Does Telegraph Act oust Right to sue the Telecoms under Consumer Protection Act? SC says NO,

 

 The Supreme Court in its remarkable judgement has observed that it is well within the jurisdiction of Consumer Forum to entertain complaints against Telecom Companies and that Telegraph Act doesn't oust the Consumer's Right to sue them under Consumer Protection Act.

The three-judge bench of Justice DY Chandrachud, Justice Surya Kant, Justice Vikram Nath Section 7B of the Indian Telegraph Act 1885 which provides for Arbitration remedy under the Indian Telegraph Act, 1885, will not oust the jurisdiction of the consumer forum.

In the present case, a consumer complaint before the District Consumer Disputes Redressal Forum alleging a deficiency of service on the part of Vodafone Idea Cellular Ltd was filed. The telecom company disputed the maintainability of the complaint citing SC judgment in General Manager, Telecom Vs. M. Krishnan & ANR., 2009 Latest Caselaw 707 SC. Rejecting the same, the District Forum held that a private service provider is not a 'telegraph authority' for the purposes of Section 7B of the Indian Telegraph Act 1885. Aggrieved, revision petitions were filed by Vodafone but both State and National Consumer Disputes Redressal Commission affirmed the District Forum ruling.

Before the Supreme Court, the Vodafone appeal gives rise to the question whether Section 7B of the Indian Telegraph Act 1885 ousts the jurisdiction of the consumer forum in deciding a dispute between a telecom company and a consumer?

Learned Counsel appearing on behalf of the appellant submits that Section 7B of the Act of 1885 provides a statutory remedy of arbitration and in that view of the statutory remedy, which is a remedy under a special statute, the jurisdiction of the consumer forum is ousted.

 Supreme Court Observation 

 

The Court analysed Section 11 of the Act of 1986 which specifies the jurisdiction of the District Forum and mentioned that in terms of Section 11(1), the District Forum was conferred with the jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed did not exceed a stipulated amount.

The Court then went onto discuss the scope of term ‘service’.

 

 The definition of the expression ‘service’ is couched in wide terms. The width of statutory language emerges from the manner in which the definition is cast. 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 last part of the definition excludes (i) the rendering of any service free of charge; and (ii) services under a contract of personal service. Parliament has confined the exclusion only to two specified categories. 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 remarked that Section 4 of the Act of 1885 vests the Central Government with the exclusive privilege of establishing, maintaining and working telegraphs. The expression ‘telegraph’ finds its definition in Section 3(1AA). Under the proviso to Section 4(1) the Central Government is empowered to grant a license to any person to establish, maintain or work a telegraph within any part of India.

It further noted that the District Forum is entrusted with the jurisdiction to entertain all complaints where the value of goods or services and the compensation claimed do not exceed the stipulated threshold.

 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."

The Court rejected the submission on behalf of the appellant that the specific incorporation of telegraph services in the Act of 2019 is an indicator that it was only as a result of the new legislation that telecom services were brought within the jurisdiction of the consumer fora for the simple reason that the specification of services in Section 2(s) of the earlier Act of 1986 was illustrative as apparent from the use of the expression ‘includes but not limited to.'

"The specification of services in Section 2(s) of the erstwhile Act was therefore not intended to be an exhaustive enumeration of the services which are comprehended within the definition. On the contrary, by adopting language which provides that the expression ‘service’ would mean service of any description which is made available to potential users, Parliament indicated in unambiguous terms that all services would fall within the ambit of the definition. The only exception was in the case of (i) services rendered free of charge; and (ii) services under a contract of personal service."

 The Court referred to M/s. Emaar MGF Land Ltd. Vs. Aftab Singh, 2018 Latest Caselaw 921 SC in which it was held that an arbitration agreement governed by the Arbitration and Conciliation Act 1996 will not oust the jurisdiction of the consumer forum to entertain a complaint of deficiency of goods or services.

In view of the above, the Court ruled that the fact that the remedy of an arbitration under the Act 1885 is of a statutory nature, would not oust the jurisdiction of the consumer forum.

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(With input from news agency language)

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