Dispute with your mobile service provider? You may not have much recourse

The Supreme Court still thinks telecom disputes should be resolved through arbitration.

WrittenBy:Arunabh Saikia
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We know you love your smart phone.  There are strong reasons to – after all you use it to do so many things: pay bills, order food and clothes, and even find potential dates.  However, in case of a dispute between you and your telecom company (which also doubles as internet service provider), you may be rather helpless, unless you have the stomach and bandwidth (your own, not the ISP’s) to go in for arbitration. Scared? You should be. Read on.

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You have been shortchanged by your mobile service provider company and have been charged unfairly for the ringtone you never asked for. Or for that matter, charged for browsing the Internet when you don’t even have a smart phone. What do you do? Well, you dial the “customer service” number and listen to an electronic voice give you directions, key in one number after another, and hope you get to talk to a real human being at some point.

Finally, after what often seems like infinity, you get to speak to a real person who speaks to you politely, even calls you sir/madam but doesn’t actually do anything remotely helpful to solve your problem. You argue for a while, threaten to take action, and if you live in Delhi, you don your most menacing voice and ask the call centre executive if he/she knew who you are. However, nothing yields. In the end, you give up, and say, what the hell, this is not worth my time; I’ll just pay up.

Ramesh Kumar Rohilla, a businessman in Delhi, followed the same drill when his mobile service provider insisted that he pay by cash and not cheque. Except that he didn’t think it was not worth his time. Rohilla approached the consumer court. This was 2013. The consumer court though, which Rohilla hoped would teach his mobile service provider company a lesson, cited a Supreme Court judgment and said it could not help him.

Pray tell me what is this judgment that is preventing a court of this country from relieving a person in distress, Rohilla asked.  The court pointed him to a 2009 judgment passed by Makarandey Katju and Ashok Ganguly, wherein the duo ruled that telephone related disputed would be settled by arbitration and the decision of the arbitrator would be final. In effect, the judgment barred customers from approaching any civil or consumer court in case of a grievance against telecom service providers.

Arbitration essentially means that a third “impartial” party solves disputes between two parties. The third part is the arbitrator. Arbitrations are often used to solve conflict Business To Business (B2B) conflicts – and can turn out to be quite a lengthy and expensive process in the case of personal complaints.

Katju and Ganguly had then cited Section 7B of the Indian Telegraph Act, which says:

  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 for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially 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-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court

 (For the sake of information, the aforementioned law was framed in 1885.)   In any case, I am not suggesting the learned judges were wrong (I’m not the kind to indulge in evils like contempt of court). Also, in all fairness, the Department of Telecommunications (DOT) is indeed the telegraph authority  – and the Bharat Sanchar Nigam Limited (BSNL) and the DOT, when the judgment was pronounced, were one entity (it is important to note that the judgment involved BSNL).  Subsequently though, telecom services were outsourced to BSNL – which is not a “telegraph authority”.  The TRAI Act specifically states that a dispute between a service provider and a consumer is maintainable under the Consumer Protection Act.

The judgment, a Times of India article notes, created “havoc”, with consumer courts across the country refusing to accept complaints against telecom companies – including the private ones.  Out of the lakhs of complaints rejected, Rohilla’s was one. Rohilla then approached the National Commission, the appellate body for consumer cases. He cited the Consumer Protection Act, 1986 and the TRAI Act, 1997.  According to the TRAI Act, a dispute between a consumer and a telecom service provider is maintainable under the Consumer Protect Act. The National Commission, though, rules against him. Nothing doing, the Supreme Court says it is not and so it is not, said the appellate body.

Meanwhile, the DoT realised there were far too many pissed-off customers as a result of the judgment and something needed to be done. It passed an official memorandum in February, 2014, stating consumer courts were competent to hear telecom companies-related complaints. “The honourable is sui genris in its application and has to be read with particular facts and circumstances of the case before it,” the DoT said.

In the same year, a bench of the National Commission also echoed the government’s sentiments.

Emboldened, Rohilla approached the Supreme Court again, and filed a writ petition. However, that didn’t quite work out for him – the court threw away the petition without even giving him a hearing.

While the National Commission’s judgment suggests consumer courts will hear complaints against telecom companies, the Supreme Court’s stance still seems to be at complete loggerheads – and that means chaos. Even if we were to believe that consumer courts, in light of the National Commission’s judgment, would start hearing complaints without exception, what happens to complaints filed between 2009 and 2014?  Since the National Commission itself threw most of them away, only the Supreme Court can provide relief – and there are lakhs of such cases.

Rohilla has filed a review petition. “I believe in the Supreme Court and know it will give me a hearing  – after all thousands of people who will benefit from it,” he says. It is perhaps only right that it does, considering consumers, for five years, could not take a telecom service provider to a civil or consumer court.

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