4 Things You Must Know About Your Banking Transactions!

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Posted on August 27, 2012 by Runjhun

4 Things You Must Know About Your Banking Transactions!

Banking transactions have undergone a massive transformation in last couple of years. Gone are the days when people had to stand in queues in front of the teller for hours for even minor transactions. Gone are the days when customer care in banks meant one lonely counter, manned by a harassed employee flooded with issues that took days, weeks or even months to be resolved. Most of the transactions are now just a click away and customer care services by banks are available 24X7, manned by fairly capable representatives who can offer immediate solutions/advice to consumers.

The capability of customer care services may actually be a point of debate. But a fair comparison with the situation that existed before the technology revolution actually took over definitely merits appreciation for the new and improved version of the banking facilities in all their forms.

However, like with everything else in this country, this improvement too comes in with a rider. The rider that warrants the consumers to keep themselves abreast of the developments and their corresponding rights.

In our endless quest of seeking out the quirkiest, strangest issues of the consumer world, we landed on the following crucial things that a consumer must keep in mind while dealing with their banks. Most of these points are fairly straightforward but ignorance of these simple things can at several instances rile up consumers in disproportionately complicated troubles.

Always Insist On Personalized Cheque Books- Or you may find yourself in such unsavory situations that are beyond explanation in normal circumstances. A couple of days ago, an Akosha regular narrated to us an incident that suddenly made us realize the extreme importance of personalized cheque books. This particular individual had realized that the cheques he had sent out were being regularly cashed without a single penny being deducted from his account. A closer enquiry revealed that the amount was being deducted from some other unsuspecting consumer’s account in whose name the cheque book was originally issued but was handed over to this individual mistake. A capital mistake which can be easily avoided if the cheque book carries the name of the account holder. While most of the banks these days do issue personalized cheque books, there still may be instances where your cheque book is not personalized. Be very careful and vigilant. Return such a cheque book immediately and insist on a personalized one.
Deduction Of Fine For Non- Maintenance Of Minimum Balance From An Account Holder’s Account Is Not Allowed Without Due Information Of This Term To The Account Holder-How many times have you bothered to check what is the minimum balance requirement of your account? Or more importantly, how many times have your bank actually and specifically told you about this term? Next time-pay attention. Because if your bank has not specifically told you about this term, they cannot automatically deduct the amount from your account. Banks cannot debit fines for non-maintenance of minimum balance from an account holder’s account without informing the account holder about this term. As a logical extension of this condition, no amount can be debited from an account holder’s account at the bank’s discretion without hearing the account holder. It is the responsibility and obligation of the bank to ensure that proper hearing opportunity is given to the account holder.
Don’t Just Read The Fine Print, Be Vigilante About It- This is probably the most common advice that is given and yet the most ignored one. In the context of banking transactions, this advice becomes extremely relevant when consumers involve themselves in transactions like taking home loans. In all such cases, just reading the fine print is not enough—what is important is being extremely vigilant about the terms and be very careful lest the terms are violated. One of the most common complaints that we receive against the banks includes revision of interest rate without prior intimation, even though all standard contracts in this regard usually provide for a mandatory intimation to the consumer whenever there is a revision of the interest rate. If such an instance arises, notify the nodal officer of the concerned bank immediately and if the issue is not resolved, take up the matter before the Banking Ombudsman.
Have A Grievance, Get Them Redressed The Right Way- Redressal of complaints concerning banking transactions is a fairly confusing area for most consumers. In the event any such grievance arises, the consumers should immediately take it up with the concerned branch manager. Alternatively, or if the issue is not redressed at the branch level, the matter should be taken up with the Nodal Officers of the concerned bank who are exclusively designated to address consumer complaints. The Banking Ombudsman can be approached if the bank rejects the complaint or does not respond to it within two months of filing the complaint with the bank. The complaint can be taken up before the Ombudsman only if written representation was made to the bank and either the bank had rejected the complaint or no reply was received from the bank within 60 days of receipt of complaint or in case of unsatisfactory reply received from the bank.The Banking Ombudsman should be approached within one year of the bank rejecting or not responding to the complaint. The award passed by the Ombudsman is binding on banks but not on the consumer. It is only the bank against which such an award can be enforced, not the consumer.

We have attempted to list out and address a couple of issues that are a common cause of grievance and/or confusion for the consumers when it comes to banking transactions. Banking sector is one of the fastest evolving sectors in the country trying to sync itself with the rapidly evolving technology. While on one hand this has made banking transactions way more consumer-friendly, it also comes with its own set of issues and complications. In order to avoid hassles and ensure optimum benefit from these evolved systems, consumers need to keep themselves abreast of the changes. Consumers should make it a habit to read the documents and their bank’s websites carefully. Timely redressal of issues is the best way to avoid unnecessary hassles and this can be ensured if the consumers are careful about their rights and concerns.

Ever Been To A Consumer Forum, Read A Customer’s Experience

Posted on January 10, 2012 by Runjhun

By Jai Anand:

Reaching the Mehrauli Consumer Redressal Forum was not an easy task. Had it not been for registering a complaint, I would not have even tried. Thankfully, courtesy my GPS brain and good negotiation skills, I managed to make it in an auto-rickshaw.

Strangely, there was no security check at the entrance. Though the signboard was located right above a door on the ground floor, the office was on the first floor. This set me solving a crystal maze and I found two allies doing the same.

To talk of interiors is a sore to senses. An untidy structure with an entrance around three foot-wide, the forum was flooded with people of all sorts. Language both parliamentary and unparliamentary was doing the rounds. The lobby to walk was so narrow that it gave the feeling of walking in the crowded bylanes of Lucknow.

No Helpdesk

To my surprise there was no helpdesk at the forum. The only way for a complainant to figure out how he/she can file a complaint was by asking other complainants/lawyers inside the forum.

The administration was shabby and there was no help available for the consumer. It was a real horror and for a while I even thought of giving up my complaint.

Somehow mustering courage, I went forward and asked a lawyer the process of filing a complaint. His response jolted me further. According to him I first needed to write an application and then get affidavits attested. Just to confirm, I asked another lawyer who added to my misery by stating that getting affidavits attested is a tough job and only a clerk can help.

The Bureaucratic Clerk

Being tall helped and I sighted a clerk at one corner. When I reached him he delivered another blow saying he could tell me the process only after 2:30 p.m. What was more humiliating was the fact that the same clerk was attending to others who had hired lawyers.

He was pretty gentle to them, helping them get affidavits attested, procuring documents and getting them dates. That left me with a sense that hiring a lawyer is the best way forward but on second thoughts isn’t the entire concept of consumer forums a waste if lawyers are needed for small cases like mine.

Mediation And Conciliation Center

I had come with a lot of hope, thinking that the consumer forum will come to my rescue against a leading education brand, only to feel disgusted after wasting hours. While I was wandering hopelessly in the lobby, a person inside a cabin called me and asked the details of my case. I narrated him the facts and for the first time since the morning got a satisfactory response.

He said his unit would help me out in resolving the matter. I was relieved. This was the Mediation and Conciliation center, another government body. Their mode of operations is quite simple. They listen to consumer complaints, ascertain the authenticity and then send a notice to the opposite party to appear at the center. The M&C tries to settle the case between the two parties out of court. Moreover, this is a free service and the affidavits that the aggrieved party provides need not be attested. The date of hearing is also given within a week or two.

The M&C center officials asked me to not worry as they had already cracked various similar cases in the favour of the consumer. They put my complaint in a file, scanned the proof of identity and address themselves, gave me a reference number and a date that was after 10 days. There were a few documents which I was not carrying. They asked me to mail the same across on an e-mail-id provided by them.

Conclusion

Just for the sake of experience, I visited Saini Enclave’s District Consumer Redressal Forum the following day and unsurprisingly, they also did not have a helpdesk. Thankfully I did not wait long enough to see whether there was an M&C center or not.

The government has put in place Consumer Forums to help the common man. However, one gets the impression that the whole process is not very consumer friendly.

File your consumer complaint here.

The mess of telecom complaints in India: A Comprehensive Review

Posted on September 1, 2011 by Runjhun

A Supreme Court judgement in 2009 has thrown telecom complaints resolution in disarray. Akosha team digs deeper and brings you Akosha Telecom Complaints Survey 2011. Key finding: 33% of the District Consumer Forums are rejecting telecom related complaints!

The mess of telecom complaints in India: A Comprehensive Review

This survey recently got mentioned in Outlook Money story – http://outlookmoney.com/ArticleDetailView/tabid/203/ItemId/267/Default.aspx

Introduction

Warning: long post. Feel free to scroll down to the Survey findings and the conclusion. You can download the PDF version here.

A lot of people ask us about helping them with telecom/broadband/DTH disputes. Usually it is about one of the following issues:

a) Fraudulent Fair Use Policy (check out this awesome thread which talks about Airtel’s Broadband FUP – it seems Airtel broadband meters are “deliberately” faulty);

b) Overcharging/non-activation of plans, activation of wrong plans e.g. GPRS (check out this article where a person got extra GPRS charges removed by negotiating hard with Airtel);

c) Charging for VAS products – many times certain VAS services (like caller tunes, mobile content) are automatically activated and charged from customers’ accounts;

d) Wrong billing – though the billing systems are automated, sometimes the bills are obviously wrong (I received a bill where they had charged me for the same calls twice!);

e) Bad network coverage/call or broadband quality/dropped calls – a really rampant issue. General consumer behavior is to cuss and forget about it.

f) Getting calls and SMSs despite DND activation – National Do Not Disturb Registry has mostly worked, but sometimes customers keep getting messages. A lot of times customers give out their mobile numbers and their numbers are abused by businesses other than the telecom company. Here the fault doesn’t lie with the telecom company.

g) Miscellaneous things – like recharges not getting credited in time, rude behavior by customer care personnel.

There are several problems here:

Telecom industry has such high churn rate (new customers signed up each day/current customers deactivating their accounts) that an individual customer does not seem to matter in the larger scheme of things;
The amounts involved in most consumer problems is so small that it doesn’t make sense for most customers to take action – like finding a lawyer and filing a complaint.
The three tier self regulatory system set up by telecom companies – customer care, nodal officers, and appellate authorities wastes a lot of time for the customers and is expensive for the telecom companies.

All this is despite the fact that customer satisfaction is an important “metric” being tracked by the telecom companies (I’m told that most major operators keep it as an issue at the head office/central level).

This guide is meant for laymen, consumers, activists, and others who are looking to fight for their rights against telecom companies.

Background

In India, consumers can approach a consumer forum for enforcing their rights in case they are given a defective product or deficient service. For the longest time, a consumer could approach their nearest consumer forum regarding complaints against telecom companies. Then, in September 2009, the Supreme Court of India decided (in the case of General Manager v T. Krishnan and Ors), that consumers could not approach consumer courts in relation to telephone billing disputes as the Indian Telegraph Act provided for a special remedy for such disputes.

The crux of the Supreme Court judgement in its own words is: “when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred”. In this guide, the Akosha team analyses this judgement, and presents its findings about what is the reality on the ground regarding consumer issues.

What is the law on this point?

The Indian Telegraph Act, 1885

The relevant section (7B) of the Indian Telegraph Act states:

(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this Section.

(2) The award of the arbitrator appointed under sub-s. (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court.”

So, this section of the Indian Telegraph Act says that where there is a:

Dispute in relation to any telephone line or apparatus
Between the telephone authority and the person for whom such line or apparatus has been set up,

such a dispute will have to settled by statutory arbitration and the ordinary courts will not have any jurisdiction.

Just by way of background, this Act was put in place in the year 1885, just 9 years after Alexander Graham bell invented the telephone! Section 7B was inserted into the Act in the year 1957, almost 40 years before the introduction of mobile phone technology into India. As you will no doubt gather, this is an old law and was enacted when not many people had access to telephones.

The Telecom Regulatory Authority of India Act, 1997

The Telecom Regulatory Authority of India Act, 1997 was enacted to deal with the advent of new telecommunications technology, recognizing the need to provide for adequate complaint resolution services for the millions of new consumers in the telecom market. This Act provides for setting up the Telecom Regulatory Authority of India (TRAI) and the Telecom Disputes Settlement & Appellate Tribunal (TDSAT) to deal with consumer issues (as explained below, they deal with issues affecting consumers on a broad basis, and not individual disputes). This Act specifically states that TRAI and TDSAT will not have any jurisdiction over complaints filed by consumers before the ordinary consumer courts. Have a look at section 14 of the Telecom Regulatory Authority of India Act, 1997 yourself:

14. (1) If a dispute arises, in respect of matters referred to in sub-section (2), among service providers or between service providers and a group of consumers, such disputes shall be adjudicated by a bench constituted by the Chairperson and such bench shall consist of two members;

Provided that if the members of the bench differ on any point or points they shall state the point or points on which they differ and refer the same to a third member for hearing on such point or points and such point or points shall be decided according to the opinion of that member.

(2) The bench constituted under sub-section (1) shall exercise, on and from the appointed day all such jurisdiction , powers and authority as were exercisable immediately before that date by any civil court on any matter relating to-

i.        technical compatibility and inter-connections between service providers;

ii.        revenue sharing arrangements between different service providers;

iii.        quality of telecommunication services and interest of consumers;

Provided that nothing in sub-section shall apply in respect of matters relating to-

i.        the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of section 5 of the Monopolies and Restrictive Trade Practices Act, 1969;

ii.        the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under section 9 of the Consumer Protection Act, 1986;

iii.        dispute between telegraph authority and any other person referred to in sub-section (1) of section 7B of the Indian Telegraph Act, 1885

The Consumer Protection Act, 1986

The last piece of legislation that is relevant is the Consumer Protection Act itself, more specifically, section 25 of the Act. This section states that the “provisions of this Act shall be in addition to and not in derogation of the provisions of any other law”. This should mean that the Consumer Protection Act acts simultaneously with other legislations granting remedies for consumers (and therefore does not apply only where there is no other remedy). It also stands to reason that any other law which provides remedies to consumers will, in all probability, be a “specific” law which goes against the reasoning of the Supreme Court in the Krishnan case. The question then, is whether a law which actively excludes jurisdiction of courts can be said to override the Consumer Protection Act. In a decision dated 9 September 2009, the district Consumer Disputes Redressal Forum (Ferozepur, Punjab) considered the law on this point and concluded that in the past, the Supreme Court has taken a view that even in cases where the jurisdiction of civil courts was ousted, this did not bar consumers from filing complaints under the Consumer Protection Act (you can read the decision at http://www.advantageconsumer.com/legal6.html). We have analysed one important previous decision of the Supreme Court below.

Previous decisions of the Supreme Court on this point

While there are a number of decisions that maybe related to this point, we will describe for you one decision which we feel fits the bill perfectly. This is a decision by the Supreme Court dated 11 December 2003 in Secretary, Thirumurugan Co-operative Agricultural Credit Society v M. Lalitha (http://www.indiankanoon.org/doc/1640713/). Here, the Supreme Court held that even though the Tamil Nadu Cooperative Societies Act, 1983 stated that no order by the designed authority under this Act would be called into question in any court, this did not bar claims under the Consumer Protection Act.

In fact, this decision of a 2-judge bench also considered the case of Chairman, Thiruvalluvar Transport Corporation v Consumer Protection Council which was relied upon in the Krishnan case. The Supreme Court expressly states that this case would not apply to cases of determining whether an additional remedy exists under the Consumer Protection Act. The court held “That was a case in which it was found that the National Commission had no jurisdiction at all. That was not a case of additional remedy available before a forum created under the 1986 Act. In our view the said decision does not advance the case of the appellant in any way.”

Akosha’s take on the law

So you see, it was specifically envisaged in a later Act of Parliament (Telecom Regulatory Authority of India Act, 1997) that individual consumers may file complaints before the consumer disputes fora. Also, if you look at (ii) and (iii) in the proviso above, there is a distinction made between individual consumer complaints and the disputes under Section 7B of the Indian Telegraph Act. Surely this indicates that individual consumer complaints would not fall under Section 7B. The Telecom Regulatory Authority of India Act, 1997 was not mentioned in the Supreme Court decision in the Krishnan case. Neither were previous decisions of the Supreme Court holding that consumers could file complaints under the Consumer Protection Act even where the jurisdiction of civil courts was ousted under other laws.

It is therefore likely that the Krishnan case will be challenged before a larger bench of the Supreme Court or at least we hope that this happens. In the meanwhile, read on for some practical advice on what to do with your consumer complaint today.

What about TRAI – can it help me with my telecom dispute?

The Telecom Regulatory Authority of India is charged with regulating telecom providers. It issues licenses to private telecom companies (such as Vodafone, Idea, etc.) and decides the rules by which these telecom providers must operate, including service standards.

The TRAI does not usually examine individual consumer disputes. It looks at issues that affect all consumers – for instance, it would not usually look into matters of an individual being overcharged by a particular service provider, but it would be concerned about whether a service provider has in place the required systems for consumers to choose not to receive marketing calls. TDSAT hears appeals from cases decided by TRAI and therefore looks at similar cases as TRAI – those with some “group” interest.

The Telecom Consumers Protection and Redressal of Grievances Regulations, 2007 contain detailed rules on how telecom service providers must deal with consumer grievances. In brief these regulations say that:

Service providers must set up toll free consumer call centres. The first step for any consumer with a complaint is to register the complaint at such a Call Centre and obtain a docket number, confirming registration of the complaint.
Call centres must resolve complaints relating to faults in or disruption of service within 3 days and all other complaints within 7 days.
If this does not work, the consumer can complain to the “Nodal Officer” set up by the service provider. The Nodal officer must resolve complaints relating to faults in or disruption of service within 3 days and all other complaints within 10 days.
If this does not work, the consumer may approach the appellate authority of the service provider. The appellate authority must resolve the complaint within 3 months.
Note that if your complaint is not resolved within the said number of days, you will be entitled to a rent rebate (see box).
In addition to the rules mentioned above, Telecom Consumers Protection and Redressal of Grievances Regulations, 2007 say that at any time, the consumer may approach the Consumer Court for relief.

How are Consumer Courts interpreting the Krishnan decision

On 31 December 2009, the consumer disputes redressal forum of the central Mumbai district passed an order on a complaint against Bharti Airtel. It said that the Supreme Court judgement in the Krishnan case only limited the ability of consumer courts to deal with issues between a “telegraph authority” and consumers, i.e., it interpreted telegraph authority to mean state run telecom companies (MTNL and BSNL) and not private telecom service providers such as Airtel, Vodafone, etc. Similarly, in August 2010, the South Goa consumer disputes redressal while held that while it had no jurisdiction over cases against BSNL on the basis of the judgement, observed that cases against private telecom service providers could still be filed with it.

However, other consumer forums in states such as Tamil Nadu (see this story) have rejected complaints on the basis of the Supreme Court judgement. Consumer rights activists have expressed the view that the Supreme Court judgement should be challenged before a larger bench of the court.

If you have ever had to interact with the telecom companies (right from their lower customer care executives to their nodal officers and appellate authorities) you would know how much of a time sink it can is. On top of this, there is the whole confusion created because of the judgement discussed about. Today it seems that the telecom company is both the perpetrator, judge and the jury.

Akosha Telecom Consumer Complaints Survey 2011

The situation on the ground is really confusing – so the Akosha team decided to collate some real data on this.

We decided to speak with the helpdesks at 65 District Consumer Forums across the country. (Note: all complaints involving amounts below Rs.20 lakhs are supposed to be submitted to District Consumer Forums – and therefore, they would have jurisdiction over almost 100% of all telecom disputes). These 65 District Forums were chosen to be representative of different States and had the highest number of cases in their respective States.

Key findings

Over 44% of the District Consumer Forums in India do not have a functional telephone number or helpdesk. It is very difficult for customers to seek information and approach these district consumer forums.
Of the 36 District Consumer Forums we were able to get through to out of the 66 highest volume Consumer Forums, 33% District Consumer Forums are either completely rejecting complaints against telecom companies or were non committal on whether they take up such cases.
The rest of the District Consumer Forums (especially in Western India) were accepting complaints against telecom companies.
There is a lot of contradiction sometimes within the same State. In Delhi, for example, while 5 District Forums said they accept telecom complaints, 3 said they did not, and another 2 said that they are not sure.

Graph of District Consumer Forums with Functional Helpdesks

Table of District Consumer Forums with Functional Helpdesks

Note: The Akosha team tried to call each forum at least 3 times at different times of the day. If all three attempts were unsuccessful, the District Forum was marked as having an non functional helpdesk.

Graph of District Consumer Forums Accepting/Rejecting Telecom Consumer Complaints

Table of District Consumer Forums Accepting/Rejecting Telecom Consumer Complaints

Some empirical comments

The helpdesk at South Delhi I district forum said that there was “no judgement barring consumer forums from entertaining complaints against telecom companies”.
The helpdesk at Central Delhi KG Marg district forum said that “you will have to go in for arbitration”. When asked for more details about what is the process for that, they did not have much to add.
The helpdesk at Goa said that they accept complaints against all telecom companies other than BSNL.
The helpdesk at Chennai North said that “due to the Supreme Court judgement, no telephone/mobile related complaint is entertained but complaints regarding broadband and DTH will be accepted”.
However, the Bangalore (Urban III, IV) helpdesks clarified that they even take complaints relating to broadband and data cards.

There is of course utter confusion in terms of whether to not to accept complaints, and what time of complaints are barred.

Conclusion

Getting to the heart of the matter –

Supreme Court orders bind all courts below, including consumer courts. As we have mentioned, certain consumer courts are accepting telecom complaints (interpreting the SC judgement as banning complaints only against the state run telecom service providers (BSNL and MTNL) and not private operators) while other are not.
Practically, we would suggest sorting the matter out with the service provider directly, and then if you are in a district which is accepting such complaints (see the table above), you may go ahead with filing a complaint. Here is a No Nonsense Guide to Filing a Consumer Complaint.
However, this would be at a risk that the decision by the Consumer Forum could be overturned at a higher level based on the Supreme Court judgement. See the list of state-level Consumer Forums along with their Google Maps.

Thanks to Simran (NLSIU, Bangalore graduate) and Arunima (NUJS, Kolkatta student) for the background research and review of this article.

If you have fought a case against a telecom company in a district consumer forum, please do share your experience with us. If you would like to republish findings of the Akosha Survey, please get in touch with us at support AT akosha DOT com.

Also see: REVEALED: Department of Telecom (DOT)’s stand on SC order regarding telecom consumer disputes

REVEALED: Department of Telecom (DOT)’s stand on SC order regarding telecom consumer disputes

Posted on August 28, 2011 by Runjhun

Akosha team is publishing a summary and the full information made available by the government to Mr. J P Shah, a Gujarat based RTI activist regarding Supreme Court order which prohibits district consumer forums from hearing telecom consumer disputes.

How we obtained this information

Akosha team has obtained certain documents from an RTI activist Mr. J P Shah (based out of Junagarh, Gujarat) and we are publishing these here in public interest with his permission and encouragement.

Disclaimers

We also called up and spoke to the State Information Commission for the Centre and Delhi Government and asked them about publication of material obtained through RTI. We were told that this would not be a problem unless it would violate someone’s privacy. To the best of our knowledge, the documents published by us do not violate anyone’s privacy. We also researched and read up on the issue of government’s copyright over this material – it seems that this is a grey area and that government has not enforced its copyright over materials of this nature in the past.

Quick background

Telecom complaints resolution is in a complete mess – as we discussed in our article two months ago. The article includes the Akosha Telecom Complaints Survey 2011 where we called up district forums to ascertain the position on the ground. The end result of the mess is that – district consumer forums cannot hear telecom cases. The only remedy left for consumers with telecom complaints would be to approach an “arbitrator” appointed under the Indian Telegraph Act. Unfortunately, no such body exists!

New information – the DOT perspective

A journalist friend of ours who read our article, informed us that an RTI activist had obtained some more information on this whole issue by filing an RTI with DOT (Department of Telecom). Even since we had written and researched on this issue, we were curious on what exactly government was thinking about this whole thing. It turns out they are as miffed and confused by the Supreme Court judgement as the common man is.

Here are the basic criticisms of the Supreme Court judgement as discussed in DOT notes:

Section 7B refers to dispute between a person and telegraph authority. Telecom companies cannot be called “telegraph authority” by any stretch of imagination.
Section 3 of Consumer Protection Act clearly says it is a remedy in addition to any other remedy available to the consumer.
TRAI Act clearly mentions that TRAI will hear complaints only from “group” of customers, not individual complaint. Legislative intent was to keep individual complaints with consumer forums.
Appointing arbitrators for the high-volume of telecom cases is not practical.

Now in more detail (warning: some legalese ahead)

Since the fateful day of 1-9-2009, when the learned Supreme Court felt pleased to bar the remedy available to telecom customers under the Consumer Protection Act by giving singular precedence to the remedy provided under the Indian Telegraph Act, 1885, there has been immense hue and cry regarding the merits and repercussions of this order. This order came forth in a case named General Manager, Telecom v. M. Krishnan & Ors.

It is important to look at the facts of this case to get a better understanding. The dispute commenced on 13/9/2001 (yes, 8 years before the Supreme Court finally delivered its verdict) when Mr. M. Krishnan’s telephone connection no. 2740008 in Calicut, Kerala was disconnected by BSNL due to non-payment of dues. Aggrieved by this rather drastic action Mr. Krishnan complained at the Consumer Dispute Resolution Forum in Calicut which decided in his favour ordering BSNL to restore his connection and to pay a compensation of Rs. 5000 (excluding interest) to the complainant. Against the orders of the said consumer forum, BSNL filed a petition in the Hon’ble High Court of Kerala challenging that the consumer forum has no jurisdiction to entertain the petition of the consumer regarding a telegraph dispute. The single judge of the Hon’ble High Court dismissed the petition on the ground that the BSNL should have filed its appeal before the State Dispute Resolution Forum. BSNL appealed against this to a larger bench of the High Court but the case was dismissed there as well. Against this judgement dated 14/2/2003, BSNL preferred SLP under Article 136 of the Constitution where the special leave was granted and the Hon’ble Supreme Court quashed all the earlier orders to decide in BSNL’s favour. The Hon’ble Supreme Court observed that:

“In our opinion, there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred”.

The Supreme Court also took cognizance of Rule 413 and Rule 443 of the Telegraph rules which provide that all services relating to telephone are subject to Telegraph Rules and a telephone connection can be disconnected by the Telegraph authority for default of payment. Relying on the aforesaid provisions of law, the Hon’ble Supreme Court observed that it is well settled law that the special law (in this case the Indian Telegraph Act) overrides the general law (in this case the Consumer Protection Act) and held that the Kerala High Court was not correct in its approach. The net result of the Hon’ble Supreme Court judgement is that the subscriber/consumer of telecom service can only go for resolution of his grievances under Section 7B of the Telegraph Act which provides that all such disputes are to be decided by an arbitrator appointed by the Central Government.

Due to the contentious nature of this judgment it caused a flurry of RTI petitions as regards the telecom dispute resolution mechanism. One of these RTI petition was filed by Mr. J.P. Shah of Junagarh, Gujarat and the response that he received has brought to light a lot of criticism regarding this judgment from within the telecom circles and also the possibility of further action to mend this situation.

Secretary’s criticisms

Some of the most scathing and revealing criticism of this judgment has come from the Secretary of Telecom Regulatory Authority of India (TRAI) who pointed out that:

Section 3 of the Consumer Protection Act which is a later act than the Telegraph Act, clearly provides that the provisions of the said act are in addition to and not in derogation of the provisions of any other law for the time being in force and therefore the remedies provided to a consumer by the said Act are in addition to other remedies provided under other law or laws, as the case may be.
Proviso (B) of clause (a) of Section 14 of the TRAI Act, 1997 excludes from the purview of the Hon’ble Telecom Disputes Settlement & Appellate Tribunal (TDSAT) a dispute relating to the complaint of an individual consumer maintainable before a consumer forum or a consumer commission. Section 14 of the TRAI Act expressly empowers the Hon’ble TDSAT to adjudicate any dispute between a service provider and a group of consumers. This is clearly indicative of a legislative intent of the Parliament that the complaints of individual consumers in respect of telecom services are maintainable before the consumer forums.
Section 7B of the Telegraph Act refers to disputes between a person and the “telegraph authority”. However, private and public service providers are not Telegraph authority.
Only the Central Government is authorized to appoint an arbitrator under the Telegraph Act. Considering the present multi-operator, multi-service scenario, coupled with intense competition and very high growth rate, it would not be practicable for the Central Government to appoint an arbitrator for each and every case. At the same time, the main objective of creating an additional cost effective legal remedy through the consumer forum as an alternative dispute resolution mechanism for resolving the disputes with the service providers will be defeated.

Legal opinion of assistant legal adviser

This opinion of the learned secretary of TRAI has also been seconded by Mr. P.K. Behara, Assistant Legal Adviser for the Department of Telecom. Mr. Behara has also opined that service providers such as BSNL cannot be included as a part of “Telegraph Authority” as defined in the Section 3(6) of the Telegraph Act which defines Telegraph Authority as “the Director General of Posts and Telegraphs and includes any officer empowered by him to perform all or any of the functions of the Telegraph authority”. Mr. Behara also appreciated the fact that it may not be practicable for the central government to appoint an arbitrator for each and every case. He further acknowledged that this judgement is likely to affect the interests of millions of consumers and hence DoT may like to explore the possibility of approaching the Supreme Court for review of its judgement or of making suitable amendment in the Indian Telegraph Act, 1885. He also outlined the law regarding curative petitions in the Hon’ble Supreme Court and considered the present case fit for such an action.

Overall, the general conflict in the law regarding curative petitions in the Supreme Court is to strike a balance between the concerns of the Supreme Court for rendering justice in a cause with the principle of finality of its judgment. The Supreme Court has often observed in that the former is not less important than the latter. Thus, since the issue in question affects the interests of millions of consumers who are seeking a quick, legal remedy to their telecom disputes the remedy of curative petition is well founded.

A big thank you to our intern Neeraj Lalwani (NLU, Orissa) who helped us summarize the information obtained using RTI.

HERE ARE THE LINKS TO DOCUMENTS OBTAINED THROUGH RTI APPLICATION:

Filing a consumer complaint – the no-nonsense guide

Posted on May 20, 2011 by Runjhun

Really frustrated by a company’s attitude? Read this quick guide to filing a consumer complaint.

We’ll keep it short – chances are, if you are reading this, you are angry right now.

If a company provides you with a faulty product or a deficient service, you are entitled to get relief. Before you decide to file a complaint, make sure you have done the following – spoken to the company ‘s customer care, escalated the call, tried reasoning, approached the industry ombudsman (if any). If you are still not happy, read on.

Step 1

Send the company a notice. A notice is a letter, hand-written or printed on plain paper which explains what exactly happened, what you are unhappy about, what you would like the company to do and what you would do in case the company does not resolve the issue. Here are some tips on writing this letter:

1. Do not misstate facts.

2. Specify all the details which would enable the company to resolve your complaint faster (who you spoke to, invoice number, request number, product id, , date of purchase etc.).

3. Do not use foul language or threaten. However, be firm.

4. Provide a 15 day period for them to resolve your complaint.

5. Make sure that you mention a line to the effect that if the company fails to resolve the issue, you would be forced to file a consumer complaint and take other action as well.

Step 2

At this stage, usually the company will call you back or email you and start taking your complaint seriously. If they offer you relief, or some kind of incentives, coupons, free product or service, do consider their offer seriously.

There is also the possibility that the company will not reply to your notice or reply to say that they would not be able to solve your complaint. In such a case, you are left with no option but to go to the appropriate forum .

Step 3

Process in Consumer Forums

Consumer Forums are divided into 3 levels – District Level, State Level and the National. If the total amount involved in your complaint (worth of the goods or services and the compensation you ask for) is below Rs.20 lakhs, then you will have to approach a District Forum. Typically, you have to file your complaint at the District Forum under whose jurisdiction the company or its dealer or its authorized agent carries on business. For understand where you can file your complaint, please see Understanding Jurisdiction of Consumer Forums. To find the address of a district forum, see this.

Typically it will take about 6-12months to resolve a complaint through the District Forum. If the stakes involved are high, either side may appeal and the matter may take longer. You have the option to appear before the District Forum yourself or through a lawyer. Usually people do not have the time to appear themselves, so they hire a lawyer. A lawyer can charge anywhere between Rs.2000 to Rs.20000 for a consumer complaint depending upon the complexity of the case, his/her experience, and your willingness to pay. If you would like to find a lawyer in your city, fill in the Akosha Find a Legal Expert form.

During the course of the case, you might have to appear 2-4 times in the District Forum. Don’t be intimidated by this – the judges are generally customer friendly and you are only required to state the facts.

Why don’t people file complaints?

Despite the ease of using consumer forums, a lot of customers don’t end up filing a complaint. It’s a quick cost benefit analysis – it sounds like too much time, money and effort to pursue it. Sometimes the stakes involved are not that great; also Indian customers have a chalta hai attitude. Once their issue is resolved, they move on with their lives. However, if you are really frustrated with something, it is important to know how to file a consumer complaint. And companies like ours, help you do this in a hassle free manner.

Conclusion

Just like the RTI, filing a consumer complaint is a powerful tool for consumers. If you are unhappy with a product or service, just follow this process and you should come out happy on the other side.

To more information, read Frequently Asked Questions about Consumer Complaints.

Have you ever filed a consumer complaint yourself? Do share your experience with us.

File your consumer complaint here.

Ever been pissed off at a company? Here are 4 tips on what to do

Featured

Posted on May 10, 2011 by Runjhun

Ever gotten off a call with the customer care guys and felt like shooting yourself in the head? If you are anything like me, the word frustration hardly covers it. You go through a range of emotions – shock at how absurd the company’s policies are, disbelief at customer care guy’s excuses, feeling defeated when they don’t agree, feeling relieved when they do. It’s a nightmare in most cases – and getting your own money back or extra charges removed feels like a victory. Forget about the two hours of your life that you lost – those 120 mins are never going to come back.

So what can you do?

We wish we could tell you a magic mantra but there is none (unless you know a big fish at the company you have a problem with – and you are unlikely to know someone at every company you buy products from). So, brace up, here is what you can do the next time you have an issue with a company.

4 tips

1. Call and talk to them. Before you hit me for stating the obvious, you’d be surprised how many times customers don’t even call the company when they get a bad product or service. Calling works. Most businesses understand that they won’t do well if they sell a bad product or service – just that they are not able to manage the scale of their operations. If you are a good negotiator and a calm person, you might even get the problem resolved.

2. If talking doesn’t work, escalate it to higher authorities within the company. When you are on the phone with a company, try to keep escalating the call till you get to talk to someone who understands what’s going on. If this doesn’t work, tell them that you will be forced to go to the ombudsman or file a consumer complaint. Threats don’t work, so don’t waste your breath.

3. Raise the matter with an industry authority. Some industries like insurance, banking, telecom also have industry ombudsman – a person with informal authority to pass non-binding orders for companies operating in a specific industry. Sometimes they will even call you and the company representatives and try to find a middle ground.

4. File a consumer complaint – People have various reasons for filing a complaint, ranging from it being a matter of principle to protecting others from facing the same misery to an ego clash with a company representative, and lastly to obtain compensation. Generally speaking, judges hearing consumer complaint matters are generally very friendly towards consumers and are likely to decide in your favour unless you are being unreasonable. However, don’t expect a fortune by way of compensation – Indian forums are loath to award heavy penalties.

Conclusion

Customer service standards have fallen drastically with a lot of companies trying to achieve scale at the cost of their existing customers. If you are getting a raw deal, the law empowers you to seek justice – so don’t shy away from using the various options for redressal available to you.

File your consumer complaint here.