Orissa

Rayagada

CC/22/2017

Sri CA Manoj Kumr Cahoudhury - Complainant(s)

Versus

Mr. Arjit Roy - Opp.Party(s)

Self

18 May 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 22 / 2017.                                              Date.    18     .     5  . 2018

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                       President.

Sri  GadadharaSahu,                                             Member.

Smt. Padmalaya  Mishra,                                     Member.

 

Sri C.A  Manoj Kumar Choudhury, S/O: Sri  Balakrishna Choudhdury, New Colony, Po/    Dist:Rayagada  (Odisha) Cell No. 98616-79566.                  …. Complainant.

Versus.

Mr. Arjit Roy, Zonal Branch Manager, Bharati Airtel Ltd., Berhampur(Ganjam).

                                                                                                            .…..Opp.Parties

Counsel for the parties:                         

For the complainant: - Sri K.Chakrapani, Advocate, Rayagada. 94371-81251.

For the O.Ps   :- Sri  Tapan Kumar Harichandan, Advocate, Rayagada.

.

JUDGMENT

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non providing of Airtel post-paid service bearing telephone No.9556481999 for which  the complainant  sought compensation  inter alia  for redressal of the grievances raised by the complainant.

On being noticed the O.P  appeared through their learned counsel and filed written version refuting allegation made against them.  The O.P   taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P. Hence the O.P    prays the forum to dismiss the case against  them  to meet the ends of justice.

Heard arguments from the learned counsel for the    O.Ps and from the complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                                         FINDINGS.

On perusal of the record it is revealed that there is no dispute that the complainant has obtained  10 Nos. of post paid  Airtel connections. 

The O.P.  in  their written version para No. 4  contended that  the complainant it is apparently clear that connections are being  used for commercial purpose as the complainant admits that the connections are used by the complainant and his staffs. Hence the  complaint is not maintainable as per the C.P. Act.

The  points that arise for consideration are:-

1. Whether the action of the  O.P. in treating the Telephone connection to the complainant  coming under   commercial  connection can be justified  ?

There is no dispute that the complainant is having a Airtel telephone connection for his use and he is  treated as consumer. The O.P.  vehemently  contended that  the complainant used  Airtel connections for commercial purpose. It is an admitted fact that the complainant  is an Charted Accountant by profession.

In this connection the learned counsel for the  complainant cited citation it is held and reported in 2005(4) KLT 485 (S.C) the  Hon’ble Supreme Court  in the case of   M.P. Electricity Board Vrs.  Siva Narayana  where in observed “Electricity connection to the office of a professional legal profession  could not be  considered as commercial in character”. “Further  the apex court observed it is held  in clear terms that professional activity  can not be considered  as commercial activity. If that  be  so, the action of  the  O.P. in treating   the connection to the professional person as one of commercial connection can not be justified.”

Hence, this forum found basing on the above citation that the complainant is a consumer within the definition  of the C.P.  Act, the breach of contract  even after receipt of the consideration for   the   same  on the part of the O.Ps. are  a deficiency of service and unfair trade practice and as such the complainant is entitled to the reliefs claimed in the petition.

The O.P.  in  their written version para No. 7  contended that  Bharati Airtel Limited has extended its network to all the  feasible geographical limits based on the customer density and have  always  put its best endeavor to provide best quality service  to its customers. Simultaneously at  the time  of taking connection, the  customer acknowledged to the terms  and conditions as stipulated in the  CAF that “all services are subject to network  availability.   Airtel’s     telecommunication network used for providing the services(Network) is made available on as –is-as-available   basis and airtel makes no representation, guarantee or warranty regarding the availability, fitness, quality or reliability of the network whatsoever”. This   is apt t mention  here that the complainant has availed the connections since 2014 and as averred by  the complainant  they are the best customers to Airtel. This clearly  indicates that the complainant was satisfied with the services of Airtel for which the  complainant  continued with Airtel for such a prolonged period.   It is quite false  that  Bhati Airtel Ltd.  has remained silent  to the mails  given by the complainant.  In this   concern the O.P. submits that as per the information  received from the office of Bharati   Airtel Ltd., upon receipt of the complaint  from the complainant  engineers were deputed to the particular    case to examine the exact  issue.  Such engineers made calls to the complainant to guide them the route and show   the spot  where the complainant suffers network issues if any.  But the  complainant responded  negatively stating  that he has  ported out the numbers and there is no need to visit the  complainant’s  premises.  In this back ground the complainant’s present complaint is devoid of merit and clearly established  that the same is backed by ulterior motives.

The O.P.  in  their written version para No. 8  contended that  so far as the mail  sent by the complainant is concerned this is to reiterate here that  Bharti Airtel Ltd. has  tried  to resolve the issues if any and  accordingly called the  complainant but the complainant didn’t co-operate rather played  hide  and seek for which the  complainant  couldn’t be attended  by the experts.  Thus Airtel is nor err. This  is to mention  here that since this is a service  related issue inter alia technical  services,  unless the same shall be examined the competent engineers  the issues  can’t be resolved  but due to the avoidance and non co-operation by the  complainants the issues if any couldn’t be examined.

This  forum found that a Charted Accountant  was the beneficiary of this telephone and the complainant used  it  and he had to suffered a lot for the gross negligence  of the O.Ps.   Further we find  the telephone of the complainant  was out of order since September, 2016. There is no  justification  for that why  it was out of order inspite of  made complaints to the O.Ps  from time to time but  still the telephones  were not made in  working condition(copies of the  E-Mail sent to the O.Ps on Dt.12.1.2017 and Dt.18.1.2017 respectively  marked as  Annexure-I & 2).

Further the deficiency in service on the part of the O.Ps officials has evidently caused mental anguish to the complainant driving him  to take legal measures for the redressal of  his grievance. So we award him  Rs.10,000/- towards compensation fixing the responsibility on the defaulting officials for recovery of the amount whose whimsical acts are responsible for this complaint.

 

Further this forum  relied citation It is held and reported  in  C.P.R. 2005 (3) page No. 143 the Hon’ble State commission, Uttaranchal, Dehradun  clearly  defines  Telephone department  liable to pay  compensation  for not keeping telephone in working order.

Again this  forum observed that for failure to act properly by the statutory authorities i.e. O.Ps the complainant  should not be deprived of his benefits legitimate entitlement. It is  to be ensured   that the benefit to which the complainant is eligible are  entitled  enjoy it and it should not became a distant dream.  In most of the similar  cases towards catena of judgements   the Hon’ble  Supreme Court observed  “Negligence  by  public authorities cannot be pardoned”.

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps to avoid the claim  which is Aliane Juris. Hence  we allow the above complaint petition  in part.

Hence  to  meet the  ends of justice, the following order is passed.

ORDER.

In  resultent the  petition of the complainant is allowed  in part against the O.P.

 The O.P is  ordered to  restore the telephone   10 Nos. of post paid  Airtel connections of the complainant in working condition immediately within 24 hours. The complainant is directed to cooperate the O.Ps  could attend to rectify the defect for restore the existing  telephone connection  in his premises without  playing  dilatory tactics for early  compliance of the order for which the O.Ps be no err.  Further we look forward to a prompt response from your side if desired  to continue  the service from the O.Ps.

The O.Ps are ordered to pay Rs.10,000/- to the complainant  towards compensation  for mental agony fixing the responsibility on the defaulting officials/officer who are in charge for the above work  and the above amount be recovered from the salary of the defaulting  officials/officer.

                 We therefore issued a “Cease and Desist” Order against the O.Ps. directing him to stop such a practice forthwith and not to repeat in future    

                The O.Ps. are ordered to comply the above direction within 45 days from the date of receipt of this order .

Dictated and corrected by me,   Pronounced on this    18th. Day of    May, 2018.

 

MEMBER.                                        MEMBER.                                                    President