BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 21ST March 2012
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.133/2010
(Admitted on 24.4.2010)
Mr.Naveen Saldanha,
Aged about 43 years,
Proprietor Tour Arabia,
D.No.1 1 90 3 1,
Opp: Trishna Hotel,
Padavinangady Junction,
Konchady Post, Airport Road,
Mangalore 575 008.
Represented by his G.P.A. Holder,
Mr.Promodh Pinto,
S/o. Leonard Pinto,
Aged 39 year, R/o 404,
George Martis Road,
Kadri, Mangalore. …….. COMPLAINANT
(Advocate for the Complainant: Smt.Manjula.N.A.)
VERSUS
- Bharath Sanchar Nigam Limited,
A Company registered under the
Company’s Act and having its office at
Sanchar Bhavan, 20 Ashoka Road,
New Delhi and having its local office at
The Principal General Manager,
Telecom, D.K. District, Mangalore 1.
Represented by its
Principal General Manager.
2. Maksat Coral Pvt. Ltd.,
A-70, DDA Sheds,
Okhla Industrial Aria Phase II,
New Delhi-110 020.
Represented by its
Authorized Signatery. ……. OPPOSITE PARTIES
(Advocate for the Opposite Party No.1: Sri B.Nanda Kishore)
(Opposite Party No.2: Exparte)
* * * *
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant stated that for the purpose of earning his livelihood started his business under the name and style “Tour Arabia” at premises bearing Door No.1-1-90/3(1) at Mangalore. It is stated that for the purpose of having efficient internet system, the Complainant intended to avail best service from the Opposite Party in order to access with world wide customers. It is stated that, the Opposite Party represented to the Complainant that they are the owner of Radio Frequency system (herein after referred to as ‘RF System’)tower, lightening conductor cables etc asked to have that internet service and offered the Complainant to pay the lease charges of 512KB PS speed and 1 MBP and the Complainant paid the same. Thereafter, the Opposite Party installed RF system.
The Complainant stated, on 20.11.2009 around 2.15 P.M. all the computer systems went off and all other electronic system failed. Immediately the Complainant informed the MESCOM and called electrician and found that the electrical system was in order, while checking the arrestor it was found that the same has been fallen down and noticed air cracks to the ceiling of the premises at the place were RF tower is located and opined that the lightening must have struck RF system tower and through the RF tower all the things described in the schedule of the Complaint damaged. Thereafter the Complainant informed the Opposite Parties. Even after informing the Opposite Parties, none of the Opposite Parties representative visited the premises. It is stated that thereafter the Complainant informed NITK i.e. National Institute of Technology seeking their report regarding cause of the above incidence. NITK visited the Complainant’s premises and on behalf of the Opposite Party No.1 representative of the Opposite Party No.2 was present, and experts from the NITK inspected the premises and opined that the installation of the lightening conductor system was not proper and thereby the system did not perform its intended function during lightening. It is contented that, Opposite Parties have failed to install Radio Frequency system, tower and the lightening conductor system properly. It is also stated that the Opposite Parties have failed to maintain the above system. It is further stated that, the Complainant being the lessor, the Opposite Parties being owner of the RF system, the Opposite Party No.1 is duty bound to maintain a good condition all the time and take all safety measures. Due to the negligence and careless attitude of the Opposite Parties, the Complainant has undergone loss to the tune of Rs.10,00,000/-. Thereafter the Complainant issued legal notice calling upon the Opposite Parties to pay compensation but Opposite Parties not complied the demand made therein. Feeling aggrieved the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to repay the entire payment made by the complainant towards repair of the damaged schedule property for a sum of Rs.10,00,000/- with interest at 18% per annum from the date of accident i.e. 20.11.2009 and to pay compensation and costs of the proceedings.
II. 1. Version notice served to the Opposite Parties by R.P.A.D. Opposite Party No.1 appeared through their counsel filed version.
It is seen that, inspite of receiving version notice by the Opposite Party No.2 neither appeared nor contested the case before this FORA. Hence, we have proceeded exparte as against the Opposite Party No.2. The acknowledgement marked as Court Doc. No.1.
The Opposite Party No.1 denied the entire allegations alleged in the Complaint and stated that the Complainant is not a consumer and the Complaint is beyond the purview of the Consumer Protection Act.
It is further stated that, the Complainant with full knowledge of best services approached the Opposite Party to provide internet services through RF system to meet Complainant’s urgent business requirements and stated that lightening is an act of god through the nature, hence it is termed as natural calamity. Further stated that lightning strike has not only affected the entire Complainant’s electrical and associated equipment but also damaged the building at different locations which is in no way connected to the RF system. Lightning has also struck MESCOM power supply which has no relation to the RF system. The poor electrical earth of the building must have attracted the severe lightning voltage and therefore caused the damage.
It is further stated that, the B.S.N.L is not a party regarding the reported inspection carried out by the N.I.T.K. team. The Complaint is bad for non-joinder of necessary party i.e. MESCOM and denied the damages estimated by the Complainant and prayed for dismissal of the Complaint.
III. 1. In support of the complaint, Mr.Naveen Saldanha (CW1)filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and one Mr.Promod Pinto G.P.A. holder (CW-2) on behalf of the Complainant. Ex C1 to C21 were exhibited for the Complainant as listed in the annexure in detail. One Sri M.Vasudeva Holla (RW1), A.G.M.(Admin) of the Opposite Party No.1 filed counter affidavit and answered the interrogatories served on him. Ex R1 was exhibited for the Opposite Parties as listed in the annexure in detail. Both parties have filed notes of arguments.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that Opposite Parties have committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i) :Affirmative.
Point No.(ii) & (iii): As per the final order.
REASONS
IV. 1. Points No. (i) to (iii):
In the instant case, the facts which are admitted is that, the Complainant in order to run his business in Door No.1-1-90/3(1) at Mangalore availed internet service from the Opposite Party No.1 through Radio Frequency System (“herein after referred to as R.F.System”). The complainant in order to install the above said service paid Rs.65,395.20 towards R.F. System which contains the description of 24 DBI GRID ANTENNA 5.8 GHZ, MEKAIR WINDMAX 2.4/5.8 GHZ, GUY WIRE MAST UPTO 20 MTR and STP CABLE(PER MTR) Ex.C16 i.e. retail invoice issued by the Opposite Party No.2. Further it is also admitted that, the Opposite Party No.1 provided 512 KBPS 2 wire internet leased line on yearly rent basis of 2,50,000/- and also charged for Ethernet modem charges of Rs.18,000/- in all Rs.2,68,000/- collected from the complainant towards the above mentioned internet lease charges.
Now the point in dispute between the parties before this FORA is that, the Complainant came up with this complaint contended that, for the purpose of earning his livelihood, he started internet business to provide internet service to the worldwide customers by obtaining internet service through R.F. System by Opposite Party No.1 and paid lease charges of Rs.2,68,000/- and also spent the above said amount for installation of the above system. It is stated that, the Opposite Party No.1 provided internet 2D R.F. system and assured that R.F. system is very safe and even if any lightening takes place nothing will be happen and the system has got inbuilt provisions like lightening conductor system. On believing the Opposite Parties representation, the complainant obtained the above internet service and also installed R.F. tower, lightening conductor system and cables through the Opposite Parties. But on 20.11.2009, around 2.15 P.M., the complainant’s staff heard a big sound around office premises and all computers went off and all the electronic system failed. Thereafter, the complainant immediately contacted the opposite parties, MESCOM, electrician and police department. The electrician came to the spot and found that the electrical system was in order, while checking the above, it is found that arrester had fallen down from the roof top and opined that lightening must have struck RF system tower and caused all the damages stated in the complaint. The complainant seriously contended that, the opposite parties have failed to install the Radio Frequency System, tower and the lightening conductor system properly. Because of their negligence the complainant has sustained damages to the tune of Rs.10,00,000/- and produced experts opinion and other relevant documents i.e. Ex.C1 to C21 and also filed oral evidence by way of affidavit in this case.
Opposite Party No.2 inspite of receiving version notice not appeared nor contested the case till this date, but Opposite Party No.1 i.e. B.S.N.L. appeared through their counsel and denied the entire allegations and contended that the lightening is an act of god through the nature and it is a natural calamity. It is stated that, the lightening has struck MESCOM power supply which are in relation to the R.F. system. The poor electrical earth of the building must have attracted the severe lightening voltage, thereby caused the damage and denied the entire allegations and Opposite Parties also filed oral evidence by way of affidavit and produced Ex R1.
On perusal of the oral as well as documentary evidence available on record, we find that, admittedly the Opposite party No.1 i.e. B.S.N.L. introduced internet service through R.F. system to the complainant on lease basis and received Rs.2,68,000/- towards the yearly rent for 512 KBPS speed and internet leased line (Port charges) and arrester modems charges of Rs.18,000/- in this case. Further it is also seen that, the Opposite Party No.1 installed the R.F. tower, lightening conductor system, cables in order to install the R.F. system. But it is specifically contended by the complainant that on the assurance of the Opposite Party No.1 they have installed the internet service through RF system and in the R.F. system the Opposite Party No.1 installed the R.F. tower lightening conductor system, cables in order to safeguarded the lightening problem. But in the instant case, we noticed that, the Complainant very seriously contented that since the Opposite Parties failed to install proper RF system through lightening conductor system, the above problem was caused and produced expert opinion before this FORA.
We have perused the Ex.C17 i.e. report prepared by the department of Civil Engineer, National Institute of Technology Karnataka, Surathkal dated:11.12.2009 clearly shows that, the experts of the department of the Electrical and Electronics, department of Civil Engineering visited the spot on 2nd December 2009. Conducted the investigation and observed as that (reproduced as it is):-
under the heading ‘OBSERVATIONS’:-
1) The Lightening conductor system has been installed on roof top of the said premises with guy wires and anchored to RCC elements of terrace.
2) Lightening conductor system had dislodged itself from its intended position.
3) Spalling of concrete at anchor locations has been observed and
4) As reported by M/s Tour Arabia, office automation system, peripherals and electrical cabling have severely damaged.
Under the heading ‘Probable Cause For Damage’:-
“The method of installation adopted for the lightening conductor system, the condition of the system during inspection indicate that the system did not perform its intended function during lightening. The spalling of concrete from the anchorage zone indicates that the current flow has been running through the tower and the guys, instead of the lightening conductor installed, which again has severely damaged other cabling and installations:-
Under the heading ‘Recommendations’:
To avoid recurrence in future, it is recommended that all safety measures and good installation practices as detailed below shall be adopted.
Option-I Restoration of existing tower.
- Lightening rod should be placed so that its tip is 1.5 m above tower.
- Lightening conductor should be isolated by 5 cm thick ceramic insulation.
- Diameter of wire connecting lightening rod and ground shall be increased by two times than presently employed.
- Porting of earthing rod below ground level shall be filled with standard materials.
Option II
A green field tower 5 meters away from the building, taller than building with the tip of lightening conductor 3 m above tallest object in the vicinity shall be provided.”
The above observation/report made by the experts of the N.I.T.K., Surathkal clearly shows that, the method of installation of the lightening conductor system was not proper and hence the system did not perform its intended function during the lightening and also recommended certain safety measure good installation practices and directed to restore the same for existing tower. It is proved beyond doubt that the above incident was caused due to improper installation of the lightening conductor and hence the system did not perform its intended function during the lightening. There is no contra evidence produced by the Opposite Parties before this FORA in order to disprove the above report. Except the oral assertion nothing has been placed on record to show that the poor electrical earth of the building must have attracted the severe lightening voltage and thereby caused the damage. The expert opinion i.e. Ex.C17 satisfied that since there was no proper method was adopted while installing the lightening conductor system the above damage/incident was caused in this case, for that the Opposite Parties are liable for the damages suffered by the complainant. At the same time the Opposite Parties also not produced any documentary evidence to show that the method adopted by them for installation of the lightening conductor was proper and there is no negligence. In the absence of the same we hold that the Opposite Parties are liable to pay the damages in this case.
However, it is seen that, the complainant in order to obtain the internet service through R.F. system spent Rs.2,68,000/- towards the rental charges and Rs.65,850/- towards installation of the above system. Inspite of that, the complainant suffered damage of computer systems and other electronic gadgets as mentioned/claimed in the schedule of the complaint. However, the complainant filed one more complaint before this FORA in CC.No.248/2010 against insurance company, wherein the complainant office premises and electrical and electronic gadgets described in the schedule of the complaint was covered under the Standard Fire and Special Perils Policy bearing No. 670805/11/09/11/00000192. The said policy was valid from 21.5.2009 to 20.5.2010 for a sum of Rs.45,69,893/-. The Complainant cannot claimed the damages caused to the electrical and electronic gadgets described in the schedule of the complaint and also damage caused to the office premises with the Opposite Parties in this case. Hence, the damage caused to the electrical and electronic items and damage caused to the building not considered in this case since it is covered under the Insurance Policy. The rest of the damage caused to the Complainant shall be liable to paid by the Opposite Parties in this case. While considering the damage, the Ex.C14 and Ex.C15 shows that the Complainant has already spent Rs.2,68,000/- towards yearly rent which includes Ethernet modem charges and further Rs.65,850/- spent towards the installation cable charges which definitely entitled by the Complainant in this case. By considering the above aspect and also the inconvenience and loss suffered by the Complainant, we hereby directed the Opposite Parties No.1 and 2 jointly and severally to pay Rs.3,33,850/- (Rupees Three lakhs thirty three thousand eight hundred fifty only) along with interest at 12% per annum from the date of incident till the date of payment and also pay Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Party No.1 and 2 jointly and severally are hereby directed to pay a sum of Rs.3,33,850/- (Rupees Three lakhs thirty three thousand eight hundred fifty only) along with interest at 12% per annum from the date of incident till the date of payment and further Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
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 15 dictated to the Stenographer typed by him, revised and pronounced in the open court on this 21st day of March 2012.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Naveen Saldanha – Complainant.
CW2 - Mr.Promod Pinto G.P.A. holder of the Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 2.2.2008: Notarized copy of the Power of Attorney executed by the complainant in favour of the Mr.Pramod Pinto.
Ex C2 – 20.22.2009: Original of the letter issued by Joy Electricals.
Ex C3 – 21.11.2009: Original letter issued to MESCOMby the complainant.
Ex C4 – 21.11.2009: Original letter issued to the Opposite Party NO.1.
Ex C5 – 30.11.2009: Original Copy of the letter issued to the Opposite Party No.1.
Ex C6 – 8.12.2009: Xerox copy of the letter issued to the Opposite Party No.1.
Ex C7 – 13.7.2009: Copy of the communication between the complainant and the opposite parties.
Ex C8 – 17.12.2009: Copy of the communication between the complainant and the opposite parties.
Ex C9 – 5.11.2009: Xerox copy of the Invoice for purchase of computers.
Ex C10 – 12.9.2009: Xerox copy of the Invoice for purchase of computers.
Ex C11 – 12.9.2009: Xerox copy of the Invoice for purchase of computers.
Ex C12 -2.2.2009: Xerox copy of the Invoice for purchase of A.C.
Ex C13 – 16.3.2009: Xerox copy of the Invoice for purchase of computers.
Ex C14 – 15.6.2009: Xerox copy of payment made to opposite party No.1.
Ex C15 – 15.6.2009: Xerox copy of payment made to opposite party No.1.
Ex C16 – 30.5.2009: Xerox copy of Invoice for purchase of R.F. System.
Ex. C17 – 11.12.2009: Original Report by N.I.T.K. Surathkal.
Ex C18 -: Xerox copy of letter issued by the Opposite Party.
Ex C19 – 20.1.2010: Office copy of the legal notice issued to opposite party.
Ex C20 – 20.1.2010: Original postal receipt of O.P.No.2
Ex C21 – 9.2.2010: Original reply issued by the Opposite Party No.1.
COURT DOCUMENTS:-
Doc.No.1: Postal Acknowledgement.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Sri M.Vasudeva Holla (RW1), A.G.M.(Admin) of the Opposite Party No.1.
Documents produced on behalf of the Opposite Parties:
Ex R1 – Business brochure issued by the complainant firm in proof of running his business.
Dated:21.3.2012 PRESIDENT
