Judgment:
Ramesh Bawri, Senior Member:
1. This entire batch of appeals arises from orders passed by the learned District Consumer Disputes Redressal Forums of East Khasi Hills and Ri Bhoi Districts of Meghalaya (hereinafter referred to as the learned District Fora/Forums) in respect of Complaints filed by various Consumers against Bharat Sanchar Nigam Limited (hereinafter referred to as BSNL). In all the related orders some relief or the other has been granted by the learned District Fora and, besides that, the learned Fora have turned down BSNLs plea that the Consumer Fora have jurisdiction over complaints / disputes relating to the telecom / telegraph services provided by them. Hence the Appeals.
2. As the jurisdiction of the Consumer Fora is a common ground of appeal and goes to the root of the matter, it was our considered view that the maintainability of the complaints be first decided as a preliminary issue as no purpose would be served by going into the merits of each appeal in case it was ultimately decided that Consumer Fora did indeed have no jurisdiction over such cases. Hence, with the consent of the respective counsels of the Appellants as well as all the Respondents, we have taken up this batch of Appeals for hearing on the common preliminary issue as to whether or not the complaints filed by the Complainants in respect of telecom / telegraph services availed by them from BSNL, the Appellants, were maintainable before the respective learned District Forums.
3. Heard Shri S.C. Shyam, learned senior counsel for BSNL, the Appellants, assisted by Shri B. Deb, Advocate. Also heard Shri Sandeep Jindal, learned counsel for the Respondent in F.A. No. 5 of 2006 who has led the battery of Advocates for the Respondents and also the respective counsels of the Respondents in the other Appeals, all of whom have adopted and endorsed the arguments made by Shri S. Jindal.
4. Shri S.C. Shyam has vehemently argued that the respective District Fora lacked inherent jurisdiction to entertain the complaints in question in the manner that they did, since the matters agitated in the said complaints did not fall within the ambit of consumer disputes under the Consumer Protection Act, 1986 (hereinafter referred to as the C.P. Act) and as such the impugned orders are wholly without jurisdiction, bad in law and liable to be set aside and quashed. Shri S.C. Shyam has placed complete reliance on the judgment passed by the Honble Supreme Court in General Manager, Telecom vs M. Krishnan and Anr., reported in AIR 2010 SC 90 (which we shall hereinafter refer to as the Krishnan case / judgment) and, according to him, this judgment alone is enough to prove his point without any further ado. He also brings to our notice that following this judgment several Honble State Commissions of our country including those of the States of Andhra Pradesh, Bihar, Goa, Haryana, Jammu and Kashmir, Uttarakhand and West Bengal have held that Consumer Fora are barred from entertaining complaints relating to telecom services and that the only course open to consumers is to seek arbitration of their disputes under the provisions of Section 7B of the Indian Telegraph Act, 1885 (hereinafter referred to as the Telegraph Act). Mr. S.C. Shyam therefore prays that we too should follow suit.
5. On the other hand, Shri Sandeep Jindal, while fairly conceding that several Honble State Commissions of our country have indeed held that the Consumer Fora have no jurisdiction over disputes relating either to landline or cellular telephones, however points out that these decisions have been reached simply by relying upon the Krishnan case without delving into and discussing the factual situation of the cases and /or noticing the distinctions and prays that we should not follow suit in a routine manner and ought to take an independent view. He further submits that when the applicability of the Krishnan case to the present Appeals is examined, it will be crystal clear that the facts therein are clearly distinguishable and that the Consumer Fora have the fullest jurisdiction over disputes between consumers and the Appellants. To buttress his prayer that we should not be led by the Appellants to follow the Krishnan judgment blindly, he cites Ambica Quarry Works etc. vs State Of Gujarat and Ors (AIR 1987 SC 1073) where in Para 18 the Hon'ble Apex Court had held that œ.¦.. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. ¦.?
6. Obviously, one simple and easy way for us would be to follow the Krishnan judgment and hold that Consumer Fora have no jurisdiction over disputes relating to landline phones and mobile phones, without even attempting to see the circumstances under which the said decision was rendered and who were the parties involved. The other way would be to see whether the cases before us are similar to Krishnan in nature or whether there are any distinguishing features and also to examine how larger and/or earlier Benches of the Honble Apex Court have viewed the matter of jurisdiction of the Consumer Fora. To our mind, to follow the first way would amount to dereliction of duty on our part and be unfair to the Respondents herein, consumers for whose benefit Consumer Fora have been specially created. The second course appeals to us as being more fair and just and, therefore, this is the course we shall adopt, bearing in mind the notes of caution repeatedly sounded by the our Apex Court against following its judgments blindly in Ambica (supra) and in several other judgments, two of which are quoted below. We may state here that we will use only a short party name in our case references, wherever they are repeated, for the sake of brevity.
(i) Hon'ble Justice V. R. Krishna Iyer, the Shakespeare of legal writing whose judgments were as much legal literature as legal rulings, said in his inimitable manner in The Mumbai Kamgar Sabha, Bombay vs M/s Abdulbhai Faizullabhai and Ors (AIR 1976 SC 1455, Para 38) that œIt is trite, going by Anglophonic principles, that a ruling of a superior court is binding law. It is not of scriptural sanctity but is of ratio-wise luminosity within the edifice of facts where the judicial lamp plays the legal flame. Beyond those walls and de hors the milieu we cannot impart eternal vernal value to the decision, exalting the doctrine of precedents into a prison-house of bigotry, regardless of varying circumstances and myriad developments. Realism dictates that a judgment has to be read, subject to the facts directly presented for consideration and not affecting those matters which may lurk in the record. ¦.?
(ii) Again, in The State Financial Corporation and Anr vs M/S Jagdamba Oil Mills and Anr (AIR 2002 SC 834, Para 21) it was dictated that "Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper."
7. At the very outset, since the entire case of the Appellants rests on the case of General Manager, Telecom vs M. Krishnan and Anr. reported in AIR 2010 SC 90 and we shall be analyzing it threadbare to understand its reasoning and impact, we propose to reproduce below the said judgment of the Honble Supreme Court verbatim:
"Heard learned counsel for the appellant.
2. No one appears for the respondents although they had been served.
3. This appeal is directed against the Full Bench judgment and order dated 14.02.2003 of the High Court of Kerala at Ernakulam whereby the Writ Appeal filed by the appellant herein has been dismissed.
4. The dispute in this case was regarding non-payment of telephone bill for the telephone connection provided to the respondent No. 1 and for the said non-payment of the bill the telephone connection was disconnected. Aggrieved against the said disconnection, the respondent No. 1 filed a complaint before the District Consumer Disputes Redressal Forum, Kozhikode. By order dated 26.11.2001, the Consumer Forum allowed the complaint and directed the appellant 2 herein to re-connect the telephone connection to the respondent No. 1 and pay compensation of Rs. 5,000/- with interest @ 12% per annum from the date of filing of the complaint.
5. Aggrieved against the order of the Consumer Forum, the appellant filed a writ petition before the High Court of Kerala challenging the jurisdiction of the consumer forum. A learned Single Judge of the High Court dismissed the writ petition. Thereafter, the appellant filed a Writ Appeal before the Division Bench of the High Court. The Division Bench felt that the matter required consideration by a larger Bench and hence the matter was placed before the Full Bench. By the impugned order the Full Bench of the High Court has dismissed the writ appeal. Hence, the appellant is before us by way of present appeal by special leave.
6. In our opinion 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. Section 7-B of the Telegraph Act reads as under:-
'S. 7B Arbitration of Disputes:-
(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 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-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any court.Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules.
7. It is well settled that the special law overrides the general law. Hence, in our opinion the High Court was not correct in its approach.
8. In Chairman, Thiruvalluvar Transport Corporation Vs. Consumer Protection Council (1995) 2 SCC 479 it was held that the National Commission has no jurisdiction to adjudicate upon claims for compensation arising out of motor vehicles accidents. We agree with the view taken in the aforesaid judgment.
9. In view of the above, we allow this appeal, set aside the impugned judgment and order of the High Court as well as the order of the District Consumer Forum dated 26.11.2001.
10. Appeal allowed. No order as to the costs."
8. Section 7B of the Indian Telegraph Act, 1885 which has been referred to in the aforementioned judgment and is vitally important for disposal of these appeals has already been quoted by the Honble Supreme Court in Para 6 thereof; we shall therefore not burden this judgment by quoting it again. However, as we shall soon see or, rather, as Shri Jindal shall soon show us, the specific meaning of the terms telegraph, telegraph line and telegraph authority which have been used in Section 7B of the Telegraph Act are also very relevant for a complete appreciation of the said section and we therefore note below the definitions of these 3 terms, as contained in Section 3 of the Telegraph Act:
3 (1AA) œtelegraph? means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, radio waves or Hertzian waves, galvanic, electric or magnetic means;
3 (4) œtelegraph line? means a wire or wires used for the purpose of a telegraph, with any casing, coating, tube or pipe enclosing the same, and any appliances and apparatus connected therewith for the purpose of fixing or insulating the same;
3 (6) œtelegraph authority? means 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 under this Act:
9. Bare reading of Section 7B of the Telegraph Act along with the various definitions quoted above leave no room for doubt that, for this section to be operative in any manner, the related dispute must (i) be concerning a telegraph line, appliance or apparatus and further (ii) be between the telegraph authority and the person for whose benefit the said telegraph line, appliance or apparatus has been provided; in other words, between the Director General of Posts and Telegraphs or any officer empowered by him and a consumer of the telegraph services. Further, the 'officer empowered' obviously refers to an officer of the Department and not otherwise.
10. Shri S. Jindal has submitted that the year 1985 saw the bifurcation of the erstwhile Ministry of Posts and Telegraphs and creation of the Department of Telecommunications in the Ministry of Communications and Information Technology, Government of India. Thereupon the post of Director General of Posts and Telegraphs referred to in the said section has ceased to exist and, as such, as the section presently stands, the section is inoperable. Going further, he submits that, even if we were to read the said post of Director General of Posts and Telegraphs as meaning the Head of the present Department of Telecommunications, it would still mean only the said Head of Department or any officer of the Department empowered by him and, under no circumstances, any other licensee or service provider. Hence, no other person or entity could claim to be a 'Telegraph Authority' as defined under the Act and no dispute with such person or entity would fall within the purview of Sec 7B of the Telegraph Act. We are in full agreement with this submission and there can be no other interpretation of the clear words contained in Section 7B of the Telegraph Act.
11. Having established this much, we shall now endeavour to discern whether or not the Krishnan judgment is on all fours with and therefore applicable to the present batch of Appeals, for which purpose we shall analyze the respective factual situations. Examination of the facts of the Krishnan case reveals that it involved a dispute between the General Manager, Telecom and a consumer in respect of a telephone (landline) which was disconnected for non-payment of bill sometime in the year 2001. The General Manager, Telecom, the Appellant therein, being an authorized officer in the Department of Telecommunications, Government of India, it can be safely said that the dispute was between the Dept. of Telecommunications and the consumer Shri M. Krishnan and the said officer was also a Telegraph Authority. In view of the definitions of Telegraph Line and Telegraph Authority as contained in Sections 3(4) and 3(6) of the Indian Telegraph Act, 1885, which we have quoted above, it can therefore be said that the dispute was in respect of a Telegraph Line besides also being between a 'Telegraph Authority' (inasmuch as the General Manager (Telecom) represented the Department of Telecommunications which was the successor to the Department of Posts and Telegraphs) and the person for whose benefit the line had been provided. It is therefore clear that Section 7B of the Telegraph Act was applicable to the Krishnan case and was accordingly applied by the Honble Supreme Court.
12. However, as far as the batch of appeals which is under our present consideration is concerned, the factual situation is quite different. After 2001, the year to which the Krishnan case related, times have changed, players have changed. The telecom sector has undergone a metamorphosis. It is no longer run directly by a Department of the Government and is run either by licenced public or private sector companies. Section 7B of the Telegraph Act no longer has no application whatsoever for the simple reason that BSNL, the Appellants, nor any of its officers are or can be deemed to be Telegraph Authorities, although Mr. S.C. Shyam has vehemently claimed that the Appellants have stepped into the shoes of the Director General of Posts and Telegraphs and are even empowered to appoint arbitrators in case a consumer approaches BSNL for arbitration. Despite opportunity being given to him, he could not, however, place any document before us to back up these claims of his. As discussed above, Section 7B of the Telegraph Act applies only if the dispute is between a Telegraph Authority and a consumer, whereas, in our considered view, BSNL is clearly not a Telegraph Authority for the under-mentioned reasons:
(a) As stated earlier, according to the definition of Telegraph Authority contained in Section 3(6) of the Telegraph Act, only the Director General of Posts and Telegraphs or any Officer empowered by him can be or can be deemed to be a Telegraph Authority. Surely therefore, neither BSNL which is a Company registered under the Companies Act, 1956, nor any of its officers can claim to hold this post which is established by and under the Central Government.
(b) The fact that BSNL is not a Telegraph Authority but is merely a Service Provider/Licensee is further clearly borne out by the following definitions of Licensee, Licensor and Service Provider, in Sections 2(e), 2(ea) and 2(j) of the Telecom Regulatory Authority of India Act, 1997 (hereinafter TRAI Act) which was enacted upon the advent of the telecommunication boom in India.
2 (e)licensee means any person licensed under sub-section (1) of section 4 of Indian Telegraph Act, 1885 (13 of 1885) for providing specified public telecommunication services;
2 (ea)licensor means the Central Government or the telegraph authority who grants a licence under section 4 of the Indian Telegraph Act, 1885 (13 of 1885);
2 (j) service provider means the Government as a service provider and includes a licensee;
If BSNL were to claim to be a Telegraph Authority, then it would have to be both the Licensor and the Licensee, which would be an absurdity.
For the sake of completeness it may also be stated here that Telecommunication Services, for the regulation of which the TRAI Act has been framed, have been defined in Section 2 (k) of the Act in the following words:
" 2 (k) telecommunication service means service of any description (including electronic mail, voice mail, data services, audio tex services, video tex services, radio paging and cellular mobile telephone services) which is made available to users by means of any transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature, by wire, radio, visual or other electro-magnetic mean but shall not include broadcasting services;......"
(c) Section 1(3)(a) of the Telecom Consumers Protection and Redressal of Grievances Regulations 2007 framed by the Telecom Regulatory Authority of India (hereinafter 'TRAI') and reproduced below makes it yet further clear that BSNL is a company registered under the Companies Act, 1956 and is only a Service Provider.
Section 1 (3) : These regulations shall apply to”
(a) all service providers including Bharat Sanchar Nigam Limited and Mahanagar Telephone Nigam Limited, being the companies registered under the Companies Act, 1956 (1 of 1956) providing,-
(i) Basic Telephone Service;
(ii) Unified Access Services;
(iii) Cellular Mobile Telephone Service;
(d) Shri Sandeep Jindal, learned counsel for the Respondent in F.A. No. 5 of 2006 has also produced before us a copy of the clarification issued by the Ministry of Communications and IT, Department of Telecommunications, Government of India vide Memo No. 07-32/2007-PHP (Pt.) dated 19.10.2009 which is reproduced below, which further unambivalently and authentically confirms that private and public service providers (such as BSNL) are not Telegraph Authorities under the Telegraph Act.
No.07-32/2007-PHP (Pt.)
Government of India
Ministry of Communications and IT
Department of Telecommunications
1205, Sanchar Bhawan, Ashoka Road, New Delhi
***
Dated 19th Oct., 2009
To
Sh. S.C. Khanna, Secretary General, AUSPI,
B-601, Gauri Sadan,
5, Halley Road,
New Delhi-110001.
Subject:- Supreme Court Judgement regarding Telecom
Consumers cannot approach Consumer Forums
for billing disputes.
Sir,
Kindly refer to your letter No.AUSPI/13/2009/141, dated 1-10-2009 seeking clarification on the subject cited above. The clarification is given below :-
| Point | Clarification | |
| (a) | Are private and public service providers are telecom authorities and provisions of Section 7-B applicable on them? | No. Private and public service providers are not Telegraph Authority. Further, only Central Govt. can appoint arbitrator under Section 7B of Indian Telegraph Act. |
| (b) | Can private and public service providers as telecom authority appoint arbitrators for arbitration of disputes? |
Yours faithfully,
Sd/-
(Misha Bajpai)
Assistant Director General (PHP)
Tel.23036027?
(e) As regards BSNL's claim that they are empowered to appoint arbitrators, relevant portions of Section 4 of the Telegraph Act which are reproduced below clearly show that the Central Government can delegate its powers only to the telegraph authority and to none other; also that there is no provision for the telegraph authority to further delegate its own powers to anyone, including BSNL.
"4. Exclusive privilege in respect of telegraphs, and power to grant licenses.
(1) Within India, the Central Government shall have the exclusive privilege of establishing, maintaining and working telegraphs:
Provided that the Central Government may grant a license, on such conditions and in consideration of such payments as it thinks fit, to any person to establish, maintain or work a telegraph within any part of India:
.... ....
(2) The Central Government may, by notification in the Official Gazette, delegate to the telegraph authority all or any of its powers under the first proviso to sub-section (1).
.... ...."
13. Our conclusion above that BSNL, albeit a Public Sector Company, is merely a licensee/ service provider and not a Telegraph Authority nor is or can be empowered to act as such, is sufficient to distinguish the present batch of Appeals from the facts of the Krishnan case and for us to hold that the said esteemed judgment has no application to the instant Appeals. Further, the moment we find that the said judgment is inapplicable, being distinguishable, in view of our earlier finding that Section 7B of the Telegraph Act does not apply to disputes between entities other than Telegraph Authorities and consumers, there remains no impediment whatsoever to our arriving at the unmistakable conclusion that Consumer Fora have the fullest jurisdiction to entertain disputes between BSNL and/or other similar service providers / licensees and consumers of telecom / telegraph services in India. This conclusion of ours alone is therefore adequate for the disposal of this batch of Appeals on the preliminary issue of maintainability and jurisdiction by our holding that the learned District Fora were right and justified in their exercising jurisdiction over the various consumer Complaints.
14. It may be stated here that, as far as disputes relating to Cellular Mobile Telephone services (as distinguished from Basic Telephone Services i.e. landlines) are concerned, learned counsel Shri Sandeep Jindal, points out that there are two additional reasons why Section 7B of the Telegraph Act and, consequently, the Krishnan judgment have no application at all. Firstly, as discussed above, Section 7B of the Telegraph Act applies only to disputes concerning any telegraph line, appliance or apparatus. Since telegraph line as defined under Section 3 (4) of the said Act means a wire or wires used for the purpose of a telegraph¦, then logically and conversely Section 7B would not apply to disputes where no wires are used for telegraphy. It is obvious that cellular mobile phones have no wires and therefore disputes relating to such phones would not be disputes concerning any telegraph line. Secondly, for Sec. 7B to be applicable it is required that a telegraph line, appliance or apparatus must have been 'provided' to the user by the telegraph authority. In the case of disputes relating to cell phones, there is no question of 'providing' any 'telegraph line, appliance or apparatus to the user. All that a service provider 'provides' to a consumer in the case of cell phones is a portable memory chip known as a SIM Card, an abbreviation for 'Subscriber Identity Module Card', which in our opinion cannot be treated either as an 'appliance' or as an 'apparatus'. These independent additional reasons which are applicable to cell phones lead us to the inevitable conclusion that Section 7B of the Telegraph Act cannot, by any stretch of imagination, apply to disputes relating to cell phones which fall outside its purview completely and therefore, in any view of the matter, the Consumer Fora have unfettered jurisdiction over such disputes.
15. There is of course yet another aspect of the matter which strikes us. Even between a Telegraph Authority and a consumer, section 7B applies only to a dispute concerning any 'telegraph line, appliance or apparatus which, to our mind, in the present context, means a dispute relating to a defect in the connection or non-functioning of a telephone provided by a telegraph authority. Most of the appeals being considered by us relate to billing disputes and do not relate to defects in the connection or non-functioning of telephones and thereby do not concern a telegraph line, appliance or apparatus, per se. However, since no arguments have been advanced before us on this ground, we refrain from delving into it any further and leave it at that.
16. Proceeding further, Shri S. Jindal has made additional alternative submissions before us in support of the jurisdiction of the Consumer Fora in such matters which we propose to discuss for the sake of completeness, especially as this is a matter having huge ramifications affecting the rights of over 90 crores users of telecom / telegraph services spread over our country.
17. Learned Respondent's Counsel, Shri Jindal submits, with utmost respect to the Bench of Honble Judges of the Hon'ble Supreme Court which delivered the Krishnan judgment that the said judgment, although distinguishable, even if considered to be applicable to the present Appeals, is per incuriam and not a binding precedent. In this connection he draws our attention to section 3 of the C. P. Act, which reads as follows:
œ3. Act not in derogation of any other law. 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.?
He also refers to the following judgments of the Honble Supreme Court where the wide reach of the C.P. Act has been extensively discussed and ruled upon, even before Krishnan, particularly in the light of Section 3 of the C.P. Act and the provisions for arbitration contained in Sec. 7B of the Telegraph Act. Along with the citations, we have also extracted below those parts of the judgments which are most relevant for our purposes:
M/S. Fair Air Engineers Pvt. Ltd. vs N.K. Modi (AIR 1997 SC 533, Para 15)
œIt would, therefore, be clear that the Legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure ¦...?
Skypak Couriers Ltd. vs Tata Chemicals Ltd. (AIR 2000 SC 2008, Para 2)
œ¦. Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force.?
State Of Karnataka vs Vishwabarathi House Building Co-op. Society and Ors. (AIR 2003 SC 1043, Paras 46 and 48)
œBy reason of the provision of Section 3 of the Act, it is evident that remedies provided thereunder are not in derogation of those provided under other laws. The said Act supplements and not supplants the jurisdiction of the civil courts or other statutory authorities.?
œThe provisions of the said Act are required to be interpreted as broadly as possible. It has jurisdiction to entertain a complaint despite the fact that other forums/courts would also have jurisdiction to adjudicate upon the lis. (See Fair Air Engineers vs N.K. Modi ¦..)?
Secretary, Thirumurugan Co-operative Agricultural Credit Society vs M. Lalitha (Dead) Through L.R.s and Ors (AIR 2004 SC 448, Paras 18 and 20)
œ ¦. Provisions of 1986 Act, as already made clear above, apply in addition to the other provisions available under other enactments. It follows that the remedies available under the 1986 Act (i.e. C.P. Act, 1986) for redressal of disputes are in addition to the available remedies under the Act (i.e. the Tamil Nadu Co-operative Societies Act, 1983). Under the 1986 Act we have to consider as regards the additional jurisdiction conferred on the forums and not their exclusion. .... Merely because the rights and liabilities are created between the members and the management of the society under the Act and forums are provided, it cannot take away or exclude the jurisdiction conferred on the forums under the 1986 Act expressly and intentionally to serve a definite cause in terms of the objects and reasons of the Act, reference to which is already made above....?
œThus, having regard to all aspects we are of the view that the National Commission was right in holding that the view taken by the State Commission that the provisions under the Act relating to reference of disputes to arbitration shall prevail over the provisions of the 1986 Act is incorrect and untenable...."
In addition, we find yet another judgment viz Kishore Lal vs Chairman, E.S.I. Corporation (AIR 2007 SC 1819) passed by a 3-Judge Bench on the same issue, in a way summing up its earlier decisions in Para 17 thereof. This too was delivered prior to the Krishnan judgment and reads:
œ¦. The trend of the decisions of this Court is that the jurisdiction of the consumer forum should not and would not be curtailed unless there is an express provision prohibiting the consumer forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the consumer forum would not be barred and the power of the consumer forum to adjudicate upon the dispute could not be negated.?
18. It will be immediately noticed that all the five aforementioned judgments were rendered prior to the Krishnan judgment. Further that Skypack, Vishwabarathi and Kishore Lal have all been rendered by Benches of 3 Honble Judges, whereas the Krishnan case was decided by a Bench of 2 Honble Judges. The 2-Judge Bench Fair Air judgment too has been impliedly approved in Vishwabarathi.
It may also be mentioned here that, even after the Krishnan judgment, the wide additional jurisdiction of the Consumer Fora, also notwithstanding the provisions for arbitration contained in other law, continued to be upheld by the Honble Supreme Court in its following pronouncements:
Trans Mediterranean Airways vs M/S. Universal Exports and Anr. [(2011) 10 SCC 316, Para 32]
œIn our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other Statute. It does not extinguish the remedies under another Statute but provides an additional or alternative remedy. ¦.?
M/S. National Seeds Corpn. Ltd. vs M. Madhusudhan Reddy and Anr. (AIR 2012 SC 1160, Paras 23 and 29)
œ¦. That apart, there is nothing in the Seeds Act and the Rules which may give an indication that the provisions of the Consumer Act are not available to the farmers who are otherwise covered by the wide definition of `consumer' under Section 2(d) of the Consumer Act. As a matter of fact, any attempt to exclude the farmers from the ambit of the Consumer Act by implication will make that Act vulnerable to an attack of unconstitutionality on the ground of discrimination and there is no reason why the provisions of the Consumer Act should be so interpreted.?
œThe remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. ¦. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. ¦.?
19. To our mind, the summarized ratio of these earlier and Larger Bench judgments of our Apex Court is that the remedies available to a consumer under the C.P. Act are in addition to any remedy of arbitration that may have been provided for in any other statute or any agreement between the parties and these do not preclude a consumer from availing the remedies provided under the C.P. Act. Further that the Consumer Fora have jurisdiction to entertain complaints even if other statutes provide for similar remedies.
20. Coming back to the submissions of learned counsel for the Respondents that the Krishnan judgment is per incuriam, we shall first see from the following judgments what per incuriam means, when can a judgment be termed per incuriam and what is the consequence if it indeed is so.
A.R. Antulay vs R.S. Nayak and Anr (AIR 1988 SC 1531, Paras 44 and 49)
".... 'Per incuriam' are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong......?
"....It is a settled rule that if a decision has been given per incuriam the Court can ignore it....."
Municipal Corporation of Delhi vs Gurnam Kaur (AIR 1989 SC 38, Para 11)
".... A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute."
Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. Presiding Officer, Labour Court, Chandigarh [1990 SCC (3) 682]
"......The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own ....."
V. Kishan Rao vs Nikhil Super Speciality Hospital [(2010) 5 SCC 513, Para 51]
"When a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are rendered `Per incuriam'....."
21. From the Krishnan judgment, when seen through the prism of the above rulings, it appears that neither the statutory provisions contained in Section 3 of the C.P. Act (which says that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force) nor any of the prior Larger Bench judgments cited by us above i.e. Skypack, Vishwabarathi, or Kishore Lal were brought to the notice of the Honble Judges and the Krishnan judgment appears to have been rendered in ignorance of the same.
22. Here we must confess that, while it is not too difficult for learned counsel to submit that a judgment of the Honble Supreme Court is per incuriam or not binding as a precedent for any other reason, Courts and Tribunals inferior to the Honble Supreme Court like ours are bound to be in a state of trepidation while accepting such a plea, lest they trip up despite all their sincerity and discipline and incur the wrath of the Honble Supreme Court. Our trepidation is further accentuated when we are confronted with conflicting decisions which we are unable to reconcile, thereby leaving us facing the unenviable proposition of perforce having to follow one decision and, with utmost respect, bypassing the other, being left with no other option.
23. Mercifully, however, the Honble Supreme Court itself has shown the path that is to be followed in situations where its various judgments cannot be reconciled.
In Union of India and Anr vs K.S. Subramanian (AIR 1976 SC 2433 Para 12) the Apex Court remarked "... But, we do not think that the High Court acted correctly in skirting the views expressed by larger benches of this Court in the manner in which it had done this. The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court. That is the practice followed by this Court itself. The practice has now crystallized into a rule of law declared by this Court... "
Again in A.R. Antulay vs R.S. Nayak and Anr (AIR 1988 SC 1531, Para 46) a Constitution Bench held that "The principle in England that the size of the Bench does not matter, is clearly brought out in the decision of Evershed M.R. in the case of Morelle v. Wakeling, (1955 (1) All ER 708) (supra). The law laid down by this Court is somewhat different. There is a hierarchy within the Court itself here, where larger Benches overrule smaller Benches¦.. This is the practice followed by this Court and now it is a crystallised rule of law. ¦?
24. Despite our best efforts we have been unable to reconcile the Krishnan judgment, which bars the jurisdiction of the Consumer Fora in view of the arbitration provisions contained in Section 7B of the Telegraph Act, with the judgments of the Honble Supreme Court in Skypack, Vishwabarathi and Kishore Lal, all of which were rendered by Benches of 3 Hon'ble Judges, that too prior to Krishnan, the cumulative ratio of which, as mentioned above, is that the remedies provided under the C. P. Act are in addition to the remedy of arbitration or any other remedy provided in other Acts and that Consumer Fora have the jurisdiction to entertain complaints unless there is an express provision prohibiting them from taking up the matter. As we find no such express prohibition either in the Telegraph Act or in the C.P. Act, we, with utmost respect to the Honble Supreme Court and particularly the Hon'ble Bench that delivered the Krishnan judgment, while being while fully conscious of our place in the legal hierarchy and the requirement of maintaining judicial discipline and propriety, are obliged to follow its aforestated 3“Judge Bench judgments.
25. Shri Jindal has also pointed out to us that in the Krishnan case the Honble Supreme Court has relied upon its earlier judgment vizChairman, Thiruvalluvar Transport Corp. vs Consumer Protection Council (AIR 1995 SC 1384) where it had been held in Para 6 that:
"The question which then arises for consideration is whether the National Commission had jurisdiction to entertain the claim application and award compensation in respect of an accident involving the death of Shri K. Kumar caused by the use of a motor vehicle. Clearly the Claims Tribunal constituted for the area in question, had jurisdiction to entertain any claim for compensation arising out of the fatal accident since such a claim application would clearly fall within the ambit of Section 165, of the 1988 Act (Motor Vehicles Act). The 1988 Act can be said to be a special Act in relation to claims of compensation arising out of the use of a motor vehicle. The 1986 Act (C.P. Act) being a law dealing with the question of extending protection to consumers in general, could, therefore, be said to be a general law in relation to the specific provisions concerning accidents arising out of the use of motor vehicles found in Chapter XII of the 1988 Act. Ordinarily the general law must yield to the special law. ......"
26. He also points out the Honble Supreme Court has itself earlier distinguished Thiruvalluvar in another judgment and held that it was only in respect of Motor Accident Claims that the said judgment applied. This judgment was Secretary, Thirumurugan Co-operative Agricultural Credit Society vs M. Lalitha (Dead) Through L.R.s and Ors (AIR 2004 SC 448) where in Para 17 it stated as follows:
"The learned counsel for the appellant strongly relied on the decision of this Court in Chairman, Thiruvalluvar Transport Corporation vs. Consumer Protection Council ((1995) 2 SCC 479). A deeper look at the facts of that case and question considered therein make it clear that it governs the fact of that case having regard to the specific provisions contained in the Motor Vehicles Act, 1988. .... As can be seen from paragraph 6 of the judgment, the question that arose for consideration was whether the National Commission had jurisdiction to entertain the claim application and award compensation in respect of an accident involving the death of a person caused by the use of a motor vehicle. Taking note of the fact that the Claims Tribunals constituted under the Motor Vehicles Act, 1988 had jurisdiction to entertain claim for compensation which clearly fell within the ambit of Section 165 of the Motor Vehicles Act, 1988, held that the 1988 Act can be said to be a special Act in relation to claims of compensation arising out of the use of a motor vehicle. It is observed that the accident occurred had nothing to do with service provided to the deceased, if one reads the provision along with the definition of complaint in Section 2(1)(c) and service in Section 2(1)(o) of the 1986 Act. This Court held that the complaint in that case could not be said to be in relation to any service hired or availed by the consumer because the injury sustained by the consumer had nothing to do with the service provided or availed by him. 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.?
27. We find that Thiruvalluvar was similarly distinguished in yet another judgment of the Honble Supreme Court viz GeetuSapra and Ors. vs B.L. Kapoor Memorial Hospital [I (2004) CPJ 11 SC] in the following words:
œ1. ¦.. By the impugned judgment, the National Commission dismissed the claim merely on the ground that in view of the judgment of this Court in the case of Chairman, Thiruvaluvar Transport Corporation v. Consumer Protection Council, they had no jurisdiction.
2. In our view, this judgment has no relevance at all. That was a case where the claim before the National Commission was based on the accident itself. In that context this Court held that the claim based on a motor accident can only be before the Motor Accident Claims Tribunal. In this case, the claim is not based on the accident. The claim is based on the alleged negligence of the hospital and doctors after the said Mr. Sapra was taken to the hospital. That is entirely a different cause of action. In respect of such a claim the National Commission would have jurisdiction.?
However, having examined the Krishnan judgment deeply, we are of the considered opinion that, although the Honble Supreme Court did refer to Thiruvalluvar there, it did not base its decision on the said case. It only expressed its agreement with the said judgment wherein it had been held that the Honble National Commission had no jurisdiction to adjudicate upon claims for compensation arising out of motor vehicles accidents. Hence we do not propose to say anything further in this regard.
28. As per our interpretation