12.02.16
JAGANNATH BAG, PRESIDING MEMBER
The present appeal is directed against the Order, dated 28.07.14 , passed by the Ld. District Consumer Disputes Redressal Forum, Uttar Dinajpur, in Consumer Complaint No. 69/2013 , whereby the complaint was allowed on contest against OP No.1 with cost and ex- parte against other OPs without cost.
The compliant case , in brief, was as follows:
The Complainant is having one land line telephone connection under Raiganj Telephone Exchange with Broad Band and Fax facilities . He lodged a complaint over telephone on 04.05.2013 that his land line No. 254385 was out of service . A written complaint was filed on 23.05.2013 . On 12.06.2013 the West Dinajpur Chamber of Commerce requested by a letter to the OP No.1 to take necessary step but no heed was paid to the request. The OP No.2 raised bill for the month of May, 2013 and also for June and July 2013 against the non-working telephone connection. The Complainant being engaged in professional Management Consultancy Service could not make any communication through fax or internet as those services were completely stopped. He learned from OP No.2 that the Raiganj Telephone Exchange did not communicate about non-functioning of the telephone No. 254385 and as such the monthly billing was done. The Complainant wrote a letter on 3rd August 2013 , complaining about drawing of unjustified bill against inoperative telephone, but no response was received . In such circumstances , the consumer complaint was filed before the Ld. Forum below demanding immediate restoration of telephone connection and withdrawal of bills for the period during which the telephone was not functioning and also for arranging installation of alternative connection without cost in restoring broad band service and fax facility on his telephone No. It was also urged that the OPs should ‘repair irreparable losses’ occurred during last 100 days.
W.V was filed on behalf of OP Nos. 1 to 3( though it has been noted by the Ld. Forum below that OP No.2 and 3 did not file W.V).
In their W.V. OPs denied the material allegations holding, inter alia, that the complaint was not maintainable and there was no deficiency or negligence on their part.
It was stated that for road widening work , the telephone service got interrupted, but the same has been restored on 06.01.2014 and the Complainant, as such, remained satisfied with the service .
Ld. Forum below perused the examination-in-chief supported by affidavit submitted on 06.01.2014 along with chart of analysis of bills and payment of bills and copy of Telecom Consumers’ Charter , additional examination –in-chief as well as photocopies of mobile bill dated 01.04.14. The Complainant was found to have admitted that the OPs have restored the faulty telephone No. 254385 on 08.01.2014 and accordingly the operation and service of internet connection, telephone and fax are in order. It was also observed that the Complainant admitted that the OP No.2 adjusted bills for the period of non-operation and modified bill dated 08.06.2014 . It was held that there was no need to pass any award in that regard , but the main point for consideration was whether the Complainant was entitled to get any award for compensation @ Rs. 2000/- p.m for the period from 03.05.2013 to 08.01.2014 and also for refund of Rs. 9,303/- as excess amount paid for his mobile connections due to non-operation of his land line No. 254385 .
Ld. Forum below also observed that the OP No.1 did not adduce any evidence in support of their averment that due to damage of under ground cable between Raiganj-Siliguri More to Karnajora by PWD , the telephone service got interrupted. It was also observed that the OPs neglected to adopt necessary technology in restoring the telephone service , as a result of which the Complainant suffered losses. Accordingly, the Complainant was allowed compensation of Rs. 2000/- per month for the period from 03.05.2013 to 07.01.2013. Further, a sum of Rs. 9,303/- was allowed in consideration of the fact that in the absence of land line telephone connection, he had to bear excess charges for his mobile connection. A sum of Rs. 27,303/- including litigation cost of Rs. 2,000/- was awarded with direction upon OP to pay such amount to the Complainant.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below the OPs -turned- Appellants have come up before this Commission with prayer for direction to set aside the impugned order .
The memorandum of appeal has been filed together with copies of the impugned order, the petition of complaint , W.V filed by OP Nos. 1- 3 and other documents including letters addressed to the OPs by the Complainant dated 23.05.2013 and 03.08.2013 and the telephone bill for the period from 01.07.2013 to 31.07.2013.
Ld. Advocate appearing for the Appellant submitted that the land line connection with Broad Band and fax facility was used by the Complainant for commercial purpose which does not allow the Complainant to be treated as a consumer. Further, there was no fault on the part of the Appellant as the under ground cable line of the telephone was badly damaged together with other telephone Nos. because of road widening work done by the PWD. The mobile phones used by the Complainant/Respondent are also admitted to have been used for business or his profession and as such the Complainant was wrong in claiming to be a consumer and praying for compensation for loss of business. Ld. Forum below failed to appreciate the fact that there was no intentional negligence or deficiency in service on their part. It has been admitted by the Respondent/Complainant that OP No. 2 adjusted bills for the period of non-operation of the telephone and modified the bill dated 08.06.2014 . In such situation the Respondent/Complainant cannot raise any claim for compensation . The impugned order suffers from material irregularity and legal infirmity and deserves to be set aside.
Respondent in person submitted that the bills raised for faulty telephone connections were not payable since the Complainant / Respondent availed no service . There was no allegation whatsoever before the Ld. Forum below that the Complainant / Respondent was not a consumer as provided under the Consumer Protection Act. There was no stipulation whatsoever from the service provider that the Complainant/Respondent would pay different charges for calls of commercial or non-commercial nature. As such, the Respondent/Complainant was a consumer for all purpose and the complaint was considered to be maintained by the Ld. Forum below. It was an admitted fact that the telephone service was disrupted but bills were raised by the OP Appellant and no alternative arrangement was made by the service provider. As he has been unnecessarily dragged into this appeal , additional litigation cost must be paid by the Appellant , there being no merit in the appeal. The impugned order may be up held .
The point for consideration is whether the impugned order suffers from material irregularity or legal infirmity.
Decision with Reasons :
The fact goes that the telephone connection of the Complainant/Respondent was out of service as admitted by the OPs. H owever, the case of the OPs , as evident from the W.V. filed before the Ld. Forum below is that due to road widening work undertaken by the PWD , the under ground cable over a stretch of 1.5 KM. between Raiganj -Siliguri More and Karnajora , the service of telephone connection got interrupted. Ld. Forum below observed that the OP had several means to restore the service under modern technology but they neglected to adopt such technology and allowed the Complainant to suffer loss for which a compensation of Rs. 2,000/- p.m for the period from 03.05.2013 to 07.01.2013 was justified. It has also been observed that had the land line No. 254385 been in operation , he would not have to use internet through mobile and Rs. 9303/- as excess charge could have been avoided.
It appears that Ld. Forum below accepted the fact of adjustment of bills for the period of non-operation of the telephone in question which means the Complainants / Respondent was relieved of the burden of payment of such bills as were not due . If that is the position, further payment of compensation @ 2000/- p.m for a period of 8 months from May 2013 onwards appears to be untenable and more so , in view of the fact that in the petition of complaint there was no prayer in that regard other than restoration of the telephone line and withdrawal of bills for the period of non-functioning of the land line telephone . No specific claim in terms of monetary relief appears to have been placed in the petition of compliant.
It is also pertinent to mention, as evident from the materials on record , that the Appellant/OP had little option to maintain the telephone line in operation in view of the damage of the under ground cable which was not within their control. Such fact has not been challenged in any manner by the Respondent / Complainant.
Going by the above discussion , it would not be unfair to hold that the impugned order has been passed by the Ld. Forum below without taking into consideration , the material facts brought up by the OP / Appellant in their own support and allowing compensation in addition to adjustment of telephone bills as admitted by the Complainant himself. In such position it would be prudent to set aside the impugned order for fresh adjudication by the Ld. Forum below . The appeal succeeds . Hence,
Ordered
That the appeal be and the same is allowed. The impugned order is set aside . The matter is sent back on remand to the Ld. Forum below for fresh adjudication by giving opportunity of hearing to both parties, who may adduce fresh evidence in their respective support , if any. There shall be no separate order as to cost.
Copy of the order be sent to the Ld. Forum below in advance.
