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TMI Blog2022 (3) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... llant was providing mobile telecom services to the complainant on the basis of which it was asserted that there exists a relationship of consumer and service provider. The complainant subscribed to an 'auto pay' system through a credit card issued by his bankers in terms of which, the appellant would receive the payment before the due date to facilitate the timely payment of bills. According to the complainant, the average monthly bill was in the vicinity of Rs. 555. Copies of the previous bills for five months, until 8 November 2013 were annexed. For the period between 8 November 2013 and 7 December 2013, the respondent was billed in the amount of Rs. 24,609.51. According to the respondent, this is an over-charge. The credit limit for the post-paid mobile connection was Rs. 2,300 until the bill dated 8 November 2013, after which the credit limit was increased to Rs. 2,800 for the bill which was generated on 8 December 2013. The respondent has denied undertaking excessive use of the connection, including towards internet facilities. It was alleged that as a prevalent practice, the mobile service provider must intimate the customer when the bill reaches 80 percent of the credit limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, decide and dispose of the dispute between the Private service Provider and consumer." The matter was thereafter carried in revision to the NCDRC. The NCDRC by its judgment dated 26 May 2016 affirmed the view of the SCDRC. 4. Mr Aditya Narain, learned counsel appearing on behalf of the appellant submits that Section 7B of the Act of 1885 provides a statutory remedy of arbitration. Counsel submitted that in view of the statutory remedy, which is a remedy under a special statute, the jurisdiction of the consumer forum is ousted. In this context, besides relying on the provisions of Section 7B, counsel adverted to the definitions of the expression 'telecom officer' in Section 3(2) and of 'telegraph authority' in Section 3(6). 5. The principal issue which arises for determination is 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 "Act of 1986". 6. Section 11 of the Act of 1986 specified the jurisdiction of the District Forum. Section 11(1) provided as follows: "11. Jurisdiction of the District Forum.-(1) Subject to the other provisions of this Act, the District Forum shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. The Act of 1986 was a milestone in legislative efforts designed to protect the welfare and interest of consumers. The long title to the Act specifies that it is an Act "to provide for better protection of the interest of consumers". Paragraph 2 of the Statement of Objects and Reasons accompanying the introduction of the Bill in Parliament specifies the objects in the following terms: "2. It seeks, inter alia, to promote and protect the rights of consumers such as- (a) the right to be protected against marketing of goods which are hazardous to life and property; (b) the right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices; (c) the right to be assured, wherever possible, access to variety of goods at competitive prices; (d) the right to be heard and to be ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the remedy of arbitration in terms of Section 7B of the Act of 1885. Even if that be so, the issue in the present case is whether this would oust the jurisdiction of the consumer forum. The definition of the expression 'service', as already noticed, is embodied in wide terms. 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. Under Section 14, where the District Forum is satisfied that the allegations in the complaint about the services are proved, it is empowered to pass remedial orders in terms of the provisions of sub-section (1). 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 "Act of 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 Section 2(42) of the Consumer Prot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Noticing the object and purpose of the Act as well as Section 3, this Court in Thirumurugan Coop. Agricultural Credit Society v. M. Lalitha [Thirumurugan Coop. Agricultural Credit Society v. M. Lalitha, (2004) 1 SCC 305] , laid down the following in paras 11 and 12 : (SCC p. 312) "11. From the Statement of Objects and Reasons and the scheme of the 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi-judicial forums are set up at the district, State and national level with wide range of powers vested in them. These quasi-judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to the consumers and to impose penalties for non-compliance with their order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribe to the view which has been adopted in the above decision in M Krishnan (supra). The decision is incorrect on two grounds. First, it failed to recognize that the Act of 1986 is not a general law but a special law that has been enacted by Parliament specifically to protect the interest of consumers. Second, even if it is assumed that the Act of 1986 is a general law, 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. In Ajoy Kumar Banerjee v. Union of India (1984) 3 SCC 127, a three-judge Bench of this Court observed: "38...As mentioned hereinbefore if the Scheme was held to be valid, then the question what is the general law and what is the special law and which law in case of conflict would prevail would have arisen and that would have necessitated the application of the principle Generalia specialibus non derogant. The general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entertaining a complaint under the CP Act." 20. The above position was reiterated in IREO Grace Realtech (P) Ltd. v. Abhishek Khanna 2021 SCC OnLine SC 277 by a three-judge Bench of this Court, of which one of us (Justice DY Chandrachud) was a part. Justice Indu Malhotra, speaking for the Bench 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. These observations were made in the context of an allottee of an apartment having the choice of initiating proceedings under the Act of 1986 or the RERA. In the present case, the existence of an arbitral remedy 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. The insertion of the expression 'telecom services' in the definition which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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