PANAJI-GOA

Present:

Smt. Sandra Vaz e Correiaresiding Member

Smt. Caroline Collasso,ember

Appeal No. 9/2008

1. The General Manager,

Goa Telecom District,

Panaji-Goa.

2. The Dy. General Manager,

Telecom South Goa,

TelephoneExchange Building,

Margao, Goa.

3. The Jr. Telecom Officer,

Curtorim Exchange,

PanchayatBuilding,

Curtorim, Salcete Goa.Appellants

(Original Opposite Parties)

v/s

Shri Hilario da Costa,

r/o H.No.442/A, Bandol,

Curtorim, Salcete Goa. Respondent

(Original Complainant)

For the Appellants .. Shri S.A. Bandodkar Advocate and

None present at the time of order.

For the Respondent .. Shri Parag Wagle, Advocate

Respondent in person at the time of order.

Dated: 05-01-2009

ORDER

[Per Smt Sandra Vaz e Correia, Presiding Member] 

1. The Appellants are the General Manager Goa Telecom District and two officials of the Department.  They seek to challenge the order dated 20-12-2007 passed by the Consumer Disputes Redressal Forum (District Forum) South Goa in Complaint no. 200/1998 whereunder they were directed to pay to the Respondent a consolidated amount of Rs.12,000/- on account of mental suffering etc. and further to pay costs of Rs.5,000/-. The Respondent is the Original Complainant. Parties shall be referred as arrayed before the lower Forum for convenience. 

Case of the Complainant. 

2. In a nutshell, it is the Complainants case that as per an advertisement published by the Opposite Parties in a local newspaper on 20-02-1998, he booked a new telephone connection under Curtorim exchange on 24-03-1998 on deposit of Rs.5000/- against demand note and was allotted registration number 853. He followed up the matter of release of connection with the Opposite Party no. 3 several times in April 1998 and every time he was promised that the connection would be released shortly. The Complainant contacted a member of the TAC to expedite the process of release of connection but to no avail. He then learnt that the Opposite Parties had bypassed him on the waiting list and other subscribers in his locality who had booked connections subsequent to him had been released their connections. The Complainant sent a legal notice through his advocate on 14-05-2008 calling upon the Opposite Parties to release the connection within seven days, but the Opposite Parties replied to the notice after two months and gave lame excuses for non-provision of the connection. Filing of the complaint before the District Forum followed with prayers to release the connection with immediate effect and for monetary compensation of Rs.45,000/- and further compensation ofRs.250/- per day from 01-06-1998 till release of the connection. 

Case of the Opposite Parties. 

3. In brief, it is the Opposite Party case that a person who merely applies for a telephone connection is not a consumer under the Consumer Protection Act. Publication of the advertisement was admitted though it was denied that any commitment was given that connections would be released by 31-03-1998. The Complainants connection could not be released on account of technical difficulties arising due to location of the Complainants house at distance of 700 metres from the main road and amidst thick vegetation. Connections to other subscriber in the locality were released as they were technically feasible and located at lesser distance from the DP as compared to that of the Complainant. The cable to the Complainants premises had to be taken underground due to thick vegetation and the process of sanctioning underground cable was in progress. 

Findings of the District Forum. 

4. The District Forum considered the pleadings and the evidence on record and upon hearing the parties came to a finding that there was deficiency of services rendered by the Opposite Party in delay to release of telephone connection and directed payment of consolidated amount of damages quantified at Rs.12,000/- in addition to costs of  Rs.5,000/-. 

Submissions. 

5. We heard Shri Parag Wagle on behalf of the Respondent/Complainant for some time. None appeared for the Appellants/Opposite Parties at the time of final hearing; however they filed written submissions. 

6. The entire thrust of the Appellants challenge is on the point of maintainability of the complaint. Shri S. A. Bandodkar submitted in his written submissions that a complaint can be filed only against a ersonas defined in section 2 (1) (m) of the Act and that the Central Government or State Governments did not come within the definition of the word ersonas defined under the Act or otherwise understood in law. He submitted that the Central Government or State Governments are impliedly excluded from the provisions of the Consumer Protection Act. Hence, a complaint against the Government is not maintainable. To buttress his submission, he relied on Director of R & D vs. Corporation of Calcutta AIR 1960 SC 1355 and State of West Bengal vs. Corporation of Calcutta AIR 1967 SC 997. Under the aforesaid decisions, the law as it stands now is that the State is bound by its own statutes as much as any other citizen is unless the state is expressly excluded or unless it is excluded by necessary implication. Though the Government/State is not expressly excluded, the Consumer Protection Act excludes it from the operation of the Act by necessary implication. He took us to the various provisions of the Consumer Protection Act and brought to our notice Shiv Parshad vs. Punjab State AIR 1957 Punjab 150, Krishnan vs. Krishnaveni AIR 1997 SC 987. On the definition of erson he took us to the provisions of the General Clauses Act and also cited M M Ipoh vs. I.T. Commissioner Madras AIR 1968 SC 317 and Hasmukh Lal vs. State of Gujarat AIR 1976 SC 2316. 

7. On the other hand, the Ld Counsel for the Respondent submitted that the Consumer Protection Act is a beneficial legislation and a complaint filed thereunder cannot be equated to a suit. The Department of Telecommunications has not been delegated with any sovereign powers of the state; it is a separate and distinct entity which renders services to consumers. 

Findings. 

8. Records and proceedings of the Trial Forum were perused in detail; we gave due consideration to the submissions advanced by the parties. 

9. We do not find any merit in the submissions regarding maintainability of the complaint advanced by Counsel for the Appellants/Opposite Parties. The precedents cited by the Ld. Counsel pertain to those arms of the Government which are delegated with sovereign powers, unlike in the case at hand where the Department of Telecommunications is offering its communication services for consumption by consumers. Besides, the Consumer Protection Act does not either expressly or impliedly exclude complaints against the Government. 

10. The question of liability of Government/State agencies providing services to consumers was dealt with by the Honle Supreme Court in Ghaziabad Development Authority vs. Balbir Singh AIR 2004 SC 2141 in a matter pertaining to the Consumer Protection Act. Honle Apex Court held that the Consumer Protection Act has wide range and the consumer fora have jurisdiction even in cases of services rendered by statutory and public authorities and that such authorities become liable to compensate for misfeasance in public office. In paragraph 6 of the judgment, the Honle Court held that: 

    he First Law Commission constituted after coming into force of the Constitution on liability of the State in tort, observed that the old distinction between sovereign and non sovereign function should no longer be invoked to determine liability of the State.  Friedman observed: 

/span>It is now increasingly necessary to abandon the lingering fiction of a legally indivisible State, and of a feudal conception of the Crown, and to substitute for it the principle of legal liability where the State, either directly or through incorporated public authorities, engages in activities of a commercial, industrial or managerial character.  The proper test is not an impracticable distinction between governmental and non governmental function, but the nature and form of the activity in question 

It further held that:

nder our Constitution sovereignty vests in the people.  Every limb of the constitutional machinery is obliged to be people oriented.  No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself.  Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behavior before authorities created under the statute like the commission or the courts entrusted with responsibility of maintaining the rule of law.  Each hierarchy in the Act is empowered to entertain a complaint by the consumer for value of the goods or services and compensation.nbsp;

11. In another case of Lucknow Development Authority vs. M. K. Gupta AIR 1994 SC 787, the Honle Supreme Court held that: 

his takes us to the larger issue if the public authorities under different enactments are amenable to jurisdiction under the Act.  It was vehemently argued that the local authorities or government bodies develop land and construct houses in discharge of their statutory function, therefore, they could not be subjected to provisions of the Act.  The learned counsel urged that if the ambit of the Act would be widened to include even such authorities it would vitally affect functioning of official bodies.  The learned counsel submitted that the entire objective of the Act is to protect a consumer against malpractices in business.  The argument proceeded on complete misapprehension of the purpose of Act and even its explicit language.  In fact the Act requires provider of service to be more objective and caretaking.  It is still more in public services.  When private undertakings are taken over by the government or corporations are created to discharge what is otherwise State function, one of the inherent objectives of such social welfare measures is to provide better, efficient and cheaper services to the people.  Any attempt, therefore, to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and spirit behind it.  It is indeed unfortunate that since enforcement of the Act there is a demand and even political pressure is built up to exclude one or the other class from operation of the Act.  How ironical it is that official or semi official bodies which insist on numerous benefits, which are otherwise available in private sector, succeed in bargaining for it on threat of strike mainly because of larger income accruing due to rise in number of consumers and not due to better and efficient functioning claim exclusion when it comes to accountability from operation of the Act.  The spirit of consumerism is so feeble and dormant that no association, public or private spirited, raises any finger on regular hike in prices not because it is necessary but either because it has not been done for sometime or because the operational cost has gone up irrespective of the efficiency without any regard to its impact on the common man.  In our opinion, the entire argument found on being statutory bodies does not appear to have any substance.  A government or semi government body or a local authority is as much amenable to the Act as any other private body rendering similar service.  Truly speaking it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions scrutinized as public accountability is necessary for healthy growth of societynbsp;

12. The aforesaid decisions conclusively settle the law insofar as applicability of the Consumer Protection Act to Government/ State authorities offering services capable of being hired by consumers is concerned. 

13. Turning to the merits of the matter, publication of the advertisement by the Opposite Party on 20-02-1998 and acceptance of the Complainants booking on 24-03-1998 on payment of Rs.2000/- is an admitted position. The advertisement clearly indicated that it would be the endeavor of the Opposite Party to release the connections by 31-03-1998. Relying on the contents of the advertisement, the Complainant booked the telephone connection and paid the amount of Rs.2000/- against demand note issued by the Opposite Parties. In this backdrop, the Complainant is a consumer defined under the Consumer Protection Act and the Opposite Party claims to the contrary hold no water. 

14. The Complainant has extensively touched on the point of necessity of the telephone connection and the inconvenience suffered by him on account of the delay by the Opposite Parties in paragraphs 20, 21 and 22 of his affidavit-in-evidence with supporting documents, which we are inclined to accept. In addition, the Complainant examined one Shri Milind Shirodkar as his witness. He is a STD booth owner who deposed that the Complainant was a regular customer and his average weekly bill was about Rs.150/-.  The witness was cross-examined where his deposition remained unshaken. 

15. On the issue of alleged technical difficulties faced by the Opposite Parties in releasing the connection to the Complainant, the Complainant examined Shri K P Prabhudessai, Civil Engineer as his witness. The witness entered his report and sketch along with affidavit. He unequivocally deposed that the distances of the houses connected with the telephones 786918 and 786844 are on the same route of the cable as that of the Complainants house. The distance from Complainants DP and the exchange is the same as the other two referred connections. He also focused on telephone no. 786662 and opined that the distance from the DP to the premises was more than 500 metres passing partly through jungle area and which was a single connection given on the cable taken over such a long distance. The witness deposition remained unshaken in cross. 

16. It was the Opposite Party case that cable to the Complainants premises had to be taken underground due to thick vegetation and the process of sanctioning underground cable was in progress; ironically, the connection was released during pendency of the proceedings before the lower Forum with overground cable. 

17. We have no doubt in our minds that the Complainant clearly established preponderance of probability of his case through documentary and other evidence. The Opposite Parties acted in an arbitrary and careless manner in dealing with the Complainants bonafide plea for release of telephone connection as per waiting list. The impugned order does not call for any interference.  

18. In light of the above, there is no merit in this appeal and the same stands dismissed with costs of Rs.1500/-. 

Pronounced.       

/span>[Sandra Vaz e Correia]

Member

[Caroline Collasso]

Member

05-01-2009

ORDER

There is no merit in this appeal and the same stands dismissed with costs of Rs.1500/-. 

Pronounced.       

/span>[Sandra Vaz e Correia]

/span>Member

/span>/span>[Caroline Collasso]

/span>/span>Member