DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

BIRBHUM (SURI).

C. F. CASE NO.-CC/29/2008.





PETITIONER =Vs. = O.P

Asim Bhattacharya, Bharat Sanchar Nigam Ltd., represented by

Vill & P.O. Damra, Dist. Birbhum. The General Manager, Telecom Suri District,

Suri, Birbhum.



PRESENT :-Shri S.K. Roy ----------- President.

:- Sri. M.K. Pal -----------Member

:- Smt. Bula Koley……..Member.

Date : 25/03/2009

J U D G E M E N T



In brief the complaint is that he has a land Line telephone connection at his residence since 1994. But as the same frequently gave trouble he had to reen upto the public grievance cell for remedy. Due to negligence on the part of the opp. Party in maintaining the overhead line for about 4 Kms distance the telephone is giving him much trouble. In spite of repeated requests the opp. Party has not restored the line rather closed it for ever. Hence this case.

The case is contested by the opp. Party by filing a written version wherein it has taken a few legal objections and has contended that the 4 kms overhead line passes through the dens jungle of Gonpur and the miscreant frequently theft away the wire for which it is practically not possible to maintain the same having skeleton manpower in the department . The complainant has been requested to change the land line connection into WLL connection but he refused. This opp. Party is ready to convert the connection for giving the complainant better service. The case merits dismissal.

To prove the complaint case the complainant alone sworn and file an affidavit on evidence and a few documents marked exts.1 to 7 as per list. On the other hand one Mrs Baisakhi Chakravoarty sworn and file a counter affidavit in evidence to establish the defence case.

Points for consideration are:-

1) Is the complainant a consumer as defined in the C.P. Act,1986?

2) Has there any deficiency in service on the part of the opp. Party?

3) Is the complainant entitled to the reliefs prayed for?



DECISION

Points no 1 & 2:- These two points are taken up together for the convenience of discussion. The ld. Lawyer for the opp. Party has admitted that the complainant has a land line telephone but for

Conted../2





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inconvenience to maintain the overhead wire being unable to check the theft of the wire off and

on the opp. Party has permanently disconnected and closed the line. As such at present the complainant is not a consumer under the opp. Party. The ld. Lawyer for the complainant has submitted that the present case has been filed against such closure as the complainant has not consented to close his service connection. So the complainant is still consumer. I am in full agreement with the submission of the ld. Lawyer for the complainant. The complainant has challenged the whimsical act of the employees of the opp. Party for permanent closer of the service connection without the consent of the complainant.

Now as regards deficiency in service, the opp. Party in its written version as well as in affidavit on evidence has admitted the allegations made by the complainant that off and on his telephone became dead and for which had to move all the authorities of the opp. Party including public grievance cell at New Delhi. On several occasions the opp.party restored the connection. The only claim of the opp. Party that due to frequent theft of the over head wire which reens through the dens jungle of Gonpur it isnot possible to maintain the said over head wire with skeleton man power of the department. It is seen from the materials on record including the pleading of the opp. Party that out of 7 kms. distance from the nearest telephone exchange at Mollarpur 3 kms. has already been covered by underground cable. Then what prevent the opp. Party to cover the rest 4 kms. distance by underground cable. There is no answer or explanation at al by the opp. Party. On the contrary, the employees created pressure upon the complainant to change the land line telephone into a W.L.L. telephone which the complainant refused for certain inconvenience as stated in the petition of complaint and corroborate by affidavit. In my considered view the opp. Party can not create such pressure. For closure of the service there is no Govt. order or any resolution of the competent authority. It is not that complainant has prayed for a new line. The existing line should not be closed in the manner as has done by the opp. Party when there is alternative way to protect the line by covering it through underground cable. And not adopting that method is nothing but negligence and deficiency in service.

These two points are answered in favour of the complainant.

Point no. 3:- In view of the above discussion the complainant is entitled to the restoration of his land line telephone, for harassment and mental pain a compensation of Rs. 5000/- and litigation cost Rs. 500/- only. This point is answered accordingly in favour of the complainant.

In the result the complaint succeeds in part on contest.



Conted../3





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Fees paid are correct.

Hence, it is

Ordered

That the complaint is allowed in part on contest against the opp. Party,.

The complainant is entitled to the restoration of his land line telephone within 30 days. He is awarded compensation of Rs. 5000/- and litigation cost of Rs.500/- .

The opp. Party is directed to restore the telephone of the complainant within 30 days and pay the awarded amount within that period failing which the amount shall carry interest @ 10% p.a. after the expiry of 30 days till payment.

Copies of this judgment be supplied to the parties free of cost.





(Shri S.K. Roy --- President)



(Dictated and corrected by me.)







(Shri S.K. Roy --- President)



We agree,





(Shri M.K. Pal ----------- Member)





(Smt. Bula Koley……..Member.)

Shri Jai Singh Mehta

R/O Village Baghi, P.O. Chirgaon,

Tehsil Chirgaon, District Shimla, HP.



…. Complainant.



Versus



1. Bharat Sanchar Nigam Ltd.,

S.D.A. Complex, Kasumpti, Shimla-9

Through its General Manager.



2. The S.D.O. Telephones,

BSNL, Rohroo, Tehskil Rohroo,

District Shimla, H.P.



3. The Lineman, Village Baghi, Chirgaon Telephone Exchange, Tehsil Chirgaon, District Shimla, H.P.





…Opposite Parties




O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant by invoking the provision of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is subscriber of telephone bearing No.277251, which is installed at his aforesaid native village. It is averred that the aforesaid telephone connection provided by the OPs-BSNL seldom remains in order and the same remains non-functional for months together without any attempt on the part of the OPs to find out the defect and make attempts to rectify the same and the telephone connection went completely out of order in August, 2004, whereas, the OPs continued to issue regular bills, which was regularly paid by him without availing the telephone facility. The complainant further proceeded to aver that continuous complaints for the rectification of the telephone have fallen on deaf ears and no remedial action has been initiated by the OPs. The legal notice dated 12.03.2005 issued to the OPs, also fell on dear ears. Hence, it is averred that there is apparent deficiency in service on the part of the OPs-BSNL and accordingly relief to the extent as detailed in the relief clause be awarded in her favour.

2. The OPs-BSNL, in its written version to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint in view of section 7-B of the Indian Telegraph Act, lack of cause of action and there being no deficiency in service. On merits, it is contended that the telephone of the complainant has been functioning properly throughout as is clear from the calling pattern of the said telephone from 01.07.2003 to 30.06.2005. The complainant did not pay the telephone bills for the year 2005 and he is defaulter of Rs.1,692/-. It is further contended that since the telephone is functioning properly as is evident from the usage pattern, hence allegations regarding non-functioning of the telephone connection is false. As such, there being no deficiency in service, on the part of the OPs-BSNL, the complaint is sought to be dismissed.

3. We have heard the learned counsel for the parties at length and have also gone through the record of the case meticulously.

4. The complainant is aggrieved by the act of the OPs not only in disconnecting his telephone connection installed in his premises, but, is also seeking a direction from this Forum that the bills whose purported non-payment resulted in OPs disconnecting the telephone connection, being untenable, be quashed and set aside.

5. The complainant avers, that, though, he, had not been using the telephone connection installed at his premises by the OPs-BSNL, yet, he was billed by the OPs-BSNL which bills, as issued by the OPs-BSNL, are, hence, contended to be not lawful. The OPs-BSNL depended upon Annexure R-1, in, putting forth the contention before us that the telephone installed at the premises of the complainant had been used by the complainant, as such, the bills are in order. Annexure R-1, is, the detail of the metered calls made from the telephone installed in the premises of the complainant.


Annexure R-1 has been signed by the S.D.E. (Legal), in the office of the GMTD, Shimla whereas, the telephone connection provided to the complainant by the OPs-BSNL is installed, at, Chirgaon which does not fall within the jurisdiction of S.D.E.(Legal) who has issued Annexure R-1 nor has the signatory of Annexure R-1 sworn an affidavit before this forum that the details of the metered calls as purportedly made from the telephone connection provided by the OPs-BSNL was prepared by him only after calling from the details from the SDO of the OPs-BSNL, enjoying, jurisdiction over the area where the telephone connection, is, provided to the complainant.

6. Since, for lack of the above affidavit sworn by the signatory of the Annexure R-1, as also, when the appropriate functionary to submit before, us, the details of the metered calls as made by the complainant from his telephone connection, was, the SDO enjoying jurisdiction over the area where the telephone connection was provided by the OPs-BSNL to the complainant. With the appropriate functionary having not filed the details before us, hence, for the reasons aforesaid we do not give any credence to Annexure R-1. Consequently, while imputing untruthfulness to Annexure R-1, we are constrained to accord credibility to the averments contained in the complaint qua the fact of non-user by the complainant of the facility of the telephone connection provided at his premises by the OPs-BSNL. Obviously, then the complainant could not have been billed. Resultantly, the action of the OPs-BSNL in disconnecting the telephone connection provided at the premises of the complainant for the purported reason for non-payment of the bills, by him, is unlawful.

7. As a sequel of the above, we allow this complaint. The OPs-BSNL, through its General Manager is directed to restore the telephone bearing No.277251 of the complainant within a period of fifteen days, after the date of receipt of copy of this order and make it functional and operational, henceforth. They are also directed to maintain the telephone line and inspect the same quarterly to ensure its workability.


The telephone bills issued after August, 2004 till the telephone is made functional and operational, is quashed and set aside. In addition to this, the OPs-BSNL, is also directed to pay compensation of Rs.5,000/- to the complainant for causing unnecessary harassment and mental agony. The litigation cost is quantified at Rs.2500/- payable to the complainant by the OPs-BSNL. These payments shall be made, to the complainant by the OPs-BSNL, within a period of forty five days after the date of receipt of copy of this order. With this, the complaint stands disposed of in the above terms. The learned counsel for the parties have undertaken to collect the certified copy of this order from the office, free of cost, as per procedure. The file after due completion be consigned to record room.

M/s Excel Security & Allied Services,

No.442, 5th Main, HRBR Layout,

2nd Block, Kalyan Nagar,

Bengaluru - 560 043.



Represented by its Proprietor,

Attorney of Holder,

Mr.Vasudevan Ravindran

S/o Late Sri.Vasudevan,

No.414, 8th ‘E’ Main,

HRBR Layout, I Block,

Kalyan Nagar,

Bengaluru – 560 043.

…. Complainant

V/s



The Principal General Manager,

Central Telegraph Office,

Bharat Sanchar Nigam Ltd.,

Rajbhavan Road,

Bengaluru.

…. Opposite Party



-: ORDER:-



This complaint is for a direction to the Opposite Party to pay Rs.17,47,948/- towards arrears of wages along with interest at 24% Per Annum on the following grounds:-



2. The complainant is engaged in providing Security and allied services in the name and style of M/s Excel Security and Allied Services sponsored by Directorate General of Resettlement. The complainant was successful in getting his tender approved for providing security services to the Opposite Party as per the contract dated 06/09/2005. In the said contract Rs.6,075/- is fixed as the approved rate per month for a security Guard. The complainant had provided 123 Security Guards to the Opposite Party as per the Contract. As per the notification dated 13/03/2007 there was revision of minimum wages w.e.f. 01.02.2007 for the security agencies sponsored through Directorate General of Resettlement.


As per the revised wages a security Guard is entitled for a sum of Rs.8,472/- including service charges, HRA, VDA and Service Tax. As per the revision, for 123 Security Guards provided, the arrears of monthly wages from February-2007 to October-2007 comes to Rs.17,47,948/- as disclosed in Para-2 of the complaint. The complainant requested the Opposite Party to pay the arrears, but the same was not complied with. Legal notice dated:10/11/2008 was also issued calling upon the Opposite Party to pay the arrears of wages of Rs.17,47,948/-. But the Opposite Party failed to comply with the demand. Hence, the complaint.

3. In the version, the contention of the Opposite Party is as under:-

There are no comments to Para-1 & 2 of the complaint. The complainant is not a Consumer as defined under the Consumer Protection Act. The claim is under the provisions of Minimum Wages Act. Therefore this Forum has no jurisdiction to entertain the complaint. The complainant has not approached the Forum with clean hands and that they have to approach the appropriate Authority. The statements in Para-3 of the complaint, is false and in-correct. The statements in Para-4 to 6 of the complaint are false. On these grounds, the Opposite Party has prayed for dismissal of the complaint.

4. In support of the respective contentions both the parties have filed the affidavits. We have heard the arguments on both side.



5. The points for consideration are:-

1. Whether the complainant is a Consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act?



2. Whether the dispute raised by the complainant is a Consumer Dispute?



3. Whether the complainant entitled to the reliefs prayed for in the complaint?

6. Our finding to the above points is in the NEGATIVE for the following:-

-:REASONS:-

7. The fact that the complainant has provided security services to the Opposite Party as per the contract dated 06/09/2005 is admitted. The revision of the wages is also admitted by the Opposite Party. The complainant has provided security services to the Opposite Party and therefore it is a service provider and not a Consumer as defined under Section 2(1)(d) of the Consumer Protection Act which provides that a consumer is one who purchases the goods or avails services for consideration. In the case on hand, the complainant has not availed the services of the Opposite Party for consideration. On the other hand they have provided services to the complainant.


Therefore, the complainant cannot be construed as a Consumer as defined under the Consumer Protection Act as such the dispute raised by the complainant cannot be said to be a Consumer Dispute. As provided under Section 12 of the Consumer Protection Act. A Consumer alone is entitled to invoke the provisions of the Consumer Protection Act to seek the relief and a service provider is not entitled to seek the relief under the provisions of the Consumer Protection Act. Thus, the complainant being not a Consumer and the Dispute raised being not a Consumer Dispute, the complainant is not entitled to the relief prayed for in the complaint. In the result, we pass the following:-



-:ORDER:-



1. The complaint is DISMISSED with costs of Rs.1,000/- to the Opposite Party.

2. Compliance of this order shall be made within eight weeks from the date of communication.

3. Send a copy of this order to both parties free of costs, immediately.