IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA

                          Wednesday the 25^th day of March, 2020.

                                      Filed on 19-09-2017

  Present

1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
2. Smt. Sholy P.R, B.A.L,LLB (Member)
3. Smt.C.K.Lekhamma, B.A, LLB (Member)

In

CC/No.254/2017

   between

  Complainant:-                                                         Opposite party:-

Sri.E.Muhammad Hussain,                                1.   The Accounts Officer (TR-OSP)

Manager (Adm)                                                       Officer of General Manager,

Archana College of Engineering and                        BSNL, Alappuzha.

Nursing, Palamel,

Nooranad P.O., Alappuzha                                2.   The Deputy General Manager,

(By Adv.R.Rajendraprasad)                                     (P&E) Office of the General

                                                                               Manager, BSNL Telecom Dist.

                                                                               Alappuzha.

(Internet Leased Line), BSNL

Telephone Exchange Building,

Kayamkulam, Alappuzha.

(By Adv.K.B.Sindhu)

    O R D E R

SRI. S.SANTHOSH KUMAR (PRESIDENT)

Complaint filed under Sec.12 of the Consumer Protection Act, 1986.

Material averments briefly discussed are as follows:-

          The complainant is an educational institution and a consumer of opposite parties.  The first opposite party is the accounts officer of BSNL, second opposite party is the Deputy General Manager and third opposite party is the sub divisional engineer of BSNL. 

2.       The opposite parties installed internet leased lines at Archana College of Engineering, Palamel and the telephone number is 0479-2388089 and installed at Archana college of nursing as telephone number 0479-2388041.  The above said connections were subscribed by the complainant under the scheme of National Mission on Education through Information and Communication Technology (NMEICT).  As per the scheme only 25 % of the cost per connection will be paid by the complainant and rest of 75% will be paid by ministry of HRD Government of India.  Further the opposite parties provided optical fibre network to the complainant to avail bandwidth of 10Mbps.  Out of Rs.90,000/- per annum the complainant need to pay only Rs.22500/- per annum which is Rs.1,875/- per month.  The rest of the amount Rs.67,500/- will be paid by Ministry of HRD, Government of India. 

3.       The complainant subscribed 10 Mbps bandwidth NMEICT connections at complainant’s colleges as per norms of the said scheme.  The complainant paid an advance amount of Rs.25,281/- to the opposite parties for each connection.  The internet connections were malfunctioning due to technical problems.  On 4.1.2016 the complainant contacted the 3^rd opposite party and oral complaint was lodged.  As per the direction of the 3^rd opposite party a service person contacted the complainant through phone.  Thereafter a technician attached to 3^rd opposite party reached the engineering college of the complainant and the modem and other devises were inspected.  It was observed that the connections were not functioning but the technician did not disclose the details of the defects.  On 02.02.2016 the complainant preferred a complaint to the 3^rd opposite party stating the malfunctioning of the said connections.  They assured to cure defects of the internet connections.  But they failed to cure the defects of the connections.

4.       The complainant received a bill dated 06.02.2017 for Rs.25,874/- for land line telephone number 0479-2388089 and a bill dated 06.01.2017 for Rs.25,874/- with regard to phone number 0479-238804 from the 1^st opposite party.  On 22.03.2017 the complainant sent letters to the opposite party stating the non-functioning of the said connections.   No action has taken by the opposite parties.  The 1^st opposite party issued a notice dated 27.06.2017 demanding Rs.25,874/- from the college of Engineering and Rs.25,874/- from the college of nursing.   They also threatened to permanently disconnect the telephone if the amount is not paid.  On 21.08.2017 the complainant received 2 bills from the opposite parties a bill for Rs.25,875/- and another bill dated 06.08.2017 for Rs.25,875/-.  Inspite of several requests the defects of the connection was not cured and so there is deficiency in service.  Hence the bills issued by the opposite parties in respect of the engineering college and nursing college may be cancelled.  The complainant sustained mental harassment and other hardships for which he is claiming Rs.2,00,000/-  as damages.  Hence the complaint.

5.       Opposite party 1 to 3 filed a joint version contenting as follows:-

          Internet leased circuit was provided to Archana engineering college and nursing college Palamel, Nooranad under the scheme National Mission on Education through Information and Communication Technology  in the year August 2012.  The connections were provided by laying underground optical fibre cables at a depth of 165 cms from Palamel telephone exchange by trenching along PWD road side for a distance of 1.5 Kms.  This was done by paying compensation by the opposite parties to PWD authority.  The colleges are situated in a remote place on the side of a paddy field.  The extension of optical fibre cable to this college place was difficult, expensive and tedious.  At several places due to non getting of required depth due to rock, opposite parties used galvanized iron pipes and again concreted on top in order to give good protection to the cable.  The opposite parties had spent around six lakhs of rupees for providing leased circuit connection to the complainant.  Customer premises equipment and one micro BTS were installed at the premises of engineering college and nursing college for providing internet services in the college and serving the mobile traffic of the college campus respectively.  These devises were installed exclusively for the engineering college and nursing college.  The said device needs uninterrupted power supply for working and the 1^st opposite party provided uninterrupted power supply as a temporary measure.  The college authorities failed to provide uninterrupted power supply to the system and subsequently the mobile system increased drastically and finally opposite parties forced to shut down the mobile BTS due to this power issue. 

6.       The allegation in the complainant that they were not informed about this technical problem is not true and hence denied.   The complaint was attended promptly and opposite parties installed another customer premises equipments there with the request to provide uninterrupted power supply to the equipment for internet service. 

7.       The alleged cause of action for the complainant arouse due to non providing uninterrupted power supply to the customer premises equipment.  As per the Consumer Protection Act, deficiency in service signifies that deficiency in terms of service.  If the grievance pertains to a matter which does not fall in the definition of service, the concept of deficiency would not apply.  Being a public utility service provider opposite parties had spent huge amount for providing internet leased line to the complainant.

Hence it is prayed that there is no deficiency in service and so the complaint may be dismissed with costs.

8.       On the above pleadings the following points arise for consideration:-

1.  Whether the complaint is entitled to get an order to cancel the bills issued by the opposite parties to the engineering college and nursing college?
2.   Whether the complainant is entitled to get a permanent prohibitory injunction?
3.   Whether the complainant is entitled to get Rs.2 lakhs by way of compensation      for loss and damages harassment and mental agony?
4.   Reliefs and costs?     

9.       Evidence in this case consists of oral evidence of PW1 and Ext.A1 to Ext.A7 on the side of the complainant.  Opposite parties have not adduced any evidence either oral or documentary.

10.     Point No.1 and 2

For the sake of convenience these points are considered together.  The case of PW1 the complainant is that he is the manager (administrator) of M/s Archana college of engineering and nursing, Palamel.  Both the colleges have got 2 telephone connections including internet connections having telephone numbers 2388089 and 2388041. The connections were availed under the scheme of National Mission on Education through Information and Communication Technology (NMEICT).  Ext.A1 is the document showing the terms and conditions of the connection.  As per Ext.A1 complainant has to pay Rs.22,500/- per annum out of Rs.90,000/- and the balance amount of Rs.67,500/- will be borne  by MHRD.  According to PW1 he paid Rs. 25,281/- for availing each connection.

However due to technical problems the internet connections were malfunctioning.  Though the complainant contacted the opposite parties and a technician visited the colleges the defects were not cured.  Ext. A2 series bills were issued by the opposite parties claiming amount from the complainant.  Since the internet was not functioning properly the bill amount was not paid.  Finally Ext.A7 notice was issued by the opposite parties demanding the payment and threatening to initiate legal actions including R.R (Revenue Recovery).  At this juncture the complaint was filed for getting an order to cancel the bills and claiming an amount Rs.2,00,000/- by way of compensation.

11.     Respondent filed a version contenting that they had spent around 6,00,000/- for providing circuit connections to the complainant.  As a temporary measure they had installed customer premises equipments for providing uninterrupted power supply.  Since the complainant could not provide uninterrupted power supply there occurred malfunctioning of internet facility.  They contented that there was no deficiency in service on the part of the opposite party and so the complaint may be dismissed.  Complainant got examined as PW1 and Ext.A1 to Ext.A7 were marked.  Opposite parties did not adduce any evidence either oral or documentary.  The fact that complainant availed 2 telephone connections including internet facilities is not in dispute.  It is also an admitted fact that he had paid Rs.22,500/-for availing the connections.  Ext.A3 is a letter dated 2.2.2016 issued by the complainant to the 3^rd opposite party complaining that for the last one month, the 2 internet connections are not functioning due to technical problems.  Ext.A2 series are the disputed bills issued to the complainant by the opposite party.  Ext.A2 and Ext.A2(a) are dated 06.02.2017 for Rs.25875/- each.  The bill period is from01.01.2017 to 31.01.2017.  Ext.A2 (b) and Ext.A2 (c) are bill dated 06.08.2017 for Rs.25875/-.  The bill period is from 26.06.2017 to 31.07.2017.   As stated earlier it can be seen that on 02.02.2016 complainant’s sent Ext.A3 notice to the 3^rd opposite party complaining about the malfunctioning of the internet facility.  Ext.A2 series bills are subsequent to Ext.A3 letter.  Opposite party had no case that they had rectified the internet connections at any time before issuance of Ext.A2 series bills.  Ext.A4,A5 and A6 are letters dated 22.03.2017 issued to the 3^rd opposite party by the complainant requesting to waive the bill amount since the internet was not functioning during the bill period.

12.     On going through the version of the opposite party it is seen that the main contention is that complainant failed to provide uninterrupted power supply and that was the reason for malfunctioning of internet.  However opposite party failed to produce even a scrap of paper to show that such a matter was informed to the complainant.  Though a version was filed no evidence was adduced from the side of the opposite party.  The learned counsel appearing for the complainant relied upon a ruling of Hon’ble Supreme Court reported in AIR 1999 SC 1441(Vidhyadhar Vs.Manikrao and another) 

  Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.   

13.     On a perusal of cross examination of PW1 it is seen that the case of providing uninterrupted power supply was not even suggested though it was a main contention taken by the opposite party in the version filed by them.  As discussed earlier on 02.02.2016 Ext.A3 notice was sent by the complainant to the 3^rd opposite party complaining about the malfunctioning of internet.  Without curing the defect Ext.A2 series bills were issued for a subsequent period demanding amount.  In the circumstances complainant is entitled to get an order to cancel Ext.A2 series bills.

14.     PW1, the complainant is claiming an amount of Rs.2,00,000/- as compensation from the opposite parties.  Admittedly complainant is an engineering college and nursing college and the connections were taken for the proper functioning of the colleges.  As a matter of fact without internet facilities  engineering colleges cannot function properly.  In Ext.A3 letter it is specifically stated that if the connections are not active the institutions are not able to use it for the purpose or conducting university examinations.  So it is crystal clear that due to the act of the opposite parties the complainant had sustained much hardships and physical inconvenience.  An amount of Rs.2,00,000/- is claimed as compensation.   However considering the relevant inputs I am of the view that the complainant is entitled to get compensation of Rs.25,000/-.  These points are found accordingly.

15.     Point No.3   

          In the result complaint is allowed in part.

1.  Ext.A2 series bills issued by the opposite party in the name of complainant is cancelled.
2.  Complainant is allowed to realize an amount of Rs.25,000/- from the opposite parties as compensation.
3.   Complainant is allowed to realize an amount of Rs.5,000/- as costs from the opposite party.

Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 25^th day of March, 2020.

                                                     Sd/-Sri.S.Santhosh Kumar (President)

                                                     Sd/-Smt. Sholy P.R (Member) :

 Appendix:-

Evidence of the complainant:-

PW1                             -        E.M.Muhammad Hussain(Witness)

Ext.A1                          -        Copy of the scheme of NMEICT dated 30.06.2016

Ext.A2 series ((a),(b),(c))  -     Bill issued by the opposite party dtd 06.02.2017

Ext.A3                         -        Copy of the letter issued by the complainant to the

                                               3^rd opposite party

Ext.A4                          -        Copy of the letter issued by the complainant to the

                                               1^st opposite party

Ext.A5                          -        Copy of the letter issued by the complainant to the

                                               2^nd opposite party

Ext.A6                          -        Copy of the letter issued by the complainant to the

                                               3^rd opposite party dtd 22.03.17

 Ext.A7                          -        Notice issued by the 1^st opposite party to the complainant

Evidence of the opposite parties:- Nil

// True Copy //

To

          Complainant/Oppo. party/S.F.

                                                                                         By Order

                                                                                    Senior Superintendent

Typed by:- Sa/-

Compared by:-