BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.287 of 2015

Date of Instt. 02.07.2015

Date of Decision: 07.02.2018

1. Jatinder Jaiswal aged about 40 years, S/o Shri B.P. Jaiswal R/o Tulip 605.

2. Sandeep Joshi S/o Shri T.L. Joshi R/o Tulip 603.

3. Joginder Dhiman S/o Shri Gyan Singh R/o Tulip 407.

4. Dr. Vivek Arora S/o Shri Yash Arora R/o Orchid 503.

All R/o Bellevue Green Apartments, Mithapur Kingra Road, Near SAS Nagar, Jalandhar, Punjab.

..........Complainants

Versus

1. Bharat Sanchar Nigam Ltd., CTO Complex, Near GPO, Jalandhar through its General Manager/SDO.

2. Bellevue Green Residents Welfare Society (Non Regd.) Mithapur Kingra Road, Near SAS Nagar, Jalandhar through its President/Manager/Harish Vijam/Harmail Singh

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Atul Malhotra, Adv Counsel for the Complainants.

Sh. APS Pathania, Adv Counsel for the OP No.1.

Sh. Ishan Batra, Adv Counsel for the OP No.2.

Order

Karnail Singh (President)

1. This complaint presented by the complainants, wherein stated that the instant complaint being filed by the complainants jointly because the complainants are having the same interest against common OPs. The complainants are the consumers of goods and services provided by the OPs. OP No.1 is providing telephone and broadband services to the general public for consideration particularly to complainants at Jalandhar at their respective residence. OP No.2 is providing maintenance services to the complainants for consideration at Jalandhar. OP No.1 had installed an exchange in Bellevue Green Apartments through which about 32 telephone connections were running including four telephone-cum-broadband connections of complainants bearing No.2350605, 2350544, 2350637 and 2350503 at the residence of the complainants.

2. That the complainants were making the payments of all the said four connections on time and no rent or bill was due to be paid by the complainants to OPs till April, 2015. But suddenly in the first week of April, 2015, the complainants were shocked and petrified to learn that OP No.1 had disconnected the above mentioned four landlines cum broadband connections illegally, arbitrarily etc. without any information to the complainants and without any consent of the complainants. The complainants approached OP No.1 through their officials and demanded justification. OP No.1 through their officials informed the complainants that all of the connections have been disconnected on the asking of the OP No.2. The complainants requested OP No.1 to immediately restore above mentioned four connections immediately because the complainants have neither given any consent for disconnection nor complainants were taken into confidence for disconnecting the said four connections of the complainants by of the OPs. Further the complainants demanded explanation and justification from OP No.2 through its executive members for illegally disconnecting above said four connections of the complainants. Till today, the OP No.1 has failed to restore the above mentioned four connections of the complainants. Further till today, OP No.2 has failed to give any cogent reply or justification to complainants for getting said four connections of the complainants disconnected. The complainants had never ever given any consent to the OPs for disconnecting the said four connections. The OP No.2 is working illegally and is a not a registered society and is collecting maintenance charges illegally and arbitrarily. Further, OP No.2 is not maintaining proper accounts of income and expenditure of public money i.e. maintenance charges collected from residents of Bellevue Green Apartments. Recently, OP No.2 had increased maintenance charges unilaterally, illegally and arbitrarily to which complainants had objected to. That due to this reason, the OPs are trying to pressurize and are harassing the complainants in one way or the other. That the complainants had also sent a notice dated 22.04.2015 to OP No.2 through registered post but till today, OP No.2 failed to give any reply or justification or details of the accounts of maintenance charges collected from residents including the complainants for the year 2012-13, 2013-14 and 2014-15. When OPs failed to give any reply or to restore the said four connections, the complainants were constrained to send a legal notice dated 23.04.2015 to OPs through their counsel Shri Atul Malhotra, Advocate, Jalandhar. The said legal notice was sent through registered post. After the receipt of the said notice, OP No.1 sent reply dated 11.05.2015, but the OP No.2 failed to give any reply till today and thereafter, the complainants were constrained to send another legal notice dated 08.05.2015 to OP No.2 through their counsel, but the OP No.2 again has failed to give any reply and as such, the complainants reserve right to file separate case against OP No.2 for dispute regarding maintenance charges.

3. Due to the above said facts, there is deficiency in service, negligence, unfair trade practice as well as restrictive trade practices on the part of the OPs, due to which the complainants have suffered mental tension, harassment, inconveniences and accordingly, the instant complaint filed with the prayer that the complaint of the complainants may be accepted and OPs be directed to restore the above said four telephone cum broadband connections of the complainants at their respective residence immediately and further OPs be directed to pay compensation of Rs.80,000/- to the complainants for mental agony and harassment and further OPs be also directed to pay litigation expenses, to the tune of Rs.8000/-.

4. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that there is no relationship of consumer between the complainants and the OP No.1. It was the OP No.2 i.e. Bellevue Green Residence Welfare Society, who had given the request for installation of EPABX Telephone Exchange at the Bellevue Green Apartments by the channel partner of the BSNL through M/s Coral Broadband Pvt. Ltd. On revenue share basis. Initially 31 connections were working from this EPABX exchange, but this exchange had certain limitations, such as the maximum capacity of this exchange was upto 32 connections and the said exchange was not functioning properly and often remained down due to the frequent fault in power supply/control card. Therefore, the BSNL was receiving the disconnection of these numbers and the BSNL office was approached for providing another proposal better services and the meeting was held with the members of the Bellevue Green Apartments on 08.09.2014 and the BSNL suggested to the said members to opt for latest technology of FTTH (Fiber to the Home) Services. A proposal, vide letter dated 11.09.2014 was given to the members of the above said society alongwith list of working connections and the said society members had given the acceptance for conversion of the working telephone numbers to FTTH technology, vide letter dated 15.12.2014 and thereafter, the said society members were asked to get the individual FTTH applications from all existing customers and the said applications were duly received by the BSNL Office through Bellevue Green Society and their existing previous numbers were disconnected after providing the FTTH services. From the four numbers mentioned in the complaint, two numbers (2350544-TULIP 603 and 2350637-TULIP 407) had also filled the FTTH CAF duly signed and received through Bellevue Green Society and orders in this respect by the BSNL were issued for these connections, but those parties refused to take the connection at the time of installation and the said two numbers above mentioned were again reminded through telephonically to fill the form of FTTH, otherwise their existing numbers will be disconnected at the time of migrating the existing numbers to FTTH technology, but the said persons did not provide the acceptance letter and in the fist week of April, all the number of EPABX technology were disconnected due to migration of existing numbers to FTTH technology. The BSNL is still ready to provide the FTTH connections with new numbers to these customers against their disconnected numbers on the same tariff plans, except the modem rent of Rs.150/- per month, owing to superior optical fiber services after submission of their request/applications. The said reply was given to the consumer after receiving the legal notice, vide letter dated 11.05.2015 of BSNL. Therefore, there is no negligence or unfair trade practice in service on the part of the OP No.1, hence, the present complaint is liable to be dismissed. It is further alleged that the present complaint is not maintainable against the OP No.1 because the BSNL was requested by the members of the Bellevue Green Residence Welfare Society and accordingly, the services were provided and the complainants have concealed these facts from this Forum and further alleged that the complaint is bad for non-joinder of necessary parties and even there is no cause of action accrued to the complainants for filing the present complaint against the answering OP No.1. On merits, all the allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

5. OP No.2 filed separate reply and contested the complaint by taking preliminary objections that the complaint is not maintainable against the OP No.2 as per the contention of the complainants that the OP No.2 is an unregistered society. It is settled law that neither any unregistered society can sue nor it can be sued as it has no legal entity in the eyes of law. Hence, the complaint is liable to be dismissed on this ground alone and further averred that the present complaint against the answering OP No.2 is malicious, vexatious, malafide and has been filed with ulterior consideration of lowering the reputation of the members of the OP No.2, which is otherwise devotedly and without any gains is working for the welfare of the residents of the said Hosing Complex. On merits, all the allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

6. In order to prove the case of the complainant, counsel for the complainant tendered into evidence the affidavits of the complainant Ex.CA and Ex.CB alongwith some documents Ex.C-1 to Ex.C-23 and closed the evidence.

7. Similarly, counsel for the OP No.1 tendered into evidence affidavits Ex.OPA and Ex.OPB alongwith some documents Ex.OP-1 to Ex.OP-8 and closed the evidence on behalf of the OP No.1.

8. Similarly, counsel for the OP No.2 tendered into evidence affidavit Ex.OP2/A alongwith documents Ex.OP2/1 to Ex.OP2/14 and closed the evidence on behalf of the OP No.2

9. We have heard the learned counsel for the complainant as well as counsel for the OP No.2 and also gone through the written arguments, submitted by OP No.1, very minutely and carefully.

10. After considering the over all circumstances as elaborated in the pleadings, we find that the complainants make two type of allegations in the complaint, firstly the telephone-cum-broadband connection of all the complainants were arbitrarily disconnected by the OPs without the consent of the complainants and further alleged that the OP No.2 is collecting maintenance charges illegally and arbitrarily and even OP No.2 is not maintaining proper accounts of income and expenditure of the public money i.e. maintenance charges collected from the residents of the Bellevue Green Apartments and even OP No.2 has failed to give any reply or justification or details of the accounts of maintenance charges, collected from residents including complainants from the year 2012 to 2015, but then the complainant stated in Para No.10 of the complaint that complainants reserve the right to file separate case against OP No.2 for disputing regarding maintenance charges and even the prayer clause, the complainant has not asked for the relief of said maintenance charges. So, it means in this complaint the complainant has not asked for any relief in regard to alleged maintenance charges collected by the OP No.2. Now, there remains only one claim of the complainant that four telephone-cum-broadband connections of the complainant had been disconnected by the OP without any consent of the complainants rather on the asking of the OP No.2, against whom the complainant demanded explanation and justification in regard to illegally collecting of maintenance charges, no doubt, the complainants in order to prove the charges as made in the complaint has brought on the file affidavit of one of the complainant Jatinder Jaiswal Ex.CA and affidavit of complainant Sandeep Joshi Ex.CB. Apart from that the complainant has also brought on the file number of documents Ex.C-1 to Ex.C-23 in regard to payment of the telephone-cum-broadband connection as well as legal notices and its postal receipts and reply of the legal notice, given by the OP No.1.

11. We have considered the respective submission of both the counsel for the parties and find that the OP No.2 a Welfare Society (Non Registered) of the Bellevue Green Apartments, where the complainants as well as other persons are residing. It is not the case of the complainants that OP No.2 i.e. Welfare Society is illegally constituted. So, it means that the factum in regard to constitution of the welfare society of the OP No.2 is either by way of elected or by way of nomination by all the residents of the said colony and accordingly, being the representative of the said colony, the OP No.2 got installed an exchange of telephone and where from telephone-cum-broadband connection were given to the residents to the extent of 31, but as per the version of the OP No.1, the exchange was not working properly due to shortage of electricity or other reasons and moreover, the capacity of the said exchange is not more than 32, whereas load thereon is more than the existing capacity and as such, on the request of all the residents/members of the Welfare Society, it was suggested that the existing technology EPABX is required to migrate into latest technology facility i.e. FTTH and on the request of the members of the Bellevue Green Residence Welfare Society, the said old telephone exchange was migrated into having latest technology exchange FTTH, but on the condition that all the persons having telephone, submitted their individual application for change of the latest technology facility and as such, all the existing consumer of the said telephone exchange submitted their applications alongwith complainants No.2 and 3 namely Sandeep Joshi and Joginder Dhiman, whose applications are duly available on the file Ex.OP-7 & Ex.OP-8, which are signed by both the complainants No.2 and 3, but later on, they did not got installed telephone connection and broadband. We find that it is unanimously decision of all the residents of Bellevue Green Residents for migration of old system of the telephone from a new technology and regarding that an information was given to all the complainants and out of these only complainants No.2 and 3 submitted their applications. So, it means the change of telephone exchange was well within the knowledge of all the complainants, but they themselves did not apply for the connection and ultimately, when the old system is converted into new system, then automatically the telephone connection of all the complainants were disconnected, which were not deliberately or intentionally disconnected either by the OP No.2 or 3. So, accordingly, we do not find any deficiency in service on the part of the OPs, and therefore, there is no solid substances in the argument put forth by the learned counsel for the complainants and therefore, the complaint is dismissed with no order of order of cost. Parties will bear their own cost. The complaint could not be decided within stipulated time frame due to rush of work.

12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

07.02.2018 Member President