KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAD, THIRUVANANTHAPURAM

APPEAL.219/2004

JUDGMENT DATED: 28.4.10

PRESENT

SRI.M.V.VISWANATHAN      : JUDICIAL MEMBER

SRI.M.K.ABDULLA SONA     : MEMBER

The Manager,                                               : APPELLANT

Ambady Tele Media,

Bypass Road, Kondotty,

Malappuaram District.

(By Adv.K.Hamza)

                   VS.

1.N.Rajan, Sreyas, Kolakuth,                        : RESPONDENTS

   Kolakkattuchalil Poat,

   Chelambra,

   Malappuaram District.

(By Adv. T.K.Ajithkumar, Counsel for R1)

2. The Manager,

     BPL Mobile Ltd., Arayidathpalam,

     Indira Gandhi Road,

     Calicut.

JUDGMENT

SRI.M.V.VISWANATHAN      : JUDICIAL MEMBER

The  appellant herein was the 1^st opposite party  and the respondents 1 and 2 were the complainant and 2^nd opposite party in OP.157/01 on the file of CDRF, Malappuram.  The complaint in OP.157/01 was filed by the complainant therein alleging deficiency in service on the part of the opposite parties in giving the BPL mobile connection to the complainant for running a public call office at Kolakuth.  The complainant alleged that the 1^st opposite party received a total of  Rs.38,320 from the complainant with the assurance that the complainant’s place is feasible for running a public  booth with BPL mobile connection and that 1^st opposite party assured feasibility of getting signal for BPL mobile connection at the  complainant’s premises at Kolakuth.  But the complainant found  it difficult to run a public call office with BPL mobile connection because the said connection was not getting  the signals for running  the public call office.  The complainant also requested 1^st opposite party to provide BPL connection with sufficient signal to run the  public call office.  But the opposite parties failed to provide the services as assured and agreed hence complaint in OP.157/01 was filed for getting refund of the sum of Rs.38,320/- paid to the 1^st opposite party with interest and cost.

2. The 1^st opposite party entered appearance and contended that he had only agreed to install the public booth with necessary equipments and that he never assured  the technical feasibility of getting the signal for BPL mobile connection at the premises of the complainant.  He also contended that complainant is not a consumer as he availed service for commercial purpose of running a public booth.  1^st opposite party has also denied the alleged deficiency of service on his part.

3. The 2^nd opposite party filed written version contending  that there was no deficiency in service on the part of the 2^nd opposite party and that the 2^nd opposite party had no transaction with the complainant and the alleged  transaction was only between the complainant and the 1^st opposite party.  So, the 2^nd opposite party prayed for exonerating  him from the liability.

 4. Before the Forum below Ext.P1 to P7 documents were marked on the side of the complainant.  No oral evidence was adduced by the complainant.  From the side of the opposite parties,  no evidence was adduced.  At the instance of the complainant an advocate commissioner was deputed from the Forum below and the report filed by the advocate commission is marked as Ext. C1.  On an appreciation of the facts, circumstances and evidence on record,  the Forum below passed the impugned order dated 21^st January 2004 directing the 1^st opposite party to pay Rs.38,320/- to the complainant within three weeks from the date of receipt of  copy of the impugned order failing which the 1^st opposite party is directed to pay interest on the said amount at the rate of 12% per annum.  The complainant was also awarded cost of Rs.1000/-.  Aggrieved by the said order the present appeal is filed by the 1^st opposite party therein.

5. When this appeal was taken up for final hearing, there was no representation for the respondents 1 and 2.  We heard the leaned counsel for the appellant/1^st opposite party.   He submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He canvassed for the position that the complainant is not a consumer coming within the ambit of the Consumer Protection Act, 1986 as he had availed service of the opposite parties for commercial purpose.  He also pointed out the fact that the 1^st respondent/complainant is in possession of the equipments installed by the 1^st opposite party and that the complainant is enjoying the said equipments installed by the 1^st opposite party by running another public telephone booth in the very same premises.  He also canvassed for the position that by installing an antina  there will be sufficient signal for BPL mobile connection at the premises of the complainant; that the complainant was not prepared to run the public call office with the assistance of the antina.  Thus, the appellant/1^st opposite party prayed for setting aside the impugned order passed by the  Forum below.  It is further submitted that the BPL mobile connection was provided by the 2^nd opposite party and so there was no deficiency of service on the part of the 1^st opposite party.

6. The points that arise for consideration are:-

1)                           Whether the appellant/1^st opposite party committed any deficiency of service as alleged by the 1^st respondent/complainant?

2)                           Whether the Forum below can be justified in  passing the impugned order directing the 1^st opposite party to pay  Rs.38320/- to the  complainant?

3)                           Is there any sustainable ground to interfere with the impugned order dated 21.1.2004 passed by CDRF, Malappuram in OP.157/01?

7. Points 1 to 3:-

There is no dispute that the complainant in OP.157/01 approached the 1^st opposite party for installation of a public call office at his premises in Kolakuth and that the request was to install the public call office with BPL mobile connection.  It is the definite case of the complainant that he approached the 1^st opposite party for installing public telephone booth for the purpose of earning his livelihood.  The documentary evidence on record  namely, Exts.P5 certificate issued by South Malabar Gramin Bank, chelambra and Ext.P7 receipt issued by the 1^st opposite party to South Malabar Gramin Bank, Chelambra would strengthen the case of the complainant that he availed a loan from south Malabar Gramin Bank for installing and running the public telephone booth for his livelihood by means of self employment.  There is no case for the 1^st opposite party(appellant) that the complainant is having any other source of income.  It is also to be noted that  the said installation was effected in the year 2000.  The aforesaid transaction between the complainant and the 1^st opposite party occurred before the amendment of Section 2(i)(d) (ii) of the  Consumer Protection Act by Act 62 of 2002 which came into effect on 15.3.2003.  Prior to the said amendment, service  availed for commercial purpose was also brought under the purview of the Consumer Protection Act.  In other words, a person who availed service for commercial purpose was also considered as a consumer as defined under Section 2(i)(d)(ii) of the Consumer Protection Act, 1986.  So, the case of the complainant that he  is a consumer coming within the purview of the Consumer Protection Act, 1986 is to be upheld.

8.  The case of the complainant is that the 1^st opposite party had given him the assurance that the place of the complainant at Kolakuth is ideal for  installing a public call office with BPL mobile connection and that 1^st opposite party assured technical feasibility of getting BPL mobile connection at the premises of the complainant in Kolakuth.  The 1^st opposite party denied the aforesaid case of the complainant.  Ext.P6 certificate issued by the 1^st opposite party to south Malabar Gramin Bank would make it clear that there was such an assurance from the side to the 1^st opposite party regarding the feasibility of getting BPL mobile connection at the premises of the complainant.  In P6 letter dated 8.9.2000 the 1^st opposite party had assured BPL mobile coverage to run a PCO/STD booth at Kolakuth within the premises of the complainant.  As per Ext.P6 the 1^st opposite party had also certified that they had installed external solar high  grade antina at Kolakuth so as to get BPL mobile coverage.  Ext.P6 would support the case of the complainant that the  1^st opposite party had given such an assurance.

9. The Forum below can be justified in exonerating the 2^nd opposite party for the alleged deficiency of service  because of the fact that there was no direct or indirect transaction between the complainant and the 2^nd opposite party and that the 2^nd opposite party had not given any such assurance  to providing BPL mobile coverage at the premises of the complainant.

10. Ext.C1 commission report submitted before the Forum below would make it clear that it was not feasible to run a public call office/public telephone booth at the premises of the complainant with BPL mobile connection.  C1 report would also  make it clear that there was no BPL mobile coverage at the premises of the complainant.  The commissioner had also given an opportunity to the 1^st opposite party to substantiate his case that BPL mobile coverage will be available to the premises of the complainant with the aid of the antina.   But the 1^st opposite party has not adduced any evidence to support his case.  The advocate commissioner  submitted C1 report after conducting the local inspection and also by giving further opportunity to the 1^st opposite party to demonstrate his case of getting BPL mobile  coverage with the aid of an antina.  But the 1^st opposite party did not avail the aforesaid opportunity.  This would give an indication that there was no BPL mobile coverage at the premises of the complainant to run a public call office.  It would in turn make it clear that the 1^st opposite party installed the public call booth at the premises of the complainant fully knowing that it is not feasible to run a public booth at that place with BPL mobile connection.  The available circumstance would also make it clear that the 1^st opposite party had given a false assurance regarding the feasibility of running a public telephone booth at the premises of the complainant.  By giving such a false assurance 1^st opposite party collected a sum of Rs.38320/- from the complainant.  Thus, the action on the part of the 1^st opposite party would amount to deficiency of service.  The Forum below can be justified in holding that there was deficiency of service on the part of the 1^st opposite party in installing public call office at the premises of the complainant. 

11. Ext.C1 report would make it clear that in the very same public telephone booth  another public booth is running with BSNL connection.  C1 report would also show that the said booth  installed by the 1^st opposite party has been  used for running another public call office with BSNL connection.  This circumstance would show that the complainant is benefited to a  greater extent with the installation of the telephone booth by the 1^st opposite party.  More over, the Forum below cannot be justified in ordering refund of the total amount received by the 1^st opposite party from the complainant for installation of a public telephone booth.  It is also to be noted that there is no order directing the complainant to  surrender the equipments and other materials used by the 1^st opposite party for installation of the public telephone booth.  Thus, the 1^st opposite party cannot be burdened with the liability to refund the entire amount of Rs.38320/- which the 1^st opposite party  collected from the complainant for installation of the public call office.  It is also to be noted that the 1^st opposite party had already installed a public telephone booth by receiving the  said sum of Rs.38320/- and that the said public telephone booth is being used and enjoyed for running another public telephone booth with BSNL connection.  In the above situation, the impugned order passed by the Forum below directing refund of Rs.38320/- to the complainant is to be modified.  This commission is of the view that the 1^st opposite party  (appellant) is to be made liable to pay compensation of Rs. 10,000/- for the  deficiency of service on  the part of the 1^st opposite party.  The aforesaid amount will  carry interest at the rate of 9% per annum from the date of the impugned order (21.1.2004) passed by the Forum below.  The cost of Rs.1000/- ordered by the Forum below can be confirmed. The impugned order passed by the Forum below is modified  to that extent.  These points are answered accordingly.

In the result the appeal is allowed partly and that the impugned order dated 21.1.04 passed by CDRF, Malappuram in OP.157/01 is modified.  Thereby the appellant/1^st opposite party is directed to pay a sum of Rs.10,000/- to the 1^st respondent/complainant by way of compensation for the deficiency of service on the part of the 1^st opposite party.  The said compensation amount of Rs.10,000/- will carry interest at the rate  of 9% per annum from the date of the impugned order( 21.1.2004) till realization with a cost of Rs.1000/-.  As far as the present appeal is concerned, there will be no order as to costs.

          SRI.M.V.VISWANATHAN      : JUDICIAL MEMBER

          SRI.M.K.ABDULLA SONA     : MEMBER

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