Tripura State Consumer Disputes Redressal Commission, Agartala.

Case No.A.21.2017

1. The General Manager,
   Bharat Sanchar Nigam Ltd.,
   Kaman Chowmuhani,

P.O. Agartala, P.S. West Agartala,

District - West Tripura, Pin-799001.

….    ….    ….    …. Appellant/Opposite party.

        Vs

1. Sri Haradhan Sarkar,
   S/o  Late Sarada Charan Sarkar,
   Akhaura Road, P.O. Ramnagar,,
   P.S. West Agartala,

District - West Tripura, Pin-799002.          

….    ….    ….    …. Respondent/Complainant.

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

Mr. Narayan Ch. Sharma,

Member,

State Commission, Tripura.

For the Appellant:                                          Mr. Paramartha Datta, Adv.

For the Respondent:                                      In person.

Date of Hearing:                                             13.09.2017

Date of Delivery of Judgment:                       26.09.2017.

J U D G M E N T

U.B. Saha,J,

The appellant, General Manager, Bharat Sanchar Nigam Ltd. (hereinafter referred to as opposite party/BSNL) has filed the instant appeal challenging the judgment dated 17.03.2017 passed by the Learned District Consumer Disputes Redressal Forum, West Tripura, Agartala (hereinafter referred to as District Forum) in Case No. C.C. 95 of 2016 whereby and whereunder, the Learned District Forum allowed the complaint petition filed by the respondent Sri Haradhan Sarkar (hereinafter referred to as complainant) and directed the opposite party/BSNL to refund the amount of Rs.10,106/- paid as service charge by the complainant and also to pay an amount of Rs.15,000/- as compensation for inconvenience and sufferings of the complainant as well as Rs.2000/- as cost of litigation, in total Rs.27,106/-. The aforesaid amount is to be paid within a period of two months, if not paid, it will carry interest @ 9% per annum.

2. Heard Mr. Paramartha Datta, learned counsel appearing for the opposite party-BSNL and Sri Haradhan Sarkar, complainant in person. At the time of hearing, we have also heard one Sub-Divisional Engineer (Legal) who appeared in terms of the order of this Commission dated 25.08.2017.
3. The facts needed to be discussed are as follows:-

The complainant Sri Haradhan Sarkar, a practicing lawyer, had obtained telephone connection being No.232-8992 as well as a broadband connection under unlimited plans BBG Combo UL 675 – 512 Kbps flat on payment of Rs.10,106/- for 11 months, but his telephone was nonfunctional from 04.04.2016 to 17.04.2016 (1^st spell), from 04.05.2016 to 20.06.2016 (2^nd spell) and thereafter up to 17.09.2016 i.e. 3^rd spell. As a result, he could not contact with his daughter and son who are residing permanently in U.S.A. and Australia respectively. Therefore, the complainant being a professional man suffered a lot and ultimately he filed a complaint petition before the Ld. District Forum claiming compensation for his professional loss and harassment amounting to Rs.30,000/- and also for refund of the deposited amount under the scheme amounting to Rs.10,106/- as well as Rs.10,000/- as cost of litigation.

4. The opposite party, General Manager BSNL appeared and filed written objection wherein it is admitted that there was fault in the line due to cable fault as road work for construction of over-bridge was going on, which was beyond their control. Thus there was no negligence on the part of the BSNL. It is also contended that there was no deficiency of service. Hence, the complaint petition is liable to be dismissed.
5. The Learned District Forum taking note of the pleadings of the parties framed the following points for deciding the case:-

1. Whether the O.P. BSNL caused inconvenience and had deficiency of service in giving telephone connection to the petitioner?
2. Whether the petitioner is entitled to get compensation?

6. Thereafter, considering the evidence on record, the learned District Forum passed the impugned judgment, wherein the Learned District Forum in its findings stated, inter alia, that “The contention of the O.P. is that disruption of BSNL telephone line was due to cable disturbance. It was beyond control of the O.P. The extension work of the over bridge at Fire Brigade Chowmuhani caused the disruption. But the work of over bridge is still going on but the connection was restored in the month of November. Above all the extension work is not Act of God. So BSNL should have control over it. It should not allow any other authority to make interruption in connection and if it is done by any other authority or any other department then BSNL is entitled to get compensation for it. For the fault of other BSNL should not cause inconvenience to the customer. It is also found that BSNL charged Rs.10,106/- as service charge without providing service in the 11 months. Out of 11 months service was not provided for 8 months. Therefore, petitioner is entitled to get compensation for the deficiency of service by BSNL.”
7. Mr. Datta, Ld. Counsel while urging for setting aside the impugned judgment has submitted that the BSNL provided its best services to the complainant except in the period in which there were interruption for underground cable fault due to extension work of road & over bridge near Fire Brigade Chowmuhani which were beyond the control of BSNL. He further submits that the telephone connection with the broadband connection of the complainant was faulty due to underground cable damage by Department of PWD, Government of Tripura, DWS unit, when they were laying pipelines and making drain at Fire Station area and the BSNL Authority duly issued a letter to the DGM, Nagarjuna Construction Company (NCC Ltd.) on 22.07.2016 for damage of cable duct for which huge revenue loss incurred by the BSNL Authority amounting to Rs.3,11,96,637.00 for different places i.e. Joynagar area and A.D. Nagar area, but that fact was not appreciated by the Learned District Forum. He has finally contended that as per clause 4.1 mentioned in the application form submitted by the complainant for landline connection it is specifically stated that the BSNL will not be responsible for interruption in service due to power failures, equipment malfunction or acts of natural calamity or any other reasons beyond its control and as per clause 4.3 of the terms and conditions mentioned in the said application form, it is also stated that the BSNL will not be liable to the customer for any loss of business, profit, revenue or goodwill, anticipated savings, use or contracts or for any indirect or consequential loss howsoever it arises, thus the Learned District Forum had committed error while deciding the case and passing the impugned judgment.
8. For our own clarification, we have also enquired from the Sub-Divisional Engineer (Legal) regarding the fault of the cable line and the period for which the complainant did not get the service of broadband as well as the landline. On our query, the SDE (Legal) submitted that admittedly from 04.04.2016-17.04.2016, 04.05.2016-20.06.2016 and 17.09.2016-20.11.2016, in total 127 days, the BSNL could not provide service to the complainant due to underground cable fault. He has also submitted that the BSNL is ready to return to the complainant amounting to Rs.2,954.24 out of advance amount of Rs.10,106/- paid by the complainant for the one year plan after adjustment of all dues on the ground that he is continuing his telephone connection till now.
9. Sri Haradhan Sarkar, complainant, while supporting the impugned judgment has submitted that the Learned District Forum did not commit any error while deciding the case as the appellant BSNL at no point of time raised the points regarding clause 4.1 of the terms and conditions mentioned in the application form. He has also contended that he had submitted application on 20.05.2016 addressed to the General Manager, BSNL, Tripura, Agartala, on 05.10.2016 to the SDE, BSNL, on 07.11.2016 to the General Manager, BSNL, Tripura, Agartala, but the aforesaid authorities did not even reply to the complaint lodged by him that itself is a deficiency of service. His telephone line was restored when he personally met with the Deputy General Manager, BSNL, Agartala on 21.11.2016 on his intervention. He has also submitted that the clause 4.1 of the terms and conditions of the application has no application in the instant case as interruption in the service of his telephone was neither for power failure nor for equipment malfunctioning, natural calamity or any other reasons beyond the control of the BSNL. The BSNL was very much aware regarding the construction of the flyover bridge from Fire Service Chowmuhani to Battala which would be evident from their letter dated 22.07.2016 to the DGM, Nagarjuna Construction Company wherein they had mentioned that for damage of cable duct, the BSNL Authority incurred huge revenue loss. He has again submitted that if the underground cable damaged by the DWS unit, Department of PWD, Government of Tripura as contended by the BSNL Authority, then the BSNL Authority should have taken up the matter with that Authority, but for fault of the BSNL, a consumer like the complainant, who is a lawyer by profession, should not suffer. He has finally contended that in his complaint petition, he has specifically stated in Paragraph-6 regarding his professional loss, but the opposite party BSNL did not specifically deny his contention in their written statement.
10. We have considered the submission of the Ld. Counsel appearing for the parties as well as the evidence of complainant, the P.W.1 and the evidence of Sri Samir Das, SDE (Legal), BSNL, the O.P.W.1. From the evidence on record, it is the admitted position that the telephone as well as the broadband connection provided to the complainant by the opposite party BSNL was out of service for about 127 days and as a result of which, the complainant could not contact with his children who are residing at U.S.A. and Australia and also could not render proper service to his clients being a practicing lawyer, though he lodged complaint to the BSNL Authority on 20.05.2016, 05.10.2016 and 17.11.2016 including the General Manager of the BSNL, but the BSNL Authority did not even reply to his complaint. We have also gone through the clause 4.1 of the terms and conditions mentioned in the application form which are as follows:-

“4.1 BSNL will exercise all reasonable care in providing the services, but it is not responsible for interruption in service due to power failures, equipment malfunctions or acts of natural calamity or any other reasons beyond its control.”            

11. Admittedly, the telephone as well as the broadband connection of the complainant was not interrupted either for power failures or for equipment malfunction or acts of natural calamity or any other reasons beyond the control of BSNL, rather the BSNL was very much aware regarding the underground cable fault which would be evident from its letter dated 22.07.2016 to the DGM, Nagarjuna Construction Company wherein BSNL Authority had mentioned that for the damage of cable duct, the BSNL Authority incurred huge revenue loss. The Learned District Forum very rightly held that though the work of over-bridge is still going on, but the connection of the complainant was restored in the month of November and above all, the extension work is not Act of God. Therefore, BSNL should have control over it and it should not allow any other authority to make interruption in connection and if it is done by any other authority or any other department, then BSNL is entitled to get compensation for it, but for the fault of others, BSNL should not cause inconvenience to the customer. Here in the instant case, admittedly, the BSNL failed to provide services to the complainant for 127 days i.e. near about 4 months though the complainant had paid an amount of Rs.10,106/- for the plan against which his broadband and telephone connection was provided.  
12. In Sudesh Chand Kashyap Vs Manager Telephone Nigam Limited 1997 (2) CCC 236 (DS), the Delhi State Consumer Disputes Redressal Commission considered almost a similar case wherein the complainant was an advocate and whose telephone connection remained dead from 10.04.1994 to 31.05.1994 for which the Learned District Forum granted an amount of Rs.2,000/- as compensation which was enhanced by the State Commission Delhi by modifying the order of the Ld. District Forum to Rs.5,000/- as compensation to the complainant therein for his professional loss.
13.  In Krishan Das Aggarwal Vs. Union of India and Others (Revision Petition No.148 of 1991), the telephone of the petitioner had remained out of order from August, 1988 to December, 1989 to June, 1990 and it was again out of order on 17^th August, 1990 i.e. on the date he had filed the complaint before the Learned District Forum, Bareilly. There were three bills dated 7.11.1989, 5.5.1990 and 5.7.1990 in respect of the local calls for the amount of Rs.100/-, Rs.468/- and Rs.1,376/- respectively and the petitioner of that case had deposited the money of the three bills ‘under protest’ and the bills were not corrected in spite of complaints. The contention of the petitioner was that he always used his telephone within the limits of free calls. The Learned District Forum after considering the evidence therein passed the following order:

“The Opposite Parties are directed to prepare the Bills dated 7.11.1989, 5.5.1990 and 5.7.1990 after calculating the average of twelve preceding months and to adjust the amount deposited by the complainant. In case, the complainant has deposited the amount in excess, that should be adjusted in future Bills to be prepared within one month from the date of the Order.

The rents for the months in which the phone was out of order be adjusted in future bills. That should also be done within a month from the date of the Order. The rent will not be charged from the applicant. The Opposite Parties are directed to pay Rs.2,000/- as damages to the applicant within a month from the date of the Order.”

Feeling aggrieved with that order, the Opposite Parties i.e. Union of India and others filed appeal before the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow. The State Commission upheld the order of the District Forum in respect of adjustment of the rent for the months in which the telephone was out of order and of excess billing.  About the damages awarded by the District Forum, the State Commission was of the view that no case had been made out for grant of compensation and had disallowed the award of compensation made in his favour by the District Forum. To that extent the order of the District Forum was modified. Thereafter, the complainant had filed a revision petition before the Hon’ble National Consumer Disputes Redressal Commission. The grievance of the complainant was that the order of the State Commission disallowing the compensation/damages to him is not a speaking one. The Hon’ble National Commission while upholding the judgment of the Learned District Consumer Disputes Redressal Forum, Bareilly noted, inter alia, that

•             are of the opinion that the contention of the petitioner has force. The District Forum has given reason for allowing compensation to the Revision Petitioner. His telephone remained out of order for a very long period and as averred by him it was not put in order in spite of written complaints. The complainant stated before us that he is a business man and his main business is with the help of telephone. He described himself as a ‘canvassing agent’. He explained that term by stating that he enquired about rates of commodities and orders are placed through telephone and he suffered huge damages on account of the non-functioning of the telephone. We hold that the State Commission was not justified in disallowing the compensation awarded to the complainant by the District Forum without giving reasons.”

          and thus accepted the revision petition filed by the complainant and set aside the order of the Ld. State  Commission to the extent it modified the  order of the District Forum and restored the order of the District Forum allowing compensation to the complainant revision petitioner.

15.     In the instant case also, the complainant did not get any service from the opposite party BSNL for about 4 months. Therefore, we are of the view that the complainant is entitled to get compensation for deficiency of service on the part of BSNL as well as the litigation cost as ordered by the Learned District Forum. Now the question is as to whether the BSNL should refund the entire amount of Rs.10,106/- paid by the complainant as service charge for the scheme under which his broadband connection was provided as ordered by the Learned District Forum. We are of the opinion that out of 11 months complainant did not get service only for 4 months, therefore, he is not entitle the entire service charge as deposited by him and ordered by Learned District Forum. Thus it would be proper to modify the order of Learned District Forum so far refund of the amount of Rs.10,106/- is concerned. Accordingly, we direct the opposite party BSNL to refund an amount of Rs.7,000/- instead of Rs.10,106/- i.e. in total Rs.24,000/- (Rs.15,000/- as compensation for deficiency of service and professional loss of the complainant + Rs.2,000/- as cost of litigation + Rs.7,000/- out of Rs.10,106/- deposited as service charge).

16.     In the result, the appeal is partly allowed and the judgment of the Learned District Forum is modified to the extent as indicated above.  

Send down the records to the Ld. District Forum, West Tripura, Agartala.