BEFORE THE DAKSHINA KANNADA DISTRICT  CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE    

Dated this the 13^th March 2017

PRESENT

SRI. VISHWESHWARA BHAT D         : HON’BLE PRESIDENT

SRI. T.C. RAJASHEKAR                       : HON’BLE MEMBER

ORDER IN

C.C.No.287/2013

(Admitted on 16.11.2013)

1. D.Venkatramanayya,

S/o Deva gopalakrishnayya,

Aged about 54 years,

Residing At Deva House , Devachalla Village,

Sullia Taluk, D.K.District.

2. Durgesh pareppady,

S/o Ramachandra Pareppady,

Aged about 23 years,

Residing at Pareppady House,

Devachalla Village,

Sullia Taluk, D.K.District.

3. Sulochana D,

W/o Ananda Gowda,

Aged about 55 years,

Residing at Deva House,

Sullai Taluk , D.K. District.

4. Girish P.M.

S/o Mohan Gowda. P,

Aged about 35 years,

Residing at Addanapare House,

Devachalla Village,

Sullia Taluk, D.K. District.

                                                                  ….. COMPLAINANTS

(Advocate for the Complainant: Sri CNG)

VERSUS

1. The Sub-Divisional Engineers,

Group Sullia,

 Dakshina Kannada TelecomDistrict,

Sullai Branch, Sullia Taluk, D.K.District.

2. The Principal General Manager,

Dakshina Kannada Telecom District,

Bharat Sanchar Nigam Ltd,

Mangalore, D.K.District.

                                                              ….........OPPOSITE PARTIES

 (Advocate for the Opposite Party: Sri NS)

ORDER DELIVERED BY HON’BLE MEMBER

T.C. RAJASHEKAR:

I.   1. The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against the Opposite Party claiming, to set right and reconnect the landline telephone connection, to pay expenses incurred Rs.10,000/ towards attempts made to set right landline telephone, to pay the compensation amount Rs.75,000/ for the incontinences, loss, hardship and mental agony  and cost by Opposite Party in this proceedings.

2.       In support of the above complainants D.Venkatramanayya, (CW1), Durgesh Pareppady,(CW2), Sulochana D,(CW3), Girish P.M.(CW4), all the complainants   filed affidavit evidence and answered the interrogatories served on them and produced documents got marked at Ex.C1 to C4 as detailed in the annexure here below.   On behalf of the opposite parties Mr.Ramakrishna Bhat P,(RW1) Sub Divisional Engineer (S.D.E Groups), also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 to R11 as detailed in the annexure here below. 

       The brief facts of the case are as under:

     We have perused the complaint and the version documents. This complaint is with regard to the land line telephone connection of the complainants disconnected for replacing with the WLL cordless connections. The complainants state that, their land line connection was disconnected and offered the new WLL connections in which there is lot of connectivity problems and complainants are not interested hence alleges deficiency in service in not reconnecting the landline telephone connections. The opposite party defended the complaint on the grounds that the landline cable wires were damaged in different places, the cable wires are not available and repairing is technically not feasible and financial uneconomical. It is the duty of the complainants to co-operate with the opposite party in the interest of general public. Hence there is no deficiency in service on the part of the Opposite parties.  The opposite party also contended that this Forum has no jurisdiction as there is a bar in Section 7b of the Indian telegraph Act. These are being the facts of dispute in resolving it we consider the following          

POINTS FOR ADJUDICATION

          On consideration of the evidences and the documents produced, the admitted facts are, the complainants were connected with landline telephone to their residence, the opposite party have disconnected the existed landline connections and offered New technical WLL phones and the complainant opposed to the New technical WLL phones. The denied facts are deficiency in service on the part of the opposite party and jurisdiction of this forum. Admissions and the denials reconciled and considered the following points for adjudication.

1. Whether the complainant is a consumer under the consumer protection Act 1986? And this Forum has jurisdiction to entertain the complaint?
2. Whether opposite party proves there is no deficiency in service on their part?
3. Whether the complainant is entitled for the relief prayed for?
4. What order?

We have examined the evidence produced and the documents on file. Heard the party submissions and answered the above points as under.

1. In the affirmative against first 3 complainants and negative against the 4 the complainant.
2. In the negative.
3. In the affirmative.
4. As per delivered order.

REASON

POINT NO 1: There is two issues to be decided in answering this point. Firstly, whether the complainant is a consumer? It is evident from the telephone bill paid receipt marked as EX C 1 to C3 which established the complainant is the subscriber to the land line telephone connection and it is not in dispute. There is no ambiguity with regard the relation of consumer and the service provider. Secondly whether this Forum has jurisdiction? The opposite party contends that this Forum has no jurisdiction to try the matter as there is special Act called the Indian telegraph Act to adjudicate the dispute between the customer and the opposite party under Section 7 B of the Act. As per the Act the matter shall be referred to the arbitration.  There is citation to this effect as opposite party contended. But these disputes related back to formation of the BSNL a company incorporated under the companies Act 1956. Now the telephone lines are not governed by the said Act. The BSNL is the service provider under license agreement and it is not telegraph authority as per section 7 b of the Act. The point has been discussed in detail in the citation W.P. (C) 8285/2010 & C.M. No.21319/2010 JK MITTAL versus UNION OF INDIA & ORS by Honourable Delhi High court and in another BSNL vs Smti Betty Sebastian on 25 February, 2014 decided by the Honourable State Consumer Disputes Redressal Commission, Shilong. Hence we are of the opinion that the complainant is a consumer and this Forum has jurisdiction to try this dispute. However the complainant no 4 Shri Girish P.M. is concern, from the opposite party produced ORDER ON C.C. 74/2010 delivered by this Forum shows that the matter already contested and decided on merit which was filed by the 4^th complainant herein. Hence the res-judicata principle is attracted and the forum has no jurisdiction to entertain the  complainant of 4^th complainant Shri Girish P.M. and needs no discussions on merit with regard to 4^th complainant, hence discussion not related to 4the complainant.  Hence the answer to point no. 1 is in the affirmative against first three complainant and negative against the 4^th complainant.

POINT NO 2: The specific case is the complainant was served with landline telephone connections to the complainants since 1995.1996 and later on November 2012 the said telephone connections disconnected. On various requests the connections not restored and on 19.09.2013 the complaint made a written complaint and the opposite party not responded. The opposite parties not denied the land line telephone connections and its disconnections. The opposite party contends in Page 3 Para 5 of their version that the changing of overhead long distance connection to WLL connection is made as per the BSNL Order No F.No.3-15/2004 WLL dated 23.01.2004. Now it is opposite party burden to prove that the conversion of land line into WLL connection is by authority and as per authority given. Hence the point no 2 taken for consideration.

2. The opposite party as defence put forth the following points. First, the complainants were requested by opposite party to take WLL prepaid connection since land lines cannot be restored as old cable damaged at several places throughout the rout from main road to sub office for a total length of 3 K.Mts. On 03.10.2013 it is informed to them that due to non-availability of cables the land line could not be restored. Secondly, the cable faults cannot be attended due to multiple faults and low insulation, the WLL connection is interruption free service especially introduced in rural areas instead of long overhead and underground lines. Thirdly, it is the duty of the complainants to co operate with the opposite party in the interest of general public. We have taken a deep look on the BSNL Order No F.No.3.15/2004 WLL dated 23.01.2004.  On close scrutiny of the said document EX R 1we found it has been said that the existing land line should be replaced by WLL technology wherever it is feasible and capacity is available with the written consent of the customer. Further the customer may also advised that it will not be possible to revert to the older technology once the connection is replaced using the WLL technology. On reading of this contents what we grasp is it is not mandatory to convert because it is said as, if it is feasible, if consented in writing by the customers, and after appraising them that it is not reconvert able once changed over then only can be converted. The opposite party not produced any consent in writing given by the complainant or any letter purported to have appraised the customer about the non reversibility of the connection once WLL is adopted. Hence in our opinion the opposite party is not right in forcing the customer for changing over to WLL by coercing with disconnection of land line. It is an unfair trade practice.

3. As for as other defence is concern we decline with the opposite party contentions. The problem with the non-availability of the cables, problem in frequent repair attending, technically not feasible or uneconomical all related to problem which the opposite party has to solve and provide service once promised. While fixing consideration and connecting landline all these facts presumed to be taken care of. Now the opposite party cannot withdrew from promise and disconnect the lines. It is the breach of contract. The opposite party also argued that it is the duty of the complainant to cooperate with the opposite party in conversion of land line into WLL technology in the interest of general public. We are not convinced with the line of arguments rendered how it is in the interest of general public. With regard to decision in C.C. 74.2010 , in the first instance it is not binding or suggestive and also the matter is not identical with the present case. In the quoted case the complainant had already changed over to the WLL technology since 2008 and the issue is mainly with regard to efficiency of the WLL technology. Once it is converted it is deemed to be consented. The present case is the complainants neither consented nor the line is converted. The Honourable Karnataka State commission appeal no 561 and 1059 of 2011 is concern no discussion required as this appeal is against the order of C.C. 74/2010 discussed above and hence not applicable for the case in hand.The citations with regard to Sec.7-b of the Telegraph Act is concern the discussion already made while discussing point no 1 above. Hence we hold the opposite party not proved their case as per point No 2 and we answered the point no 2 in the negative.

POINT NO 3:  As in the proceeding paras we discussed we hold the opposite party is liable for deficiency in service and the complainants are entitled for the relief prayed for. The complainants are entitled to get reconnected with the landline telephone connection and continued service which was disconnected by the opposite party, and entitled for the refund of the bill amount paid during the disconnected period. The complainants are entitled for an amount of  20000/ towards compensation as there is negligence on the part of the opposite party in executing the BSNL order as above stated and hindered the day to day life of the complainants communication, and Rs. 6000/ towards cost of the proceedings. The complaint of the 4^th complainant deserve to be dismissed.

POINT NO 4: In the light of above discussion and adjudication of the above points we deliver the following

ORDER

          The complaint is allowed. The opposite party shall restore the landline telephone connections to each of the complainants with all services provided earlier and pay an amount of Rs.20,000/ towards compensation and an amount of Rs. 6,000/ towards litigation expenses. The order shall be complied within 45 days from the date of the copy of the order received. The complaint of the 4^th complainant dismissed.

     Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Page No.1 to 10 directly typed by Member, revised and pronounced in the open court on this the 13^th   March 2017)

            MEMBER                                              PRESIDENT

        (T.C. RAJASHEKAR)                        (VISHWESHWARA BHAT D)

  D.K. District Consumer Forum                D.K. District Consumer Forum

Additional Bench, Mangalore                   Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1: D.Venkatramanayya,

CW2: Durgesh Pareppady

CW3: Sulochana D.

CW4: Girish P.M.

Documents marked on behalf of the Complainants:

Ex.C1: Dated 8.10.2013: The telephone bill.

Ex.C2: Dated 28.10.2013: The telephone bill.

Ex.C3: Dated 26.7.2013: The telephone bill.

Ex.C4: Dated 19.9.2013: copy of the complaint.

Witnesses examined on behalf of the Opposite Parties:

RW1: Mr.Ramakrishna Bhat P, Sub-Divisional Engineer (S.D.E Groups)

Documents marked on behalf of the Opposite Parties:

Ex.R1: 23.7.2004: True copy of the letter issued by BSNL New Delhi to the Chief General Manager to all telecom circles.

Ex.R2: 29.12.2010: Attested copy of the order passed in complaint No.74/2010.

Ex.R3: True copy of the letter issued to complainant No.1.

Ex.R4: True copy of the letter issued to complainant No.2.

Ex.R5: True copy of the letter issued to complainant No.3.

Ex.R6: True copy of the letter issued to complainant No.4  requesting him to allow for execution of court order.

Ex.R7: True copy of the acknowledgment.

Ex.R8: True copy of the letter issued by Opposite Party No.1 to the A.G.M. (Admin) Mangalore with regard to non co operation of                        complainant No.4.

Ex.R9: True copy of the letter issued by Opposite Party No.1 to  the A.G.M. (Admin) Mangalore informing the opposition      

           of complainant no.4.

Ex.R10: True copy of the order passed by State Commission in  Appeal No.561 and 1059/2011.

Ex.R11: List showing the WILL phone connection in Guthigar telephone exchange area.

Dated:  13.03.2017                             MEMBE