9911796707
TMI Blog2011 (12) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... int against Bharti Televentures Ltd., ICICI Bank Limited and American Express Bank Ltd. with the prayer for award of exemplary damages to the tune of ₹ 34,50,000/- for harassment, mental agony and financial loss suffered by her on account of unsolicited calls received on her mocvbile phone from various banks/financial institutions and other companies. She pleaded that despite repeated representations made to the opposite parties, no remedial measure was taken by them and she continued to suffer-harassment due to unsolicited calls which had adversely affected her life in different ways. The State Commission took cognizance of the complaint filed by the appellant, issued notice to the opposite parties and passed order dated 01.05.2006, paragraphs 9 and 10 of which are extracted below : 9. We hereby, by interim order direct all the service providers of mobile phone services not to disclose any personal information in their possession including the mobile phone number in their possession to any unauthorised persons including the Banks, financial institutions, finance companies as it is a breach of Privacy Statement and undertaking and may invite the cancellation of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to send unsolicited calls or messages to the consumers of the service providers with whom they have no contract of any kind whatsoever in this regard as this phenomenon is causing lot of inconvenience, mental agony and harassment to the consumers of service providers of mobile telephones. Presumption would be raised that they have obtained the information from the service providers as to the details of the consumers as well as mobile telephone number and for this the service provider or the banks, financial institutions shall be deemed to be severally and jointly liable. It is made clear that if in future any violation or non-compliance of this order is brought to the notice of this Commission by any consumer of any service provider of such service, it would be treated as failure or omission to comply with the order and shall invite not only heavy punitive damages but sentence of imprisonment as provided u/s 27 of the Consumers Protection Act, 1986 for a term which shall not be less than one month but which may extend to three years or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both. Chief Executive Officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrol this evil, as the ultimate responsibility lies over it : - (i) Cellular Operators Association of India (OP No. 5) is hereby directed to inform all its Members to immediately withdraw the list of subscribers and their mobiles telephone numbers provided by them to banks, finance companies or any other agencies or persons and give them directions in writing that they shall not use this information for any purpose whatsoever and also by way of telemarketing. (ii) All those agencies, banks, financial institutions or persons who are having their own directories for this purpose who are neither their subscribers nor their clients, shall disband those directories forthwith. (iii) Every such subscriber who suffers this agony, harassment and nuisance shall be entitled to a minimum compensation of ₹ 25,000/-, who has and is suffering as the complainant has suffered, as and when he approaches the Consumer Forum in this regard. (iv) To bring in more competition, better coverage for the area with another service provider, lower rates and unsatisfactory or bad customer service with the current service provider, TRAI is directed to bring in 'NUMBER PORTABILITY' RULE, as prevale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llector of Customs, Calcutta, (1963)3 SCR 338; State of West Bengali. North Adjai Coal Co. Ltd., (1971)1 SCC 309; Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others, (1998)8 SCC 1 and Popcorn Entertainment and Another v. City Industrial Development Corporation and Another, (2007)9 SCC 593. SHRI Vaidyanathan also submitted that the State Commission should have exercised restraint and deferred the hearing of the complaint because the writ petitions filed by the respondents questioning its jurisdiction to pass order dated 27.09.2006 were pending before the High Court. We have considered the respective arguments/ submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation - L. Chandra Kumar v. Union of India, (1997)3 SCC 261. However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the second class. The form given by the statute must be adopted and adhered to.' The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd., 1919 AC 368 : (1918-19) All ER Rep. 61 (HL) and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd., 1935 AC 532 and Secy, of State v. Mask and Co., (1939- 40) 67 IA 222 : AIR 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine. In Mafatlal Industries Ltd. v. Union of India, (1997)5 SCC 536, B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed : So far as the jurisdiction of the High Court under Article 226 - or for that matter, the jurisdiction of this Court under Article 32 - is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment in Lucknow Development Authority v. M.K. Gupta, (1994)1 SCC 243 and observed : Accordingly, it must be held that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words in derogation of the provisions of any other law for the time being in force would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. The Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent Court of civil jurisdiction. Nonetheless, the Act provides the additional remedy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l have jurisdiction- (a) to entertain- (1) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore; and (ii) appeals against the orders of any District Forum within the State; and (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. (2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,- (a) the opposite party or each of the opposite parties, where they are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction and that too by overlooking the availability of statutory remedy of appeal to the respondents. ( 12. ) WE also find that the High Court has taken cognizance of the statement made on behalf of the Counsel for the petitioners that their clients would challenge Clause (iii) of para 38 of the State Commission's order by filing an appeal under Section 19 of the Act and the fact that one of the aggrieved parties, namely, American Express Bank Limited has already filed an appeal-questioning paragraph 38(iii) of the order of the State Commission. After having noticed that some of the petitioners were inclined to avail the remedy of appeal against the particular portion of the order passed by the State Commission, the High Court should not have entertained the writ petition filed under Article 226 of the Constitution and the miscellaneous petitions filed under Article 227 of the Constitution and directed them to avail remedy of appeal under Section 19 of the 1986 Act. The appeal is accordingly allowed and the impugned order is set aside. However, liberty is given to respondent No. 1 and others to challenge the order of the State Commission by availing alternative re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
