Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The Complainant has filed this Complaint under section 11 of the Consumer Protection Act, 1986 with his grievance that under the scheme of self-employment in order to possess all the equipments of telephone connection paid Rs.19,900/- to the Opposite parties on 24.11.2003. Accordingly, the Opposite parties supplied all the equipments. As the Opposite party did not provide efficient service, he returned all the equipments on 09.11.2006, but the Opposite party who had received Rs.19,900/- as security deposit of the equipments supplied have only paid a sum of Rs.2,780/- on 24.04.2007, but have not repaid the balance of Rs.17,120/- and therefore calling it as deficiency in their service have prayed for a direction to the Opposite party to pay back the balance amount of Rs.17,120/- with interest and also award compensation of Rs.10,000/- for his mental agony. <br /> 2. The Opposite parties have filed their version contending that the contention of the Complainant that he had obtained telephone service under self-employment scheme is false have stated that the Complainant had taken the public telephone booth connection as post paid public telephone booth operator under Aishwarya Scheme and paid Rs.19,900/- at that time. But, the Complainant has suppressed the facts that out of Rs.19,900/- paid by him, the refundable amount is only Rs.6,000/- and balance Rs.13,900/- is towards the cost of the billing machine plus the electronic display board plus battery, which were actually sold to him, which was known to the Complainant and articles were not returnable and in the event of the Complainant intending to return those articles depreciation will be charged and have stated that the Complainant suppressed all these facts and filed this false Complaint. It is further contended that during September 2004, the Complainant got migrated from postpaid public telephone booth customer to prepaid public telephone booth. At that time, the refundable amount of Rs.6,000/- was adjusted by adjusting Rs.3,000/- towards prepaid currency given to the Complainant and a balance of Rs.3,000/- was adjusted towards the outstanding bill at the time of migration. Thereafter, after receiving the articles from the Complainant as they were returned after 4 years 4 months a sum of Rs.11,120/- was deducted towards depreciation and the balance of Rs.2,780/- is paid to the Complainant and therefore, contending that the claim of the Complainant is frivolous have prayed for dismissal of the Complaint.<br /> 3. During the course of enquiry into the Complaint allegations, the Complainant and an Authorised Signatory of the Opposite party have filed their affidavit evidence reproducing what they have stated in their respective Complaint and version. Heard the counsel for both the parties and perused the records.<br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the Complainant proves that the Opposite parties by not refunding a sum of Rs.17,120/- out of Rs.19,900/- paid by him as security deposit have caused deficiency in their service?<br /> 2. Whether the complainant is entitled for the relief as prayed for?<br /> 3. What order?<br /> 5. Our findings are as under:-<br /> Point no.1 : In the Negative.<br /> Point no.2 : In the Negative.<br /> Point no.3 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Points no. 1 & 2:- As could be gathered from the contention of the parties, there is no dispute between them with regard to the telephone connection, the Complainant had from the Opposite parties by paying a sum of Rs.19,900/- on 24.11.2003. But, the Complainant contends that the amount of Rs.19,900/- paid by her was towards security deposit for the equipments that was supplied to her by the Opposite parties. Whereas, the Opposite parties have contended that the equipments were sold to the Complainant and that out of Rs.19,900/-, only a sum of Rs.6,000/- is refundable deposit and balance of Rs.13,900/- was towards the cost of the equipments they supplied to the Complainant. The Complainant in the affidavit has not denied the said contention of the Opposite parties and the affidavit evidence filed by them. The Opposite parties have in their affidavit evidence further stated that the Complainant who had obtained postpaid public telephone booth facility during September 2004 migrated from that scheme to prepaid public telephone facility and at that time of changing over the refundable amount of Rs.6,000/- was adjusted by issuing prepaid currency to the Complainant worth Rs.3,000/- and the balance of Rs.3,000/- was adjusted towards the outstanding bill. The Complainant has not controverted this fact as put-forth by the Opposite parties in their version and sworn to in the affidavit. When the counsel for the Complainant was questioned with regard to this contention of the Opposite parties, the learned counsel fairly conceded about the adjustment of Rs.6,000/- due to the Complainant as stated by the Opposite parties. Thus, it is clear that the Complainant has suppressed this fact of having had got adjusted Rs.6,000/- by not only obtaining currency worth Rs.3,000/- and in having adjusted Rs.3,000/- due by him under the outstanding bills. Therefore out of Rs.19,900/-, Rs.6,000/- has been adjusted in this manner. Thus, the Complainant cannot have any claim over it.<br /> 7. The Opposite parties in their affidavit evidence have stated the equipments were sold to the Complainant at the time of supplying them by receiving a sum of Rs.13,900/- have also contended that if those equipments are returned to them, they will receive them by allowing depreciation. Though, the contention of the Opposite parties that they had sold the equipments as an out rate sale and again received them when the Complainant returned to them cannot be accepted, because once the Opposite parties stated to have sold the articles there is no obligation on their part to take them back in whatever condition they were. Therefore, we can infer that they had supplied those articles to the Complainant by obtaining security. But that does not mean that when the customer returns the articles of this type to the department or Opposite parties they are entitle for refund of entire security deposit they had paid, because after using those equipments for considerable time the equipments are bound to decay or their life would be reduced. Therefore in such a situation when the customers of the Opposite parties return the articles they would be entitled for refund of certain amount after working out the depreciation. In this case, the Opposite parties have contended that the Complainant returned the articles after 4 years 4 months and therefore have deducted the depreciation at 80% and repaid the balance amount of Rs.2,780/- to the Complainant. The Complainant issued a notice to the Opposite parties to furnish documents in connection with this transaction, but the Opposite parties have filed a reply stating that those records are destroyed. Therefore, the Opposite parties no doubt have not placed any materials before us to show the rate of depreciation that is permissible either under contract or under law. The Complainant has neither questioned nor challenged the act of the Opposite parties in calculating the depreciation at 80% by contending that percentage of depreciation worked out by the Opposite parties is excessive and further by contending that the equipments she had returned to the Opposite parties were in good condition. The Complainant has not at all challenged the percentage or depreciation allowed by the Opposite parties. Thus, it emerges that the Complainant has not questioned the authority of the Opposite parties and the correctness of the percentage of depreciation they have allowed. The Complainant has by simply suppressing certain material facts has argued for refund of Rs.17,120/- which in our view is not sustainable because when she used those equipments for a period of 4 years 4 months she is liable to forgo certain amount towards depreciation and accordingly, the Opposite parties are entitled to have the depreciation worked out. They have worked out depreciation at 80% since its correctness is not questioned by the Complainant before us, we cannot hold that action of the Opposite parties is either unreasonable or unjustified. Therefore, the Opposite parties after deducting a sum of Rs.11,120/- towards the depreciation have paid the balance amount of Rs.2,780/- which accounts for adjustment of the entire amount of Rs.19,900/- paid by the Complainant. As such, we under these circumstances find no merits in this Complaint. The learned counsel appearing for the Opposite parties arguing that the Complaint is not maintainable, as the Complainant do not become a consumer as defined under section 2(1)(d)(ii) of the Act relied on a decision of Rajasthan State Consumer Disputes Redressal Commission, reported in I (2007) CPJ page-283. The said Commission by referring to a decision of the Hon’ble National Commission has held that the STD / PSO holder is not a Consumer within the meaning of section 2(1)(d)(ii) of the Consumer Protection Act, 1986 and thereby dismissed the appeal filed by the Complainant therein. Therefore on this ground also the Complaint is not maintainable and thus we answer points no.1 & 2 in the negative and hold that the Complaint is liable to be dismissed and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. Parties to bear their own costs.<br /> 3. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by him, transcript revised by us and then pronounced in the open Forum on this the day 30th November 2007)<br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br />