Karnataka

Bangalore 4th Additional

CC/16/268

CDR. Subramanyam P (Rtd)., Chief Executive Officer, - Complainant(s)

Versus

M/s. Bharti Airtel Ltd, - Opp.Party(s)

07 Feb 2018

ORDER

Complaint filed on: 17.02.2016

                                                      Disposed on: 07.02.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.268/2016

DATED THIS THE 7^th FEBRUARY OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

CDR Subramanyam P (Rtd.) Chief Executive Officer

M/s.SRF Detective & Security Services pvt. ltd.,

#24, Keshava Nivas,

above Corporation Bank,

2^nd floor, Kalidasa Road, Gandhinagar,

Bengaluru-09.

 

By Adv.Sri.S.Nagabhushana     

 

V/s

Opposite party/s

Respondent/s:-

 

M/s.Bharti Airtel ltd.,

No.55, Divyasree Tower, Bannerghatta Road,

Bengaluru

 

By Adv.Sri.B.J.Mahesh

 

 

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

 

            This complaint is filed by the Complainant against the Opposite party (herein after referred as Op) seeking issuance of direction to pay compensation of Rs.10 lakhs.

 

          2. The brief facts of the case of the Complainant are that to claim damages/compensation/income loss incurred and arising out of lack of service from Op in barring outgoing calls of all our 160 Closer Used Group (CUG) connections which are actively used throughout our clients place and with the filed staff/office staff including our senior officials up to the level of even Managing Director disrupting the entire company’s operational commitments. It is highly not possible to get the work/loss arising out of this act done, since the day was payment day to all our security personnel. The Complainant further submits that, the services were not provided with reasonable care and skill. In his opinion they did not even give prior intimation/warning message before barring the outgoing connections of all their mobile numbers. The Complainant further submits that this forum will award damages to the extent of Rs.10 lakhs for the loss from the lack of service provided by Airtel through loss of business and brand image of the company with our multinational client companies and also the mental agony, trauma etc., caused on account of this disconnections to all the 160 people including our Managing Director from 8^th night till 9^th morning of Feb 2016. The Complainant further submits that, every month they are paying their bills in time after obtaining the service provider (airtel)’s concurrence for the deductions. In the instant case, pertaining to the payment for the month of Jan 2016, Rs.56,897/- was made through cheque on 28.01.16. After about 12 days, the outgoing calls of all 160 CUG connections were barred, disrupting the entire company’s operational commitments. This day being payment day for all the security personnel, the filed officers had to face great difficulty in contacting various people during the early hours in absence of outgoing facility of all the CUG connections. Even previously they had encountered such outgoing calls disconnections of all their mobiles several times but they did not take this very seriously as Airtel had expressed their apology to us. They also committed to them such issues will never recur again. Later several email communications took place between the parties. These email messages proof that they have no control on what is happening in their company with regard to accounting payment received from the client and sending such disconnection mails which are very scary for all their staff, clients up to the top management level and always wondering when their services will be disconnected and when exactly it will be restored. The Complainant further submits that, they have lost many business clients and huge attrition level right from the guarding force to the management level due to their inefficient service. They have incurred huge loss monetarily on account of fresh recruitments and prospect new business in places of old ones. The Complainant further submits that, Op was duty bound to inform their company well in advance before taking such a drastic action. Op has utterly failed in their basic duty to provide continuous and efficient service around the clock. Hence prays to allow the complaint.

 

3. On receipt of the notice, Op did appear before this forum and filed version denying the allegations made in the complaint. It is the contention of the Op that the complaint filed by the Complainant is not maintainable before this forum since the dispute raised by the Complainant is between the subscriber and telecom service provider, the remedy available for the Complainant is u/s.7-B of the Indian Telegraph Act which provides for adjudication of dispute under the provisions of Arbitration act. The Op further submits that, the mobile telephone service provided under CUG scheme by it is to a commercial establishment named as M/s. SRF Detectives & Securities pvt. ltd., the said company has availed about 160 CUG connections and it is apparently clear that, the services availed by Op is put to use by the said company towards its business activities and since the service availed is for commercial purpose, the Complainant herein is not a consumer. The Op further submits that, for about 23 minutes only some connections provided to the said company were disconnected due to technical reason which was a bonafide mistake and there was no intentional error on the part of Op. Immediately after rectifying the mistake, within 23 minutes the connections were restored and the Op has also sought for an apology before the subscriber in this regard. There is no willful default or negligence on the part of Op. Hence prays to dismiss the complaint.  

         

          4. The Complainant to substantiate his case filed affidavit evidence and produced 6 annexures. Authorized signatory of Op filed affidavit evidence and none of the documents produced. Both filed written arguments. We have gone through the available materials on record.

  

5. The points that arise for our consideration are:

1. Whether the Complainant is a consumer as defined u/s 2(1)d of CP Act ?
2. Whether is there any deficiency of service on the part of Op, if so, whether the Complainant entitled for the relief sought for ?  
3. What order ?

                   

           

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Negative.  

Point no.2: Does not survive for consideration.

Point no.3: As per the final order for the following

 

REASONS

 

          7. Point no.1:  At the outset, learned counsel for the Op submits that the Complainant is not a consumer. In this context, he further submits that, the mobile telephone service provided under CUG scheme by the Op is to a commercial establishment named as M/s. SRF Detectives & Securities pvt. ltd., The said company has availed about 160 CUG connections and it is apparently clear that, the services availed by Op is put to use by the said company towards its business activities and since the service availed is for commercial purpose, hence the Complainant herein is not a consumer, as such the complaint is not maintainable.

         

          8. Per contra, learned counsel for the Complainant submits that, the only objection raised by the Op is that the consumer forum has no jurisdiction to try and entertain the present complaint and it is observed the commission that as per Sec.14(2) of the Telecom Regulatory Authority of India Act (TRAI), 1997, the complaint of an individual consumer is maintainable before the Consumer Disputes Redressal Forum and the consumer has got every right to file a complaint regarding deficiency of service in telecommunication and ‘The current telecom service providers – whether government or private – are not covered under that definition and are not telegraph authorities, they are merely licenses and Telecom consumer cares include dropped calls, over-charging of customers, unwanted value-added charges and false calls. These cases involve mobile providers, internet service providers, broadband service providers, DTH operators, cable TV operators and landline service providers etc., Hence, submits that complaint filed by the Complainant is perfectly maintainable. No doubt, under the TRAI Act, 1997, the complaint of an individual consumer is maintainable before this forum and the consumer has got every right to file the complaint regarding deficiency of service in tele-communications. In our considered view, if it is not relates to the commercial establishment, then complaint of an individual consumer is maintainable before this forum.

 

          9. In the instant case, the Complainant in his complaint specifically stated in cause title as:

CDR Subramanyam P (Rtd.)

Chief Executive Officer

M/s.SRF Detective & Security Services pvt. ltd.,

#24, Keshava Nivas,

above Corporation Bank,

2^nd floor, Kalidasa Road, Gandhinagar,

Bengaluru-09.

 

The above cause title clearly disclose that, the Complainant is a Chief Executive Officer and running the M/s.SRF Detective & Security Services pvt. ltd., which is purely a commercial establishment, to which he has availed about 160 CUG connections. Further in page 2 of his complaint stated as:

 

Therefore we strongly feel that this forum will award damages to the extent of Rs.10 lakhs as compensation/damages/income loss from the lack of service provided by Airtel through loss of business and brand image of the company with our multinational client companies and also the mental agony, trauma etc., caused on account of this disconnections to all the 160 people including our Managing Director from 8^th night till 9^th morning of Feb 2016.

 

Further, in the last page of his complaint stated that:

This proofs that they have no control on what is happening in their company with regard to accounting payment received from the client and sending such disconnection mails which are very scary for all their staff, clients up to the top management level and always wondering when our services will be disconnected and when exactly it will be restored. To be honest we have lost many business clients and huge attrition level right from the guarding force to the management level due to their inefficient service. We have incurred huge loss monetarily on account of fresh recruitments and prospect new business in places of old ones.

 

10. If the above contents of the complaint are strictly construed, the Complainant has availed about 160 CUG connections and it is apparently clear that, the services availed by Op is put to use by the said company towards its business activities and the service availed is for commercial purpose.  In this context, we place reliance on the observations made in the decision reported in 2018 (1) CPR 244 NC in the case of Shweta Sharma vs. M/s BPTP ltd., wherein at para 4, held as under:

The State Commission vide its order dtd.07.04.17 while dismissing the complaint observed as under:-

(4) Learned counsel for the Complainant argued that the shop was booked for earning livelihood as specifically alleged in complaint so it cannot be considered that it was for commercial purpose. She is covered by definition of consumer and this complaint is maintainable.

(5) However, there is no dispute that in paragraph no.3 of the complaint it is alleged that the shop was booked for earning livelihood, but she did not produce any evidence to prove this fact. When Complainant entered witness box it was no-where stated that this shop was booked in commercial complex for earning livelihood. The National Commission has clearly opined in R.P.No.4044 of 2009 titled as M/s.JCB India ltd., v. M/s.Chandan Traders & Ors. decided on 19.02.15 that simple averments that anything was taken for earning livelihood is not sufficient to presume this fact to be true. It is specifically opined therein that concerned person is supposed to prove that said article was to be used by him or her for earning livelihood. Complainant no-where alleged that what is she doing and what business was to be run in this shop. It is also not alleged that she was not having any source of income and particular type of business was to be run by her. When these facts are missing it cannot be presumed that the shop was booked for earning livelihood. These views are also fortified by the opinion of the National Commission in R.P.no.421/2015 tilted Unicity Projects and Anr. vs. Ranjan Bhatia decided on 09.10.15, Pradeep Singh vs. TDI Infrastructure pvt. ltd., CPJ 1 (2016) 219. When she is not covered by definition of consumer, complaint is not maintainable and this Commission cannot adjudicate upon this dispute because judgment without jurisdiction is nullity as opined by the National Commission expressed in R.P.no.317/1994 tilted as Haryana Urban Development Authority vs. Vipan Kumar Kohli decided on 19.01.1995. Resultantly complaint fails and the same is hereby dismissed.

 

11. With reference to the decision cited supra, we also placed reliance on the contents of the complaint, wherein, the Complainant never stated that out of his so called establishment of the Security Services he is eking his livelihood. Hence we are of the opinion that, the complaint filed by the Complainant is not maintainable, since the Complainant is not a consumer. Accordingly we answered the point no.1 in the negative. Anyhow, an option is left open to the Complainant to get redress his remedy before the competent court of law having got jurisdiction to try the same.

 

          12. Point no.2: In view of our negative findings on point no.1, this issue does not survive for consideration. Accordingly it is answered. 

 

13. Point no.3: In the result, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant is hereby dismissed as not maintainable, since the Complainant is not a consumer. 

 

          2. Anyhow, an option is left open to the Complainant to get redress his remedy before the competent court of law having got jurisdiction to try the same.

3. Looking to the circumstances of the case, we directed both the parties to bear their own cost.   

         

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 7^th February 2018).

 

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.CDR.Subramanyam (Rtd.,), who being the complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Annex.1 to 4	Emails received from Op
Annex.5	letter dtd.27.01.16
Annex.6	eMail dtd.23.01.16

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.Siddaveer Chakki, who being the authorized signatory of Op was examined.

 

Copies of Documents produced on behalf of Opposite party/s

 

-NIL-

 

 

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT