IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the    25^th      Day of  September  2021

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

        Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                   Sri.Stanly Harold, B.A.LLB, Member

                                                    CC.125/17

P.Y.Samuel                                       :         Complainant

Pravoor Sam Nivas

Thrikkannamangal, Kottarakkara P.O

Kollam.

[By Adv.Johnson Gomez, Adv.Anil Elgin Thampi

&Adv.Reeja.A]

V/s

1. Sub Divisional Engineer          :         Opposite parties

          (External)Phones

          B.S.N.L Office

         Kottarakkara, Kollam.

2. Divional Engineer

           (External)Phones

            B.S.N.L Office

           Kottarakkara, Kollam.

3. Area Manager

        B.S.N.L Office

        Kottarakkara, Kollam.

4. General Manager

        District Office

       B.S.N.L, Vellayittambalam

        Kollam.

          [By Adv.B.K.Mohanan Pillai]

FINAL  ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

          This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act 1986.

          The averments in the complaint in short are as follows:-

          Land line No.0474-2458669 has been allotted to the complainant from the office of the BSNL, Kottarakkara.  The  complainant has been using the said land line number from 1999 onwards.  If any defect occurred the telephone became in operative.  There upon  the complainant used to make complaint at the office and the employees from the 1^st opposite party office used to appear and repair the defects.  Recently the complainant used to make complaint through online in No.198 whenever his telephone became inoperative.  However during the end of March 2017 his telephone became defective and hence he made an online complaint on 29.03.2017 and the number allotted to his complaint is 18003451500.  But the opposite parties have neither set right the defect nor even made a visit and attempted to cure the defect of his land phone.  However on 04.04.2017 he received a message in his mobile phone No.9400678669 to the effect that his complaint in respect of the land phone has been set right.  On 03.05.2017 he made another complaint and his complaint number is 117740801052.    Again on 05.04.17 he send a registered lawyer notice stating that inspite of his complaint through online the opposite parties have not cured the defect and therefore he intends to take legal action.  Inspite of receipt of lawyer notice the officer concerned has not taken any action.  Again he send a complaint on 08.05.2017 requesting to set right the defect of the land phone and make it in a working condition.  The above complaint has been made by the complainant directly to the 2^nd opposite party.  Again on 09.05.2017 he received the very same message that the complaint has been set right.   But no step has been taken by opposite parties for setting right the defect of his land phone and thereby caused harassment to the complainant.  The complainant has scheduled to conduct  the marriage ceremony of his daughter on 24.04.2017.  Before the date of marriage the complainant made complaint regarding the defect of the land line directly and otherwise.  But no effective step has been taken by the opposite parties to set right the defect and make the land phone in a working condition.  Hence the complainant has sustained much mental agony apart from financial loss.  As and when an online complaint is made the opposite parties used to take steps to protect the employees of the opposite parties without protect the interest of the consumers and thereby deceiving the customers which amounts to a punishable offence.  The higher officials of the BSNL is expected to know what is going on at the lower levels.  But the higher officials not used to verify any of the activities going on at the lower level office and thereby they failed to discharge their duties and also evaded from their obligations.  However the complainant used to make the telephone subscription  regularly without any default even then the officials concerned failed to verify atleast by setting at their office whether the land phone allotted to the complainant was working and thereby running away from their duties.  As the grievance of the complainant has not been discharged till date the complainant has no other go but to approach the consumer forum.  Hence the complaint.

          The opposite parties No.1 to 4 resisted the complaint by filing a joint written version raising the following contentions.  The complaint is not maintainable either in law or on facts.  This Forum has no jurisdiction to entertain the complaint by virtue of Section 7 D of the Indian Telegraph Act when there is special remedy provided under  Section of the Indian Telegraph Act regarding the duties in respect of the telephone bills then the remedy under the Consumer Protection Act  by implication is barred.  The special law overrides the general law.  Consumer Protection Act is a General Law and Indian Telegraph Act is a Special law.  The Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram has also uphold the view taken by the Hon’ble  Supreme Court in General Manager Telephone Vs Krishnan and another.  Hence  this Forum lacks jurisdiction.  The telephone No.0474-2458669 is working in the name of the complainant P.B.Samuel.   The alleged faults of the telephone reported to Kottarakkara telephone exchange through automatic fault booking no.198.  Complaint was received on 29.03.2017 and on 03.05.2017.  The complaints were attended  and the fault were repaired  respectively on 04.04.2017 and 09.05.2017 to the full satisfaction of the complainant.  Hence the allegation of the complainant is absolutely false and baseless.  The complainant is having no cause of action against the opposite parties and the alleged cause of action is erroneous, illegal and vexatious. The opposite parties further pray to dismiss the complaint with their costs and compensatory costs.

          In view of the above pleadings the points that arise for consideration are:-

1. Is not the complaint maintainable?
2. Whether there is any deficiency in service or any unfair trade practice on the part of the opposite parties regarding curing of defect of the land phone allotted to the complainant?
3. Whether the complainant is entitled to get the reliefs sought for?
4. Reliefs and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.P1 series to P6 documents.  Evidence on the side of the opposite parties consists of the oral evidence of DW1 and 2 and Ext.D1 document.

Though sufficient opportunity has been granted for filing notes of argument and advancing argument Advocate appearing for both sides have neither turned up and filed any notes of argument nor advanced any oral argument.  As this case is one of the oldest case we  have taken up the case for order.

Point No.1

          The specific allegation of the complainant is that he is the subscriber of the land line No.0474-2458669 under opposite parties No.1 to 3.  The complainant has been using the said land phone from 1999 onwards.  During the end of March 2017 his telephone became defective and he made online complaint on 29.03.2017.  But the opposite parties have neither set right the complaint nor even made a visit and attempted to cure the defect of his land line.  But on 04.04.2017 he received a message in his mobile phone to the effect that the complaint in respect of  the land phone has been set right without doing anything to set right the defect.  However on 03.05.2017 he made another complaint.  But again on 09.05.2017 he received the very same message.  Thereafter he send a registered notice on 05.04.2017 stating that inspite of  his complaint after complaint directly and through online the opposite parties have not cured the defect of his land line and therefore he intends to take  legal action.  Inspite of receipt of the said notice the opposite parties 1 to 3 had not take any action in the matter.  The complainant directly went to the 2^nd opposite party on 08.05.2017 and made a complaint requesting to set right the defect of land phone and making in a working condition.  Inspite of receipt of that notice the opposite parties have not taken any steps to set right the defect.  The complainant alleged deficiency in service on account of the above misfeasance and nonfeasance of the opposite parties.  According to the complainant the marriage of his daughter was scheduled to be conducted on 24.04.2017.  Before the date of marriage the complainant made several complaints requesting to set right the land phone.  But no effective steps have been taken by the opposite parties to set right the defect and thereby he sustained much mental agony and harassment apart from financial loss.  The opposite parties interaia would contend that the complaint is not maintainable since this Forum has no jurisdiction to deal with the complaint coming under section 7 D of the Indian Telegraph Act 1985.  The opposite parties have also filed IA.No,02/2018 praying to hear the maintainability of the case as preliminary issue and dismiss the complaint as not maintainable with the costs of the opposite parties.  The respondent in the IA who is none other than the complainant herein has filed detailed objection.  After hearing both sides and perusing the records the Forum came to a conclusion that the present complaint is with regard to deficiency in service on the part of the opposite parties No.1 to 4.  Consumer Protection Act was enacted during 1986 to provide better protection of the interest of the consumers and also for the settlement of consumer disputes and materials connected there with.  Hence Section 3 of the Consumer Protection Act is squarely applicable to the fact of the case and therefore the complaint is perfectly maintainable before the Consumer forum.  Since the provisions in the Consumer Protection Act are in addition to and not in derogation of the provisions of any other law for the time being in force which includes Section 7 D of the Indian Telegraph Act 1985.  It is further held in the above order that the provisions under Section 3 of the Consumer Protection Act gives the consumer additional remedy besides those that may available under any other existing laws.  It is also found that arbitration clause is not a bar to the entertainment of the complaint by the redressal agency constituted under the Consumer Protection Act even if arbitration provisions has been incorporated in any statute.

          In view of the reasons stated and the finding in the order dated 21.05.2018 passed in IA.02/18 in this case it is cristal clear that the complaint is perfectly maintainable in view of Section 3 of the Consumer Protection Act.  The point answered accordingly.

Point No.2

          PW1 is none other than the complainant in this case.  He has strictly deposed in terms of his complaint.  He further proves Ext.P1 series, P2 series, P3, P4 series, P5 and P6.  P1 series is the copy of online messages received by the complainant in response to his complaint made before the opposite parties No.1 to3.  Admittedly the complainant is a customer of the opposite parties and the opposite parties are service providers.  It is also brought out in evidence that the complainant being a subscriber of the land phone No. 0474-2458669 has been regularly paying telephone charges.  In the circumstances the opposite parties are bound to rectify the disorder of the land phone of the complainant as and when the complaint is received. The specific case of the complainant is that his land phone bearing No.0474-2458669 has become defective during the end of March 2017 and hence he made an online complaint on 29.03.2017.  Ext.P1 series messages would indicate that the grievance petition filed by the complainant in respect of his land phone is registered and docket  number of the complaint is 117564817712 and also directing the complainant to contact BSNL Customer care No.1500 for further queries  and that on 04.04.2017 it was reported that the grievance registered by the complainant as docket No.117564817712 has been resolved.  But according to the complainant the said grievance has not actually been resolved nor the officials of the BSNL have visited or verified the complaint of his land phone.  Hence he made another complaint which has been registered as 117740801052.  On 09.05.2017 it was reported that the complaint has been resolved.  The oral evidence of PW1 coupled with copy of e-mail messages which is marked as P1 series messages would clearly probabilise the case of the complainant that though he made several complaints regarding the complaint of his land phone  the customer care has intimated that the defects have been cured without actually curing the same as alleged in the complaint. The above conduct of the complainant amounts to deficiency in service on the part of the opposite parties.

It is also brought out in evidence through PW1 that the complainant has fixed the marriage of his daughter to be conducted on 24.04.2017 and therefore the land phone facility of the complainant was absolutely essential for the said purpose and the complainant has intimated that fact to the opposite parties directly and through online complaint.  But the opposite parties have not taken any effective steps to redress the grievance of the complainant nor even given due consideration regarding the grievance of the complainant and the above nonfeasance on the part of the opposite parties have caused much mental agony apart from financial loss to the complainant.  It is also brought out in evidence that inspite of  his direct and online complaint the opposite parties without giving due consideration to the grievance of the complainant and also without representation his grievance has send misleading information that the grievance of the complainant has been redressed which would amount to unfair trade practice on the part of the opposite parties.

          The specific contention of the opposite parties is that the complainant is having no cause of action against the opposite parties and the alleged cause  of action is erroneous, illegal and vexatious.    However it is brought out in evidence that the alleged fault of the telephone reported to the telephone exchange, Kottarakkara through automatic fault booking No.198.  It is also an admitted fact that the complainant regarding default was received on 29.03.17 and 03.05.17.  But according to the opposite parties the above complaints were attended and fault were repaired respectively on 04.04.17 and 09.05.17 to the full satisfaction of the complainant.  But the materials available on record would indicate that the opposite parties have not repaired the defect on 04.04.17 and 09.05.17.  But the opposite parties sent erroneous messages on 04.04.17 and 09.05.17 stating that the complaints were repaired without actually making any repair.  The said fact is clearly stated by the complainant by sending Ext.P2 notice dated 05.04.17 which would contain the above allegations and also would state that the conduct of the officials of the BSNL amounts to deficiency in service and unfair trade practice and therefore the complainant is constraint to seek legal remedies.

          It is also brought out in evidence through DW1 that if a fault on land phone  is repaired that fact is used to be shown in online nature of work, type of work etc are used to be indicated in online.  But the opposite parties have not produced any such document evidencing on that the repair work has been carried out in the land phone of the complainant on those days.  DW1 would specifically admit that 29.03.17 sXm«v Cu tIknse I¬k-yq-aÀ X¶ ]cm-Xn¡v F´v ]cn-lm-c-amWv \S-¯n-b-sXt¶m F´v hÀ¡v BWv \S-¯n-b-sXt¶m DÅ-Xn\v bmsXmcp tcJbpw tImSXn ap¼msI lmP-cm-¡n-bn-«n-ÃtÃm? CÃ. (A) .  In the circumstance the Forum/Commission is entitled to draw adverse inference against the opposite parties under Section 114(g) of the Indian Evidence Act.

Point No.3

          The complainant would claim as relief No.1 to issue direction to the opposite parties to take appropriate action for making the land phone bearing No.0474-2458669 allotted to him in a working condition.  It is clear from the available evidence that the land phone allotted to the complainant has not been working for about 3 months right from March 2017 till the middle of June 2017.  It is also brought out in evidence that the complainant was smoothly making telephone call through his land phone number before March 2017 and he could not use the land phone from March to the middle of June 2017.  The marriage of his daughter was solemnized on 24.04.2017 for which he could not use his land phone.  He has not received any call  in his land phone from March to June 2017 nor he could not make any call during this period.  PW1 would further admit that the defect of the land phone has been set right on 14.06.2017.  In view of the above evidence it is clear that after 14.06.2017 his land phone number has been working properly and smoothly.   Therefore the 1^st relief has become infructuous.

          The 2^nd relief sought for is compensation to the tune of Rs.50,000/- each of the 4 opposite parties for deficiency in service and also for the mental agony sustained to the complainant.  According to the complainant as the opposite parties have failed to perform their duty inspite of his intimation that the land phone is not working and they have falsely intimated that the defect has been set right.  There is deficiency in service and unfair trade practice on the part of the opposite parties.  Complainant would further allege that inspite of his repeated complaint the higher officials of the opposite party BSNL have taken an attitude to protect the interest of the employees who failed to perform their duty in setting right the defective telephone and therefore the higher officials are also liable to pay compensation.  In the light of the materials available on record we find force in the above contention.  It is clear from the available materials that the opposite parties have  utterly failed to set right the defect of the land phone inspite of repeated complaint made by the complainant and therefore the complainant could not use the land phone in connection with the marriage of his daughter.  It is also brought out in evidence that without setting right the defect of the land phone the complainant was informed that the defects were cured and thereby opposite parties have committed deficiency in service as well as unfair trade practice and therefore they are liable to pay compensation to the complainant.  In view of the facts and circumstances of the case we are of the view that compensation  to the tune of Rs.5000/- each by each opposite party will be reasonable and sufficient compensation.  The point answered accordingly.

Point No.4

          In the result complaint stands allowed directing the opposite parties No.1 to 4 to pay compensation to the tune of Rs.5000/- each with interest @ 6% p.a from the date of complaint till realization.

          The opposite parties are also directed to pay Rs.2000/- each by each of the opposite parties as costs of the proceedings.

          The 4^th opposite party is directed to pay the compensation and costs awarded against opposite party No.1 to 3 also subject to the right to realize the same from them who are  the delinquent employees who failed to perform their duties.

          If the 4^th opposite party failed to pay the compensation and costs within 45 days from the date of  receipt of a copy of this order complainant is allowed to recover the compensation awarded along with interest @ 9% p.a with costs from the 4^th opposite party and its assets.  

     Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 25^th   day of  September   2021.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

          Stanly Harold:Sd/-

           Forwarded/by Order

           Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1                 :           P.Y.Samuel

Documents marked for the  complainant

Ext.P1  series : Copy of   messages

Ext.P2 series :   Copy of  notice, Postal receipt and acknowledgement card

Ext.P3 :   Copy of Complaint

Ext.P4series     :   Telephone bills

Ext.P5  :    Copy of marriage certificate

Ext.P6  :    Marriage invitation card

Witnesses Examined for the opposite party:-

DW1    :   Aniyan Kunju

DW2    :           Thomas

Documents marked for opposite party:-

Ext.D1: Call statements

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

            Stanly Harold:Sd/-

           Forwarded/by Order

                                                                                   Senior Superintendent