You can take telecom companies to consumer forum

In Vodafone Idea Cellular Ltd. vs Ajay Kumar Agarwal, appeal was filed before the Supreme Court against judgment of the NCDRC confirming the jurisdiction of Consumer Disputes Redressal Forums to hear consumer complaints against Telecom companies.

Background 

The Respondent had filed complaint before the District Forum against a bill raised by the Appellant. The appellant raised an objection to the maintainability of the complaint based on a judgment of a two-Judge Bench of this Court in General Manager, Telecom v. M Krishnan and Another and in view of the Section 7B of the Indian Telegraphic Act 1885. However, the District, State as well as the National Forum where the Appellant had taken the matter opined that the said Section 7B would not apply to the Appellants being Private Parties and therefore the matter is squarely within the jurisdiction of the Consumer Forums. The State Forum had also referred to judgment in Bharthi Hexacom Ltd. v. Komal Prakash. Finally the Appellant reached Supreme Court.

Judgment 

The Supreme Court while not specifically addressing the issue of applicability of Section 7B to Private Telecomm Companies, looked into the larger question of whether the existence of a remedy under Section 7B of the Act of 1885 ousts the jurisdiction of the consumer forum under the Consumer Protection Act 1986 (as it then was).

The Court observed that Section 2g of the Consumer Protection Act defines the 'Service' and that the definition of the expression ‘service’ is couched in wide terms. Parliament has used the expression “service of any description which is made available to potential users”. The definition employs the ‘means and includes formula’. The means part of the definition incorporates service of “any” description. The inclusive part incorporates services by way of illustration, such as facilities in connection with banking, finance, insurance, transport, processing, supply of electrical and other energy, board or lodging and housing construction. The inclusive part is prefaced by the clarification that the services which are specified are not exhaustive. This is apparent from the expression “but not limited to”. The initial part of the definition however makes it abundantly clear that the expression ‘service’ is defined to mean service of any description. In other words, a service of every description would fall within the ambit of the statutory provision.

The Court said that while the Act of 1885 can be construed to be a special enactment for regulating telegraphs, the Act of 1986 is a special (and later) enactment intended to protect the interest and welfare of consumers. Though the present case relates to the period before the enactment of the Consumer Protection Act 2019, an important aspect of the matter is that the definition of the expression ‘service’ in Section 2(42) of the later Act specifically incorporates telecom services

Disagreeing with the judgment in M Krishnan (supra), the Supreme Court held that the Consumer Protection Act is a special law that has been enacted by Parliament specifically to protect the interest of consumers. It is a settled position of law that if there is any inconsistency between two legislations, the later law, even if general in nature, would override an earlier special law. Section 3 of the Act of 1986 clearly provides that the remedies available under the Act are in addition to the remedies available in other statutes and the availability of additional remedies would not bar a consumer from filing a complaint under the Act of 1986. Further, in IREO Grace Realtech (P) Ltd. v. Abhishek Khanna, a three-judge Bench  of the SC has 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 is not essentially different.

Based on the above observations, the Supreme Court held that the existence of an arbitral remedy as available under Section 7B of the Telecomm Act, will not, therefore, oust the jurisdiction of the consumer forum. 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 Act of 1986, now replaced by the Act of 2019.