BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 04/02/2010

Date of Order : 30/09/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 55/2010

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :

The complainant is an advocate by profession. He is a judicial officer of the Ecclesiastical Tribunal of the Catholic Church. The complainant is dealing with various legal issues in the church. The complainant is teaching the subject and giving conferences to the clergy and religion in the church. In April 2009, the representative of the opposite party assured the complainant that he would get 2 months unlimited free use of internet facility as a promotional offer. Lured by the promises and assurance of the opposite parties on 20-04-2009, the complainant subscribed to the Plug 2 Surf internet facility of the opposite parties. The complainant paid a sum of Rs. 2,569/- towards USB modem and Sim. Though the opposite parties agreed to provide the connection forthwith, they failed to do so. Time and again, the complainant had to approach the opposite parties to get the connection installed, but they did not rectify the defect. Frustrated and disgusted with the service rendered by the opposite parties, the complainant caused to issue a lawyer notice demanding to refund the price of the modem together with compensation, but there was no response. The complainant had to suffer lot of inconveniences, mental agony and hardships due to the deficiency in service on the part of the opposite parties. Thus, the complainant is before us seeking direction against the opposite parties to refund the amount collected by them together with compensation and costs.

2. Version of the opposite parties :

The complainant himself had approached the opposite parties and submitted a written request dated 20-04-2009 requesting subscription of internet services. Accordingly, the service was activated on the same day. On 01-07-2009, the complainant registered a complaint regarding non-receipt of Internet services. On inspection, it was found that the issue arose on account of defective hardware and was not related to internet services. In the mean time, since the complainant failed to pay the bills, the opposite parties were constrained to suspend some of the services. On 12-08-2009, the complainant requested the opposite parties to change the tariff plan with less monthly charges and to revise the previous bills. The opposite parties as a gesture of goodwill accepted the request and revised the pending payments. The complainant is not entitled to get any of the reliefs as claimed for.

3. The complainant was examined as PW1 and Exts. A1 to A9 were marked on his side. Neither oral nor documentary evidence was adduced by the opposite parties. Heard the counsel for the parties.

4. The points that emanated for consideration are :-

1. Whether the complaint is maintainable in this Forum?

2. Whether the complainant is entitled to get refund of the price of the USB modem?

3. Compensation and costs of the proceedings?

5. Point No. i. :- The counsel for the opposite parties took a contention that in view of the decision of the Hon'ble Apex Court in General Manager, Telecom Vs. M. Krishnan & Anr, this Forum has no jurisdiction to entertain this complaint. The learned counsel for the complainant submitted that admittedly the service availed by the complainant and rendered by the opposite party is internet facility. According to him, as per the Telecom Regulatory Authority of India Act 1997, this Forum has ample jurisdiction to entertain this complaint arising out of deficiency in rendering interest service. Telecommunication service is defined in Section 2 (k) of the above Act which reads as follows :

“telecommunication service means service of any description (including electronic mail, voice mail, date service, audio tex services, video tex services, radio paging and cellular mobile telephone services) which is made available to users by means of any transmission or reception of signs signals writing images and sounds or intelligence of any nature, by wire radio, visual or other electromagnetic means but shall not include broadcasting services.”

Section 14 B and C of the Act reads as under :

“the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Disputes Redressal Commission established under Section 9 of the Consumer Protection Act 1986.”

The Hon'ble Supreme Court in General Manager Telecom case, held as follows :

“In our opinion when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred. Section 7-B of the Telegraph Act reads as under :-

Section S.7B Arbitration of Disputes :-

(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this Section.”

In the instant case, since the dispute is with regard to internet facility alone the above decision of the Hon'ble Supreme Court has no application in this case. Obviously, the learned counsel seems to have misread the decision of the Hon'ble Supreme Court with no reason otherwise stated. So, there is nothing in law to say that this Forum does not have jurisdiction in this matter.

6. Point No. ii. :- Admittedly on 22-03-2009, the complainant purchased a USB modem and a USB Sim at a total price of Rs. 2,569/- evidenced by Ext. A3 tax invoice.

7. According to the complainant, he did not get the internet facility installed in spite of repeated requests and reminders as evidenced by Exts. A5 and A6. It is stated that, he had to suffer lot of mental agony and inconveniences due to the deficiency in service on the part of the opposite parties. The opposite parties maintain the stand that they have activated the connection on 22-04-2009 and they have made all the arrangements for the above facility at the inception.

8. Though the opposite parties contended that they provided the internet facility forthwith from the date of installation of the same, nothing is before us to substantiate it. If the complainant had used or enjoyed the facility, definitely there would have been documents to prove the same. The same too is not forthcoming. It is evident from Ext. A5 telephone call register and Ext. A6 lawyer notice that the complainant had taken abundant caution in getting his rights established. It is also evident that the opposite parties had taken sufficient measures to ensure sufficient service. However, no evidence before us from the opposite parties as to the same. For the aforesaid reasons, the complainant is entitled to get refund of the price of the gadget from the opposite parties.

9. Point No. iii. :- Indisputably, the complainant is a priest who has to act as the Ecclesiastical Tribunal of the Catholic Church. He has availed the service of the opposite party to discharge his duties effectively and earnestly. The opposite parties ought to have taken steps to redress the grievance of the complainant as and when he reported the non-functioning of the internet in which they failed.

10. The complainant is a Priest, a Shepherd who has to look after his flock whatever is worth doing has to be done well. In order to do so has to avail himself of the internet facility provided by the opposite parties, which here there seems to have been a failure on the part of the opposite parties which has necessarily put the complainant to unnecessary hardship whereby he might to have failed to render help to his flock. This calls for compensation. Since not quantified, we fix it at Rs. 10,000/-.

11. In the result, we partly allow the complaint and direct that,

1. the opposite parties shall jointly and severally refund Rs. 2,569/- to the complainant the price of the USB modem and Sim. In that event, the complainant shall return the gadget to the opposite parties simultaneously.

2. The opposite parties shall jointly and severally pay Rs. 10,000/- to the complainant towards compensation for the reasons stated above.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amounts shall carry interest @ 12% p.a. till realisation.

Pronounced in open Forum on this the 30^th day of September 2011.

Sd/- A. Rajesh,President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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