BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                             Dated this the 22^nd September 2010

PRESENT

         SMT. ASHA SHETTY           :   PRESIDENT

   SMT.LAVANYA M. RAI       :   MEMBER

   SRI. ARUN KUMAR.K         :   MEMBER

COMPLAINT NO.28/2010

(Admitted on 23.1.2010)

BETWEEN:

Mr.I.L.Pinto,

So B.M.Pinto,

Aged about 52 years,

R/t Pinto House, Laila Post,

Belthangady,

D.K.District.                                       …….. COMPLAINANT

(Advocate for Complainant: Sri.D. Sanjay)

          VERSUS

The Principal General Manager,

D.K.Telecom District, BSNL,

Telecom House Road,

Mangalore.                                      ….. OPPOSITE PARTY  

 (Advocate for Opposite Party: Sri.N.Sukumar)

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Party claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant submits that, he is a consumer of landline telephone facility provided by the Opposite Party bearing telephone No.233324 through Belthangady telephone exchange.  The above connection given by the Opposite Party on 18.11.2000 and the said telephone was used for residential purpose.

When the matter stood thus, in the month of March 2008 on wards the telephone connection provided to the Complainant stopped working and immediately the Complainant wrote a letter dated 16.3.2008 to the Opposite Party to set right the problem.  The Opposite Party Junior Engineer visited the Complainant house and given an assurance of rectifying the telephone as early as possible and at the same time he has installed the WLL system at Complainant residence.  It is stated that, the Complainant protested and objected for WLL, but the said officials forcefully taken away the telephone instrument even after serious protest by the Complainant.  After the said incident the Complainant visited several times but failed to get any positive results.  Thereafter, the Complainant approached the Divisional Engineer and handed over the WLL phone and Divisional Engineer directed the Junior Engineer to provide land line connection to the Complainant residence by erecting cable wires.

It is stated that, as per the representation of the Opposite Party officials, the Complainant with the help of labourers dug  the trenchers to the length of 180 meter and spent Rs.3,300/-.  Despite of that, the Opposite Parties not rectified the telephone problem.  On the other hand, the Opposite Party illegally issued a bill dated 7.3.2008 and the same has been paid by the Complainant under protest.  It is stated that, the Opposite Party has disconnected the above telephone connection without any prior notice to the Complainant. The Complainant again wrote a letter dated 23.7.2008, the same was received by the Opposite Party but not complied any demand made therein.  The Opposite Party unilaterally disconnected the telephone which amounts to deficiency in service. 

It is stated that, the Complainant’s residence is 3 Kms away from Belthangady Telephone Exchange and there is no forest area around the Complainant’s house and there are still telephone connections in and around the Complainant’s premises which are working.  The Opposite Party even after disconnecting telephone as collected rent and taxes of the above telephone connection till 2008.  The Opposite Party without giving any notice disconnected the above telephone. Therefore, the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to restore telephone connection No.233324 to the Complainant residence through land line and to pay Rs.20,000/- as compensation towards mental agony, monitory loss etc. and cost of the proceedings.

2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version admitted that, the Complainant has taken telephone connection in the year 2000 for his residence bearing landline telephone No.233324 through Belthangady telephone exchange.  It is stated that, the said connection was given to the Complainant on 18.11.2000 and now the Complainant is the consumer of WLL phone bearing No.205041 under the Opposite Party.  It is stated that, the bill dated 7.5.2008 for Rs.298/- and bill dated 7.7.2008 for Rs.246/- were not paid and hence the telephone connection given to the Complainant was temporarily disconnected on 20.8.2008.  In spite of that, the Complainant was not cleared the bills and accordingly on 12.1.2009 the said connection was permanently disconnected.  Thereafter, the accounts were finalized on 17.1.2009 for the refund of balance amount of Rs.415/- a cheque bearing No.835773 was issued to the Complainant on 6.2.2009.  It is contended that, the Complainant is not a consumer under the Opposite Party in respect of telephone No. 233324 from the last one year and the complaint is not maintainable.

It is further stated that, in the month of March 2008, the telephone connection provided to the Complainant stopped working, the Complainant has written a letter dated 16.3.2008 to the Opposite Party.  The Opposite Party inturn sent a lineman and examined the line and stated that, in order to reach the Complainant’s house one has to cross the river.  In the year 2008 March due to untimely rain, the river was flooded and fault could not be attended for seven days.  The same could not be attended since the rusty iron wires across river crossing was missing and the GI wire was not available.  When ever there is a flood water in the river to reach the Complainant’s house the telephone mechanic was go to Koyyur road and required to walk 5 Kms.  Under the above circumstances, the restoration of landline was not feasible.  Hence, it was advised the Complainant to avail WLL connection which is giving better interruption free service.  Accordingly, phone No.205041 has been provided to the Complainant and had accepted the WLL phone service and used to his satisfaction upto 24.4.2008 and contended that, landline is not feasible due to reason stated above and the Complainant advised to avail WLL phone service and contended that there is no deficiency and prayed for dismissal of the Complaint.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that Opposite Party committed deficiency in service?
2. If so, whether the Complainant is entitled for the reliefs claimed?
3. What order?

4.       In support of the complaint, Mr. I.L.Pinto, (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and Ex C1 to C3 were produced for the Complainant as listed in the annexure.  One Vasudeva Holla, Assistant General Manager of Opposite Party filed counter affidavit (RW-1) answered the interrogatories served on him.  Ex R1 to R4 produced by the Opposite Party as listed in the annexure.  Both the Parties filed written notes of arguments.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon’ble Forum and answer the points are as follows:      

          Point No.(i): Affirmative.

          Point No.(ii) & (iii): As per the final order.

REASONS

5.  POINTS NO. (i) to (iii):

From the out set of the material available on the file of this Forum, it is admitted that, the Complainant was the consumer which availed a landline telephone connection bearing telephone No.233324 through Belthangady Telephone exchange on 18.11.2000 and the said telephone used for the residential purpose.  It is also admitted that, in the month of March 2008 the above said telephone connection provided to the Complainant stopped working and the Complainant has written a letter dated 16.3.2008 to the Opposite Party.

Now the point in dispute before this Forum between the parties are that, according to the Complainant the landline Telephone No.233324 which is connected to the Belthangady Telephone Exchange has been disconnected without any prior notice and further it is contended that, in the month of March 2008 the above said telephone stopped working and lodged a Complaint in writing dated 16.3.2008, the J.E. of the Opposite Party visited the house of the Complainant and installed the WLL connection only for temporary purpose and the instrument of the landline was taken by the Opposite Party.  Thereafter, the Complainant forced to use WLL phone and the said phone was no use returned to the Opposite Party.   Thereafter also the Opposite Parties not restored the landline and the Complainant approached the divisional engineer of the Opposite Party and handed over the WLL phone to the Opposite Party and Divisional Engineer directed the Junior Engineer to provide the landline connection to the complainant by erecting cable wires.  As per the representation of the Opposite Party officials the Complainant with the help of labours dug the trenches to the length of 180 meters and has been spent Rs.3,300/-. But even after that the Opposite Party postponed on one or the other pretext.  Subsequently, the Opposite Party issued a bill dated 7.3.2008 which is illegal but the same has been complied by the Complainant and again thereafter the Opposite Party without prior notice disconnected land line connection.  Hence this Complaint.

The Opposite Party interalia contended that, the Complainant’s residence is situated 5 Kms away from the exchange and in order to reach house of the Complainant one has to cross the river, the telephone mechanic as to go to Koyyur road and required to walk 5 Kms.  The landline system are not feasible to the Complainant’s residence.  It is further contended that, the Complainant was provided WLL phone facility bearing No.205041, the Complainant was using the same up to 24.4.2008.  The Complainant not paid the bill dated 7.5.2008 for Rs.298/- and bill dated 7.7.2008 for Rs.246/-.   Hence, the telephone connection given to the Complainant was temporarily disconnected on 20.8.2008.  In spite of that, the Complainant was not cleared the bills and accordingly on 12.1.2009 the said connection was permanently disconnected and Rs.415/- was refunded to the Complainant and contended that there is no deficiency.

On careful scrutiny of the pleading as well as oral/documentary evidence available on record, we find that, the Opposite Party in this case totally confused and confusing the Forum by producing version as well as documents on record.  As we pointed out in the version as admitted by the Opposite Party that, the Complainant was provided landline connection bearing Telephone No.233324 through Belthangady Telephone exchange (Page-2, Para-3 of the version).  And according to the Opposite Party the same telephone was in existence upto 12.1.2009.  But there is no documentary evidence produced by the Opposite Party to show that, the above said land line telephone was working without any interruption up to 12.1.2009.  If at all, the above said landline telephone was working, then what is the point in providing WLL telephone to the Complainant as stated by the Opposite Party.  The Opposite Party in another statement on the very same Para of their version stated as follows: “Now the Complainant is a consumer of WLL phone No.205041 under the Opposite Party and the bill dated 7.5.2008 for Rs.298/- and bill dated 7.7.2008 for Rs.246/- were not paid and the telephone connection given to the Complainant was temporarily disconnected on 20.8.2008 and Complainant was not cleared the bill and accordingly on 12.1.2009 the connection was permanently disconnected and the accounts were finalized  on 17.1.2009 and the cheque was received by the Complainant on 6.2.2009.  Hence, the Complainant is not a consumer under the Opposite Party in respect of landline telephone bearing No.233324.”  The above statement of the Opposite Party again confused because the telephone bill dated 7.7.2008 produced by the Opposite Party   for a sum of Rs.246/- pertaining to the telephone bearing No.205041 i.e. WLL telephone provided by the Opposite Party and another bill i.e. bill dated 7.5.2008 for Rs.298/- also pertaining to the WLL telephone No.205041 not pertaining to 233324. How the Opposite Party could disconnect the landline telephone number provided to the Complainant by the Opposite Party without there being any fault or any due by the Complainant.  It is admitted by the Opposite Party again in Page No.3 Para No.5 of their version stated that, the WLL phone provided by the Opposite Party accepted by the Complainant and the same was used by the Complainant to his satisfaction upto 24.4.2008.  That means, even the WLL phone provided by the Opposite Party to the Complainant used only upto 24.4.2008.  When that being the case, how the Opposite Party could claim the bill dated:7.7.2008 or 7.5.2008 to the above said WLL telephone when it was not in use. 

The another point for consideration in this case is that, in page No.4 Para 6 of their version, categorically admitted by the Opposite Party that the landline telephone bearing No.233324 stopped working in the month March-2008 and the Complainant issued a written Complaint dated 16.3.2008. That means, the landline admittedly stopped working in the month of March 2008.  When that being the case, the question of non-payment of bills does not arise even in telephone No.233324. 

However, we find that, the Ex.C1 i.e. Telephone Bill in respect of the landline telephone bearing No. BJY 233324 clearly reveals that, the Complainant paid the entire bill amount and there is no due what so ever pertaining to the landline and Ex.C2 i.e. Registered Letter dated 23.7.2008 issued by the Complainant to the Opposite Party clearly reveals that, the landline of the Complainant was out of order and the Complainant lodged a Complaint with the Opposite Party in writing on 16.3.2008, Junior Engineer of the Opposite Party visited the Complainant’s residence and provided WLL connection for temporary use and assured the Complainant that the landline will be rectified.  Since, the Junior Engineer of the Opposite Party not rectified the landline telephone, the Complainant approached the Divisional Engineer of the Opposite Party and the Divisional Engineer of the Opposite Party directed the Junior Engineer to erect a cable and on representation of the Opposite Party, the Complainant dug the trenchers at about 180 feet and the WLL telephone also returned to the Opposite Party and called upon the Opposite Party to restore the landline and asked them to provide a internet facility to his children at his residence.  The above said registered notice was served to the Opposite Party on 24.7.2008 which can be evidenced by the acknowledgment produced before this Forum.  Despite of that, the Opposite Party not taken any action in this case.  But on the other hand, we are very surprise to note, how the Opposite Party could send telephone bills to the Complainant.  There should be a material evidence on record to formulate that, the landline provided to the Complainant at his residence is not feasible and should have drawn a report by stating the reason raised in their version.  But in the instant case, nothing has been placed on record to show that, what steps they have taken to intimate the Complainant or tried to repair the telephone connection given to the Complainant.  It is pertinent to note that, the Opposite Party ought to have drawn a report by explaining or mentioning all the difficulties to draw a landline to the residence of the Complainant which includes there is a river around the Complainant residence and no telephone connection working in around the Complainant by taking witnesses of the local people and the said concerned landline having problem and the restoration of the line was not feasible, hence, the landline was converted in WLL.  But no such report was drawn by the Opposite Party except the bills raised by them.  However, the Opposite Party totally confused and it suffers from surmises and the documents produced by the Opposite Party are  contradictory. 

In the instant case, we observed that, before disconnecting or converting the landline, the Opposite Party should drawn a report and before disconnecting the landline one should issue a prior notice.  The Complainant is not a defaulter nor there is no any fault on the part of the Complainant.    No materials has been shown to us that the Opposite Party has followed the guidelines and drawn the report and took necessary steps before disconnecting/ providing landline and WLL facility.  No doubt now a days the technologies are so advance, the WLL service is better service than the landline connection.  But before convincing or providing WLL connection to the Complainant or before disconnecting the landline connection one has to adhere to the directions and guidelines issued by the department.  It is a settled position that, non-adherence or observance of the direction, which have come in the form of guidelines need to be followed by all in the department.  Non observance of this guidelines itself is a deficiency on the part of the Opposite Party department.  Had they followed this guidelines, then they would have informed the Complainant about the sudden change of the telephone/disconnection of the landline telephone and then what ever raised in their version would have had some legs to stand on.

In view of the above discussions, we are of the considered opinion that, without following the guidelines committed deficiency in service by disconnecting the telephone and raising a bill when the telephone is not in working condition.  Admittedly, the Complainant lodged written Complaint to the Opposite Party and the same has been admitted by them, but there is no material evidence that, the Opposite Party attended the Complaint of the Complainant or drawn any report to that effect.  Had they followed their own guidelines then this situation could not even arisen.  This is the case of deficiency on the part of the Opposite Party non-observing internal guidelines and not intimating the Complainant about the disconnection/restoration of other telephone.  In the light of the above, we are of the considered opinion that, the Opposite Party by disconnecting the landline without restore of the original telephone committed deficiency. 

In view of the above discussions, we direct the Opposite Party i.e. D.K. Telecom district, BSNL represented by its Principal/Assistant General Manageris hereby directed to restore the landline telephone connection bearing No.233324 to the Complainant’s residence immediately.  And also pay Rs.7,000/- as compensation towards the harassment and mental agony. And Rs.1,000/- awarded as cost of the litigation expenses.  On failure to pay the above said compensation, the Opposite Party directed to pay interest 10% per annum on the above said compensation amount. 

We further observe that, the Opposite Party i.e. the BSNL is at liberty to recover the compensation amount from the erred official from his personnel earning because one should not continue this type of harassment to the public in future by omitting the guidelines issued by their department.  The Compliance and Payment shall be made within 30 days from the date of this order.

6.       In the result, we pass the following:

ORDER

          The complaint is allowed. The Opposite Party i.e. D.K. Telecom District, BSNL represented by its Principal/Assistant General Manager is hereby directed to restore the landline telephone connection bearing No.233324 to the Complainant’s residence immediately.  And also pay Rs.7,000/- (Rupees Seven thousand only) as compensation and Rs.1,000/-(Rupees One thousand only) as cost of the litigation expenses to the Complainant. Compliance and Payment shall be made within 30 days from the date of this order.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 15 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the  22^nd day of September 2010.)

                                         PRESIDENT       

       MEMBER                                                          MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr. I.L.Pinto – Complainant.

Documents produced on behalf of the Complainant:

Ex C1: Telephone bill in respect of the Complainant’s landline Telephone bearing No.BJY 233324.

Ex C2: 23.7.2008: Letter addressed to Opposite Party department

                          by the Complainant.

Ex C3:              : Postal acknowledgment in proof of issuance of the

                          above letter.

Witnesses examined on behalf of the Opposite Party:

RW-1: Sri.Vasudeva Holla, Assistant General Manager of Opposite Party.

Documents produced on behalf of the Opposite Party:

Ex R1: 28.5.2008: Computerized copy of the bill in respect of

                          telephone bearing No.205041.

Ex R2: 28.7.2008: Computerized copy of the bill in respect of

                           telephone bearing No.205041.

Ex R3:               : Xerox copy of the Telephone Rules 443 and 418.

Ex R4:               : Copy of the Call list.

Dated:22/09/2010                                           PRESIDENT