COMPLAINT FILED ON:25.05.2011
DISPOSED ON:30.06.2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
30th DAY OF JUNE 2012
PRESENT:- SRI. B.S.REDDY PRESIDENT
SRI.A.MUNIYAPPA MEMBER
COMPLAINANT | K.N.Praveen Kumar S/o K.Nonappa Gowda, Advocate by Profession, Aged about 43 years, No.3, Srinikethana, 2nd Cross, S.S.A.Road, Cholanayakanahalli, R.T.Nagar Post, Bangalore-560 032. Adv:Sri.Saravanan G V/s. |
OPPOSITE PARTY | BHARATH SANCHAR NIGAM LIMITED, A Govt. of India Enterprise, Represented by its Assistant General Manager, Now-RTN Telephone Exchange, R.T.Nagar, Bangalore-560 032. Adv:Sri.Prakash Rao K |
O R D E R
SRI. B.S.REDDY, PRESIDENT
The complainant filed this complaint U/s. 12 of the C.P. Act of 1986 seeking direction against the OP (herein after called as OP) to pay sum of Rs.1,35,000/- towards refund of bills paid on the allegation of deficiency in service.
2. The case of the complainant to be stated in brief is that:-
The complainant is an Advocate by profession, and he is the subscriber of the telephone bearing No.080-23547498 provided by the OP. He has availed the said telephone only after having attracted by the braod band internet facility assured by the OP attached to the said telephone as he was in badly need of internet facility which helps his profession a lot. The consumer number given to the complainant’s telephone number is 52491935. OP is very much irregular and inconsistent in the matter of providing the service to the complainant. Most of the time the computerized customer service telephone for fault repair service i.e., “23542198” is either not functioning or not in operative position. All other customer service numbers or concerned office numbers were either always engaged or in the condition of only ringing but no one is there to answer the telephone call. Even if the complainant visits the customer officer’s in person, they were giving evasive reply and shifting the burden to one another. The complainants telephone No.23547498 was completely dead since 24.06.2010 and with much difficulty he had registered his complaint, vide docket No.4445, but the same was unattended till 2nd week of July-2010, but he was constrained to cause issue notice by registered post on 13.07.2010. After the receipt of notice only the OP sent some staff, who conveyed his personal inconvenience and got set-right only the telephone line on 16.07.2010, but without setting right to broad band internet connection. On the other hand, the OP caused a reply with erroneous claim that, the telephone was attended and was set-right within two day’s of registering the complaint, with malafide intention to cover up its latches. Hence the complainant issued one more notice dt.29.07.2010, informing that, internet connection, is still not operative. Subsequent to these incidents the OP continued their adamant service and no proper service is being provided by the OP and every now and then the telephone and internet connection is out of order, either both at a time or one of these two. The complainant’s telephone is completely dead from 20.04.2011. Since the complaint was not attended till 20.05.2011, the complainant lodged a fresh complaint again vide Docket No.8946 on 20.05.2011. But still the complainant is expecting the OP to set right the things. The complainant is regular in the matter of payment of his telephone bills, and even though the service being provided is too unsatisfactory, but he was paying the bills with only hope that the Op would rectify and improve the service standard, in future days. Moreover the complainant being an Advocate by profession, and his wife is Dentist by profession, and both are much depending on communication facility i.e., both telephone as well as internet. They cannot afford to change their contact numbers every now and then. The profession of both of them has been drastically reduced because of the insufficient service being provided by the OP. Due to the insufficient service and non-attending of various complaints regarding the fault repair service, the complainant and his family has suffered huge loss in their profession, but only claims nominal damages including the following monetary loss.
a) The refund all the payment of telephone bills made since June-2010 till this date, where in the telephone is not in order | Rs.10,000=00 |
b) Loss due to the damage caused to the profession due to insufficient service | Rs.1,10,000=00 |
c) Mental agony and hardship Total | Rs.25,000=00 Rs.1,35,000=00 |
Hence the complaint.
3. On appearance OP filed version contending that the claim of the complainant against OP is not maintainable, the complaint is liable to be dismissed. The claim is speculative, bereft of merits, lacks bonafide and requires to be dismissed. This Forum has no jurisdiction to entertain the complaint as per the Order of the Supreme Court in Civil appeal No.7687/2004, General Manager Telecom V/s M.Krishna & another. It is admitted that the complainant is the Subscriber under OP regarding telephone number bearing 23547498, in addition to that complainant was provided with broad band connection. The complainant booked complaint on 22.06.2010 under docket No.4445 for non-functioning of telephone in question, the complaint was attended within 2 days that is on 24.06.2010 and was confirmed that telephone was working with the broad band facility. On receipt of registered letter dt.13.07.2010 the OP sent telephone mechanic to verify the actual problem and telephone mechanic attended the fault and set right both telephone as well as broad band services. It is submitted that due to the major underground cable problem at Bellary Road, Hebbal the complaint booked under docket No.8425, dt.21.04.2011 was attended on 11.05.2011. Delay due to damage to the entire cable system is not within the control of OP, this cannot be termed as deficiency of service. The complaint booked on 20.05.2011 under docket No.8946 was not attended since telephone in question came to be withdrawn for non payment of dues from 23.05.2011. The other allegations regarding the deficiency in service are denied as false. Hence, it is prayed to dismiss the complaint with exemplary cost.
4. The complainant filed a Memo on 07.07.2011 stating that in spite of last complaint made on 21.04.2011, OP has not repaired the telephone line in order, even till this date. On the other hand, OP is issuing the bills, though not providing any service. The copy of the bill dt.14.06.2011 is produced.
In the affidavit evidence filed by the complainant, it is stated that the Ops have not disconnected the telephone for non payment of bills etc., the OP have not connected the telephone at all after 20.04.2011 further it is stated that the complainant has presently stopped payment of bills which have been sent after registering his complaint before the OP as well as before this Forum. At Para-10 of the affidavit, it is stated that the complainant has not filed this complaint on the dispute concerning any telephone line, appliance, or apparatus that arises between OP and the complainant being Subscriber. This complaint is filed only against the deficiency in service and against not providing the service at all. Since the complainant has no remedy available under Section-7B of Telegraph Act, nor under any other provisions of law, about the “deficiency in service” or about the “Service”, he being a consumer within the meaning and definition of consumer Protection Act, 1984, he has preferred this complaint. Neither Supreme Court nor National Commission have held so far that implication Consumer Protection Act is barred against any deficiency in service provided under Telegraph Act or Rules.
5. The complainant in order to substantiate complaint averments filed affidavit evidence. The Assistant Manager of OP filed affidavit evidence in support of the defence version.
6. Both parties filed Written Arguments, Arguments on both sides heard.
7. The point for our consideration is:
Whether the complaint is not maintainable in view of the judgment of the Apex Court reported in 2009 AIR SCW 5631 General Manager Telecom V/s M.Krishnan and another
8. We record our findings in Affirmative:
R E A S O N S
9. The complainant is one of the Subscriber of telephone bearing No.080-23547498 provided by the OP and he has also availed the internet facility. The grievances of the complainant is the telephone provided to him was completely dead since 24.06.2010 and he registered his complaint vide docket No.4445 and the same was set-right on 16.07.2010, after he issued the notice to OP on 13.07.2010. The defence of the Op is the complaint registered under docket No.4445 was attended within 2 days i.e., on 24.06.2010 and after receipt of the registered letter dt.13.07.2010 the telephone mechanic attended the fault and set-right both telephone as well as broad band services. Further the other grievance of the complainant is the telephone was completely dead from 20.04.2011 and complaint was registered on 21.04.2011 under docket No.8425 and the said complaint was not attended till 20.05.2011. The complainant lodged fresh complaint on 20.05.2011 vide docket No.8946. OP has not attended the complaints and set-right the telephone line and Internet connection. In view of the deficiency in service, it is stated that the complainant has suffered loss in his profession as an Advocate to the tune of Rs.1,10,000/- and is also claiming refund of the telephone bills amounts paid since June-2010.
The defence of the OP is due to major underground cable problem at Bellary Road, Hebbal the complaint booked under docket No.8425 was attended on 11.05.2011 and the complaint booked on 20.05.2011 under docket No.8946 was not attended since telephone in question came to be withdrawn for non payment of dues from 23.05.2011.
10. The deficiency in service alleged against Op is not attending the complaints of the complainant regarding telephone connection provided to him and there was delay in attending the complaints and lastly OP failed to attend the complaint, as a result, the telephone line and internet connection are not being used by the complainant and his wife. The dispute between the complainant and OP relates to telephone line connection and internet. The complainant is claiming refund of the telephone bills paid. Therefore, it cannot be said that the principles laid down in AIR-2009 SCW 5631 the General Manager, State Commission V/s M.Krishnan and another are not applicable to the facts of the case.
In the above said judgement (2009 AIR SCW 5631) the Hon’ble Supreme Court held that:
When there is a special remedy provided in Section7-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.
Further it is held that it is well settled that the special law overrides the general law. Hence in our opinion the High Court was not correct in its approach.
Section-7-B of the Telegraph Act reads as under.
Section-7-B Arbitration of disputes:-
(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-Section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court.”
We are unable to accept the contention of the complainant that the relief claimed relates to deficiency in service on the part of the OP and the same does not relates to the disputes covered Under Section 7B of the Telegraph Act. The deficiency in service alleged against the Op is the telephone connection and internet connection provided by Op was not satisfactory as OP has not attended the complaints regarding these facilities promptly. Therefore, we are of the view that the reliefs claimed in the complaint relates to the disputes covered Under Section-7B of the Indian Telegraph Act, the principles laid down in the above rulings are applicable, the complaint is not maintainable. Accordingly we proceed to pass the following:
O R D E R
The complaint filed by the complainant dismissed as not maintainable. Considering the nature of dispute no order as to costs.
Send copy of this order to both the parties free of costs.
(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 30th DAY of JUNE-2012.)
MEMBER PRESIDENT
Cs.
