Most consumer fora have been dismissing telecom complaints since September 1, 2009, by mechanically referring to the SC ruling in general manager, telecom v/s M Krishnan that says disputes must be resolved through arbitration under the Indian Telegraph Act. This is not correct.
Case Study: The Meghalaya state commission, while considering this issue, observed that the ratio of a decision must be understood in the background of the facts of that case. So it would not be proper to blindly place reliance on a decision without considering the differences between the cases.
Section 7B of the Telegraph Act provides that a dispute relating to telegraph line, appliance or apparatus, between the consumer and the Telegraph Authority (viz the director general of posts and telegraphs or any officer empowered by him/her), must be resolved through arbitration. In 1985, the ministry bifurcated, so the director, posts & telegraphs, ceased being concerned with telecommunications. So it may be assumed that "Telegraph Authority" would be the head of the department of telecommunications (DoT). But a licensee or a service provider would not be telegraph authority.
In Krishnan's case, the SC was dealing with a dispute between a consumer and the general manager, telecom, who is a "telegraph authority", being DoT officer. So it held that the dispute will not be maintainable under Consumer Protection Act (CPA) and the remedy was through arbitration under the Telegraph Act.
The commission observed that times had changed, with the telecom sector undergoing a metamorphosis. Services are no longer provided directly by the DoT, but by licensed public or private sector companies. Even though BSNL claimed that in the changed environment it had stepped into the shoes of the director general of posts and telegraphs and would be deemed to be a telegraph authority, it failed to substantiate its claim with documentary evidence. The commission concluded that BSNL or its officers are not "telegraph authority". The commission observed that definitions of licensee, licensor and service provider under the TRAI Act of 1997 also made it clear that BSNL is merely a service provider and not a telegraph authority.
The commission noted that after Krishan's case, the association of telecom service providers had sought a clarification from DoT. In its reply dated October 19, 2009, DoT clarified that private and public service providers are not telegraph authority, and they cannot appoint an arbitrator (which power vests only in the central government).
The commission also differentiated between mobile and landline phones. The arbitration under the Telegraph Act is in respect of any telegraph line, appliance or apparatus, but these are not provided to a cellphone consumer. Hence, it concluded that cellphone disputes would be outside the purview of arbitration. It also noted there were several rulings, even by larger SC benches, where the trend has been to broadly interpret the CPA. So unless there is a specific bar by law, consumer fora provide an additional remedy for redressal of grievances. Even an arbitration clause would not oust their jurisdiction. The commission concluded the SC judgment in the Krishan case did not correctly lay down the law as it was not in consonance with the decision rendered by larger three-judge benches.
The commission also pointed out that Section 14 of the TRAI Act of 1997 specifically vested the consumer fora with jurisdiction to adjudicate the complaint of any individual consumer against his service provider, which had been overlooked.
In a ruling on February 25, 2014, by Ramesh Bawri, for the bench with Justice P K Musahary, the Meghalaya state commission held that telecom disputes could be adjudicated by consumer fora.
Impact: This clear thinking and consume-oriented judgment will help telecom consumers.
Article referred: http://timesofindia.indiatimes.com/city/mumbai/SC-ruling-cannot-bar-consumer-for-from-deciding-on-telecom-disputes/articleshow/31755527.cms
Case Study: The Meghalaya state commission, while considering this issue, observed that the ratio of a decision must be understood in the background of the facts of that case. So it would not be proper to blindly place reliance on a decision without considering the differences between the cases.
Section 7B of the Telegraph Act provides that a dispute relating to telegraph line, appliance or apparatus, between the consumer and the Telegraph Authority (viz the director general of posts and telegraphs or any officer empowered by him/her), must be resolved through arbitration. In 1985, the ministry bifurcated, so the director, posts & telegraphs, ceased being concerned with telecommunications. So it may be assumed that "Telegraph Authority" would be the head of the department of telecommunications (DoT). But a licensee or a service provider would not be telegraph authority.
In Krishnan's case, the SC was dealing with a dispute between a consumer and the general manager, telecom, who is a "telegraph authority", being DoT officer. So it held that the dispute will not be maintainable under Consumer Protection Act (CPA) and the remedy was through arbitration under the Telegraph Act.
The commission observed that times had changed, with the telecom sector undergoing a metamorphosis. Services are no longer provided directly by the DoT, but by licensed public or private sector companies. Even though BSNL claimed that in the changed environment it had stepped into the shoes of the director general of posts and telegraphs and would be deemed to be a telegraph authority, it failed to substantiate its claim with documentary evidence. The commission concluded that BSNL or its officers are not "telegraph authority". The commission observed that definitions of licensee, licensor and service provider under the TRAI Act of 1997 also made it clear that BSNL is merely a service provider and not a telegraph authority.
The commission noted that after Krishan's case, the association of telecom service providers had sought a clarification from DoT. In its reply dated October 19, 2009, DoT clarified that private and public service providers are not telegraph authority, and they cannot appoint an arbitrator (which power vests only in the central government).
The commission also differentiated between mobile and landline phones. The arbitration under the Telegraph Act is in respect of any telegraph line, appliance or apparatus, but these are not provided to a cellphone consumer. Hence, it concluded that cellphone disputes would be outside the purview of arbitration. It also noted there were several rulings, even by larger SC benches, where the trend has been to broadly interpret the CPA. So unless there is a specific bar by law, consumer fora provide an additional remedy for redressal of grievances. Even an arbitration clause would not oust their jurisdiction. The commission concluded the SC judgment in the Krishan case did not correctly lay down the law as it was not in consonance with the decision rendered by larger three-judge benches.
The commission also pointed out that Section 14 of the TRAI Act of 1997 specifically vested the consumer fora with jurisdiction to adjudicate the complaint of any individual consumer against his service provider, which had been overlooked.
In a ruling on February 25, 2014, by Ramesh Bawri, for the bench with Justice P K Musahary, the Meghalaya state commission held that telecom disputes could be adjudicated by consumer fora.
Impact: This clear thinking and consume-oriented judgment will help telecom consumers.
Article referred: http://timesofindia.indiatimes.com/city/mumbai/SC-ruling-cannot-bar-consumer-for-from-deciding-on-telecom-disputes/articleshow/31755527.cms
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