Tamil Nadu

South Chennai

129/2008

p.chinnadurai - Complainant(s)

Versus

BSNL - Opp.Party(s)

A.Meenakshi Sundaram

17 Apr 2018

ORDER

                                                                     Date of Filing :   27.03.2008

                                                                       Date of Order :   17.04.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

 @  2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M. MONY, B.Sc., L.L.B., M.L.                     : PRESIDENT            

                  TMT. K. AMALA, M.A., L.L.B.                                 : MEMBER I

 

C.C. NO.129/2008

DATED THIS TUESDAY THIS  17^TH DAY OF APRIL 2018

 

Mr. P. Chinnadurai,

S/o. Mr. A. Palanichamy,

Advocate,

No.19/A, Thiruvenkadapuram Main Road,

Chennai – 600 094.                                                     .. Complainant.

 

                                        ..Vs..

 

The General Manager,

(Mobile Service),

M/s. Bharat Sanchar Nigam Limited,

Chennai Telephones,

Celluar Mobile Telecom Services,

No.164, R.K. Mutt Road,

Chennai – 600 028.                                          .. Opposite party.

 

Counsel for the Complainant                :   Mr. A. Meenakshi Sundaram &

                                                                   another

Counsel for the Opposite party             :   Mr. T. Ravi Kumar

 

ORDER

THIRU. M. MONY, PRESIDENT

This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 seeking to pay a sum of Rs.10,00,000/- towards compensation for mental agony, loss of comfort, damages towards loss of business of the complainant etc. and to pay the cost.

 1. The averment of the complaint in brief are as follows:

                The complainant is a subscriber under the opposite party Telephone mobile service from 26.03.2005 thereby obtained a mobile service connection bearing mobile No.944481022 from Kodambakkam CSR Centre and paid a sum of Rs.220/- vide their receipt No.Pre-paid / KOD / 2004-2005/748 thereby, the opposite party had allotted a Sim No.8991644062411396933, PUK Number 1 46197917, PUK Number 2 – 12557520 and a sum of Rs.20/- collected from the complainant towards service tax and a sum of R.200/- towards connection charges, for which, the opposite party had issued a receipt for the same.  In which it is revealed that Talk Value:Rs.50/-, Validity 7 days, Grace Period:15 days (only incoming), To retain the Number :60 days.  Incoming calls and SMS will be enabled after 2 hours of making of First out going call.  Expiry date for this prepaid card is 15.04.2005.  Please activate the card on or before that.  The complainant further states that he is regularly recharging his Mobile before the expiry of the due date since 26.03.2005 and enjoying the facilities as provided by the opposite party.   The complainant states that he is an Advocate and the mobile is very essential for him for discussing the legal matters to his clients. 

2.     The complainant further states that all of a sudden on 07.02.2008 and on 08.02.2008 to his shock and surprise, there was no coverage in his phone.  However, for the full two days, the services to the complainant’s mobile were not restored.  The deficiency in service on these two days was due to negligence and carelessness on the part of the opposite party.  As a result, the complainant had incurred heavy monetary loss and mental agony.  The above act on the part of the opposite party is not only negligence but also lethargic attitude of the opposite party.    Hence the complainant issued a legal notice dated:11.02.2008 thereby demanding a sum of Rs.10,00,000/- towards compensation for negligence act and deficiency of service of the opposite party.  The opposite party also received the notice on 12.02.2008 but till date he neither settled the compensation nor send any reply.  Hence this complaint is filed.

3.      The brief averments in the written version filed by the opposite parties is as follows:

The opposite parties deny each and every allegation except those that are specifically admitted herein.   As per the averments of the complaint filed it is submitted that on 07.02.2008, an intermittent call processing failure was noticed in Haddows Road MSC area.  This was only partial and not a total failure.  There was absolutely no problem in flower Bazaar MSC and K.K.Nagar MSC areas and there was no coverage problem in any area.  The intermittent failure was due to a technical snag and the said snag was cleared on top priority basis and the services was fully functional.    The department had taken adequate care to normalize the system to its best.  However,  again on 08.02.2008 partial call processing failure occurred in Haddows Road MSC area and software corruption was solved.  The call processing was normal there afterwards and there was no total outage and other areas were functioning very well. 

4.     The opposite party had cleared the software problem that had occurred on war footing  as soon as it had occurred.  The services was degraded partially due to technical snag only and not due to any deficiency or negligence on the part of the opposite party.  The interruption was not intentional as it was purely technical and due to the reasons beyond the control of the department and hence this is clearly a case falling within the well-known exception of “Force majeure” and various judgements support the above plea.    It is submitted by the opposite party that the partial intermittent failure were not due to any overload of the exchange as it was well within its capacity only and there is no willful or deliberate intention for the cause of the failure and as soon as the problem occurred, the fault was cleared and restoration work done immediately.  In the resent case, the fault that had occurred was not due to any deliberate act of the opposite party and as it was beyond the control of the department hence this complaint is liable to be rejected.

5.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A5 marked.  Proof affidavit of the opposite party filed and Ex.B1 & Ex.B2 Series  marked on the side of the  opposite party.

 

 

6.      The point for consideration before this Forum is:

1. Whether the complainant is entitled to a sum of Rs.8,00,000/-towards deficiency of service  and mental agony as prayed for?

2. Whether the complainant is entitled to a sum of Rs.2,00,000/- towards loss of business as lawyer in the High Court  with cost as prayed for?

7.     On point:

       Both parties filed their respective written arguments.  Heard the opposite party’s Counsel also.  Perused the records namely the complaint, written version, proof affidavits, documents etc.  Admittedly, the complainant is an Advocate who is a subscriber under the opposite party M/s Bharath  Sanchar Nigam Limited from 26.3.2005 for the mobile connection bearing mobile No.944481022 from Kodambakkam CSR Centre. The complainant paid due charges towards such mobile connection also admitted.   Further the contention of the complainant is that he is practicing as an Advocate at High Court, Madras since  2003 having several clients and an income tax assessee.  But no documents filed.  The mobile connection is very important for the complainant for discussing the legal matters.  While being so, all of a sudden on 07.02.2008 and 08.02.2008 there was no coverage in his phone.  As a result, he could not contact his clients which caused great mental agony and irreparable loss.  But the complainant has not adduced proper evidence and produced any record except the paper cutting Ex.A3 and legal notice  The complainant is claiming a sum of Rs.8,00,000/- towards deficiency in service, mental agony, loss of comfort, etc. and Rs.2,00,000/- for business loss.  But on a careful perusal of entire records, the complainant has not taken any step to prove such alleged deficiency of service and huge imaginary business loss.

8.    The learned for the opposite party contended that, admittedly the complainant obtaining mobile service from BSNL for mobile no.9444481022.  Further the contention of the opposite party is that on 7.2.2008 there was an intermittent call processing failure was noticed in Haddows Road, MSC area and it was not a total failure.  There was no problem in Flower Bazaar MSC and KK Nagar MSC areas and there was no coverage problem in any area.  The intermitant failure was due to the technical snag / defect which is cleared on top priority basis and the system was made fully functional.  Further the contention of the opposite party is that the software interruption was accrued and was solved on 08.02.2008 itself.    The technical snag and software interruption was due to “Force majeure” and not due to any negligence or deficiency on the part of the opposite party as per Ex.B1 and Ex.B2 series. As per Ex.B1 & Ex.B2, it is very clear that other exchanges were functioning properly and there was a partial failure in Haddows road area which was also cleared immediately.  Further the contention of opposite party is that the compensation claimed on the basis of the alleged business loss is exorbitant and imaginary and it is not supported by evidence on records. 

In 2015 (4) CPR 390 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

Vikash Singh

–Versus-

B.M.W. India Pvt. Ltd.

Held an IMPORTANT POINT that

       “Complainant senior advocate practising in Supreme Court claimed highly disproportionate and unrealistic compensation of Rs.17000000 in respect to value of deficient service pegged at Rs.778900, this amounts to abuse of process”.

        9.    Considering the facts and circumstance of the case, this Forum is of the considered view that the complainant is not entitled to any relief and the complaint shall be dismissed.

     In the result, this complaint is dismissed. No costs.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 17^th day of April 2018. 

 

MEMBER –I                                                                       PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1		Copy of Identity card
Ex.A2	26.03.2005	Copy of Telephone receipt
Ex.A3	08.02.2008	Copy of News paper cutting, Thinakaran
Ex.A4	11.02.2008	Copy of Legal notice with acknowledgement card
Ex.A5		Copy of Pan card

 

 

OPPOSITE  PARTY SIDE DOCUMENTS:

Ex.B1	26.12.2008	Copy of the letter issued by DGM (NSS) to DE (C & A) BSNL, Chennai – 600 028.
Ex.B2 Series		a. Copy of The Hindu 9.2.2008 Chennai Edition b. Copy of The New Indian Express, Chennai 9.2.2008 issue c. Copy of The Hindu Chennai Edition 8.2.2008 Issue d. Copy of Deccan Chronicle, Chennai Edition 9.2.2008 e. Copy of Dina Thanthi Madras 8.2.2008 Issue f.  Copy of Dina Malar Chennai 8.2.2008 issue

 

 

MEMBER –I                                                                       PRESIDENT