SRI GOPAL KRISHNA RATH, PRESIDENT … The factual matrix of case is that, the complainant is a farmer, for his livelihood and requirement had intended to lease internet service with OP.s for purpose of learning about fertility to his agriculture land hence approached the OP.1 to provide internet lease line on dt.18.2.15, hence the complainant deposited the an amount of Rs.3,60,676/- through cheque in favour of OP.1 to provide 2MBPS internet lease line. Again as per demand notice of OP.2 the complainant has deposited Rs.1,02,020/- on dt.14.3.16, in total he has paid Rs.4,62,696/-.He contends that since installation the gateway server is down or needed restart every time etc. Hence he persuades several messages to the OP.3 and other competent authorities but for no action. He also lodged complaints on the BSNL customer care but all his requests were in vain. The complainant admitted that, the OP.2 had inspected and verified the alleged unit on 01.04.17 and stated that the leased internet line is defunctive one. Since the installation the 2 mbps band is never stable and it always less than below 1 mbps hence the complainant harassed with the internet line with mentally, physically and financially. He further contends that due to interruption of BSNL internet service he restrained from online education on agriculture and suffered loss in his business. So there is deficiency in service on the part of OP.s. He further submitted that the last cause of action aroused on 15.01.2017 when the complainant finally lodged written complaint before the OP.s, hence the case is within time. So he prayed before the forum to direct the OP.s to pay the total cost of internet lease line i.e. Rs.4,62,696/-, and Rs.6,00,000/- as compensation inter alia Rs.10,000/- for litigation cost in the interest of justice.
2. The counsel for OP.s filed his counter to contend that, the case is not maintainable and the case is not filed in time. Further he denied the entire allegations leveled by the complainant. He submitted that, the complainant never approached them in any point of time, moreover no one in the world has absolute control over functioning of a machinery. The counsel for OP.s averred nothing in his counter except evasive denials and finally prayed to dismiss the case in the ends of justice.
3. The complainant has filed copy of some relevant documents along with affidavit in support to his claim. The counsel for OP.s also filed copy of list of documents and some decisions in support of his defense. Case heard from both parties, perused the records and submissions considered.
4. The complainant further filed his written argument wherein he averred that, he being an educated youth procured the internet lease line for the purpose of his livelihood by means of self employment to obtain advance technology and education from internet to support his agriculture business. The complainant had intended to take the said lease for his own education, email browsing document but not for others for commercial use. He is residing with his family and children at 6-7 Kms distance away from Nabarangpur town, hence intended for internet line for his house. Due to non performance of 2 mbps service, the complainant was always facing troubles how to take care of plants, uses of fertilizers etc, hence prayed to allow his entire claim as mentioned in the complaint petition.
5. The counsel for OP.s also filed his written argument wherein he contends that the complainant has availed the internet lease line for commercial purpose and as per C.P.Act 1986 a commercial user cannot be a consumer, so he prayed that the case is not maintainable, hence liable to be dismissed.
6. From the records it reveals that, the complainant is 43 years old and residing with his family and children at village Kesariguda i.e. 6-7 Kms away from Nabarangpur, hence intended to procure internet lease with OP.s. So he paid in two times to the tune of Rs.4.62,696/- to the OP.s for installation of 2 mbps internet lease line to his house with a hope of fast uninterrupted internet services. He being a farmer always requires advance technologies from internet to use the same for his agriculture land hence paid a huge amount supra, but he contends that since installation of the internet lease line, the OP.s never facilitate him 2 mbps as agreed and the line is always below 1 mbps, and moreover always server down, automatic restart problems, he inflicted great inconvenience and restrained from his agriculture business as well as hampered the study of his kids. Hence he persuaded several email, messages, letters and approached personally to the OP.s to rectify the problems arouse in the internet machine but all his requests are in vain. Hence finding no other way he takes shelter of this forum and prayed for compensation etc.
7. We have carefully gone through the complaint, the counter by OP.s and submission of parties including documents submitted by them and restricted our adjudication to the following points.
A. Is the complainant a consumer against the OP.s ?
B. Is the forum ousted jurisdiction to adjudicate the case ?
C. Is there any deficiency in service on the part of the OP.s and the complainant is entitled for compensation in regard to the present transaction?
8. The complainant submits that, he being unemployed for his self employment and to earn livelihood, he had intended to avail the internet lease line to expand his earnings. Hence he approached the OP.1 per se deposited a huge sum through cheque. The complainant submitted that the OP.s is rendering internet lease line along with their machinery for a valuable consideration. The OP.s are providing services of internet installations. Sec.2(O) of the act defines ‘service’ means service of any description which is made available to potential uses and includes, but not limited to the provisions of facilities in connection with banking, financing, insurance, transport, procuring…… Hence, the OP.s are availing services to their customers and the present complainant availing that service for a valuable consideration, hence the complainant is a consumer under the C.P.Act 1986.
9. The complainant further submits that, the OP is being an internet service provider to its perspective customers. It has opening the branches as opened in various parts of this great country, especially at Nabarangpur.
10. Pursuing all the evidences produced by the OP.s and complainant, along with their submissions, this forum is brushed off of any doubts to opine that the cause of action, arose at Nabarangpur district, hence all the facts consolidated throws the burden of jurisdiction under this forum to adjudicate the complaint of its merit. To the contentions of the OP.s that the complainant has availed the internet lease line of 2 mbps under the OP.s is used for commercial purpose, the complainant submits that he is an educated unemployed and to earn his livelihood he has resorted to earn through the internet lease and thus the service cannot be called commercial.
11. The term deficiency I defined under Sec.2 (1) (g) of the C.P.Act 1986, which reads as followed. 2(1)(g) ‘deficiency means any fault ‘in perfect shortcomings or inadequacy in quality, nature, and manner or performance which is required to be intentional by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
12. Hence, this forum, on perusal of all the evidences as discussed above, of the view that, the OP.s has acted, arbitrarily, capriciously, malfeasantly to the prejudice of the interest and rights of the complainant, and there is serious deficiency in services committed by the OP.s for which they are liable to be impounded with heavy compensation and the complainant is entitled for compensatory relief.
Hence the complaint is allowed against the OP.s.
O R D E R
i. The OP.s are here by directed to pay the total deposited amount of complainant i.e. Rs.4,62,696/- to the complainant in replacing all the alleged existing internet lease machineries installed by OP.s, inter alia to pay Rs.35,000/- (Rupees thirty five thousand) as compensation and Rs.2000/- (two thousand) towards cost of litigation to the complainant.
ii. All the above directions shall be complied with in 30 days of receipt of this order, failing which, the total amount shall bear 12% interest per annum till its realization. Order pronounced in the open forum on 30th day of Oct' 2017.
sd/- sd/- sd/-
MEMBER MEMBER PRESIDENT, DCDRF,
(Sri R.S.Nayak) (Smt M.Padhi) (Sri G.K.Rath)
