BEFORE THE ADDITIONAL BENCH DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MYSURU.

Consumer Complaint (C.C.)No. 1303/2016

Complaint filed on 29.06.2016

Date of Judgement.20.07.2017

PRESENT                                : 1. Shri Ramachandra  M.S.,  B.A., LL.B.,

                                                         PRESIDENT

                                       2. Shri  Thammanna,Y.S., B.Sc., LL.B., 

                                             MEMBER

Complainant/s               :                   Sri. Lalith Kumar Kothari.M.,

No.1478 K-1, Manka Sadana, 3^rd cross,

Thayagaraja Road, N.R. Mohalla,

Mysuru-570024.

        (Sri S.V. Nagendra, Advocate)

V/s

Opponent        /s                     :       1. The General Manager,

                                                           Bharatj Sanchar Nigam

                                                           Limited (BSNL),

                                                           Jayalakshmipuram,

                                                           Mysuru.

     (Sri.  V. Anantharaju.,  Advocate)

                                                           2. The Account’s officer,

                                                           Bharath Sanchar Nigam

 Limited (BSNL),

                                                           Jayalakshmipuram,

                                                           Mysuru.

                                                                    (Exparte)

  SHRI RAMACHANDRA . M.S.,

      PRESIDENT

JUDGEMENT

The complainant filed the complaint Under Section 12 of Consumer Protection Act, 1986 , seeking for  compensation and such other reliefs.

2.The brief facts of the complaint is that the  complainant is a senior citizen and has availed the telephone connection i.e., landline connection from the opposite parties department and his telephone number is 2448072, customer ID 4009231022 and Account number 3024000283 since more than 10 years.

3. It is further submitted that, the complainant has availed the annual plan from the past 3 years and the same is continued for the period 2016-17 also  with effect from 01.02.16 to 31.01.2017 and as per the bill raised by the opposite parties department a sum of Rs. 1,330/- is paid by the complainant. There are no arrears from the complainant’s side towards the bill raised by the opposite parties department.

4. It is further submitted that, there is one more landline connection with telephone  number 2448082 has been availed by the complainant’s son Praveen Kumar with same annual plan from the past 3 years and the same is continued  for the period 2016-17 also with effect from 01.02.2016 to 31.01.2017 and as per the bill raised by the opposite parties department a sum of Rs. 1,294/- is paid by the complainant son. The same plan continued with the complainant’s son telephone connection, but, it is in respect of complainant’s telephone connection the opposite parties department has done the mistake and has made the complainant to undergo metal agony.

5. It is further submitted that, without intimating the complainant and also without taking the consent of the complainant the opposite parties department has changed the plan for the connection availed by the complainant in the bill has been sent for the period 01.03.2016 to 31.03.2016 this is a shock for the complainant and he enquired about the change in the plan and also lodged an oral complaint with the officials of the opposite parties department. But, till date no action has been taken from the department in rectifying the mistake that has caused from their side. Because of which the complainant had to suffer both mentally and economically for no fault of him. the act of opposite parties department amounts to deficiency in service and the same is attracted by the provisions of consumer protection act.

6. It is further submitted that, in spite of the best efforts made by the complainant he could not succeed in getting his problem resolved with the opposite parties. Hence, the complainant was constrained to issue a legal notice to both the opposite parties on 07.05.2016 narrating the above facts through RPAD the legal notice is served on both the opposite parties but, they have neither complied the same nor chosen to give any reply to it.

7. It is further submitted that, the grave negligent act of both the opposite parties amounts to deficiency in service and because of the act of the both the opposite parties the complainant has suffered mental agony and monetary loss.

8. It is further submitted that, he cause of action arose to the complaint on and from 31.03.2016 the date of issuance of the bill by the opposite parties, on 07.05.2016 the date on which the legal notice is caused on the opposite parties and on the dates on which the notice is served on the opposite party and the matter comes within the jurisdiction of the Hon’ble forum as the entire transaction has taken place within Mysore District and the complaint is within the time. Therefore complainant prays the fora to allow the same.

          9. Notice to the 1^st and 2^nd opposite party duly served, 2^nd opposite party placed exparte, 1^st opposite party is represented counsel and filed version the complainant is prima facie not maintainable either in law or on facts and the same is liable to be dismissed  in limine the case of the complainant is that he is having a  land line phone bearing no 2448072 at Mysore and that he has availed the annual plan for the past 3 years. The same is continued with effect from 01.02.2016 to 31.01.2017 and an amount of Rs. 1,330/- is paid the complainant’s grievance is that he facility of annual plan is withdrawn for his connection but the same facility is continued to his son Sri Praveen kumar  who is having a phone no 2448082. The complainant  has sought directions from this Hon’ble forum for issue of further bills as per the annual plans, apart from other claims.

10. It is respectfully submitted that this Hon’ble forum has no jurisdiction to entertain and adjudicate on the complaint. As per the latest orders of Hon’ble Supreme court , the subject ,matter of dispute is required to be referred to arbitration, which  is a statutory remedy under the terms and conditions o contract. Further the complainant has approached this Hon’ble Tribunal without exhausting he remedies available to him with the opposite party like telephone Adalath, appeal etc. The complainant has given a clear undertaking while applying for the phone to the effect that  he will abide by the Indian telegraph act and rules made there under, from the time.

          11. It is true that tel No. 2448072 is working in the complainant’s name at he addresses as stated in the cause title of the complaint. The complainant had chosen the annual plan and bills are paid accordingly. The annual plan was withdrawn by the BSNL corporate office and the said decision being a policy decision is required to be  implemented by he filed  units of BSNL . It is respectfully submitted that in matters of tariff plans of landline connection this opposite party is merely implementing agency of the tariff plans and has no power to alter, relax, and extend any benefits and as sought in the complaint.

          12. The complainant has been suitably appraised of the matter and he is made to understand about the withdrawal of the annual plans by BSNL corporate. The annual plan tariff has been withdrawn in a phased manner and on all India basis. As per instructions issued, all the customers in the Mysore SSA, having this type of plans are intimated of the changes in tariff plans and they were requested to opt for other plans. The complainant was also duly intimated by the concerned office of his area i,e. Customer service center CTO Mysore and his concurrence was obtained orally and the plan was changed as one India plan. There is no objection made by the complainant, immediately, for the change made in the tariff plan.

          13. It is to be pointed out that the phone service are provided to the customers based on the applications submitted by them and services are Governed under the terms and contracts conditions, as set out in the application forms and as per the provisions of Indian Telegraph Act and rules made there under. The complainant   has been suitably appraised of the issue but has chosen to file this complaint on total misconception and in confusion.

          14. The complainant has not attempted to understand the proper clarifications given from the opposite party officials, in this regard, and has filed the above premature complaint, in a hurry. It is a fact that the complainant had issued a legal notice to this opposite party and the same has been suitably replied.

          15. It is vehemently stated that no rights accrue to the complainant just because same services are continued to some others during the ongoing process of change in tariff plans, which is a policy decision and effective on all India basis. The tariff plans are withdrawn in a phased manner and by informing the parties. The complainant has been duly informed of the matter  and his plan was converted to one India plan, as per his express consent only. There is neither any mistake or negligence in  implementing the change in tariff, as alleged by the complainant.

          16. There is no deficiency of service and there is no cause of action for the complaint the grounds urged in the complainant are made for the purpose of the case only. The same are frivolous and vexatious  in nature. The subject matter of complaint is essentially an billing issue, in nature, thus, the complaint is beyond the purview of this Hon’ble forum and deserves to be dismissed.

17. The complainant and 1^st opposite party has filed the chief examination affidavit and documents in support of their case, perused written arguments heard oral arguments reserved for orders.

18. Heard arguments.

19. The points that arise for our consideration are;

1. Whether the forum is having jurisdiction to entertain the complaint?
2. Whether the complainant proves that there is deficiency in service on the part of opposite party by withdrawing annual land line plan withdrawn consent of complainant and thereby prove that he is entitle for the relief sought?

3.  What order?

20. Our answer to the above points is as follows;

1. Point No.1: In the affirmative
2. Point No.2:In the affirmative
3. Point No.3: As per final order for the following;

REASONS

21 . Point No.1:-  The first and foremost point which was raised by opposite party is that he fora has no jurisdiction to entertain and adjudicated the complaint, related any telephone tariff issues . In view of orders of Apex court of India as per the orders of higher court of India any issue in respect of telephone is to be referred to arbitration when such being the case the complainant is not maintainable as the authority has no jurisdiction to try such complaints and prays for the dismissal of complaint on that count.

22. In reply to the same on the point of jurisdiction of fora complainant produced two letters issued by Government of India Ministry of consumer affairs, Food and public distribution dated 30.01.2014,  07.03.2014 this letter is addressed to  Hon’ble National Consumer Commission Delhi and to all state commission and also to District Commission to take necessary action in view of the letter the gist of the letter is “The implication of the judgement has been examined threadbare in the department of telecommunications and it has been decided that now a days  the existing telecom service provides BSNL , Reliance etc., are the licensee and not vested with  any authority therefore, the implication of the supreme court judgement in the afore mentioned case does not extend to the dispute, between telecom service provider and consumers. Therefore, it is within the competence of the consumer fora to entertain the such cases of disputes”  In view of the same the fora is vested with the power and jurisdiction to entertain such complaints. When such being the case the complaint is  well within the jurisdiction of this fora and it is maintainable.

23. Point no .2:- That the complaint has availed telephone connection i.e., landline connection from the opposite party department and his telephone no is 32448072, customer ID 4009233022 and account no 3024000283 since more than 10 years.

24. It is also further admitted that the complainant has availed the annual plan from the post 3 years and same is continued for the period 16-17 there is no arrears. From the complainant side, towards the bill raised by the opposite party.

25. Further there is one more landline connection with telephone no 2448082 ha been availed by the complainant’s son Praveen Kumar with same annual plan for the period 16-17. The same plan is continued to the complainant son, till this day this fact is also clearly and categorically admitted by the opposite party in his.

26. Further, the opposite party without intimating the complainant and also without taking the consent of the complainant has changed the plan for the connection availed by the complainant.

27. The opposite party has contended that annual plan to the complaint was withdrawn with the due intimation and only after consent, the intimation and consent is denied by the complainant and there is no communication in respect of same the opposite party has failed to produce any cogent and convincing documentary evidence to prove their defence and other important point for consideration is that, even today complainant son is enjoying old annual plan connection to his land line, in the same place where the complainant is residing this fact is also admitted by the opposite party in a letter correspondence produced herewith. Further opposite party contended they are in the process of withdrawing annual plan  to the complainant  son as the old annual plan is scrapped and in its place new “one India plan” is introduced and in further there will be only one plan so for as landline is concerned from the above discussion we can say even though the opposite party contends that they have oral intimated and consent is taken to change the complainant land line plan, they have failed to establish their statement with material documents to support their defence.

28. Further the non production of any proof to prove their case shows the latches and failure to do their duty on the part of opposite party. This act and omission of opposite party is nothing but a deficiency in service on their part. For which they are liable to pay the lawful claims of complainant and at the same time complainant is also entitle to receive the same from the orders of this fora.

29. Further that no right accrue to the complainant just because some service are continued to some others during the on going process of change in  tariff plans , which is a policy decision and effective on all India basis. The tariff plans are withdrawn in a phased manner. When such is the position, since it is a policy matter which cannot be questioned here. The fora has no power, authority to interfere in the policy making decision. When such being the case the question of granting any relief beyond its scope is not permitted under law. Under such circumstance the prayer of complainant to continue the same plan is not tenable. It is also not within the purview  of the fora. In that event the prayer of continuation of annual plan by the complainant is liable to be dismissed.

30. In view of the above observation the point no 1 and 2 we are the  answered in the affirmative.

31. Point no.3:- From the above discussion we hereby proceed to pass the following :-

ORDER

1. The complaint is hereby allowed in part.
2. The 1^st and 2^nd opposite party is directed to pay of Rs. 5,000/- towards deficiency in service and Rs.5,000/- towards cost of proceedings to the complainant within 30 days of this orders.
3. In default to comply the above order opposite party shall pay interest on the said amount of 10,000/- at the rate of 10% p.a. from the date of order till payment made.
4. In case of default to comply this order, the opposite party shall    undergo imprisonment and also liable for fine under section 27 of

     the CP Act, 1986.

5. Give the copies of this order to the parties, as per Rules

(Dictated to the stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on the 20^th  July 2017)  

Shri Thammanna Y.S.,                                 Shri Ramachandra M.S.,    

          Member.                                                          President.