Yesterday, I overheard the CEO of Idea telling the CEO of Airtel that with the passage of a new High Court judgement, things were set to get tough for them. Intrigued, I decided to dig out this remarkable judgment.
Am I kidding you? Of course, I am. The CEOs of telecom multinationals don’t happen to walk their dogs in my neighbourhood. But beyond the dramatic figments of my imagination, a recent Delhi High Court judgment is bound to have ruffled some feathers somewhere if not exactly in my neighbourhood. This is also a judgment which at least for now, seems to be a ray of hope for the harried consumers in hitherto bleak scenario of telecom disputes.
The mess of telecom complaints
Got an inflated telephone bill? Company not responding?
Approach the consumer court, get your complaint addressed, get a reasonable amount of compensation, go home, start calling till the next inflated bill.
Simple as this procedure appears on paper, it already had enough red tape to stumble any average consumer. However, come September 2009 and the Hon’ble Supreme Court of India completely disrupted this route leading to utter chaos. In General Manager v. T. Krishnan & Ors., the court held that the Consumer Protection Act does not apply to disputes in respect of telephone bills as there is already a special remedy in the form of section 7B of the Indian Telegraph Act. Suddenly there was confusion all around. With differing interpretations and inevitable lag in trickle down of information, some of the consumer courts continued accepting telecom complaints, others stopped, the remaining were unsure. (For our exclusive review of the situation, see The mess of telecom complaints in India: A Comprehensive Review)
Predictably, the Supreme Court judgement has its share of detractors including the dissenting voices within the Judiciary itself. In a judgement against BSNL, the Ferozepur District Consumer Forum laid down that the consumer forums had jurisdiction in a dispute involving a telecom companies (see Update on telecom mess: A District Forum judge differs from SC on telecom complaints). For another set of interesting arguments against the decision, see A lawyer from Orissa fights against the telecom complaints mess.
Ray of hope: the Delhi High Court Judgement
Courtesy the Apex Court’s inexplicable generosity, telecom companies have been having a field day. In case an annoyed consumer goes to the court, all they are required to do is to cite the Supreme Court judgement and go scot free, leaving a trail of disgruntled consumers in their wake.
One such consumer, Mr. J.K. Mittal, took Bharti Airtel to court when he was not provided the promised e-mail ids along with his broadband connection and landline.
The district forum dismissed his complaint relying on the aforementioned controversial judgement of the Apex Court. The State Commission followed suit.
Mr. Mittal decided to file a writ petition under section 226 of the Indian Constitution to appeal the State Commission’s order. The Delhi High Court overturned State Commission’s order based on the following reasoning:
- If the bar under section 7B of the Indian Telegraph Act were to apply at all, it could apply only if the respondent fell under the definition of ‘telegraph authority’. The respondent is clearly not a telegraph authority and as such there is no question of application of section 7B.
- The respondent is a licensee under section 4 of the Indian Telegraph Act. The court held that a licensee does not fall within the definition of Telegraph authority and as such cannot invoke the arbitration clause in section 7B, citing legislative intent.
- Assuming there is an arbitration agreement between the two parties, its mere presence would not bar a remedy under the Consumer Protection Act, as held by the Supreme Court in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha
- Section 3 of the Consumer Protection Act which states that the Consumer Protection Act shall be in addition to and not in derogation of the provision of any other law for the time being in force is to be interpreted broadly.
Simply put, the court said that only telegraph authorities could not be taken to consumer forums under the Consumer Protection Act and since service providers like Bharti were not exactly telecom authorities, they could be taken to consumer courts in case of a dispute. Also, the court reiterated that just because there is an arbitration agreement between the parties does not mean the consumer can’t approach the consumer forums for remedy under the Act.
As stated earlier, the judgement is bound to create a flutter and will in all probability be appealed against. An appeal shall be a golden chance for the Supreme Court to rectify its earlier stand in the Krishnan judgement. In the event of an appeal, the court shall have the benefit of the wisdom in hindsight, a well reasoned High Court judgment and the position of the telecom department in this regard (see REVEALED: Department of Telecom (DOT)’s stand on SC order regarding telecom consumer disputes). We can hope that this time around, the Hon’ble Apex Court shall be more judicious in coming up with a verdict, taking into account the chaos created by its previous judgment.