DATE OF FILING: 04.07.2011
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 29th day of September, 2011
Present:
SRI.LAIJU RAMAKRISHNAN PRESIDENT
SMT.BINDU SOMAN MEMBER
C.C No. 148/2011
Between
Complainant : P.C.Mathew,
Puthuparambil House,
Puliyanmala P.O,
Kattappana,
Idukki District.
(By Adv: Benny Joseph)
And
Opposite Parties : 1. BSNL Kerala Circle,
Thiruvananthapuram represented by
The Divisional Engineer, Telecom BSNL,
Kattappana P.O, Kattappana – 685 508,
Idukki District.
2. The Chief Accounts Officer,
Telephone Revenue Account, Jyothi Super Bazar,
Thodupuzha P.O, Thodupuzha,
Idukki District.
O R D E R
SMT.BINDU SOMAN(MEMBER)
The complainant is the absolute owner of building No.K.P.12/5084 of Kattappana Grama Panchayath. The Ist opposite party have taken the above said building on lease on a monthly rent of Rs.7,100/- for a period of 3 years commencing from 14.08.2007 for functioning a telephone exchange at Puliyanmala. The rent with respect to the above building from July 2009 onwards was in arrears. The period of lease expired in March 2010, thereafter renewed with enhanced rate. Things being so, the 2nd opposite party issued a letter to the complainant stating that the opposite party have adjusted Rs.27,404/- from the rent due to the complainant towards the dues in telephone No.KTP 250799 against telephone provided to Smt.Aleyamma Chacko. The said connection was to M/s.Sonet Net Works Private Limited at Service Co-operative Bank Limited. The complainant is not bound to pay the said amount to the opposite parties. The opposite parties are not at all entitled to adjust the telephone arrears if any in telephone No.KTP 250799 provided to M/s.Sonet Net Works Private Limited from the building rent due to the complainant. Complainant issued a lawyer notice on 21.06.2010 demanding the arrears of rent from July 2009 to March 2010 to the opposite parties. They received the notice on 22.06.2010 and issued a reply on 21.06.2010 stating that they have blocked the payment of rent for adjusting Rs.27,404/-, the amount outstanding against telephone No.KTP 250799 provided to Aleyamma Chacko. Opposite parties issued a notice to Aleyamma Chacko on 23.06.2009 in the house address of the complainant stating the details of monthly dues totalling Rs.27,404/- which is served on 25.06.2009. The opposite parties have no right to recover the rent arrears from the complainant. Moreover the said connection was provided to M/s.Sonet Net Works Private Limited which is a partnership firm and the opposite parties have the right only to recover the arrears from all its partners equally. On 8.07.2009, the 2nd opposite party issued a notice directly to the complainant demanding Rs.27,404/- allegedly due from Aleyamma Chacko and threatened that if not paid the said amount, payment of rent will be stopped. Thereafter they have initiated R.R Proceedings but stopped unilaterally after voluntarily adjusting the amount in July 2009, in the rent arrears of the complainant. There was no broad band connection in the disputed period. But the opposite party issued excess bill without any basis. Complainant enquired the matter with Right to Information Act and obtained reply stating that there was no broad band usage for the disputed period and the detailed list of ISD and NSD call report also received. The said report reveals that the alleged bill due from Aleyamma Chacko is baseless. The complainant alleged deficiency of service against the opposite party and filed this petition before the Forum.
2. Opposite parties filed written version. In the written version, their first contention is that the case is not maintainable, because Telecom disputes have a special remedy of Arbitration provided in Section 7B of the Indian Telegraph Act. In the next paragraph of written version, the opposite party admitted that the complainant Shri.P.C.Mathew is the owner of the building of Puliyanmala Exchange. The building is taken on rent by BSNL for Rs.7,100/- per month from 14.08.2007. The opposite party provided a telephone connection to Aleyamma Chacko, the mother of the complainant at Sonet Net Works Private Limited, the telephone number 250799. The concerned connection have broad band connection also provided on 6.10.2006 and was closed on 15.10.2008. The opposite party stated that the dues in telephone bill is adjusted in the rent of complainant's building because on enquiry, the opposite party understood that the connection was managed by the complainant. As such the opposite party issued notice to the complainant on 8.07.2009 and on 30.07.2009 for paying the legitimate dues to BSNL. The intention of blocking the rent of Puliyanmala exchange was also informed in advance to the complainant. But the complainant neither responded nor cleared the dues. The opposite party had initiated R.R proceedings against the bill dues. And the opposite party also withheld the rent arrear of Rs.27,404/-. An advocate notice was received from the complainant for enhancing the rent amount. The opposite party had duly replied the notice. The withheld amount was adjusted against the dues. R.R Proceedings were initiated against Aleyamma Chacko, the mother of the complainant since Aleyamma Chacko was expired, it was decided to recover the dues from the rent payable to the complainant, as he is the legal heir. The opposite party further stated that the bill amount is the fixed monthly charges of broad band connection. The fixed monthly charge is to be paid by the party once the service is provided. Usage is not the criteria for billing. The opposite party stated that the bill issued was in order and not on experimental basis. BSNL have the right to issue the bill for the services extended which was based on the tariff in force.
3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to ?
4. The evidence consists of the oral testimony of PW1 and Exts.P1 to P5 marked on the side of the complainant. No oral evidence adduced by the opposite parties.
5. The POINT :- Ext.P1(a) is a notice from the opposite party mentioned the bill amount Rs.27,404/-. Ext.P1(b) is a notice from the opposite party stating the R.R Proceedings against Aleyamma Chacko. Ext.P1(c) is also a notice for payment of dues against Aleyamma Chacko. Ext.P2(series) are copy of the lawyer notice issued by the complainant to the opposite parties with its .postal A.D Cards and receipt. The notice narrated the rent due of the opposite party. Ext.P3(series) are also notices from the opposite parties to the complainant. Ext.P4 is the reply of letter under Right to Information Act stating the call details of telephone No.250799 for the period from May 2008 to November 2008. Ext.P5 is a document shows the stopping of recovery procedure.
The opposite party had taken the complainant's building for rent, Puliyanmala Telephone Exchange is working in complainant's building. Under the agreement of monthly rent of Rs.7,100/-, the opposite party had taken the building on 14.08.2007. The rent was due, the opposite party had to pay the monthly rent to the complainant. The reason for non-payment of rent is due to the arrear of telephone bill. The disputed telephone Number is 250799 and its bill is due. The owner of the telephone number is Aleyamma Chacko. When the connection was given it is used for Sonet Net Works Private Limited. Sonet Net Works Private Limited is a partnership firm. The owner of telephone No.250799 was expired. The opposite party can claim the bill amount from the partners equally. The 2nd opposite party had sent notice to the complainant and withheld the rent of building. There is no evidence to show that the complainant is the owner of the disputed telephone connection. In the written version, the opposite party had stated that the broad band connection have fixed meter charges, usage is not a criteria, it is fixed for every month. But Ext.P1(a) shows that the amount is different. It is varied from one receipt to other. So we think that there is no fixed meter charge. As per Ext.P4, there is no usage in broad band connection in the disputed period.
In this case the opposite party had challenged the maintainability. The complainant alleged deficiency of service against the opposite party for non-payment of rent of his own building. The opposite party had withheld the rent of complainant's building in the name of an arrear telephone bill owned by Aleyamma Chacko. The opposite party could not produce evidence to show that the disputed phone is owned by the complainant. Where there is a deficiency in service and unfair trade practice, the provision of Consumer Protection Act can be invoked. The remedy under the Consumer Protection Act is an additional and special remedy. Hence the Forum have jurisdiction to entertain the matter.
In this case the opposite party unilaterally adjusted the bill arrears, in the rent due of complainant's building. So we think that the rent arrears of complainant's building was withheld by the opposite party and the amount is adjusted in the telephone bill of Aleyamma Chacko is not just and unfair practice.
Hence the petition allowed. The opposite parties are directed to give back Rs.27,404/- as per Ext.P1(a) document to the complainant, within 30 days of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.
Pronounced in the Open Forum on this the 29th day of September, 2011
Sd/-
SMT.BINDU SOMAN(MEMBER)
Sd/-
I agree SRI.LAIJU RAMAKRISHNAN(PRESIDENT)
APPENDIX
Depositions :
On the side of Complainant :
PW1 - P.C.Mathew
On the side of Opposite Parties :
Nil
Exhibits:
On the side of Complainant:
Ext.P1(a) - Notice dated 10.06.2009 issued by the 2nd opposite party
to the complainant
Ext.P1(b) - Notice issued by the 2nd opposite party to the complainant
stating the R.R proceedings against Aleyamma Chacko
Ext.P1(c) - Notice dated 08.07.2009 issued by the 2nd opposite party to
the complainant regarding the payment of dues
Ext.P2 - Office copy of lawyer notice dated 21.06.2010 issued by the complainant
to the opposite parties with its postal receipts and postal A.D Cards
Ext.P3(series) - Reply Notices issued by the opposite parties to the advocate of
the complainant
Ext.P4(series) - Information received from the Principal General Manager,
Telecom, Ernakulam under Right to Information Act, 2005
Ext.P5 - Revenue Recovery recalling letter dated 22.09.2010 issued
by the Accounts Officer(TROSP), BSNL, Thodupuzha to the District Collector, Idukki
On the side of Opposite Parties:
Nil
