the mess of telecom complaints in india- a comprehensive review

8/6/2019 The Mess of Telecom Complaints in India- A Comprehensive Review

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The mess of telecom

complaints in India: AComprehensive Review

A Supreme Court judgement in 2009 has thrown telecom complaints resolution in disarray.

Akosha team digs deeper and brings you Akosha Telecom Complaints Survey 2011. Key

finding: 33% of the District Consumer Forums are rejecting telecom related complaints!

Telecom Complaints Survey2011 conducted by Akosha

Upset with a brand? Get your complaint resolved through Akosha

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Introduction

A lot of people ask us about helping them with telecom/broadband/DTH disputes. Usually it is about

one of the following issues:

a) Fraudulent Fair Use Policy (check out this awesome thread which talks about Airtel’s

Broadband FUP – it seems Airtel broadband meters are “deliberately” faulty);

b) Overcharging/non-activation of plans, activation of wrong plans e.g. GPRS (check out this

article where a person got extra GPRS charges removed by negotiating hard with Airtel );

c) Charging for VAS products – many times certain VAS services (like caller tunes, mobile

content) are automatically activated and charged from customers’ accounts;

d) Wrong billing – though the billing systems are automated, sometimes the bills are obviously

wrong (I received a bill where they had charged me for the same calls twice!);

e) Bad network coverage/call or broadband quality/dropped calls – a really rampant issue.General consumer behavior is to cuss and forget about it.

f) Getting calls and SMSs despite DND activation – National Do Not Disturb Registry has

mostly worked, but sometimes customers keep getting messages. A lot of times customers

give out their mobile numbers and their numbers are abused by businesses other than the

telecom company. Here the fault doesn’t lie with the telecom company.

g) Miscellaneous things – like recharges not getting credited in time, rude behavior by

customer care personnel.

There are several problems here:

Telecom industry has such high churn rate (new customers signed up each day/current

customers deactivating their accounts) that an individual customer does not seem to matter in

the larger scheme of things;

The amounts involved in most consumer problems is so small that it doesn’t make sense for

most customers to take action – like finding a lawyer and filing a complaint.

The three tier self regulatory system set up by telecom companies – customer care, nodal

officers, and appellate authorities wastes a lot of time for the customers and is expensive for

the telecom companies.

All this is despite the fact that customer satisfaction is an important “metric” being tracked by the

telecom companies (I’m told that most major operators keep it as an issue at the head office/central

level).

This guide is meant for laymen, consumers, activists, and others who are looking to fight for their

rights against telecom companies.

Background

http://cyfanfor.in/2011/04/12/bandwidth-fraud/




http://www.akosha.com/consumer-complaints/article/airtel-live-v-gprs-issue-%E2%80%93-experience-airtel-customer-care









In India, consumers can approach a consumer forum for enforcing their rights in case they are given a

defective product or deficient service. For the longest time, a consumer could approach their nearest

consumer forum regarding complaints against telecom companies. Then, in September 2009, the

Supreme Court of India decided (in the case of General Manager v T. Krishnan and Ors), that

consumers could not approach consumer courts in relation to telephone billing disputes as the IndianTelegraph Act provided for a special remedy for such disputes.

The crux of the Supreme Court judgement in its own words is: “ 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 ”. In this guide, the

Akosha team analyses this judgement, and presents its findings about what is the reality on the

ground regarding consumer issues.

What is the law on this point?

The Indian Telegraph Act, 1885

The relevant section (7B) of the Indian Telegraph Act states:

(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 or whose benefit the

line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration

and shall, for the purpose 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-s. (1) shall be conclusive between the parties to

the dispute and shall not be questioned in any Court."

So, this section of the Indian Telegraph Act says that where there is a:

Dispute in relation to any telephone line or apparatus

Between the telephone authority and the person for whom such line or apparatus has been

set up,

such a dispute will have to settled by statutory arbitration and the ordinary courts will not have any

jurisdiction.

Just by way of background, this Act was put in place in the year 1885, just 9 years after Alexander

Graham bell invented the telephone! Section 7B was inserted into the Act in the year 1957, almost 40

years before the introduction of mobile phone technology into India. As you will no doubt gather, this

is an old law and was enacted when not many people had access to telephones .

The Telecom Regulatory Authority of India Act, 1997



The Telecom Regulatory Authority of India Act, 1997 was enacted to deal with the advent of new

telecommunications technology, recognizing the need to provide for adequate complaint resolution

services for the millions of new consumers in the telecom market. This Act provides for setting up the

Telecom Regulatory Authority of India (TRAI) and the Telecom Disputes Settlement & Appellate

Tribunal (TDSAT) to deal with consumer issues (as explained below, they deal with issues affectingconsumers on a broad basis, and not individual disputes). This Act specifically states that TRAI and

TDSAT will not have any jurisdiction over complaints filed by consumers before the ordinary

consumer courts. Have a look at section 14 of the Telecom Regulatory Authority of India Act, 1997

yourself:

14. (1) If a dispute arises, in respect of matters referred to in sub-section (2), among service

providers or between service providers and a group of consumers, such disputes shall be

adjudicated by a bench constituted by the Chairperson and such bench shall consist of two

members;

Provided that if the members of the bench differ on any point or points they shall state the

point or points on which they differ and refer the same to a third member for hearing on such

point or points and such point or points shall be decided according to the opinion of that

member.

(2) The bench constituted under sub-section (1) shall exercise, on and from the appointed day

all such jurisdiction , powers and authority as were exercisable immediately before that date

by any civil court on any matter relating to-

i. technical compatibility and inter-connections between service providers;

ii. revenue sharing arrangements between different service providers;

iii. quality of telecommunication services and interest of consumers;

Provided that nothing in sub-section shall apply in respect of matters relating to-

i. the monopolistic trade practice, restrictive trade practice and unfair trade practice

which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices

Commission established under sub-section (1) of section 5 of the Monopolies and

Restrictive Trade Practices Act, 1969;

ii. the complaint of an individual consumer maintainable before a Consumer Disputes

Redressal Forum or a Consumer Disputes Redressal Commission or the National

Consumer Redressal Commission established under section 9 of the Consumer

Protection Act, 1986;

iii. dispute between telegraph authority and any other person referred to in sub-section

(1) of section 7B of the Indian Telegraph Act, 1885

The Consumer Protection Act, 1986



The last piece of legislation that is relevant is the Consumer Protection Act itself, more specifically,

section 25 of the Act. This section states that the “provisions of this Act shall be in addition to and not

in derogation of the provisions of any other law”. This should mean that the Consumer Protection Act

acts simultaneously with other legislations granting remedies for consumers (and therefore does not

apply only where there is no other remedy). It also stands to reason that any other law which providesremedies to consumers will, in all probability, be a “specific” law which goes against the reasoning of

the Supreme Court in the Krishnan case. The question then, is whether a law which actively excludes

jurisdiction of courts can be said to override the Consumer Protection Act. In a decision dated 9

September 2009, the district Consumer Disputes Redressal Forum (Ferozepur, Punjab) considered

the law on this point and concluded that in the past, the Supreme Court has taken a view that even in

cases where the jurisdiction of civil courts was ousted, this did not bar consumers from filing

complaints under the Consumer Protection Act (you can read the decision at

http://www.advantageconsumer.com/legal6.html ). We have analysed one important previous decision

of the Supreme Court below.

Previous decisions of the Supreme Court on this point

While there are a number of decisions that maybe related to this point, we will describe for you one

decision which we feel fits the bill perfectly. This is a decision by the Supreme Court dated 11

December 2003 in Secretary, Thirumurugan Co-operative Agricultural Credit Society v M. Lalitha

(http://www.indiankanoon.org/doc/1640713/ ). Here, the Supreme Court held that even though the

Tamil Nadu Cooperative Societies Act, 1983 stated that no order by the designed authority under this

Act would be called into question in any court, this did not bar claims under the Consumer ProtectionAct.

In fact, this decision of a 2-judge bench also considered the case of Chairman, Thiruvalluvar

Transport Corporation v Consumer Protection Council which was relied upon in the Krishnan case.

The Supreme Court expressly states that this case would not apply to cases of determining whether

an additional remedy exists under the Consumer Protection Act. The court held “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 .”

Akosha’s take on the law

So you see, it was specifically envisaged in a later Act of Parliament (Telecom Regulatory Authority of

India Act, 1997) that individual consumers may file complaints before the consumer disputes fora.

Also, if you look at (ii) and (iii) in the proviso above, there is a distinction made between individual

consumer complaints and the disputes under Section 7B of the Indian Telegraph Act. Surely this

indicates that individual consumer complaints would not fall under Section 7B. The Telecom

Regulatory Authority of India Act, 1997 was not mentioned in the Supreme Court decision in theKrishnan case. Neither were previous decisions of the Supreme Court holding that consumers could

http://www.advantageconsumer.com/legal6.html


http://www.indiankanoon.org/doc/1640713/







file complaints under the Consumer Protection Act even where the jurisdiction of civil courts was

ousted under other laws.

It is therefore likely that the Krishnan case will be challenged before a larger bench of the Supreme

Court or at least we hope that this happens. In the meanwhile, read on for some practical advice on

what to do with your consumer complaint today.

What about TRAI – can it help me with my telecom dispute

The Telecom Regulatory Authority of India is charged with regulating telecom providers. It issues

licenses to private telecom companies (such as Vodafone, Idea, etc.) and decides the rules by which

these telecom providers must operate, including service standards.

The TRAI does not usually examine individual consumer disputes. It looks at issues that affect all

consumers – for instance, it would not usually look into matters of an individual being overcharged by

a particular service provider, but it would be concerned about whether a service provider has in place

the required systems for consumers to choose not to receive marketing calls. TDSAT hears appeals

from cases decided by TRAI and therefore looks at similar cases as TRAI – those with some “group”

interest.

The Telecom Consumers Protection and Redressal of Grievances Regulations, 2007 contain

detailed rules on how telecom service providers must deal with consumer grievances. In brief these

regulations say that:

Service providers must set up toll free consumer call centres. The f irst step for any consumer

with a complaint is to register the complaint at such a Call Centre and obtain a docket

number, confirming registration of the complaint.

Call centres must resolve complaints relating to faults in or disruption of service within 3 days

and all other complaints within 7 days.

If this does not work, the consumer can complain to the “Nodal Officer” set up by the service

provider. The Nodal officer must resolve complaints relating to faults in or disruption of service

within 3 days and all other complaints within 10 days.

If this does not work, the consumer may approach the appellate authority of the service

provider. The appellate authority must resolve the complaint within 3 months.

Note that if your complaint is not resolved within the said number of days, you will be entitled

to a rent rebate (see box).

In addition to the rules mentioned above, Telecom Consumers Protection and Redressal of

Grievances Regulations, 2007 say that at any time, the consumer may approach the

Consumer Court for relief.

How are Consumer Courts interpreting the Krishnan decision



On 31 December 2009, the consumer disputes redressal forum of the central Mumbai district passed

an order on a complaint against Bharti Airtel. It said that the Supreme Court judgement in the

Krishnan case only limited the ability of consumer courts to deal with issues between a “telegraph

authority” and consumers, i.e., it interpreted telegraph authority to mean state run telecom companies

(MTNL and BSNL) and not private telecom service providers such as Airtel, Vodafone, etc. Similarly,in August 2010, the South Goa consumer disputes redressal while held that while it had no jurisdiction

over cases against BSNL on the basis of the judgement, observed that cases against private telecom

service providers could still be filed with it.

However, other consumer forums in states such as Tamil Nadu (see this story) have rejected

complaints on the basis of the Supreme Court judgement. Consumer rights activists have expressed

the view that the Supreme Court judgement should be challenged before a larger bench of the court.

If you have ever had to interact with the telecom companies (right from their lower customer care

executives to their nodal officers and appellate authorities) you would know how much of a time sink it

can is. On top of this, there is the whole confusion created because of the judgement discussed

about. Today it seems that the telecom company is both the perpetrator, judge and the jury.

http://articles.timesofindia.indiatimes.com/2011-01-17/chennai/28362319_1_consumer-courts-consumer-cases-fora





Akosha Telecom Consumer Complaints Survey 2011

The situation on the ground is really confusing – so the Akosha team decided to collate some real

data on this.

We decided to speak with the helpdesks at 65 District Consumer Forums across the country. (Note:

all complaints involving amounts below Rs.20 lakhs are supposed to be submitted to District

Consumer Forums – and therefore, they would have jurisdiction over almost 100% of all telecom

disputes). These 65 District Forums were chosen to be representative of different States and had the

highest number of cases in their respective States.

Key findings:

1. Over 44% of the 65 biggest District Consumer Forums in India do not have a functional

telephone number or helpdesk. It is very difficult for customers to seek information and

approach these district consumer forums.

2. Of the 36 District Consumer Forums we were able to get through to, 33% were either

completely rejecting complaints against telecom companies or were non committal on

whether they take up such cases.

3. The rest of the District Consumer Forums (especially in Western India) were accepting

complaints against telecom companies.

4. There is a lot of contradiction sometimes within the same State. In Delhi, for example, while 5

District Forums said they accept telecom complaints, 3 said they did not, and another 2 saidthat they are not sure.

Graph of District Consumer Forums with Functional Helpdesks



Table of District Consumer Forums with Functional Helpdesks



Graph of District Consumer Forums Accepting/Rejecting Telecom Consumer Complaints

Table of District Consumer Forums Accepting/Rejecting Telecom Consumer Complaints



Some empirical comments

The helpdesk at South Delhi I district forum said that there was “no judgement barring consumer

forums from entertaining complaints against telecom companies”.

The helpdesk at Central Delhi KG Marg district forum said that “you will have to go in for arbitration”.

When asked for more details about what is the process for that, they did not have much to add.

The helpdesk at Goa said that they accept complaints against all telecom companies other than

BSNL.



The helpdesk at Chennai North said that “due to the Supreme Court judgement, no telephone/mobile

related complaint is entertained but complaints regarding broadband and DTH will be accepted”.

However, the Bangalore (Urban III, IV) helpdesks clarified that they even take complaints relating to

broadband and data cards.

There is of course utter confusion in terms of whether to not to accept complaints, and what time of

complaints are barred.



Conclusion

Getting to the heart of the matter –

1. Supreme Court orders bind all courts below, including consumer courts. As we have

mentioned, certain consumer courts are accepting telecom complaints (interoperating the SC

judgement as banning complaints only against the state run telecom service providers (BSNL

and MTNL) and not private operators) while other are not.

2. Practically, we would suggest sorting the matter out with the service provider directly, and

then if you are in a district which is accepting such complaints (see the table above), you may

go ahead with filing a complaint. Here is a No Nonsense Guide to Filing a Consumer

Complaint.

3. However, this would be at a risk that the decision by the Consumer Forum could be

overturned at a higher level based on the Supreme Court judgement. See the list of state-level Consumer Forums along with their Google Maps.

If you have fought a case against a telecom company in a district consumer forum, please do

share your experience with us.

If you have fought a case against a telecom company in a district consumer forum, please do share

your experience with us . If you would like to republish findings of the Akosha Survey, please get in

touch with us at support AT akosha DOT com.




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