BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 4th March 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.82/2014
(Admitted on 06.03.2014)
1. Mr. Devaraj Shet,
S/o. B. Ganesh Shet,
of Age 57 years, Hindu, Adult,
Ananda Sadana,
Nehru Avenue Cross Road,
Mannagudda, Mangalore.
2. Miss. Dhanyashree Shet,
D/o Mr. Devaraj Shet,
of age 23 years, Hindu, Adult,
Ananda Sadana,
Nehru Avenue, Cross Road,
Mannagudda, Mangalore.
….. COMPLAINANTS
(Advocate for the Complainants: Sri DS)
VERSUS
Chief Accounts Officer (T.R.II).
B.S.N.L. Telecom Dist.,
Mangalore 575001.
…......OPPOSITE PARTY
(Advocate for the Opposite Party: Sri BNK)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. The above complaint filed under Section 12 of the Consumer Protection Act by the complainants against opposite party alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainants claim of running internet cafe in the given address and in March 2012 obtained internet connection from opposite party on their promise of 2 MBPS speed connection for Rs.3,999/ per month in the name of complainant No.2 and paid amount Rs.7,000/ in the name of BSNL. The claim that was disruption in the internet connection provided by opposite party affecting the business of complainants and forcing sorry figures to the complainants before the customers on the internet connection went off for a long period. Despite complaint and visit of Executive of BSNL to the commercial premises of the complainant but not in a position to set right the things. Opposite party issued certificate to DC against complainant No.1 for recover of Rs.9,232/ and another certificate to complainant No.2 for payment of Rs.30,403 of dues. Despite bring to the knowledge of opposite party by complainant of not working intercom facility these claims towards telephone charge were made for pecuniary advantage by opposite party. The purpose of issue to stop payment complainant was intended to agitate the matter before this Forum. Hence seeks refund of an amount which is not disclosed and payment of Rs.60,800/ about which towards cost of the proceedings Rs. 10,000/ and compensation of Rs.50,000/- towards mental harassment.
II. Opposite party on entering appearance filed version. Complainant No.1 initially on FTTH internet connection on 17.3.12 paid Rs.7,654/ from 17.3.2012 to 8.11.2012 the connection was functioning no other sort of complaints were received from complainants No.1 for this period. Monthly towards legitimate revenue due from them bills issued. Opposite party is not providing any connection as charity. At of opposite party for referring to Dakshina Kannada District for recovery of the telephone dues as arrears of land revenue under the Karnataka Land Revenue Act within the Rules for recovery of arrears.
2. It is further alleged complainant No.2 in respect of No.0824.2442735 had an outstanding due of Rs.9,232/ the connection was working fairly well. The claim of opposite party against the complainants is genuine and was referred to Lok Adalath which was suppressed by complainants. Contending that the dispute regarding telephone service referred to an Adalath as per the provisions of Indian Telegraph Act hence seeks dismissal of the complaint.
3. In support of the above complainants Mr. Devaraj Shet filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked Ex.C1 to C9 as detailed in the annexure here below. On behalf of the opposite parties Mr. Prakash M (RW1) Accounts Officer, Telecom Accounts BSNL also filed affidavit evidence and produced documents not marked.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the present complaint is maintainable before this Forum?
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for both sides not filed oral/notes arguments. We have considered entire case filed on record including evidence tendered by the parties. Our findings on the points are as under follows
Point No. (i): Negative
Point No. (ii): Negative
Point No.(iii): Negative
Point No.(iv): As per the final order.
REASONS
IV. POINTS No. (i): The allegation in the complaint itself specifically mentions that the broad brand connection taken by complainants from opposite party for business purpose. Relevant portion of para 5 & 6 the complainant mentioned thus:
Para 5. That the complainant shall submit that the broadband internet connection provided by the opposite party to the complainants has abruptly conked out and at present the same is not functioning in the slightest as the same is getting disconnected every now and then which has drastically effected the business of the complainant. In this connection, it is pertinent to note, the customers who intermittently pay visit to the internet cafe run by the complainants as stated heretofore supra, to send mail with the attachment of scanned files on writing all the messages in the mail box when the message was about to sent web page would become unable to display the matter or there would be no internet connection and in such cases which intermittently kept repeated, the customers who paid the visit to the said internet café point blank refused to make payment for the service rendered by the complainants and the complainants had to bear the brunt of their scolding when they went out being exceedingly disappointed for not being able to send the mail to the proper destination through the internet facility. Para 6. That on 24.05.2012, the said internet connection went off over a long period of time i.e. more than 1 hour. So the complainants were constrained to apprise the BSNL Executive who had paid a visit to the afore referred commercial premises of the complainant, but the said executive of the opp was not in a position to set right the innate defect in the internet.
Section 2 (1) (d) as to the definition of ‘consumer’ under the Consumer Protection Act 1986 with amendment of 2002 w.e.f. 15.3.2003 reads with explanation therein as under:
d) Consumer means any person who (i) Buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] 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 than 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 payments, 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];
[Explanation: For the purposes of this clause, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self employment;]
Thus on a plain reading of the provision and allegations in the complaint makes it very clear that the connection obtained by complainant is for the commercial purpose. As such in view of the limitation mentioned as to the definition of the consumer in section 2 (1) (d) to 2 (1) (d) (ii) by 2003 amendment we are of the firm view that this Forum has no jurisdiction to entertain the complaint. Hence we answer point No.1 in the negative as this Forum is no jurisdiction.
Points No. (ii) & (iii): In view of answer to point No.2 & No.3 these two point does not survive for consideration.
POINTS No. (iv): Wherefore the following
ORDER
The complaint is dismissed with cost of opposite party.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 7 directly typed by steno on the computer system to the dictation of President revised and pronounced in the open court on this the 4th March 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1 Mr. Devaraj Shet
Documents marked on behalf of the Complainants:
Ex.C1: Agreement dated 20.08.2012
Ex.C2: Trade License dated 26.07.2013
Ex.C3: Communication dated 08.11.2013 issued to the Dist. Commissioner
Ex.C4: Certificate issued by the OP
Ex.C5: Check list
Ex.C6: Telephone Bills
Ex.C7: Receipt for handing over the modem
Ex.C8: Stop payment instructions dated 17.01.2014
Ex.C9: Stop payment instructions 23.01.2014
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Mr. Prakash M, Accounts Officer, Telecom Accounts BSNL
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 04.03.2017 PRESIDENT
