By. Sri. Jose. V. Thannikode, President:

The complaint is filed under section 12 of the Consumer Protection Act against the opposite parties to refund the excess amount unauthorisely collected by the opposite party with interest, cost and compensation.

2. Brief of the complaint:- The complainant is a consumer of BSNL by subscribing land line telephone connection numbered 04936 274786 which comes under the Padinjarathara telephone exchange bearing Account number 9034766594. From 2012 onwards the complainant is the subscriber in the above number, The complainant is a Madrasa teacher and an ardent islamic believer. The number 786 is an Islam religious related number. By fascinating the said fact he opted that number, So also he has availed BSNL Internet facility in the same number. All the bills to the said telephone have been promptly remitted by the complainant. By using the above subscription number, the complainant is making communications to everybody both, inside and outside the country. On O8.05.14, the complainant had paid the bill amount of Rs.2,450/- and thereafter on 30.07.14 he remitted the bill amount of Rs.1,490/-. After that from 30.09.14 the telephone connection was not available to the complainant. It was intimated from the BSNL Office that the installation of an underground pipeline to the Kurumbala UP School was the cause of disconnection. For the same reason no land line connection of the locality was functioning. Thus BSNL office has orally intimated the subscribers of the locality, not to pay any bill till the availability of the connection. But as the availability of the connection was not restored for a long period, the complainant had made complaint before the BSNL Authorities Registering the compliant in the Number 1908 and through telephone to the Trivandrum Office bearing number 0471 2309008, Calicut office bearing number 0495 2725990, 272 4921. After the payment of Rs.1,490 on 30.07.2014, a bill dated 06.10.2014 for an amount of Rs.1,539.82/- was received by the complainant from the opposite party, in which the Usage charge cited is Rs.0.00/-. The complainant approached the opposite party for explanation. From the office of the opposite party it was directed that bill may be paid after curing the defect. The bills after 06.10.2014 till 06.12.2015 were received by the complainant with an amount of Rs.2,781/- and the consumption charge cited is Rs.0.00/-. But as the telephone connection was not available to the complainant. he had not made the payment. Till date the defect of the connection has not rectified. The complainant is ever ready and willing to pay any amount legitimately due to the BSNL. From 30.09.2014 onwards, the above mentioned telephone is not working. Though on several occasions the matter was intimated to opposite parties offices at Wayanad, Calicut and Trivandrum no response was received by the complainant. The complainant booked through the fault booking 198(IVRS)of BSNL. When booked through 198, the booking was used to close and till not rectified the complaint. The complainant had remitted the bill amount for which he have consumed the telephone connection without any fault. Though he had paid all the bill amounts properly, the act of the opposite party is clear deficiency of service and unfair trade practice. Due to the deficiency of service and unfair trade practice of the opposite parties the complainant and his family and everybody related to them had sustained severe inconveniences, anxiety, serious loss, injury, hardship, mental agony etc. For the some reason, the opposite parties are liable to forthwith rectify the errors and restore the above landline connection to the complainant and to redress Rs.50,000/- towards the compensation for inconveniences, and sufferings sustained by the complainant due to the illegal acts. Hence filed this complaint.

3. Notices served to opposite parties and they filed version stating that the complainant was a customer of BSNL Landline No.04936-274786 under Padinharathara Tele. Exchange. The telephone connection was provided to the customer on 11.10.2012 and was disconnected due to non-payment on 18.12.2015. Now an amount of Rs.1,280/- is outstanding against the customer, after adjusting an amount of Rs.1,500/-. The contention of the complainant is that he paid all amount regularly is not correct and hence denied. The paying habit of the complainant was not regular as per the data exists in CDR billing and extract of which is produced and marked as Annexure-I, wherein it can be seen that the number was disconnected for non-payment regularly and was reconnected on belated payment. The details of payment made by the customer duly extracted from the CDR billing is produced and marked as Annexure-II. Details of bills issued which has been extracted from CDR data is produced and marked as Annexure-III wherein the outstanding bill amount is shown as Rs.2780.15/-, out of which a sum of Rs.1,500/- received as Security deposit was adjusted and the balance amount of Rs.1,280.15/- is due from the customer. From the Annexure-III it can be seen that the customer is not making any payment from August,2014 onwards. Owing to non-payment of bills the outgoing facility of telephone was barred on 21.11.2014 and the telephone service was temporarily suspended (incoming and outgoing). From Annexure.III it can be seen that from 06.01.2016 onwards, on every 6th of every month, upto 06.12.2015, bills were issued to the customer with zero usage charges showing the outstanding amount in every bill and the customer least bothered to make the payment promptly. Accordingly the telephone was finally disconnected and the account was permanently closed on 18.12.2015. From the above, it can be seen that the complainant was not paying the monthly bills regularly. For instance, the complainant has not paid the bill dated 06.08.2014 onwards. A copy of the invoice No.0-381049850 dated 06.08.2014 and 0-388217137 dated 06.09.2014 were not paid by the customer which lead to the disconnection. Copies of the above two bills are produced and marked as Annex.IV & V respectively . Thus, it can be seen that the telephone was permanently closed on 18.12.2015 and after waiting for more than six months, on 27.06.2016 the number was allotted to another customer. As per the telephone rules, after six months of disconnection, the telephone number is free for allotment to a new customer and BSNL has not violated any privilege of the complainant. Had the complainant approached for reconnection earlier than the re-allotment of the telephone number it could have been done without any difficulty. Since the telephone no. 04936-274786 is presently allotted and working for another customer, for giving reconnection to Shri. Mohammed Kamil is not feasible for the time being. However, if the customer is willing for reconnection of the telephone with any other number, the connection can be provided, subject to the condition that the complainant will be satisfied with the allotment of free other telephone number. The complainant may approach the first party to know the free number available from Padinharethara Telephone Exchange and the BSNL can provide the connection within 15 days, subject to the condition that the customer make payment of the outstanding bill amount and remit required security deposit depending upon the plan for landline or broadband or both. Hence prayed to dismiss the complaint.

4. Complainant filed proof affidavit and stated as stated in the complaint and he is examined as PW1 and Ext.A1 to A5 documents were marked. Opposite party filed proof affidavit and stated as stated in the version and he is examined as OPW1 and Ext.B1 document is marked. Ext.A1 is the copy of Payment Receipt for Rs.1,490/- dated 30.07.2014. Ext.A2 is the bill dated 06.10.2014 for Rs.653/-. Ext.A3 series are 6 in numbers. Ext.A3(1) is the bill dated 06.05.2015 for the period 01.04.2015 to 06.05.2015. Ext.A3(2) is the bill dated 06.12.2015 for the period 01.11.2015 to 30.11.2015. Ext.A3(3) is the bill dated 06.11.2015 for the period 01.10.2015 to 31.10.2015 for Rs.278/-. Ext.A3(4) is the bill dated 06.08.2015 for the period from 01.07.2015 to 31.07.2015 for Rs.278/-. Ext.A3(5) is the bill dated 06.07.2015 for the period 01.06.2015 to 30.06.2015. Ext.A3(6) is the bill dated 06.06.2015 for the period 01.05.2015 to 31.05.2015 for Rs.278/-. Ext.A4 is the Telephone bill (duplicate) dated 06.08.2014 for the period 01.07.2014 to 01.08.2014 for Rs.771.93/-. Ext.A5 is the copy of telephone bill dated 06.09.2014 for the period 01.08.2014 to 01.09.2014. Opposite party also filed additional version stating that this Forum has no jurisdiction to entertain the complaint, since there is an order in the CDRC in Appeal No.91/2016 dated 19.08.2016 quoting the judgment of Supreme Court in General Manager Vs M. Krishanan and Anr dated 01.09.2009.

5. On considering the complaint, version, documents and evidences, the Forum raised the following points for consideration:-

1. Whether it is maintainable before the Forum on the point of Jurisdiction?.

2. Whether there is any deficiency of service from the part of opposite parties?

3. Relief and Cost.

6. Point No.1:- Regarding the jurisdiction aspect it is to be noted that the Joint Secretary to the Government of India Ministry of Communications and IT Department of Telecommunications made an Order on 24.01.2014 stating that ''Secretary Department of Consumer Affairs, Govt. of West Bengal, vide letter No. 113/secy/CAD dated 7th October, 2013 has stated that the Telecom Consumers are agitating throughout the country against ousting the jurisdiction of Consumer Fora since 2009 as a consequence to the judgement passed by Hon'ble Supreme Court of India, in the matter of General Manager, Telecom Vs. M. Krishnan & Anr, decided on 01.09.2009 (copy enclosed). In the above judgement, Hon 'ble Supreme Court has observed that, ''In our opinion, where there is a special remedy provided in S. 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the' Consumer Protection Act is by implication barred". The National Commission in RP 1703 of 2010 decided 21.05.2010 that the judgement of the Hon'ble SC is binding on all subordinate courts. Consequently, Consumer fora in the country in most of the cases do not entertain any complaint U/s 12 of the Act if the complaint relates to a Telecom Consumer dispute irrespective of the nature of complaint beyond telephone bills. Government of West Bengal has requested to consider preferring an SLP before Hon'ble Supreme Court of India for making the position of law unambiguous in the context of Section 13 of Consumer Protection Act,l986. A doubt had arisen out of interpretation of the judgment of the Hon'ble Supreme Court in the matter of GM Telecom V/s M Krishnan dated 1^st Sept, 2009, which held that the special law contained in section 7B of the Indian Telegraph Act, 1885, overrides the general law indicated by the Consumer Protection Act, 1986. Therefore, in disputes arising between the telegraph authority and any person, recourse can be made only to the arbitration provision under section 7B of the IT Act rather than to the Courts constituted under the Consumer Protection Act, 1986. Attention is invited to W.P.(C) 8285/2010 & CM No.21319/2010 (J.K. Mittal Vs UOI & Ors) (Copy enlosed) related to the jurisdiction of Disctrict Consumer Disputes Redressal Forum (Disctrict Forum) in respect of consumers of telecom services provided by the companies granted license under section 4 of Indian Telegraph Act, 1885 in High Court of Delhi. High Court of Delhi, while setting aside the WP(C)8285/2010 & CM No.21319/2010 vide Judgment dated 06.02.2012 has inter-alia held that the bar under section 7-B, if at all, could have applied, had the dispute arisen between the petitioner and a telegraph authority, which the respondent No.2 is not. Merely being a licensee under section 4 of the Indian Telegraph Act, does not confer on it the status of a Telegraph authority. The consumer claim is maintainable before the District Forum. The matter has been examined in this Department. It is mentioned that the matter referred to in the Hon'bIe Supreme Court involved a dispute between Department of Telecommunications(DoT) as a service provider prior to the hiving off of telecom services into a separate company namely Bharat Sanchar Nigam Limited (BSNL). Since DoT was also the telegraph authority, reference was made by the Hon'ble Supreme Court to the provisions of section 7B. However, powers of the Telegraph Authority have neither been vested nor are available to private telecom service providers and BSNL. Therefore, recourse to section 7B in case of disputes between consumers and private service providers and BSNL would not be available. The Hon'bIe Supreme Court's judgment is sui generis in it application and has to be read with reference to the particular facts and circumstances of the case before it. Further, while commenting on the implementation of provisions of National Telecom Policy-2012, related to amendment of Indian Telegraph Act to bring dipsutes between telecom consumers and service providers within the jurisdiction of District Forums established under Consumer Protection Act, Legal Advisor, DoT opined that District Forums are already having jurisdiction and promulgation of ordinance is apparently not required. In view of the above position, this Department is of the view that the request from Government of West Bengal proposing to consider preferring an SLP before the Hon'ble Supreme Court of India for making the postiton of law unambiguous in the context of Section 3 of Consumer Protection Act, 1986 is not required and the District Forums are competent to deal with the disputes between individual telecom consumers and telecom service providers. The above position may be brought to the notice of all District Consumer Dispute Redressal for a and the State Consumer Disputes Redressal Commission in the States/UTs. In the context we are also of the opinion that District Consumer Forums are competent to deal with the disputes between individual telecom consumers and telecom service providers. Hence the Point No.1 is found accordingly.

7. Point No.2:- Complainant stated that after 30.09.2014 the telephone connection was not available to the complainant. Ext.A2, A4 and A5 document ie from 01.07.2014 to 30.09.2014 shows that there is no usage charge for the period. Hence we presume that the connection was disrupted since 01.07.2014. Opposite party admitted in their version that it is temporarily disconnected from 21.11.2014 and opposite party also admitted in the version that the said connection was disconnected on 18.12.2015. The above said connection was temporarily disconnected on 21.11.2014 and permanently disconnected on 18.12.2015. But the complainant approached this Forum only on 20.09.2016 for redressal his grievances. Meanwhile after about one year from the disconnection opposite party has allotted the phone number to some other person. So we could not allow the first prayer since if it is not available.

8. We found that after disruption in the telephone connection charging the monthly rent and other charges and thereafter temporarily disconnection from 21.11.2014 and permanently disconnecting without giving an opportunity to the consumer is a clear case of deficiency of service and unfair trade practice from the side of opposite parties. Hence the Point No.2 is found accordingly.

9. Point No.3:- Since the Point No.1 and 2 is found against the opposite parties, they are liable to restore the telephone connection and liable to pay cost and compensation. Hence the Point No.3 is found accordingly.

In the result, the complaint is partly allowed and the opposite parties are directed to restore the telephone connection with same number if it is not allotted any one or provide a new number after giving an opportunity to the complainant to select the number which is available in the Exchange on payment of dues and opposite parties are also directed to pay Rs.5,000/- (Rupees Five Thousand) as compensation and Rs.2,000/- (Rupees Two Thousand) as cost of the proceedings to the complainant within one month from the date of receipt of this Order. Failing which the complainant is entitled for an interest at the rate of 12% per annum for the whole the amount till realization.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 28^th day of February 2017.

Date of Filing: 19.09.2016.

PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

Sd/-

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:-

PW1. Muhammed Kamil Cheruvery. Complainant.

Witness for the Opposite Parties:-

OPW1. Kesavan. V. G. Sub-Divisional Engineer, Telecom.

Exhibits for the complainant:

A1. Copy of Payment Receipt. Dt:30.07.2014.

A2. Copy of Telephone Bill. Dt:06.10.2014.

A3(1). Copy of Telephone Bill. Dt:06.05.2015.

A3(2). Copy of Telephone Bill. Dt:06.12.2015.

A3(3). Copy of Telephone Bill. Dt:06.11.2015.

A3(4). Copy of Telephone Bill. Dt:31.07.2015.

A3(5). Copy of Telephone Bill. Dt:06.07.2015.

A3(6). Copy of Telephone Bill. Dt:06.06.2015.

A4. Telephone Bill duplicate. Dt:06.08.2014.

A5. Telephone Bill duplicate. Dt:06.09.2014.

Exhibits for the opposite parties:-

B1. Instructions to Subscribers.

Sd/-

PRESIDENT, CDRF, WAYANAD.

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