O R D E R<br /> <br /> Smt.Bindhu M.Thomas, Member.<br /> <br /> Petitioner's case is as follows:<br /> <br /> Petitioner has a telephone connection bearing number 2456437. He obtained the abovesaid connection by paying Rs.1000/- to BSN L The petitioner states that he had remitted the amounts of all the bills received from BSNL. Upto 2004 March the phone connection was given to the petitioner by means of cable fixed on telephone posts. From 2004 March onwards the phone connection was given by means of underground cable system. The underground cable was drawn to the petitioner's house by digging a 70 m trench. 58 m of the trench was constructed by digging the private tarred road. Petitioner promised that he will bear all the expenses that may arise for drawing cable through PVC pipes fixed above the parapet present on the side of the road. He requested the opposite parties to draw the cable only through the PVC pipe without demolishing the tarred road. But the employees of opposite parties said that they are given direction by the opposite parties to draw cable only through trench. But trench of length 70m was dug and cable was drawn through it without the petitioner's permission. Due to the negligent act of opposite parties, 58m of tarred road was demolished, electric cable, stand, light etc. were destroyed and a loss of Rs.8599/- was caused to the petitioner. The petitioner prays for the reinstatement of the road or Rs.8599/- and a compensation of Rs.5000 /- and cost of Rs.5000/-.<br /> <br /> -2-<br /> <br /> The opposite parties entered appearance and opposite party No.2 filed version on behalf of both parties contenting that the petitioner is not a consumer as far as the present complaint is concerned. The opposite parties contented that the trenching work was done with the consent and permission of the complainant and the trench was taken at the extreme right side of the tarred road. According to the opposite parties the complainant lodged his first complaint on 16.8.2004 only. The opposite parties contented that the contractor was prepared to settle the matter but the petitioner refused. The opposite parties further contented that petitioner did not raise any objection at the time of cable laying or immediately afterwards. Hence the opposite parties prayed for the dismissal of the complaint with cost of opposite parties.<br /> <br /> The points for determinations are:<br /> <br /> (i) Whether the petition is maintainable?<br /> (ii) Whether there is deficiency in service on the part of the opposite parties?<br /> (iii) Relief and costs.<br /> <br /> Evidence consists of the affidavits filed by the petitioner and opposite parties, commission report C1, Exhibits A1 to A11 and B1 to B8.<br /> <br /> Point No.1.<br /> <br /> Opposite parties have a contention that the petition is not maintainable because the petitioner is not a consumer as defined under Consumer Protection Act. According to the learned counsel for the opposite parties there is no consideration paid by the petitioner to the opposite parties for the trenching work. So the petitioner is not a consumer. The learned counsel for the petitioner argued that the petitioner obtained the telephone connection by depositing Rs.1000/- to BSNL and that he used to pay all bimonthly bills without any default. The petitioner's counsel further argued that the above mentioned payments are made as the consideration for the services provided by the opposite party. According to the petitioner's counsel conversion of open air cable system to underground cable system is an ancillary service of the opposite party for which consideration is paid bimonthly and therefore the petitioner is a consumer within <br /> -3-<br /> the Consumer Protection Act. We are of the opinion that the argument of the counsel for the petitioner has to be conceded. So, we find that the petition is maintainable. <br /> <br /> Point No.2.<br /> <br /> It is not in dispute that 'trenching work' was done and telephone cable was drawn through the underground trench. The petitioner alleged that the 'trenching work' was not done with his permission. The opposite parties contented that before commencing the poleless work the responsible officials of BSNL visited the spot but no objection was recorded at that time. According to the petitioner the employees of opposite parties started digging the tarred road without considering his request to draw cable through PVC pipes. The petitioner alleged that while conducting the 'trenching work' the opposite party negligently demolished 50m of private tarred road and caused damages to electric cable electric stand and light. The letter issued by opposite party BSNL to petitioner dated 28th May 2005 is marked as exhibit A11.In A11 the opposite parties admit that they have offered some compensation to the petitioner and that he refused it. The 'offer of compensation' itself shows that there occured some deficiency in service from the part of opposite parties.<br /> <br /> The forum appointed a commissioner to ascertain the damages caused to the private road, electric cable, light and light stand. As per the order of the forum the advocate commissioner visited the abovesaid private road and filed commission report dated 15.12.2006. That report is marked as exhibit C1. C1 report came with the following main findings.<br /> <br /> (i) BSNL ground cable is drawn through the trench digged at the southern side <br /> of the east-west road.<br /> (ii) The tarred road of length 58m and width 50cm is seen digged and demolished.<br /> (iii) Electric cable and G.I pipe is of age about two years.<br /> (iv) About 8000 rupees needed for soling, metalling and tarring the said private road.<br /> (v) About 4000 rupees spent for the newly fixed electric cable, G.I pipe, PVC pipe and light .<br /> (vi) There was provision for drawing telephone cable through PVC pipe.<br /> <br /> -4- <br /> <br /> The petitioner's counsel placed strong reliance on the C1 report whereas the opposite parties' counsel seriously objected the report.<br /> <br /> Here in this case, the petitioner is a subscriber of opposite party-BSNL. Since the conversion of open air cable system to underground cable system required digging trench, it was the duty of the opposite parties to inform the subscribers. To protect the interest of the consumers the service providers could have issued at least a circular informing the subscribers about the 'trenching work'. This was not done. No such evidence is placed on record. If informed earlier the petitioner would have got an opportunity to take reasonable precautions regarding the 'trenching work'. Here the opposite party omitted 'to inform the petitioner about the 'trenching work' and therefore the opposite parties are liable for their 'negligence'. 'Negligence' is failure to observe, for the protection of interests of another person. In this instant case the opposite parties failed to take the needed care, precaution and vigilance which the circumstance justly demanded and due to that loss and injury was caused to the petitioner.<br /> <br /> The word 'deficiency' would mean any imperfection in the manner of performance which is required to be maintained in relation to any service. Therefore the opposite parties were required to take proper care and precautions in seeing that service providers permitted by them take proper care and caution in protecting the interests of the consumer who spend their hard earned money as consideration in getting the service. As that is not done, it would amount to 'deficiency in service' by the opposite party. <br /> <br /> The advocate commissioner has assessed the total expenses for reinstating the tarred private road, electric cable, electric stand and electric light as Rs.12,000/-. But petitioner has claimed only Rs.8599/- in his complaint for compensating the damages. So we are of the opinion that allowing Rs.8599/- as compensation for the damages is reasonable.<br /> <br /> <br /> <br /> <br /> <br /> -5-<br /> <br /> Point No.3.<br /> <br /> In view of the findings in point 1 and 2 the petition is ordered as follows.<br /> <br /> Opposite parties will pay Rs.8599/- to the petitioner with Interest @ 6% p.a. from the date of complaint till payment to the petitioner. As interest is allowed no compensation is ordered. Opposite parties will also pay cost of Rs.1000/- to the petitioner. Order will be complied with within 45 days from its receipt.<br /> <br /> APPENDIX<br /> <br /> Documents from the side of petitioner are marked as exhibits A1 to A11.<br /> <br /> Ext.A1 - Copy of letter issued by petitioner to OP dated 17.5.04.<br /> Ext.A2 - Copy of letter issued by petitioner to OP dated 16.8.04.<br /> Ext.A3 - Acknowledgement card dated 16.8.04.<br /> Ext.A4. - Copy of letter issued by opposite party to petitioner dated 13.9.04.<br /> Ext.A5 - Copy of letter issued by petitioner to opposite party dated 18.10.04.<br /> Ext.A6 - Acknowledgement card dated 23.10.04.<br /> Ext.A7 - Copy of letter issued by petitioner to OP dated 5.1.04.<br /> Ext.A8 - Postal receipt.<br /> Ext A9 - Letter issued by postal department to petitioner dated 21.3.05.<br /> Ext.A10 - Copy of letter issued by petitioner to OP dated 16.4.05.<br /> Et A11 - Letter issued OP to petitioner dated 28.5.05.<br /> <br /> Documents from the side of opposite party marked as exhibit B1 to B8.<br /> Ext.B1 - Copy of letter issued by petitioner to OP dated 16.3.04.<br /> Ext.B2 - Copy of letter issued by OP to petitioner dated 13.9.04.<br /> Ext.B3 - Copy of letter issued by petitioner to OP dated 18.10.04.<br /> Ext.B4 - Copy of letter issued by OP to petitioner dated 21.11.04.<br /> Ext.B5 - Copy of letter issued by petitioner to OP dated 5.1.05.<br /> Ext.B6 - Copy of letter issued by OP to petitioner dated 13.1.05.<br /> Ext.B7 - Copy of letter issued by petitioner to OP datd 16.5.05.<br /> Ext.B8 - Copy of letter issued by OP to petitioner dated 28.5.05 .<br /> Commission report is marked C1.<br /> Ext.C1 - Commission report filed by Adv.Clarerers Joseph dated 15.12.06.