Judgement HON’BLE SUDIP NIYOGI PRESIDENT FACTS This is a complaint where an allegation has been made against the OP for deficiency in service in accordance with the provisions of the CP Act, 2019 and also praying for compensation and cost of litigation. The Petitioner who filed this complaint on being authorized by his brother Saarang Ballav Shah, who is away in Canada in connection with his higher education, had taken lease of internet services under plan name ALPHA – 2 (A Plan of Rs.590/-), in the name of his said brother via allotted Account No.H298054 at their residence at 2/A Canal East Road, Das Para Gate No: -1, Ultadanga, Kolkata - 700067. The connection was given by the local office, that is OP No.2. In the month of September and October for about 48 days in total, there had been frequent disruption of internet connection for which the Petitioner lodged several complaints with the OPs and their representatives for restoration of the internet connection, but most of them remained unanswered or giving lame excuses for such problem. It is further alleged that the OPs without the consent of the Petitioner installed Fibre Optic Cable connection, thereby forcing him to opt out of the current internet connection. According to the Petitioner, he suffered immense hardship, loss to the tune of Rs.1,90,000/- in his business and profession. Finally, one legal notice was issued on 21.10.2021 through the Advocate of the Petitioner. OP No.1 contested the complaint by filing a written version and also adducing evidence contending that the Petitioner is not a ‘Consumer’ under the Consumer Protection Act, 2019. According to them, it is not their prerogative to provide service to the ‘Consumer’ and the same falls exclusively within the domain of local cable operator and they have no liability for alleged non-restoration of internet connection to the Petitioner. According to them also, in spite of providing proper internet connection by them, for many other reasons pertaining to functions of instalments of the connection and other technical reasons relating to connection, session timeline may show no internet connection. So, OP No.1 wanted for dismissal of the instant case. OP No.2 did not contest this case, so it was heard ex parte against them. POINTS FOR CONSIDERATION - Whether the complaint is maintainable against the OPs as alleged?
- Whether the Petitioner is entitled to the relief (s) as prayed for?
FINDINGS Both parties (Petitioner and OP No.1) filed their respective evidence on affidavit. They also exchanged questionnaires and replies thereto. Both of them also filed brief notes of argument. We have gone through the same carefully. Point No.(i) : - Be it noted here that besides raising a dispute in their written version by OP No.1 as to the Petitioner’s claim as a ‘Consumer’, we find another application, challenging the maintainability of the complaint was also filed on behalf of the OP No.1 and that petition was also filed on the same ground, challenging the claim of the Petitioner as a ‘Consumer’. However, by an order dated 28.04.2022, vide Order No. 9, having heard both sides, this Commission was pleased to reject the claim of OP No.1 holding that the Petitioner is a ‘Consumer’ and no document was produced before us that the OP No.1 challenged the said order before any Higher Forum. So, we are holding the same view that the Petitioner is a ‘Consumer’ in accordance with the definition as per Section 2 (7) of the Consumer Protection Act, 2019 and also the instant complaint is maintainable. Point No. (ii): - Admittedly, internet connection, Plan- ALPHA 2 (Charges Rs.590/-) was taken in the name of Mr. Saarang Ballav Shah who is the brother of the present Petitioner vide allotted Account No. H298054 at their premises at 2/A Canal East Road, Das Para Gate No. 1, Ultadanga, Kolkata-700067 from the Opposite Parties. In the present complaint allegation of frequent disruption of internet connection during the period of 2 months August- September, 2021 and October- November, 2021 has been made. The Petitioner has given two charts in the petition of complaint showing a disruption of internet connection for a period of 40 days, in all during the said period. From the two retail invoices filed by the Petitioner, it is found that recharge for that connection was made on 24/08/2021 for the period from 25/08/2021 to 23/09/2021 and then it was done on 03/10/2021 for a period from 03/10/2021 to 01/11/2021. In the table for the month of September, 2021 disruption of 18 days (5+5+8) has been shown under 3 different period but we find it would be for 11 days only. Similarly, in the month of October, 2021 it would be for 28 days. There was no recharge during the period from 24/09/2021 to 02/10/2021. But this period is found to have been included in calculation of days for downtime. Annexure A1 of the Petitioner reveals out of several tickets number only one number i.e. TKT20211007923245 relating to connection issue was made and registered on 07/10/2021 which falls during the period under complaint and the work was completed on 25/10/2021. So, regarding this complaint of 07/10/2021 which was said to be of high priority, it cannot be said that no steps were taken on behalf of the Opposite Parties to redress the issue. Though, it took quite a good number of days to solve the problem, but no evidence is there as to the nature and gravity of the problem. So, we are not in a position to judge about the justification of the time taken but fact remains, the problem was sorted out and solved finally. Be that as it may, from the materials on record (Annexure – A series) it is found that there was disruption in the use of internet in the house of the Petitioner during the period as alleged. Moreover, Opposite Party No. 1 i.e. the contesting Opposite Party is not found to have denied this allegation. So, the user of the said internet connection who is said to be a teacher by profession and an aspiring FRBM student surely had to suffer. Regarding the alleged problem during the period from 25/08/2021 to 23/09/2021 no document has been produced showing a formal complaint like the one made on 07/10/2021, was made with the Opposite Parties. But we find Petitioner has claimed to have made complaint by visiting the office of the Opposite Parties personally as well as their representatives. Petitioner even has cited the names of employees “Ricky” and “Joy” of Opposite Party No. 2 who according to the Petitioner did not discharge their duties for restoration of connection. Apart from this, the replies of Opposite Party No. 1 to the questionnaire (Query No. 18) that they (Opposite Party No. 1) attended the issue but as the problems were related to installation and fibre and not internet speed, their technician referred the Petitioner to the local cable operator i.e. Opposite Party No. 2. Here Opposite Party No. 2 has not been contesting this case and thus, this allegation of the Petitioner goes unchallenged from the side of the Opposite Party No. 2 as they are found to have preferred not to contest the instant case. So, from all these, we cannot disbelieve the claim of the Petitioner that there was disruption of internet service and despite complaint no steps were taken for smooth connectivity particularly during the period from 25/08/2021 to 23/09/2021. So, it is found that there was deficiency in service on the part of the internet service provider. Now who would be held liable for such deficiency in service? Opposite Party No. 1, has claimed to be a company providing internet to its customers and it’s domain of work is limited only to selling of internet bandwidth. It has no role to play in installation of cables/fibres and it also does not charge anything for the same. The supply/installation of cables for the internet and their service related aspect including maintenance is in the exclusive domain of the Opposite Party No. 2 herein, who is the local cable operator. If this contention by Opposite Party No. 1 is accepted, the fact remains consumers/customers pays for internet service to Opposite Party No. 1 as would be revealed from the retail invoices produced by the Petitioner. Opposite Party No. 1 also has admitted in their reply to the Query No. 9 that they keep accounts of customers or subscribers who get connection from local cable operator. Another thing is that Opposite Party No. 1 has denied to having relationship of partnership exists between them and Opposite Party No. 2 as the local cable operator but in the retail invoices issued by Opposite Party No. 1, Opposite Party No. 2 is found to have been shown as a partner. It is settled principle of law that one partner by his/her acts binds the other partner in connection with the activities of the Partnership Firm. So, going by the materials on record and the contentions of both the Petitioner and the Opposite Party No. 1 we think that the liability by Opposite Party No. 1 in connection with the complaint of the Petitioner cannot be washed away completely. So, we hold both the Opposite Parties are liable for disruption of internet services to the Petitioner and there was deficiency of service on their part. Though in the petition of complaint, restoration of internet connection has been prayed for, but during hearing it has been made clear that Petitioner has already taken internet connection from some other service provider. However, as the Petitioner has suffered from disruption of internet connection, we are inclined to award compensation of Rs.5,000/- to the Petitioner. He is also entitled to Rs.3,000/- for cost of litigation. Needless to mention, Petitioner could not prove his claim of business loss etc. as stated in the complaint. Accordingly,it is ORDERED That the instant case be and the same is allowed on contest against Opposite Party No. 1 and ex parte against Opposite Party No. 2. Opposite Parties are directed to pay Rs.5,000/- (Rupees Five Thousand Only) to the Petitioner for compensation. Opposite Parties are also directed to pay Rs.3,000/- (Rupees Three Thousand Only) for cost of litigation. Both the Opposite Parties are jointly or severally to pay the awarded amount to the Petitioner within 45 days from the date of this order. If the payment of the awarded amount is not paid within the stipulated period, the said amount shall carry interest @ 6% p.a. until realization in full, and the Petitioner also shall be at liberty to proceed in accordance with law. Dictated and corrected by me President | 
