INDIAN TELEGRAPH ACT 1885 & CONSUMER PROTECTION ACT: A NEW DIMENSION

It was as back as in 1992 when National Commission in a case before it for adjudication was to decide on the issue as to whether existence of a remedy by way of arbitration in the Indian Telegraph Act preclude an aggrieved consumer to seek remedy under the Consumer Protection Act.While deciding this matter between  the Telecom Distt.Manager ,Patna and  Bihar State ware housing corporation 1(1991)CPJ 379, National commission held that consumer can seek remedy under the Consumer Protection Act.

Again on another occasion in the case of District Manager ,Telephones,Patna V Dr Tarun Barthvar 1(1992)CPJ 47, the question before the commission was as to whether the consumer forum  has the  jurisdiction to decide a dispute involving meter reading or excess billing which are covered under section 7 B of the Indian Telegraph Act 1885, the commission held -yes

Further in a case of Mahanagar Telephone Nigam Ltd V  Ghevar Chand Seasmal Sonigara,1992(!!)CPR 427;(1992)CPJ ,476 the question was more specific as to whether it was not mandatory for the complainant to invoke the arbitration clause under the Telegraph Act National Commission held –no.

The similar issue was raised in case of Union of India  V  Dr B S Sidhu 1992,1992(1)CPR, 537;1 (1992)CPJ,208 ,in a case of Govt of India ,Secretary,department of Telecom V Satya Narayan Lal,(111)(1993)CPJ, 335,and also in case of Union of India through Rajkot Telephone V Dhanji Bai( 1994)11,CPR, 664;111(1994)CPJ,62, National Commission in all the above cases held that consumer court has the jurisdiction to deal all such cases inspite of arbitration clause in the telegraph act .

In yet another case of Divisional  Engg. Telecom Moradabad V Virender Kumar (1997)11,CPJ ,60 ,National Commission confirmed the jurisdiction of consumer fora.

Supreme court also  held in number of cases while deciding the various  issues under consumer protection act since the inception of the act that section three of the consumer protection act gives additional remedy to the consumer apart from the other provisions available to him ,.It is how till the latest judgement pronounced by the Honorable  Supreme Court on 1.9.2009, Consumer foras had been dealing with all telecom matters filed by consumers.

Supreme in civil appeal no 7687 of 2004 in the case of GM Telecom V M Krishanan barred the jurisdiction of consumer foras and held that  such disputes will be decided by arbitrator under section 7B of Indian Telegraph Act .The award so made shall be final and not open to challenge before any court /forum The arbitrator shall be appointed by the Central Govt either specifically for determination of referred dispute or generally for the determination of disputes under this section.Apex court has further remarked that it is a well settled law that special law overrides the general law,hence high court was not correct in its approach .

The very question is about the interpretation of this specific line in the order –does the Apex court mean or  considers the Consumer Protection Act as general law against the specific law of telecom. In the present case court is clearly talking about Telecom law and CP Act,hence intention of the Apex court is very clear on the subject. 

The result of this judgement  is very obevious and number of objections are being filed before the consumer forums day in and day out not only by  Govt bodies who are authorized to appoint arbitrator under the Indian Telegraph Act ,but also by all private licencees in the tele area like Reliance ,Vodaphone ,Airtel ,Tata telecommunication and many more.The question here is as to whether Central Govt has appointed or shall appoint arbitrator for these private licencees also under sec 7 B of the act for redressal of the disputes between the private licencees and consumers .If so, how prompt and effective it will be.Will the Central Govt take such responsibility for the work already assigned to the private licencees under certain terms and conditions by notification .And in case not,are these private licencees supposed to develop  their own in house system for redressal of the grievances through arbitrator .These private licencees have already opened their customer care centers ,consumers do not seem to be satisfied which is observed from the number of cases pouring into consumer foras .It is almost like medical councils for medical profession ,insurance regulatory bodies for insurance disputes,railway tribunals for railway claims ,banking ombudsmen for banking disputes ,electricity forums set up by DERC,Registrar for society disputes & chit fund disputes and a DRT for money related matters.

Things are soon taking U turn towards  a decade back .Advocates are coming before the forums with a plea matching with the tone to the above referred judgement that there is a clause /section 93 in the co-operative societies act which bar any court to deal with the matters relating to society activities and it is the registrar who can  decide such matters It is pertinent to mention that this issue was raised in the case of United Vaishya CO-Operative thrift &credit  society Ltd.V Kalavati ,RP No 823 of 2001 decided in 26^th September 2001,and  settled by Supreme court holding that by the section 93 of the act, civil court or other tribunals are barred but not the consumer forums ,consumers have additional remedy available to them for deficiency in services

For fix deposits matters also, respondants are taking similar plea showing the way to DRT for recovery of money which is in fact totally mismatching thing to co-relate it with the recent  judgement by Supreme court .It was as back as in 1993 (26.08.1993)when National Commission held inRP No. 409 of 1992 in the matter of  Neela Vasantraje v Amogh industries case that by accepting fixed deposits from the public at large ,financial institutes are rendering services .

Through number of judgements ,provisions of CP Act and time to time amendments ,it is established by now that consumer protection act had been brought into force  specificaly for consumrs to stand against giant business groups /manufacturers for deficiency in services and defective goods .It was elaborated at large in a specific case of Vishwabharti House Building co-operative society V Karnataka State Civil Appeal No 11431 of 1996(28.02.2000) wherein the legal validity of the act it self was challenged

Coming back to the issue of private licencees ,it is relevant to read between the lines of the specific notification by which private licencees have been given licence to operate their tele system .Ministry of Communication, Department of telecommunications, licensing group ,Basic service cell issued notification on 24^th may 1999 .Through this notification ,exercising the provisions of sec 19-B of part 111 of the Indian telegraph act 1885,the Central Govt conferred the power upon the duly authorized licencee /private basic telephone services operators to provide services to any persons, public corporations, autonomous bodies ,State Govt or Central Govt.

And it is how these private companies came into the field of telecommunication.In this notification it self ,it is said at clause 1(b) that these licensee(s)are to always comply with the provisions of the act or any other law for the time being in force –meaning thereby that these private licensee are to adhere with section 7-B of the Indian telegraph act as well as Consumer Protection Act and TRAI because apart from telegraph act these two acts are also redressing the grievance of consumers .By this notification Consumer protection act was not barred whereas we now very well understand apex court has barrd it in clear terms.

Will the Govt. now make necessary amendments in the Notification  suitably in terms of Supreme Court order.Further TRAI settles the disputes between service providers and group of consumers ,individual consumers are not entertained under TRAI Act 1997. This provision was not made because such disputes were being tried by consumer forums authoritatively by the time this act was brought into force With the change of scenario consumers are left with no remedy but the arbitration provision which is final for them, not open for challenge before any court of law.Not only that ,it is quiet possible that no arbitrator is appointed on the request of aggrieved consumers  Even the provisions under the Arbitration and Conciliation act 1996 for appointment of Arbitrator through civil court shall be of no avail to the consumers as such exercise it self is a full fledge case in it self .Now under the prevailing circumstances ,group of consumers can try their luck before TRAI by filing against their service providers for direction to them to develop proper mechanism of arbitration for adjudicating their disputes  referring to the    the  judgement barring consumer courts to entertain their grievances  . This is the only way out left with the consumers to open more channels  for them 

 

 

                                                                                                   Dr Prem lata
                                                                                          Member consumer forum-West Delhi

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