Kerala

StateCommission

A/16/363

THE Asst.GENERAL MANAGER BSNL - Complainant(s)

Versus

AMBIKA - Opp.Party(s)

MAYA R MANI

18 Aug 2016

ORDER

                          

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVANANTHAPURAM

 

APPEAL NO.363/16

JUDGMENT DATED:18.08.2016

PRESENT:

HON.JUSTICE.P.Q.BARKATHALI                            : PRESIDENT

SHRI.V.V. JOSE                                                          : MEMBER

 

1.The General Manager Telecom,

   B.S.N.L. Palakkad.

 

2.Sub Divisional Engineer,

   B.S.N.L. Telecom,

   Kuzhalmannam – 678 702                                -        Appellants

 

(Repd. By Assistant General Manager,

Telecom, BSNL, Palakkad C.P.Mohanan)

 

(By Adv: Smt. Maya R. Mani)

 

                   Vs.

Ambika @ Ambika Mohandas,

D/o Sukumara Menon,

XVI/515, Sreyas, Kuppakkad,

Kulavanmokku, Post Kuzhalmannam,

Palakkad – 678 702.                                            -         Respondents  

 

JUDGMENT

HON.JUSTICE.P.Q.BARKATHALI: PRESIDENT

 

This is an appeal filed by the opposite parties in CC/99/2014 on the file of Consumer Disputes Redressal Forum, Palakkad  challenging the order of the Forum dated 27/02/2016 directing the opposite parties to pay to the complainant Rs.10,000/- towards the loss sustained by the complainant and Rs.2000/- as compensation and Rs.1000/- as cost .

2.      The case of the complainant as testified by her before the Forum and as detailed in the complaint in brief is this:

Complainant is conducting a public telephone booth under the name and style “Sreyas communications” having STD PT connection with telephone No 04922-273174 under the self employment scheme in the year 1999. In 2010 she got a broad band connection with telephone No 04922-272078 under business plan. Both telephones were out of order from 5-1-2014. Online complaint was booked on 7-1-2014, but no action was taken.  Complainant also sent letters to Accounts Officer BSNL, Palakkad and Assistant General Manager (Admin), Palakkad.   The Accounts Officer BSNL, Palakkad sent communication on 12-5-2014 to clear the dues on or before 12/5/2014.  The telephones were out of order from 5-1-2014 from 30-4-2014.  For the telephone connection 04922-272078 opposite parties collected Rs.4638/- as telephone charges during the defaulted period.  Therefore complainant claimed damages towards the loss sustained by him and also compensation. 

3.      Opposite parties are BSNL represented by its General Manager, Palakkad and Sub Divisional Engineer, Kuzhalmannam.   They contented thus before the Forum. 

4.      Complaint is not maintainable as a special remedy is provided under Section 7 B of Indian Telegraph Act.  Complainant is a STD-PT Franchise which is a commercial connection.  Therefore she is not a consumer as defined under the Consumer Protection Act.  The telephone connection to the complainant became faulty due to the widening of the National Highway by the NHAI. They are necessary party to the complaint. Opposite parties have given rebate to the complainant for Broadband charge and also for the rent to the telephone connection of the complainant.  Therefore complaint has to be dismissed. 

5.      Complainant and opposite parties filed chief affidavits and Ext.A1 to A7 were marked from the complainant and Ext B1 to B 15 were marked from the opposite parties before the Forum.   On an appreciation of evidence the Forum found that there is deficiency in service from the part of the OP with regard to the telephone connection 04922-272078 and awarded a compensation of Rs.10,000/- towards the loss sustained by the complainant and Rs.2000/- as compensation and Rs.1,000/- as cost.   The opposite parties have come up in appeal challenging the said order of the Forum.

 

6.      Heard the counsels for the appellants and the complainant who appeared through the authorized representative.   

 

7.      The following points arise for consideration.

 

1.  Whether there was any deficiency in service on the part of the OPs?
2. Whether the impugned order of the Forum can be sustained?

 

8.      Counsel for the appellants argued that as per clause 27 of agreement executed between the parties any dispute arising between the parties shall be referred to a sole arbitrator appointed by the Chairman and Managing Director of BSNL. But section 3 of the Consumer Protection Act 1986 provides that provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force.  Therefore inspite of above said agreement, complainant is entitled to approach this Forum for the redressal of grievances. The finding of the Forum on this point is confirmed.                                                                                                                                                                                                                                                                                                                                                                       

 

9.      It was next argued by the counsel for appellant that telephone connections were taken by the complainant for commercial purpose and that therefore he cannot be treated as a consumer as defined under section 2(1)(d) of Consumer Protection Act.  Complainant as PW1 categorically stated that the net connection was taken by her for self employment and she has employed a person to do the job work.  Opposite parties have failed to show that she has any other source of income.      That being so with regard to telephone connection No. 04922-272078  she has to be treated as a consumer as defined under section 2(1)(d) of Consumer Protection Act 1986 .  The finding of the Forum on this point is confirmed.

11.    As regard telephone connection number 04922-273174, complainant admitted that it is a public telephone booth and is a franchisee of the opposite parties.  The bills Ext.A7 series show that the rent during the defaulted period is zero. Therefore Forum is perfectly justified in holding that she is not a consumer as defined under section 2(1)(d) of Consumer Protection Act with regard to telephone No 04922-273174.

12.    Next point to be considered as whether the complainant is entitled to any compensation.  It is admitted by the opposite parties that the telephone connections to the complainant was default during the period 5-1-2014 to 30-4-2014. Bills Ext B12, B14 and B15 reveals that  opposite parties have collected charges during the default period after giving some rebate.  It is also not disputed that in the adalath conducted by opposite parties gave rebate of Rs.2383/- during the relevant period.

 

13.    Opposite parties admitted that for the loss cause to the BSNL NHAI as was directed to pay compensation of Rs.20lakh.  Under these circumstances Forum is justified in finding that there was deficiency in service on the part of the Opposite parties.  Forum has ordered to pay Rs.10,000/- (Rupees Ten thousand only) towards  loss sustained to the complainant, Rs.2,000/- (Rupees Two thousand only) as compensation and Rs.1,000/- (Rupees One thousand only) as cost. We find no ground to interfere with the said finding of the Forum.

In the result we find no merit in this appeal and the same is here by dismissed with a cost of Rs.5,000/-.

 

 

JUSTICE.P.Q.BARKATHALI: PRESIDENT

 

 

V.V. JOSE : MEMBER

VL.