KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL No. 508/2004 JUDGMENT DATED: 26-11-2009 PRESENT: SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER SHRI. M.K. ABDULLA SONA : MEMBER APPELLANTS 1. The Sub Divisional Officer, Department of Tele Communications, B.S.N.L., Thiruvananthapuram – 673573. 2. The General Manager, Department of Tele Communications, B.S.N.L., Kozhikkodu – 673001. (Rep. by Adv. Sri. K.R. Haridas) Vs RESPONDENT Siddeeq. T.P., S/o Abu haji, K.P. 2/395, Thalapoyil, P.O. Koduvally, South Koduvally, Kozhikkodu. JUDGMENT SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER The above appeal is directed against the order dated 28th April 2004 of the CDRF, Kozhikode in OP No. 200/03. The complaint therein was filed by the respondent against the appellants/opposite parties alleging deficiency in service on the part of the opposite parties in causing delay and also overlooking the seniority of the complainant in giving the new telephone connection. The complainant claimed refund of Rs. 7,000/- which he paid as additional amount to convert his application under Non-OYT General category into OYT General category and also for compensation of Rs. 10,000/-, on the ground of deficiency in service on the part of the opposite parties. 2. Opposite parties entered appearance and contended that there was no deficiency in service on their part in giving the new telephone connection to the complainant; that the opposite parties were at liberty to give connection by overlooking the seniority on consideration of the technical feasibility. It is further contended that in case of bulk release, the telephone connections were provided area wise based on technical feasibility. Thus, the opposite parties requested for dismissal of the complaint in OP No. 200/03. 3. Before the Forum below, the complainant was examined as PW1 and Exts. A1 to A5 documents were marked on his side. From the side of the opposite parties B1 and B2 documents were also produced and marked. On an appreciation of the evidence on record, the Forum below passed the impugned order finding the opposite parties deficient in rendering service to the complainant. Thereby the opposite parties are directed to pay compensation of Rs. 5,000/- with costs of Rs. 500/-. Aggrieved by the said order, the present appeal is filed by the opposite parties in the said OP No. 200/03. 4. We heard both sides. The learned Counsel for the appellants/opposite parties submitted his arguments based on the grounds urged in the memorandum of the present appeal. He relied on B1 copy of the judgment of the Hon’ble High Court of Kerala dated 24th March 2000 passed in OP No. 4763/00 P and submitted that the seniority was over looked by considering the technical feasibility and so the aforesaid action of the BSNL cannot be termed as deficiency in service. On the other hand, the learned Counsel for the respondent/complainant supported the impugned order passed by the Forum below and requested for dismissal of the present appeal. 5. The points that arise for consideration are: 1. Whether there was any deficiency in service on the part of the appellants/opposite parties as alleged by the respondent/complainant? 2. Is there any sustainable ground to interfere with the impugned order dated 28-04-2004 passed by the CDRF, Kozhikode in OP No. 200/03? 6. Point Nos. 1 & 2: The fact that the respondent/complainant applied for new telephone connection to his residence and that he deposited Rs. 3,000/- on 28-05-1999 and his name got registered under Non-OYT General category with Registration No. KVY/3079 is not in dispute. Subsequently, the complainant for getting an earlier telephone connection, paid additional amount of Rs. 7,000/- and thereby his registration has been converted to one under OYT category with effect from 28-05-1999 and he was allotted Registration No. KVY-960. It is the case of the complainant that the opposite parties overlooked his seniority and provided telephone connection to other persons who were juniors in the seniority list and that new telephone connections were also given to persons under Non OYT General category by overlooking the seniority of the complainant. The fact that the opposite parties overlooked the seniority of the respondent/complainant is admitted by the appellants/opposite parties. It is also admitted that the other candidates who were juniors in the seniority list and who were under Non OYT General category were also given new telephone connections by overlooking the seniority of the complainant. Ext.A4 and A5 documents would establish the overlooking of the seniority of the respondent/complainant. 7. The case of the appellants/opposite parties is that they overlooked the seniority of the complainant on the basis of technical feasibility in giving connections to other applicants. They relied on the judgment dated 24-03-2000 passed by the Hon’ble High Court of Kerala in OP No. 4763/00 P and submitted that the BSNL can very well overlook the seniority based on technical feasibility. It is true that in B1 judgment it has been held by the Hon’ble High Court of Kerala that the BSNL can very well overlook the seniority or priority by considering the technical feasibility in giving connections to the applicants. In the aforesaid reported case it was established that the connections were given to the applicants on area wise and in that case the connections were given by considering the technical feasibility. But in this case the opposite parties could not establish by acceptable evidence that the seniority of the complainant was overlooked based on technical feasibility or that the connections to other persons were given based on area wise. The mere contention that the seniority was overlooked by considering technical feasibility cannot be accepted as such. It is for the BSNL to establish the technical feasibility in giving connections and they have to justify their action in overlooking the seniority. It is pertinent to note at this juncture that the complainant incurred additional expense of Rs. 7,000/- for getting his name registered under OYT General category. But the opposite party has given connection to others who were registered under the category Non OYT General category. The aforesaid action on the part of the opposite parties in overlooking the seniority of the complainant by ignoring the fact that the complainant has been registered under OYT General category cannot be justified. The aforesaid action would amount to deficiency in service. The Forum below can also be justified in relying on the subsequent decision rendered by the Hon’ble National Commission reported in 2003 CPJ 269. In fact the appellants/opposite parties could not justify their action in overlooking the seniority of the complainant. So, the Forum below is perfectly justified in holding that there was deficiency in service on the part of the opposite parties. 8. The Forum below has awarded a compensation of Rs. 5,000/- and cost of Rs. 500/-. Considering the delay caused in giving the connection to the complainant and the nature of the inconvenience suffered by the complainant, the compensation of Rs. 5,000/- ordered by the Forum below can be treated as bit high. We are of the view that sum of Rs. 2,000/- is sufficient to meet the ends of justice. So, the impugned order passed by the Forum below directing payment of Rs. 5,000/- as compensation is modified and thereby the compensation is reduced to Rs. 2,000/- with costs of Rs. 500/. In all other respects the impugned order passed by the Forum below is confirmed. These points are answered accordingly. In the result, the appeal is allowed partly. The impugned order dated 28-04-2004 passed by the CDRF, Kozhikode in OP No. 200/03 is modified and thereby the finding of the Forum below regarding deficiency in service on the part of the opposite parties is upheld; but the compensation of Rs. 5,000/- ordered by the Forum below is reduced to Rs. 2,000/- with costs of Rs. 500/-. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. M.V. VISWANATHAN : JUDICIAL MEMBER M.K. ABDULLA SONA : MEMBER Sr. | 
