STATE CONSUMER DISPUTES REDRESSAL COMMISSION, ODISHA, CUTTACK
First Appeal No.200/2011
(From an order dated 22.03.2011 passed by the District Consumer Disputes Redressal Forum, Subarnapur
in Consumer Dispute Case No. 23/2010)
1- Telecom District Manager, Bolangir,
At/Post/Dist- Bolangir.
2- S.D.O.,Telecom, Sonepur,
At/PO/PS- Sonepur,Dist-Subarnapur.
3- Junior Engineer, Telephone Exchange,
B.S.N.L., Sonepur,At/PO/PS-Sonepur,
Dist- Subarnapur.
... Appellants
V e r s u s -
Sambhu Prasad Bishi,
S/o. Thabir Charan Bishi,
Resident of Ghodaghatpara,Sonepur,
PO/PS-Sonepur, Dist-Subarnapur.
... Respondent
Counsel for the Appellants - Sri Santosh Ku.Pattnaik & Associates.
Counsel for the Respondent - None .
PRESENT :- Sri Dillip Kumar Mohapatra, Member.
Sri Hemant Kumar Mohanty, Member.
DATE OF HEARING - 23. 08. 2022
DATE OF ORDER - 25.11.2022
O R D E R
This appeal arises out of the order passed on 22.03.2011 in Consumer Dispute Case No.23/2010 by learned District Consumer Disputes Redressal Forum, Subarnapur. The Opposite Parties are the Appellants. The parties hereinafter would be referred as referred before the learned District Forum.
The gist of the case of the complainant is that the complainant is an educated youth and he had a personal computer. He wanted to have a Broad Band Internet connection through BSNL,Opp.Parties. On 9.6.2010 on the appraisal of J.E., Sonepur(O.P No.3) the complainant deposited Rs.2040/- in the counter and the O.P No.3 who assured him to give connection within a period of 3 to 5 days. After 5 days when the complainant approached for the Broad Band Internet connection, the O.P No.2 and 3 could not give any satisfactory answer. Therefore, he wanted refund of the deposited money and submitted the requisite form for refund to O.P No.2. When he did not get the refund amount within one and half month, he gave a notice to O.P No.2 on 21.8.2010 but O.P No.2 remained silent in the matter. Hence, the complainant filed the complaint before the District Forum, Subarnapur for redressal of his grievance, inter-alia claiming sRs.50,000/- for deficiency in service and unfair trade practice, Rs.20,000/- for harassment and Rs.5,000/- towards litigation cost.
The Opposit Parties filed their version before the learned forum below and admitted to have received the amount for Broad Band Internet connection from the complainant. But due to non-availability of feasibility report, Broad Band connection could not be given. Subsequently, when the O.Ps took steps for feasibility of Broad Band connection and wanted to give connection, the complainant avoided and demanded for return of the deposited amount. However, during the pendency of the proceeding a cheque of Rs.1688/- was given to the complainant which was not encashed but the same was filed along with the complaint by the complainant.
The learned Forum below passed the impugned order directing the Opp.Party No.1 and 2 to return Rs.2040/- to the complainant which was deposited by him for Broad Band connection and Rs.2500/- towards compensation for harassment and mental agony and Rs.1000/- towards cost of litigation within one month from the date of receipt of the order.
Challenging the impugned order dt. 22.3.2011 of the learned Forum below, this appeal has been filed by the Opposite Parties.
During the course of hearing, the learned counsel for the Appellants submitted that Consumer Comission has no jurisdiction to entertain a consumer dispute claiming for compenasation concerning any telephone line, appliance or apparatus in view of the specific provision of Section 7-B of the Indian Telegraph Act,1885 as held by the Hon'ble Supreme Court of India in its Judgment dt 01.09.2009 in Civil Appeal No.7687 of 2004(General Manager, Telecom Vrs. M. Krishnan & another). It is also submitted that due to non-availability of feasibility report, the Broad Band connection was not given to the complainant, as such there was no deficiency in service by the O.Ps. It is further submitted by the learned counsel for the Appellants that the amount of compensation is not based on any cogent evidence nor supported by any reason and the same is arbitrarily fixed. The Appellants can not be held responsible for return of deposit except grant of interest @10% after 60 days stipulated time period allowed by the TRAI and in the instant case as the deposited money has been offered by giving cheque of Rs.1,688/-, the Appellants can not be held liable for payment of compensation. As such the order of learned Forum below is bad in law, illegal, improper and the same is liable to be set aside.
The counsel for the appellant further submitted that complainant has claimed a sum of Rs.50,000/- towards deficiency in service on the part of Opposite Parties and unfair trade practice, a sum of Rs.20,000/- towards harassment and a sum of Rs.5,000/- towards cost of litigation but has not adduced any evidence to that effect. It is further submitted that the present dispute is not maintainable before Consumer Forum/Commission due to the order of Hon'ble Apex Court reported in (1995) 2 SCC 479, Chairman, Thiruvallurvuar Transport Corporation Vrs. Consumer Protection Council.
We find that admittedly the Appellants have received Rs.2400/- from the complainant for supply of Broad Band connection to the house of complainant although there was no feasibility and no internet connection was provided in the said area. The Appellants/O.Ps knowingly received the money from complainant although they had no facility to give internet connection to the said arera and no feasibility to provide Broad Bnd connection which amounts to deficiency in service and unfair trade practice.. The O.Ps should not have accepted the amount from complainant as they know very well that they can not provide service to the complainant due to technical feasibility and the same was well within their knowledge.
We can not accept the argument and the plea taken by counsel for the appellant that the present dispute being coming under Section- 7B of Indian Telegraph Act,1885, Consumer Forums have no jurisdiction to entetain the matter in view of judgment of Hon'ble Supreme Court of India of dt. 01.09.2009 passed in Civil Appeal No.7687 of 2004(General Manager,Telecom Vrs. M. Krishnan). Further, in view of the fact that the Hon'ble Apex Court in Civil Appeal No.923 of 2017 decided on 16.02.2022 in the case of Vodafone Ida Cellular Ltd. Vrs. Ajay Kumar Agarwal has over ruleds the decision of G.M. Telecom vrs. M.Krishnan and held that existence of an arbitral remedy will not oust the jurisdiction of the Consumer Forum. Relevant portion is quoted hereunder:
"In the present case, the existence of an arbitral remedy will not, therefore, oust the jurisdiction of the consumer forum. It would be open to a consumer to opt for the remedy of arbitration, but there is no compulsion in law to do so and it wouild be open to a consumer to seek recourse to the remedies which are provided under the Act of 1986 , now replaced by the Act of 2019. The insertion of the expression ' telecom services' in the definition which is contained in Section 2(42) of the Act of 2019 can not, for the reasons which we have indicated be construed to mean that telecom services were excluded from the jurisdiction of the consumer forum under the Act of 1986. On the contrary, the definition of the expression 'service' in Section 2(o) of the Act of 1986 was wide enough to comprehend services of every description including telecom services."
We find from DFR that the complainant has not encashed the said cheque and has filed the original cheque dt.22.10.2010 amounting Rs.1688/- issued by Accounts Officer(Cash), BSNL , T.D.M, Bolangir before the learned Forum below.
We have heard counsel for the Appellants at length, perused the DFR, affidavit dt. 21.8.2022 filed by appellant, appeal memo and find that the learned Forum below has held that there is deficiency in service on the part of Opposite Parties and it has passed the impugned order directing the Opp.Party No.1 and 2 to return Rs.2040/- to the complainant which was deposited by complainant for Broad Band connection and Rs.2500/- towards compensation for harassment and mental agony and Rs.1000/- towards cost of litigation within one month from the date of receipt of the order.
In the meantime, 12 years have elapsed, neither the complainant nor his counsel is present before this Commission to argue the matter inspite of valid notice of this Commission dt. 22.04.2022.
On being instructed the Appellants have filed an affidavit on 23.08.2022 giving a detailed calculation vide Annexure-A that total amount payable by Appellants as on 12.08.2022 was Rs.33,148/-. As the Respondent/Complainant is not represented before us, and looking into the calculation sheet vide Annexure-A filed by the Appellants, we see no reason not to accept the calculations as legal, fair and proper. Accordingly, we accept the calculations vide Annexure-A to the Affidavit filed by the Appellants on 23.08.2022 ,that the amount payable is Rs.3,148/-.
In the result, we modify the order of learned Forum below and direct the Appellants to refund an amount of Rs.3148/-, to be recalculated with the applicable interest rate i.e. 1 year S.B.I. Fixed Deposit rate up to date of actual payment and to pay Rs.1,000/- towards cost of litigation to the compainant within 2 months from the date of receipt of this order failing which Rs.1688/- shall carry penal interest @12% p.a. with effect from 09.06.2010 till the date of actual payment.
The appeal is allowed in part.
Send back the DFR.
