BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE         

Dated this the 27^TH January 2017

PRESENT

     SRI VISHWESHWARA BHAT D    : HON’BLE PRESIDENT

     SRI T.C. RAJASHEKAR                 : HON’BLE MEMBER

ORDER IN

C.C.No.260/2013

(Admitted on 23.09.2014)

Mr. A Shivarama Rai,

S/o Subbayya Rai,

Aged about 52 years,

R/at Sorake House,

Survey Village,

Puttur Tq, D.K.  

                                         ......... COMPLAINANT

(Advocate for the Complainant: Sri SD)

VERSUS

General Manager,

B.S.N.L.

Old Kent Road,

Mangalore  1.

                                 OPPOSITE PARTY

(Advocate for the Opposite Party: Sri. BNK)

ORDER DELIVERED BY HON’BLE MEMBER

SRI T.C. RAJASHEKAR:

1. 1. The above complaint filed under Section 12 of the Consumer Protection Act 1986 by the same complainant against same opposite parties alleging deficiency in service against claiming to restore telephone connection to the telephone No.276348 immediately, to pay Rs.40,000/ towards compensation and to pay Rs.20,000/ as expenses.

2.  In support of the above complainant Mr. A Shivarama Rai filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents marked Ex.C1 to C7 detailed in the annexure here below.  On behalf of the opposite party Mr. Keshava (RW1) AGM (HR&A) BSNL, D.K. Telecom District, also filed affidavit evidence and reply treated nil and produced documents marked Ex.R1 to R8 detailed in the annexure here below.

The brief facts of the case are as under:

        We have perused the complaint and the version of the parties. This dispute is with regard to the telephone line is not working and the opposite party not repaired the land line telephone of the complainant in spite of complaint several times. The complainant alleges his telephone line is not working and on complaint the opposite party is not repairing it. The opposite party contends that the land line of the complainant is destroyed by the PWD people and now it cannot be reconnected. However the opposite party submitted that they have offered CDMAWLL connection for which the complaint is not consenting. The opposite party also raised the jurisdiction issue stating that as per Sec. 7 b of the telegraph Act the dispute cannot

be entertained in this forum but the complainant has to approach arbitration as per the said section. These are being the facts in deciding this dispute we consider the following

POINTS FOR ADJUDICATION

     We have considered the evidence produced and the documents filed by the parties. The admitted facts are, the land line telephone existed and now it is not working. The complaint has been lodged with the opposite party. The opposite party neither repaired nor given new connection and the telephone line is not working. The opposite party denied the deficiency in service, and also jurisdiction to this Forum. These are the admissions and the denials we are of the opinion that the following points may be decided in resolving this dispute.

1. Whether the complainant is a consumer under the Consumer Protection Act 1986 and this forum has jurisdiction?
2. Whether the opposite party proves that there is no deficiency in service from their part?
3. Whether the complainant is entitled for the relief prayed for?
4. What order?

     We have examined the evidence led and taken note off the documents notes and citations submitted. Heard submissions and answered the above points as under:

1. In the affirmative.
2. In the negative.
3. In the affirmative.
4. As per delivered order.

REASON

POINT NO 1: There is two issued to be decided in answering this point. Firstly, whether the complainant is a consumer? It is evident from the telephone bill marked as EX C 1 which established the complainant is the subscriber to the land line telephone connection and it is not dispute. There is no ambiguity with regard the relation of consumer and the service provider. Secondly whether this Forum has jurisdiction? The opposite party contends that this Forum has no jurisdiction to try the matter as there is special Act called the telegraph Act to adjudicate the dispute between the customer and the opposite party under Section 7 B of the Act. As per the Act the matter shall be referred to the arbitration.  There is citation to this effect as opposite party contended. But these disputes related back to formation of the BSNL a company incorporated under the companies Act 1956. Now the telephone lines are not covered by the said Act. The BSNL is the service provider under license agreement and it is not telegraph authority as per section 7 b of the Act. The point has been discussed in detail in the citation W.P. (C) 8285/2010 & C.M. No.21319/2010 JK MITTAL versus UNION OF INDIA & ORS by Honourable  Delhi High court and in another  BSNL vs Smti Betty Sebastian on 25 February, 2014 decided by the  Honourable State Consumer Disputes Redressal Commission, Shilong. Hence we are of the opinion that the complainant is a consumer and this Forum has jurisdiction to try this dispute and the answer to point no 1 in the affirmative.

POINT NO 2: On fortified that the For has jurisdiction we proceed on merit of the case. Admittedly the complainant had a land line connection serviced by the opposite party and now the service is not in existence and the complainant is not provided with the telephone connection to his land line. Hence it is the opposite party burden to prove that there is no deficiency in service even after suspending service of telephone connection to complainant. Opposite party after admitting the disconnection contends that due to road widening work the PWD workman destroyed the cable lines and hence the telephone connection got disconnected. Opposite party claims that firstly, the destroying of the line was not under their control and the connection cannot be restored and there is no lapse on their part for the complainant’s problem,  Secondly they have offered an alternative telephone connection called CDMA WLL to the complainant but the complainant not ready to accept the same, Thirdly the CDMA WLL connection offered to customer is within the per view of  the Telegraph Act as per ITR 418 wherein the telegraph authority shall have right at any time to disconnect or reconnect to any other exchange etc., The opposite party produced documents in substantiating their contentions. The EX-R 1 is the letter written by the opposite party to the complainant it reads “the underground cable...(cable providing service to your premises) was totally damaged due to development works. Now the 5 pair cable supply is delayed. Hence it is hereby requested to accept the telephone service through CDMA WLL. You are requested to submit the application for prepaid WLL service at the earliest please.” Opposite party submitted another letter  EX R 3 which is reply to legal notice. It states in para 1 “ Huge cable materials are required for restoring the service of your client. As there is acute shortage of cables, the service of above mentioned telephone not yet restored”.  Kindly advice your client to avail connection on CDMAWLL till the restoration of land line and to bear with us.

2.     The EX R 4 is the circular F.No.3.15/2004. WLL on which the opposite party relies to contend that they have authority to change the land line connection to CDMA WLL connection. On scrutiny of this document we observed it is written in para 2 as “in order to keep the uptime to the maximum and reduce the fault rate, the undersigned has been directed to state that the long distance connection provided on overhead line should be replaced by WLL technology, where ever it is feasible and capacity available, with written consent of the customer. Further the customer may also be advised that it ell not be possible to revert to the older technology (O/H, or UG cable) once the connection is replaced using the WLL technology.”  Enclosed guide lines letter no 28.7/2003.ML/768 dated 29.10.2003 is not filed in the Forum.

3.     The combined reading of all these documents reveals that none of the contention taken by the opposite party is acceptable. What manifested by these documents are, the opposite party had no 5 pair cable to replace since supply delayed, there is acute short supply of cables and hence the service of the disputed land line telephone not yet restored and the complainant is requested to bear with the opposite party these letters in crystal terms states that the customers have to be requested to switch over CDMA WLL connection and on written consent of the customer only the opposite party can change over to CDMA WLL but not otherwise. The circular   EX R 4 also expects the dept. to advice the customer about once it is converted cannot be reverted. The circular also refers to long distance overhead line should be replaced but not the underground lines as opposite party claiming. As per this correspondence there is still provision to service through land line connection and it is only due to non availability of cable due to delayed supply the service could not be given. The opposite party also expect the complainant to bear with them.  But in spite of this much years delay the opposite party not able to connect the land line service is unacceptable. There we see the deficiency in service on the part of the opposite party. When the complainant is not interested in the new type of connection other than that which is agreed upon the opposite party cannot change without consent of the customer.

4.      In our view it is apt to discuss in brief with regard to ITR 418. It empowers the telegraph authority to disconnect any exchange line from the exchange to which it is connected and connect it to any other departmental exchange and also alter telephone etc. Relying on this provision the opposite party contends the disconnecting of the land line and connecting through CDMA WLL is the right of them. In our opinion it is not at all acceptable. The opposite party cannot sail through this provision. The provision is in relation to changing of exchange connectivity but not to entire new system. Also as discussed, the BSNL is not the authority as contemplated in the sec.3 of the telegraph Act but only a licensee under Sec.4 of the Act as service provide and registered under the companies Act  as per citation provided above in point no 1. And as such the provision is not applicable. Also even as per the internal circular of the opposite party organisation EX R 4, the written consent is must. In our opinion this much discussion is enough to hold the opposite party liable for the deficiency in service, and hence the point no 2 we answered in the negative. 

POINT NO 3: As per above discussion it is held the opposite party is liable for the deficiency in service for not providing the land line telephone connection as agreed upon and to the complainant, the complainant is entitled for the relief prayed for. The complainant had prayed for a direction to the opposite party to restore the telephone connection to the telephone No. 276348, for which in our opinion the complainant is entitled. The complainant also prayed for Rs 40000/ towards compensation and Rs 20000/  as expenses. In our opinion there is negligence on the part of the opposite party in not restoring the connection on unacceptable grounds.  In our opinion the compensation of  Rs 25000/ will suffice. An amount of  Rs 5000/  towards cost of litigation. Hence the point no 3 in the affirmative.

POINT NO 4: In the light of the above discussion  and adjudication of the  above points we deliver the following

ORDER

        The complaint is allowed with cost.  Opposite party is directed to restore land line telephone connection No.276348 to complainant’s residence mentioned in the complaint within a period of 60 days from the date of communication of this order.  On failure of the opposite party in complying, shall pay compensation at Rs.100/ (Rupee One hundred only) per day to complainant from the date of order till restoration of the land line telephone connection to the complainant’s residence.

2.    Opposite party shall also pay a sum of Rs.25,000/ (Rupees Twenty Five thousand only) as compensation to complainant.

3.     Advocate fee fixed at Rs. 5,000/ (Rupees Five thousand only).

       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 10 directly typed by member revised and pronounced in the open court on this the 27^th January 2017)             

             MEMBER                                   PRESIDENT

(SRI T.C. RAJASHEKAR)          (SRI 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 Complainant:

CW1  Mr. A Shivarama Rai

Documents marked on behalf of the Complainant:

Ex.C1: 01.02.2013: Original bill issued by the O.P

Ex.C2: 08.04.2013: O/c of the complaint given to Puttur S.D.O.T

Ex.C3: 02.05.2013: O/c of the complaint given to Puttur S.D.O.T

Ex.C4: 15.09.2013: O/c of the complaint given to Puttur S.D.O.T

Ex.C5: 15.06.2013: O/c of the regd lawyer’s notice

Ex.C6: 18.06.2013: Postal Acknowledgement

Ex.C7: 26.06.2013: Original bill issued by the OP

Witnesses examined on behalf of the Opposite Parties:

RW1   Mr. Keshava (RW1) AGM (HR&A) BSNL, D.K. Telecom District

Documents produced on behalf of the Opposite Parties:

Ex.R1: Letter dated 25.06.2013 to avail CDMA WILL connection

Ex.R2: Registered Notice dated 15.6.2013

Ex.R3: Office letter dated 3.7.2013 (copy)

Ex.R4: Copy of letters dated 23.1.2004 of BSNL

Ex.R5: Copy of Hon. Supreme Court of India Order in Civil Appeal No.7687 of 2004

Ex.R6: Copy of order in com No.01/2012 passed by Udupi District Consumer Forum at Udupi

Ex.R7: Copy of Order dated 10.2.12 in Appeal No.4662/2010 Of Hon. Karnataka State Commission, Bangalore

Ex.R8: Copy of Rules for Telephones.

Dated:  27.01.2017                                            MEMBER