3.11.2008 Sri.K.Gopalan, President This is a complaint filed under section 12 of the consumer protection Act for an order directing the opposite parties to pay Rs.10, 000/- as compensation and cost. The averment of the complainant in brief is as follow: The complainant applied for new Telephone connection on 1.5.1998 and paid Rs.2000/- as per the demand notice of Sub Divisional Engineer, Taliparamba. His application has been registered in General category vide Regn.TMB/Gen/R/7538 and intimated the same by letter dt.1.9.1998. Subsequently Ex/servicemen were included in the special category. Since the complainant was an Ex-service man requested to include his application in Non-OYT special category on 3.7.2000. He has also submitted pension order and declaration. Thereafter phone connections were given to some of the persons who are residing within the radius of 50 meters without considering the seniority of the complainant. Complainant sent protest letter to authorities. Telephone Nos.208320, 208314 given on 16.3.2002 are connections allotted superseding the seniority of the complainant. He has lodged a complaint before Telecom DistrictVigilance. Complainant got telephone connection on 22.3.2002. In the telephone bill it is shown as NYT SPL. That shows he has lost seniority in the general category. Otherwise connection NYT SPL connection should have been got before 16th March. Reply to his complaint dt.22.3.2002 was received on 18.7.02, which was much belated. It is equal to denial of justice. Their contentions are false. It was contended that complainant is residing in another area and that is why connection could not be given in time. The connection to his neighbours and him are given from the same post and the complainant residing in between Consumer No.208314 and 208320. His name is included in another area only to deny the proper service. The department curtails ex-servicemen privilege. Since he was not given connection within time complainant suffered maximum hardship and damages. He could not contact any of the persons in time and was depended upon the telephone booth for help. Pursuant to the notice issued by this Forum, opposite parties filed version. The contentions of the opposite parties in brief are as follows: The dispute is covered under section 7B of the Indian Telegraph Act and the same is to be resolved through arbitration proceedings. This Forum has no jurisdiction. The relief sought for a direction to pay compensation will not lie, as there is immunity to government under section 9 of the Indian Telegraph Act. The complainant had initially registered for a new phone connection under Non-OYT General category vides Regn.No.7538 on 1.5.1998. At that time there was no capacity since the exchange was fully loaded. The waiting list under general category registered up to 31.12.1996 was cleared and hence there were a lot of applicants remaining senior to the complainant. The complainant later converted his registration into Non-OYT special category on 3.7.2000. A new connection was provided to complainant under special category on 22.3.2002 with telephone No.208330. There is no willful delay or discrimination. The complainants application was subjected to certain technical feasibility and hence there was no infringement of any legal right. It is submitted that on expansion of Taliparamba exchange during the end of 2001, there was bulk release of new connections due in all categories. Accordingly it was decided to release the waiting list. Under general category for the period from 1.1.1997 to 31.12.2000 and special category from 1.9.1999 to 31.3.2001. So the complainant was eligible to get his connection in General category itself. He would have got his connection earlier under Non-OYT special category provided he had converted his registration prior to 31.8.1999. But he had converted on 3.7.2000 only. Hence it can be seen that there is no much advantage in converting his registration from general to special category in the case of the complainant. The premises of the complainant at the time of providing the connection to the complainant were technically not feasible. But with a view to provide the new connection to the complainant, some rearrangements were made by transferring certain working numbers from the distribution point (DP in short) to adjacent pillars, creating vacant cable pairs and erecting overhead alignment from that pole/DP to the residence of the complainant. As regard the connections to Telephone Nos.208230 and 208314 both situated near to the complainants area it is stated that all the work for these three connections (including the complainants No.208330) were completed together and the relative delay of a few days caused to the complainant was due to a fault developed in the allotted cable pair and it is stated that it was not deliberate or intention. Complaint to SDE replied on 4.7.2002 stating that the fact is very clear that the connection was provided to the complainant on 22.3.2002 well before lodging the above complaint. As per the policy of the BSNL, it is the practice to provide the connections early wherever it is technically feasible. So that the costly equipments are not a left idle. On the above pleadings the following issues are farmed for consideration: 1. Whether the complaint is maintainable? 2. Whether there is any deficiency on the part of the opposite parties? 3. Whether the complainant is entitled for remedy as prayed for? The evidence consists of oral testimony of PW1.DW1 and documentary evidence Ext.A1 to A7. Issue No.1 The opposite parties raised their contention that the dispute in the complaint is covered under section 7 B of the Indian Telegraph Act and the same is to be resolved through arbitration proceedings. This Forum has no jurisdiction. The close analysis will reveal that the remedy provided under the act is in adition to the provisions of any other law for the time being in force. Section 7-B of the Telegraph Act cannot affect the jurisdiction to entertain the complaint. When a public servant or body by malafide, oppressive and capricious acts in performance of official duties causes injustice to common man the Forum is the instrumentality most suitable for the speedy remedy ensuring natural justice. This is not a case of non-payment due on that of disconnection. The legal position that has been settled by Supreme Court in AIR 1995 SC 1384 cannot be said to be in relation to any service hired or availed of by a consumer. It is made clear that in the case of motor accident the injury sustained by a consumer has nothing to do with the services provide but the injury is the direct result of the accident. It is a happening that is not wanted or expected. In other words merely a chance or an unforeseen and undersigned injury to a person out of an event that happens when quite unlocked for. The subject matter herein is not concerned with any dispute concerning any telegraph line, appliances or apparatus. The question of seniority of application is a subject matter of service, which can be entertained by consumer Fora. The decision of the Supreme Court service is not on the same subject matter the principle therein cannot be applied to this case. Hence we are of opinion that the complaint is maintainable. The issueNo.1 is found in favour of the complainant. Issue Nos.2 & 3 Complainant applied for telephone connection by Ext.A1 on 1.5.1998. His name was registered in General category and intimated by Ext.A2. The waiting list under general category registered up to 31.12.1996 was cleared and there was lot of applicants remaining senior to the complainant. This statement of opposite parties has not been denied. Complainant was an Ex-serviceman. Ex-Serviceman was included in the special category. So that the complainant requested to transfer his registration to special category by Ext.A3. On 3.7.2000. Thus it has been converted into Non-OYT special category. All these facts were seen undisputed. Admittedly the complainant was provided connection under special category on 22.3.2002 with telephone No.208330. Opposite party in their version and affidavit stated that it was decided to release the waiting list under general category for the period from 1.1.1997 to31.12.2000 and special category from 1.9.1999 to 31.3.2001. The complainant also has not challenged this statement. The date of transfer of complainants registration was only on 3.7.2000. Opposite parties have stated in their version that the expansion work of the outdoor plant ie.underground cable laying and line erection works are not completed in all the areas under the serving area of Taliparamba Exchange. It means certain areas were technically not feasible. The premises of the complainant are situated in Trichambaram. Due to hard rocky terrain the cable lying was not completed in the area and the rout leading to the premises of the complainant at the time of providing the connection to the complainant was technically not feasible. But with a view to the new connection to the complainant, some rearrangements were made by transferring certain working numbers from the distribution point to the adjacent pillars, erecting vacant cable pairs and erecting overhead alignment from that pole/DP to the residence of the complainant. The complainant did not deny these facts. Thus it can be assumed that the premises of the complainant are situated in Trichambaram and naturally hard rocky terrain caused delay in cable laying in the rout leading to the premises of the complainant. Thus it can be very well assumed that at the time of giving connection to the complainant the question of feasibility has been inexistence or in other words the area of complainants residence were not feasible. Hence it can be believed that certain rearrangement might have been done so as to provide the new connection. The main allegation of the complainant is that after including his name in special catagory persons who are living nearby his residence had been given telephone connection ignoring his seniority. In cross examination PW1 was asked: Bulk connection He has also answered Telecom Bulk issue of connection is a usual practice. It has come in evidences that there was decision to release the waiting list under general category for the period from 1.1.1997 to 31.12.2002 and special category from 1.9.1999 to31.12.2000. Thus the circumstances existed reveals that there was bulk issue of connection. If that were so there are chance to get connection to those senior most registered consumer and relatively fresh applicants together or without much difference. Thus the complainants allegation that his neighbours were given connection earlier to him has no much relevancy, especially the special situation of existence of non-feasibility if taken into consideration. It was further alleged by the complainant that there are government order to give connection within one week for Ex-servicemen. On perusal of the copy of R.O produced by the complainant it can be seen that there is a clause stating thus Efforts should be made to provide telephone connections to such registrants within a week after the issue of OB, subjected to the technical feasibility. Herein also due importance is given to technical feasibility. We have seen technical feasibility caused delay in giving connection to complainant. Even then the complainant has got connection within few days difference. Complainant got connection on 22.3.2002 whereas his neighbors got connection on 16.3.2002 i.e. five days earlier. In the strict sense it is a delay. But the opposite parties reasonably explain it. It is stated that the three weeks including that of the complainants were completed together and relative delay of a few days caused to the complainant due to a fault developed in the allotted cable pair. We do not find reason to disbelieve this explanation to fix liability on opposite party finding deficiency of service. The actual material loss alleged to be sustained by the complainant has also not been proved In the light of the above discussion we are of opinion that complainant failed to establish deficiency of service on the part of opposite party. In the result, complaint is dismissed. No order as to cost. Sd/- Sd/- Sd/- President Member Member APPENDUX Exhibits for the complainant A1.Copy of the demand note A2.copy of letter dt.1.9.98 issued by OP A3.Copy of the letter dt.3.7.2000 A4.Copy of the letter dt.17.3.02 sent to OP. A5.copy of the letter dt.22.3.02 sent to OP A6.Phone bill dt.7.6.02 issued by OP A7.copy of the letter dt.18.7.02 sent by OP Exhibits for the opposite parties Nil Witness examined for the complainant PW1, Complainant Witness examined for the opposite parties DW1.K.Narayanan /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur Despatched on Through Post/hand
