DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 27th day of February 2016
Present : Smt.Shiny.P.R. President
: Smt.Suma.K.P. Member Date of filing: 11/07/2014
(C.C.No.99/2014)
Ambika.S alias Ambika Mohandas,
D/o.S.Sukumaramenon,
XVI/515, Sreyas, Kuppakkad,
Kulavanmokku, Post Kuzhalmannam,
Palakkad – 678 702 - Complainant
(Through Authorized Person Ramachandran)
Vs
1.General Manager Telecom,
B.S.N.L. Palakkad – 678014
2.Sub Divisional Engineer,
B.S.N.L. Telecom,
Kuzhalmannam – 678 702 - Opposite parties
(By Adv.P.K.Devadas)
O R D E R
By Smt.Shiny.P.R. President.
Brief facts of complaint.
Complainant is conducting a public telephone booth under the name and style “Sreyas communications”. Complainant has got STD PT connection with telephone No 04922-273174 from the opposite parties under self employment scheme in the year 1999. In the year 2010 complainant has got broad band connection with telephone No 04922-272078 under business plan from the opposite parties. Both telephones are out of order from 5-1-2014. Online complaint was booked on 7-1-2014 vide booking No 110277488081 and 110276944022. Apart from this complainant sent letters to Accounts Officer BSNL, Palakkad and Assistant General Manager (Admin) O/o The General Manager Telecom, Palakkad to redress the grievance of the complainant. But no reply was sent to the complainant. But Accounts Officer BSNL, Palakkad sent letter to complainant to clear the dues before 12-5-2014. Even though the telephones are out of order from 5-1-2014 to 30-4-2014 complainant remitted the dues on 2-5-2014 as per the demand of the accounts officer. Allegation of the complainant is that opposite parties collected monthly charges /usage charges of Rs.4638/- for the telephone connection 04922-272078 from the complainant for the defaulted period without giving service. Complainant further submitted that she has lost her customers and has incurred a huge financial loss. Hence the complaint. Complainant prays for an order directing opposite parties to pay a total amount of Rs.99458/- as compensation and cost of proceedings.
Complaint was admitted and issued notice to the opposite parties. Opposite parties appeared before the forum and filed their version contending that complaint is not maintainable as there is a special remedy under Section 7 B of Indian Telegraph Act. Opposite parties admitted that complainant has a land line with telephone No.04922-273174 for public telephone booth (STD-PT) and another land line broad band connection with telephone No 04922-272708 under Alathur Division of BSNL. Complainant is a STD-PT franchisee who is selling the service for a profit or commission which is purely commercial and hence complainant will not come under the definition of consumer under the Act. STD-PT is a service. No rent or hiring charges is remitted by complainant to opposite parties. Land line connection is issued under business plan which is only for commercial purpose. Complainant is not a consumer but a franchise. Moreover opposite parties contended that faulty connection in the telephone was due to the widening of the national high way by the NHAI. The inconvenience caused to the complainant was due to irresponsible and indifferent way of road widening and culvert extension work carried out without giving any notice to the BSNL by the NHAI. They are necessary parties to the complaint. Therefore the complaint is bad for non jointer of necessary parties. BSNL has given rebate to the complainant for Broadband charge to the tune of Rs.800/- for the month of February, Rs.609/- for the month of March and Rs.750/- for the month of April and for O/T installation to the tune of Rs.80/- for the month of February, Rs.80/- for the month of March and Rs.64/- for the month of April. Total Rs.2383/- has been given as rebate in the Adalath. BSNL was already allowed a rebate of Rs.2383/- in the rent amount of Rs.6638/-. Complainant is not entitled to get any compensation. Hence the complaint is to be dismissed with costs.
Complainant and opposite parties filed their respective chief affidavits. Ext.A1 to A7 are marked. Ext.A8 to A15 marked with objection. One bill in Ext A7 series marked as Ext A7 (4).Ext B1 to B 15 marked from the side of the opposite parties.
The following issues are considered
1. Whether the complaint is maintainable or not?
2. Whether there is any deficiency in service on the part of opposite parties?
3. If so, what is the relief?
Issues 1
Heard. Opposite parties has taken a contention that the complainant is not a consumer under the Consumer Protection Act 1986 and complaint is not maintainable before the forum. Opposite parties also contended that as per clause 27 of agreement executed between the parties any dispute arising between the parties shall be referred to a sole arbitrator appointed by the Chairman and Managing Director of BSNL. But this contention cannot be taken into consideration because, as per section 3 of the Consumer Protection Act 1986 the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. Hence the complainant can approach the forum for the redressal of her grievances even if there is clause of arbitration in the agreement.
In order to answer the first issue whether the complainant is a consumer or not, firstly we have taken the broad band connection with telephone No.04922-272078 into consideration. In this connection opposite parties raised a contention that 04922-272078 is a basic land line broad band connection issued under business plan which was taken only for the purpose of commercial. Complainant availed service of opposite parties for the commercial purpose. Complainant deposed in cross examination that she has taken net connection for self employment and she has employed a person to do the job work. In Action construction Equipments Ltd. V Bablu Mridha (IV 2012 CPJ 245 NC) National Commission held that when a person takes assistance of one or two persons to assist/help him in operating the machine he does not cease to be a consumer, complainant can avail the assistance of other persons to do her work. In the light of the above decision we are of the view that complainant is a consumer under the Consumer Protection Act 1986 and complaint is maintainable before the forum. Hence first issue answered in favour of complainant with regard to telephone connection No. 04922-272078.
But in the case of 04922-273174 telephone connection, complainant deposed in the cross examination that it is a public telephone booth and they are the franchisee of the opposite parties. She also deposed while cross examination that in Ext.A7 series 4th bill shows that the rent is zero. In the above discussions we came to the conclusion that complainant has not paid any consideration to opposite parties for availing their service. Hence complainant is not a consumer with regard to telephone No 04922-273174.
Issues 2 and 3
Opposite parties also admitted that there was some fault with telephone connections of the complainant. Opposite parties have no dispute with regard to the aspect that complainant has suffered financial loss form 5-1-2014 to 30-4-2014. In the circumstance opposite parties have the liability to pay compensation for the loss suffered for the faulted days from 5-1-2014 to 30-4-2014. On the perusal of Telephone bills Ext B12, B14 and B15 it is revealed that during the month of March i.e. 1-3-2014 to 31-3-2014 Rs.9477/- had been adjusted by the opposite parties towards arrears. Moreover in an adalath conducted by BSNL, opposite parties had given rebates of Rs.2383/- for the months of February to April to the complainant .
Opposite parties contended that the fault with telephone connection was due to the widening of the national high way by NHAI and hence NHAI has the liability to pay compensation to the complainant. There is no privity of contract between the complainant and NHAI. Hence no necessity to implead the NHAI as a party to the complaint. At the time of cross examination of DW1, he deposed that NH വർക്ക് കാരണം ബി.എസ്.എൻ .എൽ.ന് നഷ്ടം സംഭവിച്ചതിനെതിരെ കോമ്പൻസേഷൻ അവാർഡ് കിട്ടിയിട്ടുണ്ട് . എക്സി.ബി.8., ബി.9 പ്രകാരം 3 ലക്ഷവും, 4ലക്ഷവും ഓർഡർ ആയിട്ടുണ്ട് Recently 20 ലക്ഷം രൂപ കോമ്പൻസേഷൻ ഓർഡറായിട്ടുണ്ട്. Amount ഒന്നും കിട്ടിയിട്ടില്ല. As the NHAI awarded compensation to opposite parties, opposite parties have the responsibility to pay compensation to the complainant for the loss sustained. In order to fix the quantum of compensation no supporting evidences are adduced by the complainant. However it is an admitted fact that complaint has lost four month’s income from the internet connection.
In the result complaint is partly allowed. Hence Opposite parties are jointly and severally liable to pay Rs.10,000/- (Rupees Ten thousand only) towards compensation for the loss of income for four months, Rs.2,000/- (Rupees Two thousand only) as compensation for mental agony and Rs.1,000/- (Rupees One thousand only) as cost of proceedings.
Order shall be complied within a period of one month from the date of receipt of order, failing which complainant is eligible for 9% interest per annum for the whole amount from the date of order, till realization.
Pronounced in the open court on this the 27th day of February 2016.
Shiny.P.R.
President
Suma.K.P.
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 - Attested copy of online complaint booking by the complainant dtd.07/1/2014 vide
docket No.110277488081
Ext.A2 – Attested copy of online complaint booking by the complainant dtd.07/1/2014 vide
docket No.110276944022
Ext.A3 – Attested copy of letter dtd.22/02/2014 sent by complainant addressed to accounts
officer, BSNL
Ext.A4- Attested copy of letter dtd.28/04/2014 sent by complainant to opposite parties.
Ext.A5 - Attested copy of letter dtd.25/06/2014 sent by complainant to opposite parties.
Ext.A6- Attested copy of letter dtd.2/05/2014 sent by opposite parties to complainant.
Ext.A7 series - Attested copy of telephone bills issued by opposite parties (8 nos)
Ext.A8 - Attested copy of letter dtd.14/11/2014 sent by NHAI to the complainant
Ext.A9 - Copy of letter dtd.9/3/2011 sent by NHAI to Deputy Chief Engineer, KSEB, Palakkad.
Ext.A10- Copy of letter dtd.1/2/2013 sent by NHAI to Executive Engineer, Water Authority,
Palakkad.
Ext.A11- Copy of letter dtd11/1/2013 sent by NHAI to AGM(NWP), BSNL, Palakkad.
Ext.A12- Copy of letter dtd.21/6/2013 sent by NHAI to AGM(NWP), BSNL, Palakkad.
Ext.A13- Attested copy of bill dtd.20/1/2014 issued by KSEB to the complainant.
Ext.A14- Attested copy of bill dtd.19/3/2014 issued by KSEB to the complainant.
Ext.A15- Attested copy of bill dtd.20/5/2014 issued by KSEB to the complainant.
Witness examined on the side of Complainant
PW1- Ambika.S
Exhibits marked on the side of opposite parties
Ext.B1- Attested copy of Original agreement entered into by the franchise and BSNL.
Ext.B2- Attested copy of letter dtd.16/11/2011 sent by opposite parties to Project Manager,
NHAI, Palakkad
Ext.B3- Attested copy of letter dtd.19/11/2011 sent by opposite parties to Project Director
NHAI, Palakkad
Ext.B4- Attested copy of letter dtd.19/11/2011 sent by opposite parties to M.P, Palakkad
Ext.B5- Attested copy of letter dtd.17/12/2012 sent by opposite parties to Project Director
NHAI, Palakkad
Ext.B6- Attested copy of letter dtd. 11/1/2013 sent by NHAI to AGM(NWP)
Ext.B7- Attested copy of letter dtd.25/1/2013 sent by opposite parties to District Collector,
Palakkad
Ext.B8- Attested copy of letter dtd.27/4/2013 sent by opposite parties to Project Director
NHAI, Palakkad
Ext.B9- Attested copy of letter dtd.27/4/2013 sent by opposite parties to Project Manager,
NHAI, Palakkad
Ext.B10- Attested copy of telephone bill dtd. 6/2/2014 issued in the name of complainant by
the opposite parties
Ext.B11- Attested copy of telephone bill dtd. 6/3/2014 issued in the name of complainant by
the opposite parties
Ext.B12- Attested copy of telephone bill dtd. 6/4/2014 issued in the name of complainant by
the opposite parties
Ext.B13- Attested copy of telephone bill dtd. 6/5/2014 issued in the name of complainant by
the opposite parties
Ext.B14- Attested copy of bill accounts of landline of Complainant
Ext.B15- Attested copy of bill accounts of landline of Complainant
Witness examined on the side of opposite parties
DW1- Chandrababu.T
Cost
Rs.1,000/-allowed as cost of the proceedings.
