Per Mr.B.S.Wasekar, Hon’ble President

1)                The present complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986.  According to the complainant, he is subscriber of O.P’s broadband internet services having two accounts bearing No.97075 and 460055.  He is using the service of the O.P. since last five years.  Both the accounts are prepaid.  The complainant is the owner a laptop of Sony Vaio make bearing model No.VGNNR240E.  He was using the said laptop at his residence connected with O.Ps broadband internet service bearing account No.460055.  On 5^th June, 2011, there was heavy rain and lightening in the city of Mumbai.  As a precautionary measure, power connection was removed from the laptop and laptop was connected to the modem of O.P.  The modem connected with account No.460055 became completely disfunctional and the other modem with account No.97075 connected with PC had some problems.  The laptop also stopped working from 5^th June, 2011 as the cable wire was struck by lightening.  The complainant lodged complaint for both the defects with the O.P. bearing complaint No.5718569 dated 7^th June, 2011 and 5727367 dated 9^th June, 2011.  The representative of the O.P. Mr.Rajesh visited the complainant and informed that modem of account No.460055 had been completely destroyed due to lightening and promised to replace by new modem. The complainant showed his laptop to his engineer who told that mother board of his laptop is completely destroyed due to the surge of electricity from the modem into laptop.  The defect in other internet account also was not rectified.  The modem of account No.460055 was not replaced with new modem.  The complainant was crippled without internet services.  He was not able to access any email.  Therefore, he sent legal notice dated 13^th June, 2011 calling upon to rectify the internet line and replace the modem.  The O.P. was also informed about the loss of laptop.  The said notice was received by the O.P.  On 15^th June, 2011 representative of the O.P. rectified the problem of internet line of account No.97075 and on 22^nd June, 2011 old modem of account No.460055 was replaced. 

2)                The laptop could not be repaired as the parts and mother board are not available in India.  It was the duty of the O.P. to caution their clients to unplug the modem from the computer as surge of electricity can take place through their modem at the time of lightening.  The complainant suffered loss to his laptop worth Rs.68,000/-.  Therefore, the complainant has filed this complaint for the recovery of amount of Rs.68,000/- with interest at the rate of 15% per annum.  He has also claimed compensation of Rs.10,000/- for mental agony and harassment and Rs.10,000/- towards costs of litigation. 

3)                The O.P. appeared and filed written statement.  It is submitted that as per contract it is necessary to refer the dispute to the Arbitration.  Therefore, this Forum has no jurisdiction.  The complainant approached the O.P. in the year 2005-06 for broadband internet service connection and the internet connection was given to him.  On 5^th June, 2011, due to heavy rain and lightening the modem provided by the O.P. was damaged.  The complainant lodged complaint on 7^th June, 2011.  After checking, it was found that modem was faulty.  The complainant again lodged two complaints dated 8^th June, 2011 and 9^th June, 2011.  The same was resolved on 9^th June, 2011.  The modem was replaced on 22^nd June, 2011 free of cost.  It was a regular practice of the O.P. to provide welcome letter to their new customer.  The same is duly acknowledged by the customers.  As per the said letter, all the customers are requested to disconnect the LAN cable from their PCs while not in use especially during rains and lightening.  The cable modem does not suffer from any lapse.  However, lightening can strike any cable.  The O.P. is not aware if the complainant was using the laptop as alleged for internet services.  The complainant is the customer since last five years of this O.P.  He is well aware about the precautionary measures.  The complaint of the complainant was resolved and one Mamta Sahani, mother of the complainant signed customer call report dated 15^th June, 2011 and 22^nd June, 2011 agreeing that the complaint has been resolved.  The O.P. is sending precautionary message in the form of SMS and emails since the year-2003 to all the clients regularly.  The complainant is the regular customer of the O.P. since the last five years and he has received the message of the O.P.  It is submitted that in any event any cautious person would remove all electric wires connecting to any kind of electronic device in extreme weather especially that of heavy rains and lightening.  Therefore, this O.P. is not liable to pay any kind of damage. 

4)                After hearing both the parties and after going through the record, following points arise for our consideration.

POINTS

REASONS

5) As to Point No.1 & 2 :- There is no dispute that the complainant is having two accounts of broadband internet services of the O.P. bearing No.97075 and 460055 since last five years.  It is also not disputed that on 5^th June, 2011 there was heavy rains and lightening in the city of Mumbai.  According to the O.P., on the complaint of the complainant representative of the O.P. visited the complainant and found that there was problem in modem and the modem was replaced.  The O.P. has denied the damage to the laptop due to surge of electricity from the modem line into laptop.  From the admission of the O.P. in the written statement and affidavit of evidence, it is clear that the LAN and modem was damaged due to heavy rains and lightening in the city.  The modem was replaced by the O.P.  According to the complainant, his laptop was damaged due to the surge of electricity from the modem LAN into the laptop.  The evidence of the O.P.’s witness is not sure to show that laptop can not be damaged due to surge of electricity from the modem LAN.  On the other hand, the witness of the complainant has specifically stated that the laptop of the complainant was damaged due to surge of electricity from the modem LAN.  The witness examined by the O.P. and complainant are expert.  The witness of the O.P. has not denied the possibility of damage to the laptop due to surge of electricity through the modem LAN and witness of the complainant has supported the averments of the complainant.  Therefore, we accept that the Laptop was damaged due to surge of electricity though modem LAN.  As discussed above, there is no dispute that there was heavy rain and lightening in the city on 5^th June, 2011.  The O.P. is the service provider of the internet services.  The complainant is the regular prepaid customer. Therefore, it was necessary for the O.P. to take proper precaution so that electronic device of their customers should not damaged.  Due to failure of the O.P. the complainant suffered damage to his laptop.  Therefore, the O.P. is liable to compensate it to the complainant. 

6)                According to the O.P. there is no proper proof showing the damage of Rs.68,000/-.  The O.P. has not disputed that the complainant is the regular customer since last five years.  According to the complainant, he was using his laptop for internet connection.  The laptop is old one.  The complainant has not produced the bill of purchase of laptop.  However, the laptop is old one therefore even though the complainant could not produce the bill still his claim can not be rejected in toto. According to the complainant, his laptop is worth Rs.68,000/-. Therefore, he has claimed compensation of Rs.68,000/-.  The claim of the complainant is for the price of new laptop. Admittedly, the complainant was using it for more than five years.  Therefore, it is necessary to consider the depreciation value of the laptop. Considering the use of five years, we think depreciation value of the laptop should be 50% i.e. Rs.34,000/-.  The O.P. is liable to compensate it to the complainant.  The complainant has requested the O.P. to compensate his loss but the O.P. failed.  The complainant issued notice but the same was not replied by the O.P.  Inspite of several requests, the O.P. failed to compensate the loss thereby complainant suffered from mental agony and harassment.  Hence, the O.P. is liable to pay compensation to the complainant for mental agony and harassment amounting to Rs.10,000/-.  The complainant is also entitled for the cost of litigation.  We think cost of Rs.5,000/- will suffice the purpose.  Hence, we proceed to pass the following order

O R D E R

1. Complaint is partly allowed.
2. The O.P. is directed to pay Rs.34,000/- (Rs.Thirty Four Thousand Only) to the complainant with interest at the rate of 9% per annum from the date of filing of the complaint i.e. from 7^th October, 2011 till realization.
3. The O.P. is also directed to pay Rs.10,000/- (Rs.Ten Thousand Only) to the complainant as compensation towards mental agony and harassment.
4. The O.P. is further directed to pay Rs.5,000/- (Rs.Five Thousand Only) to the complainant towards the cost of this litigation.
5. The above order shall be complied with within a period of one month from today.
6. Copies of this order be sent to the parties free of cost.

Pronounced

Dated 26^th February, 2014