Complaint filed on: 09-09-2011
Disposed on: 06-02-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.1675/2011
DATED THIS THE 6th FEBRUARY 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
Sri.B.K.Nagaraja S/o. Late Kalaiah,
Aged about 44 years,
C/o. Chikkathammaiah,
Residing at No.305, 2nd Floor,
3rd Cross, 3rd Main Road,
Jagajyothi Nagar,
Jnana Bharathi Post,
Bangalore-56
V/s
Opposite parties: -
1. The Bangalore Metropolitan Transport Corporation,
Central office, Shanthinagar,
Bangalore -560 027
Represented by its Managing
Director
2. The Chief Traffic Manager (COM)
Bangalore Metropolitan Transport Corporation,
Central office, Shanthinagar,
Bangalore – 560 027
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OPs under section 12 of the Consumer Protection Act’ 1986, praying to pass an order, directing the OP to pay a sum of Rs.3,39,257=00 as damages and compensation alongwith interest and cost.
2. The brief facts of the complaint can be narrated as under.
The OP Bangalore Metropolitan Transport Corporation floated tender vide its tender notification no.BMTC/CO/TR/COM/ 540/2007-2008 dated 28-5-2007 for selection of licensee for allotment of 3’ X 4’ open space for establishing telephone booth no.1 at Shivajinagar Bus Station reserved for physically handicapped persons, and the complainant has participated in the tender and selected him as the highest valid bidder and allotted open space to the complainant for running telephone booth no.1 on 2-7-2007 with certain terms and conditions. After allotment of open space for running telephone booth no.1 as per the instructions of the OP, the complainant had deposited Rs.13,050=0 as security deposit with the Ops in the form of demand draft & cash and the same was received by the OP BMTC vides DD No.252530 dated 27-6-2007 and receipt no.7659 and 7660 dated 27-6-2007. The security deposit paid by the complainant is equivalent to ten months ground rent fee as prescribed by the OP. After allotment of open space as per the terms and conditions given in the allotment letter, the complainant entered into an agreement with the OP no-2 on 17-7-2007, as per the terms and conditions of the agreement, and the complainant has paid ground rent fee/licence fee every month to the OP BMTC and the licence is granted for a period of six years i.e. 17-8-2007 to 16-8-2013 which is stated clearly in clause no.4 of the agreement. The complainant established the telephone booths and installed 3 telephone lines and obtained Airtel telephone connections by investing his money at the space provided by the OP-1, and started to run the telephone booth no.1 on 20-7-2007, and he has paid ground rent regularly till the date of demolition of telephone booth no.1, and he has paid the balance ground rent fee of Rs.3,163=00 which includes lighting and service tax to the OP BMTC on 21-1-2008, and there is no ground rent fee/licence fee and no fault or mistake committed by the complainant. The complainant always follows the terms and conditions laid down in the agreement entered into between parties, and no point of time the complainant violated or breached the contract. The complainant is a law abiding person and followed all the terms and conditions of agreement. The complainant has invested of Rs.63,800=00 towards the structure of telephone booth and invested Rs.85,332=00 for the purchase of three Visiontek PCO monitor with printer and digital display systems with cables. The complainant invested Rs.8,075=00 for electrical works and Rs.13,050=00 invested for security deposit, and the complainant total earning per month was Rs.12,000=00 from the said telephone booth, but after deduction of all expense incurred for the maintenance of telephone booth the complainant’s net income is Rs.4,000=00, and run the said telephone booth till the end of April 2008, thereafter, the complainant admitted to hospital as he was under treatment for viral fever during the period of May 2008 to July 2008, after recovery, he came to the telephone booth, and it was demolished by the BMTC in the first week of August 2008 the structure of the telephone booth, the infrastructure facilities provided to the passengers of BMTC and needy peoples, and telephone bill machines 3 in numbers, phone instruments and other essentials instruments were collapsed, and thereafter, he has no work till today, and he is unemployed. The complainant’s net monthly income is Rs.4,000=00 while in the said business and by demolishing the same he become unemployed and if he was in the said business, he would have earned Rs.1,44,000=00, and it should be paid by the OP BMTC as compensation to the complainant. The total claim from the OP BMTC under all heads of claim including the miscellaneous expenses calculated at Rs.3,39,257=00 which is inclusive of electrical works, security deposit, compensation, and miscellaneous expenses. The OP BMTC demolished the telephone structure established by the complainant within the period of licence and without giving any notice to the complainant, the telephone structure belongs to the complainant and demolition of the structure put up by the complainant which is against to law and principal of natural justice and the OP has violated its terms and conditions of agreement. So the OP is responsible for the loss caused to the complainant, three months notice should be given to the complainant licensee as per the terms and conditions of the agreement before taking any action for evicting the complainant licensee and no prior three months notice was issued to the complainant and in the absence of notice, the OP BMTC cannot evict or demolish the telephone booth. So the BMTC is held responsible for the illegal act and the OP BMTC is liable to pay above said compensation and material expenses to the complainant. The complainant approached the BMTC several times with representation for suitable reliefs, but BMTC failed to consider his request and to provide reliefs and at last issued a legal notice dated 11-7-2001, but the OP BMTC for the settlement of loss and compensation, and the same has been served on the OP, but OP failed to settle the said amount as damages and compensation. The complainant is a physical handicapped person with physical disability of 75% he cannot walk freely and the said telephone booth is only the source of his income by demolishing the same by the OP through him on road without food and shelter, and so the OP is liable to settle the damages and compensation to the complainant. So, the present complaint is filed, claming compensation and damages of Rs.3,39,257=00 alongwith interest and cost. So the complaint be allowed and grant relief as prayed in the complaint.
3. After service of notice, the Ops no.1 and 2 have appeared through their counsel and filed version, contending inter-alia as under.
The complaint is not maintainable, and the complainant is not a consumer, there is no relationship of consumer and supplier between the parties, and there is no contract between the parties to render any service between the parties, the Ops are not the providers of the service to the complainant. A place to run a telephone booth was allotted to the complainant, he was liable to pay monthly licence fee. The complainant has become a defaulter in the matter of payment of licence fee, and for recovery of licence fee, the Ops have initiated proceedings no.5/2011 under section 7 of Karnataka Public Premises (Eviction of Un-authorized occupants Act, 1974). The said case posted for hearing on 24-9-2011, and the said recovery proceedings against the complainant is pending before the Chief Traffic Manager (BMTC) Shanti Nagar, Bangalore. The complainant has been furnished with the said information by the Ops through their reply notice. The complainant has failed to appear in the said proceeding, now the said proceeding is posted on 17-12-2011, in view of initiation of the said proceeding the complainant has filed the above proceeding to cause obstructions in the recovery proceeding. The complainant has avoided receiving all notices sent to him to the address furnished by him. In case for claim for damages detailed evidence has to be led by the parties, and the party who claims damages has to establish the actual damages suffered. Such dispute has to be decided by the Civil Court only. So the complaint is liable to be dismissed. There is no obligation on the part of the OP to render any service to the complainant. There is no deficiency in service to maintain the above complaint. The complainant was provided with a place by the BMTC to carrying on business of telephone booth. So the place was given for commercial exploitation by the OP to the complainant, so the complaint is not maintainable. It is true to say that the tenders were invited for granting licence for a space provided at Shivajinagar Bus Stand, and accordingly the complainant’s offer for granting licence to enable the complainant to run a telephone booth was accepted, and the complainant has deposited security deposit amount of Rs.13,050=00, and it is refundable at the completion of the licence and the said deposit is adjustable toward the dues if any. The complainant was liable to pay the licence fee at the rate of Rs.1,305=00 per month, and the same has to be escalated by 10% per year commencing from the 2nd year till the completion of the licence period. Accordingly, the complainant executed an agreement on 17-7-2007, the licence is terminable in case of default in any of the conditions of the agreement. The licence fee has to be paid on or before 5th of each month and in case of default in the matter of payment of licence fee, the licence stands determined. The complainant continuously defaulted in the payment of licence fee and towards the arrears of licence fee, the complainant has paid a sum of Rs.3,163=00 on 21-1-2008. The complainant continuously failed to pay licence fee, and he has stopped operating telephone booth from 1-8-2008, and he was allowed to keep his telephone booth to be kept open during the period of licence, however, the complainant has kept the telephone under lock and not used the same from 1-8-2008. Therefore a notice was pasted on the telephone booth during the month of Jan.2009. A messenger was sent to address furnished by the complainant as furnished in the agreement, but the complainant is not available for the service. After revoking the licence a mahazar was made on 10-2-2009, and as per the mahazar the telephone booth was removed from the place, the booth contained only one coin operated telephone and one telephone meter board. Except these 2 items nothing was available in the said booth, the telephone lines were disconnected long prior to Feb.2009 and no telephone was under service. The complainant is due in a sum of Rs.21,045=00 towards licence fee, Rs.2,629=00 towards service tax, Rs.1,251=00 towards electricity and Rs.3,511=00 towards interest at 20% p.a. payable on the defaulted amount of licence fee. After adjusting the security deposit of Rs.13,050=00, the complainant is liable to pay Rs.17,636=00 towards arrears of licensee fee as on 10-2-2009. The said sum is arrived at after giving deduction to the payment made by the complainant. The complainant fell in arrears of licence fee from 10-7-2007 to 10-2-2009, and to recover the said amount due the Ops have initiated proceedings in petition no.5/2011 under KPP Act. The said petition is pending before the Chief Traffic Manager (Com), Shanti Nagar, Bangalore. The said petition is posted on 24-12-2001, The complainant is avoiding notice in said proceedings and as an off shot, the complainant has filed the above petition on false grounds, the contention of the complainant that, he has paid update licence fee is false. It is false to say that the complainant had installed 3 telephone lines of Airtel telephone. The complainant was not able to run the business as the business was not frugal, therefore, he closed the business and he abandoned the place. The allegations in para-7 that he paid ground rent regularly is false, it is false to contend that the complainant has paid the licence fee/ground rent till the month of July 2008. From the date of the commencement of the liability of the licence fee from July 2007 till 10-2-2009, the complainant has made single payment of Rs.3,163=00 and no other payments are made by the complainant. It is absolutely false to say that the complainant has paid the licence fee regularly, and he has not committed the breach of the terms of the agreement. It is false to say that the complainant has invested a sum of Rs.63,800=00 towards the telephone booth, and has invested a sum of Rs.85,332=00 to purchase 3 nos., Vision Tech PCO, Monitor with printer and digital display system with cables. It is absolutely false to say that the complainant has invested Rs.8075=00 towards the electrical work. It is false to say that the complainant was earning a sum of Rs.12,000=00 from the telephone booth and his net income was Rs.4,000=00 per month. The complainant had abandoned the telephone booth and kept it under lock and key. It is false to say that the complainant was suffering from fever during May 2008 to July 2008. It is false to say that the telephone booth was dismantled in the first week of August 2008. The telephone was removed under a mahazar on 10-02-2009, till the said dated the telephone booth was lying in the place under lock, the complainant has abandoned the same. As on the date of conducting Mahazar, the contents of the booth are mentioned as above. It is false to say that the said telephone booth was consisting 3 nos. telephone machines phone instruments and other essential instruments, and the telephone booth was dismantled in the month of August 2008. The telephone booth was removed from the bust stand and the same is kept in the BMTC custody. The complainant can take back the same by clearing the arrears of licence fee and other levies. It is false to say that the complainant was earning a net income of Rs.4000=00 per month, the business was not running well, so the complainant abandoned the telephone booth, the telephone lines were also disconnected. The complainant has failed to produce the telephone bills which would demonstrate the number of call made from his telephone booth. It is false to say that the complainant has become unemployed due to the reason attributable to the respondents. It is false to say the complainant has earned Rs.1,44,000=00 as alleged and the Ops are liable to pay the same towards the loss of earning. It is false to say that the Ops are liable to pay Rs.63,800=00 towards the telephone booth to the complainant. The telephone booth is kept safely and the complainant can take back the same by clearing the arrears. It is false to say that, the Ops are liable to pay Rs.85,332=0 towards 3 nos. vision tech PCO monitor, digital display system with cables. No such articles were available in the telephone booth. Security deposit is adjusted against arrears and the balance is claimed. The complainant is not entitled to claim the miscellaneous expenses of Rs.25,000=00, the complainant is not entitled to make any claim against the Ops. The licence is revocable at any time, the licence is only a permission given to the complainant to keep the telephone booth in the bus stand. Since the complainant has committed default in payment of monthly licence fee. So his licence was revoked and the telephone booth was removed on 10-2-2009. It is false to say that the telephone booth is removed illegally and against to the principles of natural justice. The licence was terminated by affixing a notice on telephone booth. The complainant abandoned the telephone booth for a long time, the complainant has issued a false notice and the same was replied. The Ops had provided a place to run a telephone booth to the complainant who was a physically challenged person, but he could not run the same and he could not earn the money from the telephone booth. The complainant had no good business so abandoned the telephone booth. After affixing the notice and after revoking the licence the telephone booth is removed from the premises. The Ops are in no way responsible to provide him food and shelter or livelihood. The complaint is not maintainable and there is no cause of action to maintain the complaint. So the complaint of the complainant is liable to be dismissed with exemplary costs.
4. So from the averments of the complaint of the complainant and objections of the Ops, the following points arise for our consideration.
1. Whether the complainant proves that, the Ops have demolished the telephone structure against the law violating the terms and conditions of the agreement and they are liable to pay compensation and damages as prayed in the complaint?
2. What order?
5. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: For the following order
REASONS
6. Answer on the point no.1: So as to prove the case, the complainant has filed his affidavit by way of evidence and produced copies of documents with list dated 9-9-2011. On the other hand, one Bailappa Biradar, Asst. Traffic Manager working in the office of the Ops has filed his affidavit by way of evidence and produced two copies of documents. We have heard the arguments of both parties, and gone through the oral and documentary evidence of both parties meticulously. The complainant has stated in his affidavit that the OP-BMTC floated tender vide its tender notification dated 28-5-2007 for selection of licensee for allotment of 3’ X 4’ open space for establishing telephone booth no.1 at Shivajinagar Bus station reserved for physical handicapped persons and accordingly, he applied and participated in the tender, and he has been selected as highest bidder and allotted open space to him for running telephone booth no.1 on 2-7-2007 with certain terms and conditions, and after allotment of open space, he had deposited Rs.13,050=00 as security deposit with the Ops by way of DD and cash. As per the terms and conditions of the agreement, he had paid licence fee every month to BMTC being the OP and the licence is granted for a period of 6 years, and he established the telephone booth and installed 3 telephone lines and obtained Airtel telephone connections by investing his own money and started to run the telephone booth no.1 on 20-7-2007 as per terms and conditions, he has paid the licence fee to OP regularly without fail till the date of demolition of telephone booth no.1. There is no due of ground rent fee/licence fee, and no fault or mistake was committed by him in connection with the said business, and he always followed the terms and conditions laid down in the agreement entered between parties, and he has invested Rs.63,800=00 towards the structure of telephone booth and invested Rs.85,332=00 for purchase of three Visiontek PCO monitor, and also invested Rs.8,075=00 for electrical works, and Rs.13,050=00 towards security deposit, and his monthly income was Rs.4,000=00. If he were in the said business, he would have earned Rs.1,44,000=00. The OP BMTC demolished the telephone structure within the period of licence, and without giving any notice to him and the said act of the OP is against the law and principal of natural justice. Three months notice should be given to him before taking any action for evicting him. So, the BMTC is held responsible to pay the said amount as prayed in the complaint. The complainant gave a notice to the OP, but no response was given by the OP. So, he prayed to allow the complaint and grant relief as prayed in the complaint.
7. On careful reading of the complaint and evidence of the complainant as mentioned supra, it is crystal clear that, the complainant has taken an open space measuring 12 Sq. ft. in the Shivajinagar Bus Stand, Bangalore from the OP in tender to run the telephone booth as licensee, on a monthly licence fee of Rs.1,350=00. The complainant has reiterated in the evidence that, he has paid licence fee regularly, and has not committed any default in payment of licence fee, and acted in terms and conditions of the agreement entered into between himself and OP, and the complainant has produced allotment letter dated 2-7-2007 issued by the BMTC and in that letter, it is stated that, the monthly licence fee is Rs.1,305=00 and period of licence for six years. As per terms and conditions no.16 and 18 of the said allotment letter, it is made clear that, the licensee must be available in the telephone booth at all time during the working hours of the telephone booth, and BMTC reserves the right to terminate the licence without assigning any reasons, and by giving one month notice, and two receipts produced by the complainant go to show that the complainant has paid Rs.8,850=00 and Rs.2,250=00 towards security deposit. The copy of the agreement entered into between the complainant and BMTC is produced, and clause 20 of the said agreement shows that, the licensee shall pay the licence fee on or before the 5th day of every month, and if he fails to pay licence fee, the BMTC is having power to cancel the licence by giving notice. Two more receipts were produced for having paid Rs.2,610=00 towards refreshment and Canteen Co, Rs.277=00 towards Heating and lighting, and Rs.326=00 towards service tax and Rs.400=00 towards other miscellaneous. The document no.5 is the copy of receipt for Rs.63,800=00 towards STD Sheet box etc. The document no.6 is the copy of receipt for Rs.85,332=00 towards purchase of Visiontek PCO monitor cost. The document no.7 is the copy of the bill for having carried out electricity work. Document no.8 is the copy of legal notice dated 11-7-2011 issued by the complainant to BMTC calling upon them to pay compensation of Rs.2,70,000=00. But it is pertinent to note, from the documents of the complainant that, the complainant has not produced receipts for having paid licence fee of the telephone booth regularly as stated in the evidence. No plausible explanation was given by the complainant for not producing receipt in respect of payment of licence fee of the telephone booth. On the other hand, the Asst. Traffic Manager working in the BMTC has stated in his affidavit filed on behalf of the BMTC that, the complainant did not pay the licence fee, and committed default in paying the licence fee and locked the telephone booth and went away, so his licence has been cancelled, and taken possession of premises by affixing notice to the premises, and drawing mahazar, and they have initiated proceedings before the Chief Traffic Manager of BMTC under provision of Karnataka Public Premises Act 1974, and in this regard, he has produced copy of petition filed before the Chief Traffic Manager under Karnataka Public Premises Act 1974, copy of mahazar letter, and copy of letter for having cancelled the licence of the complainant. So on making careful scrutiny of oral and documentary evidence of both parties, one thing is clear that the complainant who took premises measuring 12 Sq. ft in Shivajinagar Bus Station, Bangalore for running telephone booth has not paid licence fee regularly and he became contumacious defaulter in paying licence fee, and committed breath of agreement, and as per the condition mentioned in the agreement, the BMTC is having power to cancel the licence and take the possession of promises of the complainant by issuing legal notice, and accordingly the OP has initiated the proceedings against the complainant under Karnataka Public Premises Act, 1974 and no irregularity has been committed by the OP in taking possession of premises of the complainant. In view, committing the breach of condition of the agreement the complainant is not having any right to file the complaint under section 12 of the Consumer Protection Act, as he does not come within the definition of Consumer, and he is having remedies before the Civil Court by filing separate suit and ventilate his grievances. So, taking into consideration, oral evidence of parties, on the back ground of important documents of both parties, we are of the opinion that, the material evidence placed by the OP is more trustworthy and acted upon than the evidence of the complainant, and as such, we do not intend to grant any relief to the complainant as prayed for. So, in view of the discussion made hitherto, we come to straight conclusion that, the complainant has miserably failed to prove this point by placing acceptable evidence and accordingly, we answer this point in a negative. In the result, for the forgoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is dismissed. Under the circumstance, both parties shall bear their own cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 6th day of February 2012.
MEMBER MEMBER PRESIDENT
