PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of September 2011
Filed on :03-06-2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No. 330/2010
Between
Princy Francis : Complainant
W/o. Saji Joseph Vattoly, (party-in-person)
Karerakkattil house,
P.O. Ollur, North Bazar,
Thrissur-680 306.
And
1. Reliance Communication : Opposite parties
AVS Building, IInd Floor, (1st O.P. by adv. George Cherian
Opp. Giri Pai, Padma Junction, Karippaparambil, Karippaparambil
Cochin-36. Associates, HB-48, Panampilly
2. Pradeep Raj, Marketing Nagar, Kochi-682 036)
Manager,
Reliance Communication (2nd O.P. by adv. Unnikrishnan)
IInd Floor, AVS Bldg,
Opp. Giri Pai,
Padma Junction,
Cochin-36.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
Complainant is working as an on line accountancy teacher. By believing the assurances of the 2nd opposite party, the complainant purchased broad bank USB modem from the 1st opposite party for the purpose of studying professional on line teaching training course from ERICA Group of Institution, Cochin and giving on line tuitions to foreign students. But she did not get continuous internet services because of signal problem. At the instance of the complainant, the 2nd opposite party replaced the modem, even then the problem subsisted. Thus neither could she study on line course nor teach. At that juncture the 2nd opposite party opined that the defect was due to hand ware problem. Thus she purchased a new lap top, however the same problem continued. In spite of the deficiency and complaints the 1st opposite party issued a bill to the tune of Rs. 1,934.36 to the complainant. The complainant had to suffer mental agony and inconveniences due to the deficiency in service on the part of the opposite parties. Thus the complainant is before us seeking direction against the 1st opposite party to pay a compensation of Rs. One lakh.
2. Version of the 1st opposite party.
The manufacturer of the internet modem M/s. Macronet Pvt. Ltd is a necessary party to the proceedings. The 1st opposite party is only a service provider in accordance with the license issued by Government of India. The complainant availed the broad band connection on 10-06-2009. The 2nd opposite party activated the gadget on the laptop of the complainant. After 4 days of activation the 1st opposite party received complaint from the complainant; they forthwith replaced the defective modem. After a month the complainant contacted he 1st opposite party with a complaint of frequent disconnection. The same was due to virus problem. Since the above complaint persisted the authorized service centre rectified the defect. The complainant failed to remit the bill amount of Rs.2,172/- which fell in due. Complainant is not entitled to get any of the reliefs as claimed for.
3. The 2nd opposite party who is an employee of the 1st opposite party raised the very same contentions of the 1st opposite party.
4. The complainant was examined as PW1, Exts. A1 to A8 were marked on her side. 2nd opposite party was examined as DW1 and the witness for 1st opposite party was examined as DW2. Heard the representative of the complainant and the counsel for the opposite parties.
5. The following points arise for consideration
i. Whether the complaint is maintainable in this Forum?
ii. Whether the complainant is entitled to get a compensation of Rs.1,00,000/- from the opposite parties?
6. Point No. i. :- The counsel for the opposite party took a contention that in view of the decision of the Hon'ble Apex Court in General Manager, Telecom Vs. M. Krishnan & Anr, this Forum has no jurisdiction to entertain this complaint. The learned counsel for the complainant submitted that admittedly the service availed by the complainant and rendered by the opposite party is internet facility. According to him, as per the Telecom Regulatory Authority of India Act 1997, this Forum has ample jurisdiction to entertain this complaint arising out of deficiency in rendering interest service. Telecommunication service is defined in Section 2 (k) of the above Act which reads as follows :
“telecommunication service means service of any description (including electronic mail, voice mail, date service, audio tex services, video tex services, radio paging and cellular mobile telephone services) which is made available to users by means of any transmission or reception of signs signals writing images and sounds or intelligence of any nature, by wire radio, visual or other electromagnetic means but shall not include broadcasting services.”
Section 14 B and C of the Act reads as under :
“the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Disputes Redressal Commission established under Section 9 of the Consumer Protection Act 1986.”
The Hon'ble Supreme Court in General Manager Telecom case, held as follows :
“In our opinion when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred. Section 7-B of the Telegraph Act reads as under :-
Section S.7B Arbitration of Disputes :-
(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this Section.”
7. Point No. ii. The chronological events in the case are as follows:
i. The complainant subscribed the internet service of the 1st opposite party on 10-07-2009
ii. The complainant purchased the modem at a price of Rs. 3,500/- evident from Ext. A2 bill.
iii. Though the 1st opposite party averred in the version that they are not the manufacturer of the gadget , Ext. A1 goes to show that the name of 1st opposite party is imprinted in it, and their seal is affixed in Ext. A2.
iv. After 3 days from the date of installation of the device the opposite parties replaced the same evident by Ext. A3.
v. Ext. A4 is the details of the usage of the device by the complainant from 18-07-2009 to 11-08-2009.
vi. The complainant purchased a brand new lap top evident from Ext. A6 tax invoice.
vii. The opposite party issued Ext. A7 bill to the tune of Rs. 1,934.36 for the period from 18-07-2009 to 17-08-2009.
ix. The complainant underwent 50 hours training from July 2009 to November 2009 evident by Ext. A8 training completion certificate issued from ERICA e SCHOOL
8. According to the complainant she had not been getting uninterrupted service from the opposite parties even though at the instance of the 2nd opposite party she purchased a brand new laptop. The 1st opposite party maintains that the interruption in their service has been caused due to the defect of the system used by the complainant. It is contended that the 1st opposite party is ready to provide the service provided the complainant pays the amount as per Ext. A7. Complainant was cross examined at length during cross-examination the complainant specifically and categorically deposed the date and time of interruption caused while using the service. The 2nd opposite party was examined as DW1, during his evidence he deposed that he was unaware of the fact that the complainant had to try for repeated attempts to get the service. At the instance of DW1, the complainant installed the antivirus in her laptop but DW1 had gone to the extend of saying that he was not aware of the installation.
9. Be things as it may nothing is on record to show that whether the interruption in the internet service was caused due to the fault of the device or the service. In either event the 1st opposite party is answerable especially so because the interruption in the service has not been caused due to the fault of the complainant. It is pertinent to note that the complainant has availed herself of the service of the opposite party for e-teaching and for training in e-teaching. Due to the deficiency in service on the part of the 1st opposite party the complainant had had to suffer mental agony and inconveniences as averred but not proved legally. Since the complainant fails to quantify the loss sustained by her substantially we are at loss to grant the claim of Rs. 1 lakh by the complainant. However malodies have to be abated but not at all costs. So we think it apt and proper to award a compensation of Rs, 10,000/- to meet the ends of justice adequately.
10. Accordingly, we partly allow the complaint and direct that the 1st opposite party shall pay a compensation of Rs. 10,000/- to the complainant for the reasons stated above.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order failing which the amount shall carry interest @ 12% p.a. till payment.
Pronounced in the open Forum on this the 30th day of September 2011
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : Copy of advertisement
A2 : Copy of bill dt. 10-07-2009
A3 : Service job sheet dt. 17/08/2009
A4 : Copy of statement
A5 : Copy of receipt dt. 06-07-2009
A6 : Tax invoice
A7 : Copy of bill dt. 18-08-2009
A8 : Copy of training completion
certificate
Opposite party’s Exhibits : : Nil
Depositions:
PW1 : Princy Francis
DW1 : Pradeep Raj
DW2 : Raja Raja Varma
