon’ble Supreme Court has already held that the complaint filed by the respondent is maintainable. It means that the objection taken by this Commission on the basis of the judgment of the Hon’ble Supreme Court in General Manager, Telecom Vs. M. Krishnan & anr. [2009 ALL SCR 1873] (supra) has not been accepted by the Hon’ble Supreme Court and therefore, this issue is not being considered again.

8. On merits, both the parties were heard and the record was examined. The learned counsel for the revisionist BSNL stated that the State Commission failed to appreciate that there was a disclaimer that in the event of any such contingency, where a technical default may occur, it is submitted that the petitioners derive their power by virtue of the subscription agreement signed between the subscriber and the service provider. In any event the fault cannot be imputed to the service provider if there was improper usage by the subscriber.

9. Learned counsel for the petitioner further stated that the State Commission failed to appreciate that the fault was due to application of improper code by the complainant which was in no way a default on the part of the petitioner. The same is evidenced by the fact that there has been no reported technical snag after the corrective measures were taken by the petitioners to ‘repair’ and ‘restore’ the broadband services to the subscriber.

10. On the other hand legal representative of the deceased respondent D.P.Sharma argued that the main issue on which the earlier order dated 13.01.2014 was passed by this Commission allowing the revision petition of the petitioner and dismissing the complaint, related to applicability of Section 7B of the Indian Telegraph Act 1885 to the opposite party BSNL. The complainant filed a SLP against the order and the Hon’ble Supreme Court has found the complaint as maintainable in the light of the decision of this Commission in RP No.1228 of 2013 wherein this Commission has held that Section 7B of Indian Telegraph Act, 1885 is not applicable to BSNL as under:-
“We may also note that the main point on which notice in this revision petition was issued was with regard to the maintainability of the complaint, in view of the judgment of the Hon’ble Supreme Court in General Manager, Telecom V. M. Krishnan & Anr. [(2009) 8 SCC 481]. However, subsequently, vide a letter dated 24.01.2014, the Government of India, Ministry of Communication & IT, while responding to the communication received from the Secretary, Department of Consumer Affairs, Government of West Bengal on 07.10.2013, in relation to the Hon’ble Supreme Court’s judgment in M. Krishnan (supra), has clarified that the said decision involved a dispute between the Department of Telecommunications (DoT), which was a “Telegraph Authority” under the Indian Telegraph Act, as a service provider prior to the hiving off of telecom services into a separate company, viz., Bharat Sanchar Nigam Limited (BSNL). However, as the powers of a “Telegraph Authority” are now not vested in the private telecom service providers, as is the case here, and also in the BSNL, Section 7B of the said Act will have no application and, therefore, the Forums constituted under the Consumer Protection Act, 1986 are competent to entertain the disputes between individual telecom consumers and telecom service providers.”

11. Thus, on the basis of the order of the Hon’ble Supreme Court, the consumer forum is fully entitled to take up the complaints in respect of deficiencies in service on the part of the BSNL. The legal representative of the deceased respondent further stated that service of broadband connection was not available to the complainant for 27 days and due to this lapse on the part of the BSNL, the complainant had suffered losses as mentioned in the complaint. The State Commission has gone into all the aspects and has considered remedy under Consumer Protection Act, 1986 to be an alternate remedy. The main contention of the opposite party BSNL in respect of Section 7 B of the Indian Telegraph Act, 1885 has now been belied by the above referred order of the Hon’ble Supreme Court and therefore, the petitioner cannot have any other objections to the order passed by the State Commission.

12. I have given a thoughtful consideration to the arguments advanced by the leaned counsel for the petitioner as well as legal representative of the deceased respondent. The main objection of the petitioner BSNL has been in respect of Section 7 B of the Indian Telegraph Act, 1885 that consumer fora are not authorised to hear the complaint in respect of telecom service disputes with telecom service providers. Hon’ble Supreme Court by its order in Special Leave to Appeal (C) Nos (s).30531-30532 of 2015, D.P. Sharma Vs. Bharat Sanchar Nigam Ltd. & anr., has agreed with the decision of this Commission in RP No.1228 of 2013 (supra), wherein this Commission has held that the private telecom service providers are not the telecom authority as mentioned in Section 7 B of the Indian Telegraph Act, 1885. On the basis of upholding of the order of this Commission passed in RP No.1228 of 2013 (supra) by the Hon’ble Supreme Court , it can be implied that earlier order of the Hon’ble Supreme Court in General Manager, Telecom Vs. M. Krishanan and another [2009 ALL SCR 1873] (supra) is now not applicable in such cases. Apart from this, no other legal ground has been raised during the arguments by the learned counsel for the petitioner.

13. Coming to the merits, the broadband services were not operative for 27 days and inspite of complaints having been lodged by the complainant, the defect was not removed by the opposite parties. In reply, the opposite parties have stated that the defect was only in respect of the code as the complainant was not applying the correct code. If this was such a simple problem, the mechanic or the engineer of the opposite parties should have rectified this in a day or two.

14. The opposite parties have also claimed no liability on account of disclaimer under which it has been stated that for any defects or any problem in the service, the opposite parties would not be liable. Section 3 of the Consumer Protection Act, 1986 provides alternative remedy for a consumer dispute. In the Consumer Protection Act, section 2(1)(g) defines the deficiency as follows:-
“(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 service;”

15. When this definition of deficiency of service is applicable in a system of alternate remedy, there seems to be no scope for such a disclaimer and the same cannot help the opposite parties. This is so because the opposite parties are always in a dominant position as a contracting party and the consumer has to accept the terms and conditions provided by the service provider.

16. Clearly the complainant was not able to use the broadband services of the opposite parties for 27 days, therefore, he must have faced lot of inconvenience and sufferings. As the BSNL is a service provider and it has failed to provide broadband services for 27 days to the complainant, complainant is definitely entitled to compensation in this regard as BSNL is guilty of deficiency in service as defined under Section 2 (1) (g) of the Consumer Protection Act, 1986. In this light, I am of the view that the State Commission has rightly compensated the complainant by awarding Rs.25,000/- as compensation to be given to the complainant.

17. Based on the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 20.03.2012 of the State Commission which calls for any interference from this Commission. Consequently, the revision petition No.2254 of 2012 is dismissed.

Petition dismissed.