By: Smt. Mini Mathew, Member
Facts in brief
Complainant approached the office of the opposite party on 4/12/15 and applied for a BSNL land line connection for obtaining net connection for his son's educational purpose. After two weeks from the date of application one officer from the office of the opposite party approached the complainant and he demanded Rs.1500/- from the complainant for providing the land line connection . Complainant did not pay the said amount. Even now the opposite party did not provide land line connection to the complainant and that caused much difficulties and hardships to him. Hence this complaint.
After receiving notice from this Forum opposite party entered appearance and filed his version. Through the version opposite party contented that since the complainant did not have pay any amount to the opposite party at the time of making the application for phone connection there is no Consumer relationship between the complainant and opposite party.
Another contention of the opposite party is that the complaint is not maintainable or sustainable before this Forum as the case is exclusively covered under section 7B of Indian Telegraph Act.
(1) Section 7 B reads as follows, (1) Except as other wise expressly provided in this Act, If any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is , or has been provided, the dispute shall be determined by arbitration and shall , for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of dispute under this section.
(2) The award of the arbitrator appointed under sub – section (i0 shall be conclusive between the parties to the dispute and shall not be questioned in any court.
Opposite party further contents that even though application of the complainant for telephone connection was acknowledged it was not accepted, it was not feasible. The acknowledgment was issued to the complainant at the time of his application. No single payment was advanced or paid by the complainant and he is not liable to pay any amount unless or until the connection is provided. There is no waiting list for telephone connection and as such only feasible application would be processed. The application of the complainant was acknowledged and on verification of the feasibility , it was found not feasible and as such no connection could be given for want of cable pair and drawing of cable line is not possible in future and as such the connection is not feasible.
No single pie is collected by the opposite party for providing connection and it would only be collected if the connection is technically feasible. There is no probability of giving land line connection to the complainant except in the event of any existing connection is withdrawn or disconnected.
Opposite party contents that there is no deficiency in service on his part and he prays for the dismissal of the complaint with compensatory cost.
In order to substantiate the case of the complainant he filed his affidavit and the document he produced was marked as Ext. A1. Opposite party filed his counter affidavit and no document was produced on his side. Commission Report is marked as Ext. C1.
The main points to be answered are
(i) Whether complainant is a consumer or not as defined U/s 2(1) (d) of the CP Act?
Whether the complaint is maintainable before this Forum since it is a dispute regarding telephone connection?
Whether the opposite party is deficient in his service?
If so relief and cost.
Point No. (i)
The 1st contention of the opposite party is that complainant is not a consumer as defined U/S 2(I) (d) of the CP Act 1986. According to opposite party , complainant had not paid any amount to opposite party at the time of submitting the application. Complainant did not have a case that he had paid any amount to opposite party while submitting the application . Complainant did not have a case that he had paid any amount to the opposite party. While submitting his application. His case is that subsequently one official of the opposite party demanded Rs.1500/- from the complainant for providing land line connection to his residence. But there is no evidence for that aspect.
Sec.2 (I) (d) (ii) of the CP Act says that “ Consumer means any person who hires or avails of a any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other that the person who (hires or avails of ) the services for consideration paid or promised, or partly paid and partly promised or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose”.
Through the affidavit filed by the opposite party in lieu of chief examination he submits that “ No single payment was advanced or paid or requested by the opposite party and not liable to be paid unless or other wise the connection is provided “ when the opposite party provides land line connection to the complainant he has to pay charges as demanded by the opposite party. Hence complaint is a consumer.
Point No. (ii)
As per the office memorandum dated 4/3/14 of the Govt. of India, Ministry of Consumer Affairs, Food & Public Distribution, Department of Consumer Affairs (Consumer Protection Council) “. The Dist Consumer Forums are competent to deal with the disputes between the individual telecom consumer and telecom service providers”. Though this office memorandum the earlier position of settled law is changed. The earlier position was that “ Consumer Forum is not having any authority to sit and judge on any dispute regarding telephone matters”
Hence we find that this Forum is having jurisdiction to entertain this complaint before this Forum.
Point No. (iii)
The opposite party admits the case of the complainant that complainant applied for a land line telephone connection to opposite party and the application was acknowledged by the opposite party and opposite party issued Ext. A1 receipt the complainant. After that opposite party did not provide telephone connection to the complainant.
According to the opposite party “ the application of complainant was acknowledged and on verifying the feasibility it was found not feasible and as such no connection can be given due to lack of cable pairs and drawing of cable is not possible in future and as such the connection is not possible”
But an going through Ext. C1, the Commission Report we find that “ മേല് നമ്പര് കേസില് അന്യായക്കാരന്റെ വീടിന്റെ gate ന്റെ മതിലിന്റെ നടുവിലായി റോഡില് നിന്ന് ഒരു BSNL post No.2307 സ്ഥിതി ചെയ്യുന്നുണ്ട്. മേല്പ്പറഞ്ഞpost ല് നിന്നു തൊട്ട് പുറകിലുള്ള സൈനബ കൈതവളപ്പില് എന്നവരുടെ വീട്ടില് BSNL land line No.2323672 എന്ന നമ്പര് പ്രവര്ത്തിച്ചു വരുന്നുണ്ട്. ഈ line സൈനബയുടെ വീട്ടിലേക്ക് പോകുന്നത് അന്യായക്കാരന്റെ വീടിന്റെ വലതുഭാഗത്തുള്ള മുറ്റത്തിന്റെ അരികില് കൂടിയാണ്. ഈ line under ground ആയിട്ടല്ല. നമുക്ക് കാണതക്ക വിധത്തില് കറുത്ത line വയര് പോകുന്നത് കാണാന് കഴിഞ്ഞു.
Commissioner further reports that “ അന്യായക്കാരന്റെ വീടിന്റെ മുന്പിലുള്ള പോസ്റ്റില്നിന്നു 2 connection നാണ് എടുത്തിട്ടുള്ളത് ഒരു connection തൊട്ടു പുറകിലുള്ള സൈനബയുടെ വീട്ടിലേക്കും രണ്ടാമത്തെ connection 40 മീറ്റര് വലത്തേക്ക് മാറി റോഡിന്റെ എതിര് ഭാഗത്ത് എം. കെ . അബ്ദുല് റഷീദ് എന്നയാളുടെ പേരിലുള്ള 2420646 എന്ന നമ്പരാണ്. ഈ നമ്പറും സുഖമായി പ്രവര്ത്തിച്ചു വരുന്നു.
From this it can be presumed that if the BSNL authorities want a telephone connection can be provided to the complainant without much difficulties. Here we would like to stress upon a fact that the BSNL is a govt owned company. That means complainant is also one of person who owns it. The opposite party is also an employee of the BSNL. We do not accept his contentions that it is not feasible to provide a telephone connection to the complainant. If it was not feasible to provide the complainant a telephone connection after receiving an application for the same the opposite party should have the courtesy to let the complainant be informed of that fact instead of keeping his application in the cold storage. This attitude of the opposite party is to be depricated. It is proved that the complainant had applied for a telephone connection as early as on 4/12/15 and the opposite party has done nothing on it other than submitting a version on contenting that the application for telephone connection is not feasible. If that be so what had prevented him informing this fact to the complainant. If the application of the complainant for a telephone connection was to feasible the opposite party ought to have informed the complainant of that fact. He need not have waited till the complainant files a complaint. Hence we do not accept the contention of the opposite party . We find that the opposite party is deficient in service.
For the forgoing reasons the complaint stands allowed.
We direct the opposite party to pay Rs.10000/- to the complainant being compensation for the mental agony and hardships he suffered along with Rs.5000/- as cost. The order shall be complied with in one month from the date of receipt of the copy of this order. If the above said amount is not paid to the complainant with in 30 days the opposite party is liable to pay interest at the rate of 12% per annum from the date of this order.
Dated this 31st day of May, 2017.
A.A.VIJAYAN, PRESIDENT
R.K.MADANAVALLY , MEMBER
MINI MATHEW, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1
Ext.A1 : Receipt issued by opposite party dated 4/4/2015
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Nil
Ext. C1 : Commissioner report.
A.A.VIJAYAN, PRESIDENT
R.K.MADANAVALLY , MEMBER
MINI MATHEW, MEMBER
