Per Shri B.A.Shaikh, Hon’ble Presiding Member.
1. This appeal is filed by the original opposite party (for short O.P.) Nos.1, 2 and 3 against the order dated 01/11/2011 passed by the District Consumer Forum of Nagpur in Consumer Complaint No.619/2010 by which the complaint filed by the original complainant / respondent herein has been partly allowed.
2. The case of the original complainant as set out by him in his consumer complaint in brief is as under.
The complainant is a practicing Advocate and also a Senior Citizen. He obtained telephone connection bearing Telephone No.2532836 and Consumer No.1417779061, from the O.P. On his application made in the month of January 2009 and on his making deposit of Rs.1,718/- with the O.P., internet connection was provided by the O.P. to him (complainant) under Internet High Speed Broad Band Scheem 125. The O.P. provided proper service through that internet connection to the complainant for two months only. However, thereafter the said internet connection facility was disrupted frequently. Therefore the complainant made complaints on 13/03/2009, 20/07/2009, 20/08/2009, 29/08/2009, 03/09/2009, 05/01/2010, 11/01/2010 and 05/02/2010 to the O.P. The complainant had also personally approached the office of the O.P. on 03/09/2009 and recorded his aforesaid complaint. There upon only on 03/09/2009 the O.P. resumed the services temporarily through internet. However internet facility was again stopped with effect from 03/01/2010. Hence on 05/01/2010 the complainant made a complaint to the O.P. On getting no response, the complainant served legal notice to the O.P. Lastly on 20/02/2010 the representative of the O.P. inspected the internet connection of the complainant and said that due to change of port at their Head Office, the internet facility was disrupted and it will not be stop with effect from 20/02/2010. However, thereafter also the said facility was stopped. Hence complainant made complaints to the O.P. on 27/07/2010, 26/08/2010, 01/09/2010 and 06/10/2010. The O.P. did not take cognizance of the same. The complainant therefore suffered physical and mental harassment. He also suffered various problems and difficulties in his occupation as an Advocate and day to day working. Therefore alleging deficiency service on the part of O.P. he filed consumer complaint before the Consumer Forum Under Section 12 of the Consumer Protection Act, 1986, against the O.P. claiming compensation of Rs.50,000/- with interest @ 12% p.a. from 13/03/2009 and further claiming litigation expenses of Rs.10,000/- from the O.P.
3. The O.P. appeared before the Forum and resisted the complaint by filing their reply. They raised preliminary objection to the effect that the complaint filed before the Forum is not maintainable, in view of the decision of the Hon’ble Supreme Court in Civil Appeal No.7687/2004. They also submitted in brief that there was no fault in the internet facility. The Modem for internet facility provided to the complainant was working properly. The representative of the O.P. had repaired telephone line and removed the defects in the internet connection, whenever the complaints were received about the same from the complainant. No record is available with the O.P. pertaining to the period prior to May 2010 as the O.P. has replaced the old DOTSOFT Software System by new CDR Software System of high quality. The main contention of the O.P. in brief is that the representative of the appellant had told the complainant at the time of making visit that the lack of internet service is due to (1) wrong handling (2) changes/ disturbance made by the complainant in local setting like DNS Server, (3) changes made or occurred in IP address, (4) changes in authentication setting and (5) parallel telephone line taken by the complainant.
4. The representative of the O.P. has advised the complainant to remove the power connection, but he did not do it. Thus the O.P. denied that they rendered deficient service to the complainant. They therefore requested that complaint may be dismissed with cost.
5. The Forum after hearing of both the parties and considering evidence brought on record passed the impugned order on 01/11/2011 and thereby partly allowed the complaint granting compensation of Rs.50,000/- with interest and cost of Rs.10,000/- on account of the deficient service in internet provided by the O.P. to the complainant. The Forum observed in the impugned order in brief that the complaint is maintainable before it on the ground that the decision of the Hon’ble Supreme Court is not applicable to the facts and circumstances of the present case. The Forum also observed that the complainant made various complaints against the disturbances in the internet service provided to him and the said fact is also not disputed by the O.P. The Forum also observed that the allegations made by the O.P. in their reply and specified above are not substantiated by them and therefore can not be accepted. Thus the Forum accepted the case of the complainant and rejected the aforesaid defence of the O.P. and passed the impugned order as stated in opening para of this judgment.
6. As observed above, this appeal is filed by the original O.P.No.1, 2 and 3 against that order. We have heard Advocate Mr.Gaidhane, appearing for appellants/original O.P. and Advocate Mr.A.P.Sadavarde, appearing for respondent/original complainant. We also perused the copies of the record of the original complaint as filed by the appellant’s Advocate. We have also perused the written notes of argument filed by learned Advocates of both parties in appeal.
7. It is pertinent to note that during the pendency of this appeal, Advocate of the appellant had sought permission to produce the data for the months of March 2009, July 2009, August 2009, September 2009, January 2010, February 2010, July 2010, August 2010 and September 2010 in support of the defence of the appellant taken before the Forum. He had also submitted that during the pendency of original complaint, the said data was not available and after the decision of the complaint the said data is obtained from the Banglore Office of the O.P. and therefore it could not be produced before the Forum. The Advocate of the respondent herein strongly opposed the production of data during the pendency of the appeal. This Commission then heard both the Advocates and passed order on 04/03/2016. This Commission found that the appellant in the reply filed before the Forum had stated that old DOT Software System was changed into higher quality CDR System with effect from May 2010 and therefore data prior to May 2010 is not available. Considering the said stand taken by the appellant before the Forum, this Commission observed in the order dated 04/03/2016 that the production of the said data during appeal can not be allowed, particularly when it will cause prejudice to the complainant.
8. The learned Advocate of the appellant/original O.P. submitted that in view of the office memorandum issued by the Head Office of the appellant on 04/01/2014, the issue about the jurisdiction of the Forum does not survive. On perusal of the said memorandum it is seen that the Head Office of the appellant made a declaration that the District Forum are competent to deal with the dispute between Individual Telecom Consumers and Telecom Service Providers. Thus as per the said submission, we find that the issue of jurisdiction does not survive.
9. It is argued by the learned Advocate of the appellant in brief that the Forum failed to give any reason as to how the original complainant has got very good knowledge about handling the internet and that the Forum also failed to consider that respondent/original complainant had taken parallel connection which interrupted the internet service. Moreover the Forum also failed to consider that due to regular changes in the internet setting made by the original complainant and due to his lack of knowledge, there was interruption in the service of internet. He also argued that the Forum has not given any reason as to how the compensation of Rs.20,000/- for the loss sustained by the complainant is assessed and as to how the compensation of Rs.5000/- for physical and mental harassment and cost of Rs.2000/- is assessed. Therefore, according to him the impugned order is illegal, unjust and improper. He therefore requested that impugned order may be set aside.
10. On the other hand the learned Advocate of the original complainant/respondent herein supported the impugned order and submitted that the argument advanced by the learned Advocate of the appellant is devoid of any merit. He reiterated the aforesaid case of the complainant as set out in the complaint and submitted that the appeal may be dismissed.
11. We find that the original complainant/respondent herein got the internet facility to his premises on 07/02/2009 and he made various complaints to the O.P. about disruption of the said internet facility. Those complaints were made on 13/03/2009, 20/07/2009, 20/08/2009, 29/08/2009, 03/09/2009, 05/01/2010, 11/01/2010, 05/02/2010, 27/07,2010, 26/08/2010, 01/09/2010 and 06/10/2010. The O.Ps. have also not denied about receiving of all the said complaints by them from the complainant.
12. It is the simple case of the O.P. that all those complaints were attended by their representative and needful was also done from time to time and internet service were accordingly resumed. However the said defence raised by the O.P. before the Forum, was not substantiate by the O.P. by adducing evidence. Moreover the O.P. had also raised defence that the internet services of the complainant were disrupted due to (i) lack of knowledge of complainant in internet service (ii) wrong handling of internet devices, (iii) changes/disturbance made by the complainant in local setting like DNS Server (iv) changes made or occurred in IP address and (v) changes in authentication setting and (vi) parallel telephone line taken by the complainant. However, there is no iota of evidence in support of the said defence of the O.P.
13. In our view, as the defence of the O.P. is not supported by any evidence, the Forum has rightly disbelieved the same. Moreover the very fact that the complainant was required to make such large numbers of complaints within very short time from 13/03/2009 to 06/10/2010 to O.P. about defective and disruptive internet services, itself is sufficient to prove that the internet services were seriously disrupted during very short interval from time to time and said services could not be restored within reasonable time. Hence the Forum has rightly believed the aforesaid case of the complainant/respondent herein and rightly held that the O.P./appellant rendered deficient service to the complainant/respondent herein by not providing him smooth and continuous internet service. Hence, the Forum has rightly held that the complainant is entitled to compensation for the harassment caused to him and also for inconvenience caused to him in his practice as an Advocate and in his other day to day activities.
14. So far as quantum of compensation is concerned, we find considering the period of the disruption of internet service from the month of March 2009 till the month of Oct – 2010 and considering nature of inconvenience caused due to the same to the complainant, compensation of Rs.20,000/- awarded to the complainant by the Forum on that count is just and proper. Moreover the compensation of Rs.5000/- for physical and mental harassment and cost of Rs.2000/- award by the Forum is also just and proper under the facts and circumstances of the present case.
15. Thus for the forth giving reasons, we hold that there is no merit in this appeal and it deserves to be dismissed.
// ORDER //
- Appeal is dismissed.
II. No order as to costs in the appeal.
- Copy of this order be furnished to both the parties free of
cost.
