Date: 24-02-2015

Sri Debasis Bhattacharya

The instant appeal arises out of the Order dated 08-02-2014, passed by the Ld. District Forum, Bankura, in Case No. 52/2013, whereby the instant case has been allowed on contest against the OPs.  Being highly aggrieved and dissatisfied with the same, the OPs thereof have preferred this appeal.

In a nutshell, case of the Complainant, is that he is running a cyber café under the name and style, ‘Karunamoyee Cyber Café’ for self-employment of his livelihood and for this purpose, he took broadband connection from the OPs and as per their norms, lastly on 27-06-2013, he paid full amount against the invoice raised by the OP No. 2 and in the said invoice, they specifically mentioned the expiry date as 27-07-2013.  On 11-07-2013, when he tried to login the connection, an error message displayed on the computer screen asking him to renew the package.  Being astonished, he immediately brought the matter to the notice of the OP No. 2 over telephone and also sent an email to that effect on the very same day, but to no avail. He even sent an Advocate’s notice on 12-07-2013 to the OPs, but without any effect.  Hence, he filed the case seeking appropriate relief from the Ld. District Forum.

Case of the OPs, on the other hand, is that the instant case is not maintainable before the Consumer Fora since as per Sec. 7B of the Indian Telegraph Act, such disputes are to be adjudicated only through arbitration proceedings.  The Complainant admitted that he used the said connection for commercial purpose and so he is not a consumer within the meaning of Sec. 2(1)(d)(ii) of the Consumer Protection Act, 1986.  Moreover, the Complainant has violated the terms and conditions where it has been specifically stated that, ’the subscriber shall not be allowed to lease or resale the internet services as well as bandwidth’. The said connection has not been disconnected before the expiry date, i.e., before 27-07-2013.  The OPs have not received any complaint in this regard over telephone on 11-07-2013 from the Complainant. In the terms and conditions of CAF, it has been stated that, ‘the company will target 90% (downtime permissible 10%) availability of the link per month’.  Therefore, if any disturbance occurred with any connection or link, then it happened due to problem with the satellite over which OPs have got no control.  That apart, the Ld. Forum has no jurisdiction to try and adjudicate such dispute which involves purely technical matters and being non-technical persons, the Ld. Forum cannot adjudicate the same and for resolving such disputes, only Arbitrator being an expert, can adjudicate the same. Although the OPs received one complaint from the Advocate of the Complainant, but on enquiry, the OPs found the same was running successfully without any disturbance, which the OPs immediately conveyed to the Complainant over phone.

Point to be considered in this appeal is whether there is any anomaly in the impugned order, or not.

Decision with reasons

Ld. Advocate for the Appellants has submitted that the Ld. District Forum failed to consider the fact that the Respondent used the said connection for commercial purpose and thereby, violated the terms and conditions where it has been specifically stated that the subscriber shall not be allowed to lease or resale the internet service as well as bandwidth.  Ld. District Forum further failed to appreciate the fact that according to Sec. 7B of the Indian Telegraph Act, such type of dispute is maintainable only through arbitration proceedings and therefore, the Consumer Fora has no jurisdiction to adjudicate the same.  Moreover, Acta Probandi and Acta Probanda lies upon the Respondent/Complainant, but the Ld. District Forum committed gross error by holding and fixing the liability upon the shoulder of the Appellants that the during the disputed period, internet connection was active.  Also, the Ld. District Forum should have considered that the Respondent did not suffer any loss in the matter and in support of his contention regarding compensation, he has failed to produce any documentary evidence about its actual loss and in absence of the same, the Respondent is not entitled for any amount as compensation.  The Appellants have not committed any deficiency in service.  Therefore, the impugned order is contrary to the provisions of law and by passing such an order, the Ld. District Forum has inflicted gross injustice upon the Appellants and the same be set aside.

Ld. Advocate for the Respondent has made out that on the face of materials on record, there can be no manner of doubt as regards deficiency in service on the part of the Appellants towards him and therefore, the Ld. District Forum adjudicated the case in his favour, and the same be upheld for ends of justice.

The Appellants disputed the rationality of the impugned order from different aspects.

First, it is argued by the Appellants that in terms of Sec. 7B of the Indian Telegraph Act, 1885, the instant dispute is to be adjudicated only through arbitration proceedings. 

On going through the Application Form for Wireless Broadband Service, however, we find that the terms and conditions essayed by the Appellants in the application form stipulate that, ‘In case of any dispute between the parties it may be referred to arbitrator/arbitrations as per arbitration and conciliation Act’.  Needless to say, such stipulation runs counter to the assertions of the Appellants and clearly shows that arbitration is not the only means of adjudication.  Further, Section 3 of the Consumer Protection Act, 1986 stipulates that, ‘The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force’.

In any case, insofar as the Appellants have raised the issue of Sec. 7B of the Indian Telegraph Act, 1985, let us discuss the issue. 

Sec. 7B of the Indian Telegraph Act, 1985 runs as follows:-

^“7B. Arbitration of disputes.—(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arisesbetween the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section. (2) The award of the arbitrator appointed under sub-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any court.”

A bare reading of the above section makes it clear that the said section is applicable whenever any dispute arises between Telegraph Authority and the person for whose benefit the line, appliance or apparatus is, or has been provided.  In this regard, it bears mentioning that the Department of Telecommunications, Ministry of Communications & IT, Government of India, vide its communiqué under reference no.2-17/2013-Policy-I dated 24-01-2014 has clarified that District Forums are competent to deal with the disputes between individual telecom consumers and telecom service providers.  In clear terms, the DoT has clarified that powers of telegraph authority have neither been vested nor are available to private telecom providers and BSNL.  Therefore, recourse to section 7B in case of disputes between customers and private service providers and BSNL would not be available.    That being the position, we find no infirmity whatsoever with the adjudication of the instant dispute by the Ld. District Forum.

Secondly, it is alleged by the Appellants that by using the broadband connection for commercial purpose, the Respondent has violated the terms and conditions where it has been specifically stated, ‘the subscriber shall not be allowed to lease or resale the internet service, as well as bandwidth’.  It requires no elaboration that using something for commercial purpose vis-à-vis leasing out the same or re-sale it to others are altogether different matters.  Therefore, both cannot be equated with each other.  That apart, the terms and conditions set out by the Appellants do not put any embargo on commercial use of the broadband service.  Above all, it is clearly mentioned in the application form that the Respondent availed of such service for business purpose.  Insofar as the Respondent was doing such business for his self-employment, it comes within the compass of the Consumer Protection Act, 1986.

Thirdly, as for the averment of the Appellants that for the purpose of establishing the nature of dispute, onus lies with the Respondent to prove and establish his contentions, we find that the Respondent has filed, amongst others, photocopies of (1) invoice dated 27-06-2013, (2) Advocate’s notice dated 12-07-2013 and its delivery report (3) Computer screen printout dated 11-07-2013 (4) Customer account report etc.  The computer screen printout dated 11-07-2013 corroborates the claim of the Respondent that an error message appeared on the computer screen stating that, ‘Please renew your package, your package has expired’,  though as per the copy of aforementioned invoice, the expiry date was far away on 27-07-2013.  So, there is complete parity between the statement of the Respondent vis-à-vis documents on record.  On the other, the Appellants have not placed on record a single piece of document/evidence to show that they took any action to redress the grievance of the Respondent or the Respondent availed of its broadband service during the period from 11-07-2013 to 27-07-2013.  Although the Respondent provided details, viz., time, phone no. to substantiate that he indeed made calls to the Appellant No. 2 on that day, but the Appellants denied receiving telephone call from the Respondent on 11-07-2013.  The Respondent also sent an email to the Appellant No. 2 on the very same day regarding the problem faced by him, which has not been disputed by the Appellants.  Thus, it can reasonably be presumed that the Appellants did receive complaint from the Respondent.  The claim of the Appellants notwithstanding, they have not provided any details as regards the telephone call that they allegedly made to the Respondent.  Therefore, we find no reasonable ground to accept that the Appellants called up the Respondent to inform that there was no problem with the broadband connectivity.

Fourthly, in asserting that the Respondent, who runs a cyber café, did not suffer any loss over alleged disconnection of broadband service, the Appellants surely have been most economical with the truth. 

It, thus, appears that the steadfast denial on the part of the Appellants as of any deficiency in service is nothing but a travesty of reality.

Having said that, it is also noteworthy that the Respondent has not placed on record any cogent document to show the extent of loss he suffered over such deficiency in service on the part of the Appellants.  Considering the fact that the alleged disruption took place 16 days prior to the expiry date and the monthly subscription rate for the concerned package was Rs. 1,011.24 (inclusive of Service tax), it appears, the Ld. District Forum has been too bountiful in awarding a total sum of Rs. 19,000/- in favour of the Respondent.  Thus, despite there being no iota of doubt as far as alleged deficiency in service on the part of the Appellants towards the Respondent, keeping in mind the fact that the extent of compensation should harmonize the financial loss, mental stress and agony endured by a consumer due to deficiency in service on the part of a service provider, we are of the view that a lump sum amount of  Rs. 15,000/- would be just and proper that the Appellants should pay to the Respondent as compensation and litigation cost on account of their gross deficiency in service.

In the result, the appeal succeeds in part.

Hence,

ORDERED

that the appeal be and the same is allowed in part against the Respondent, but without any order as to costs.  The Appellants shall pay Rs. 15,000/- as compensation and litigation cost to the Respondent within 30 days from the date of this order, i.d., they shall be liable to pay interest @ 9% p.a. over the aforesaid amount from this date till full and final settlement. The impugned order is modified accordingly.