Till recently, telephone problems (defective billing, illegal charging for song downloads, illegal disconnection, etc.) could be taken to consumer courts and justice obtained quickly and inexpensively. The National Consumer Commission's website makes this explicit: "The provisions of this (Consumer Protection) Act cover 'goods' as well as 'services'....The services are in the nature of transport, telephone, electricity, housing, banking, insurance, medical treatment, etc."
But in a decision that shocked the consumers, the Supreme Court ruled on 1-9-2009 (III(2009)CPJ 71(SC)) that consumer courts can not decide disputes relating to telephones - either landlines or mobiles. As a consequence of this ruling, almost all the consumer courts (including Mysore District Consumer Forum) are now rejecting complaints against deficiency in service by telephone companies.
The logic behind the Supreme Court order is as follows:
1. Rule 413 of the Telegraph Rules, 1951 provides that all services relating to telephone are subject to the Telegraph Rules made under the Telegraph Act, 1885 (TA). So telephone disputes are covered by the TA.
2. Section 7-B of the TA states that all disputes concerning any telegraph line, appliance or apparatus shall be determined by an arbitrator appointed by the Central Government. Therefore all telephone disputes shall also be determined by the same arbitrator.
3. A special law always overrides a general law.4. TA is a special law and so it overrides Consumer Protection Act (CPA) which is a general law.
5. Therefore, even though CPA provides for determination of telephone disputes, it is overridden by the TA and so loses jurisdiction in telephone disputes.
But this order of the Supreme Court seems inconsistent with previous Supreme Court orders and accepted legal principles and so it is not a precedent to be followed by consumer courts. These inconsistencies have been beautifully explained in a decision given by Ferozpur (Punjab) District Consumer Forum on 11-9-09 (i.e., 10 days after the Supreme Court order) in a dispute concerning mobile phone service. It is amazing that President Sanjay Garg and Member S. Tarlok Singh of the Ferozpur DCF could go through the decision of the Supreme Court and come out with this detailed and excellent analysis in less than 10 days. The main points of the Ferozepur DCF order are:
1. The argument that CPA is a general law is crucial to the Supreme Court decision. But the Court does not explain why it is a general law. Applying the yardstick (repeatedly asserted by the Supreme Court itself) that only decisions given after a thorough discussion set a precedent, the present order of the Court is not a binding precedent and need not be obeyed by the lower courts.
In fact, it can be argued forcefully that CPA is not a general law. It applies only in disputes in which the consumer element is involved and hence is a special law. Therefore, it need not be overridden by another special law, namely, the TA.
2. To regulate the telecom industry (including the phone industry), the Parliament has passed The Telecom Regulatory Authority of India Act, 1997. According to Sec. 14 of the Act, the government shall establish a tribunal to deal with telecom disputes. But consumer disputes coming under the CPA are excluded from the purview of the tribunal. So when a consumer approaches a consumer court with a phone problem, CPA gets precedence.
3. It is a settled law that where two interpretations of law are possible, then the one favouring the consumer is to be taken. To direct a poor consumer involved in a petty dispute to approach the Central Government for appointment of an Arbitrator for relief would be a denial of justice, especially when the legislature has enacted a consumer friendly legislation for better protection of consumer rights.
4. Several special acts have established dispute redressal mechanisms. In deciding whether such disputes can also be taken to consumer courts, the Supreme Court has repeatedly held that unless there is a specific bar on their jurisdiction, consumer courts can take up such cases. For example, Cooperative Acts of various states specify that disputes concerning cooperative societies SHALL be decided by the Registrar of cooperative societies. But they do not explicitly bar other fora from adjudicating on the disputes. In one such case, the Supreme Court decided (2004 (1) CLT 456) that consumer courts have the jurisdiction. It said that since the purpose of the CPA was to protect the consumer and since its provisions are in addition to and not in derogation of other laws, the provisions CPA must be interpreted broadly, positively and purposefully to give it jurisdiction, unless there is clear bar.
Arbitration clauses in many contracts mandate arbitration under the Arbitration Act. But even in such cases, the Supreme Court has held (III (1996) CPJ 1 (SC)) that consumer courts can deal with the case since they can give relief from the cumbersome arbitration proceedings and the Arbitration Act does not specifically bar the jurisdiction of other fora.
But in the case of the Motor Vehicles Act, 1988, the Act states that Motor Accident Claims Tribunals shall decide claims connected with motor accidents (Sec. 165) and specifically bars the jurisdiction of civil courts (Sec. 175). In such cases, the Supreme Court has ruled ((1995) 2 SCC 479) that consumer courts do not have jurisdiction since there is a specific prohibition.
Since the TA does not specifically bar the jurisdiction of other fora, consumer courts can adjudicate phone disputes. The present decision of the Supreme Court with regard to telephones appears not to have considered these earlier decisions of the Supreme Court.
In addition to the above inconsistencies raised by the Ferozpur DCF with reference to the Supreme Court order, there is one more. Section 7-B of the TA states that all disputes concerning any telegraph line, appliance or apparatus, (i.e., hardware only) shall be determined by an arbitrator. But phone problems such as defective billing, illegal charging for song downloads, etc. are not hardware problems and so Sec. 7-B of the TA does not apply to them. Hence they can be dealt with by consumer courts.
Dr.T.N. Manjunath, Mysore Grahakara Parishat
Dr.T.N. Manjunath, Mysore Grahakara Parishat