THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C.451/2015
Dated this the 21st day of July, 2017
(Smt. Rose Jose, B.Sc, LLB. : President)
Smt.Beena Joseph, M.A : Member
Sri. Joseph Mathew, M.A., L.L.B. : Member
ORDER
Present: Rose Jose, President:
This petition is filed under Section 12 of Consumer Protection Act, 1986 for getting an order directing the opposite parties to pay sum total of Rs.50,000/- to the petitioner as compensation for deficiency in service of the opposite parties.
The case of the petitioner is that, he was residing at Kuthiravattom, Kozhikode and had shifted his residence to Manjeri. Due to the said reason he had surrendered his land phone No. 2741886 before the opposite party, service provider BSNL, by an application dated 11/06/2014. Along with the surrender form he has also applied for the refund of the deposited amount. As he has not received the amount even after 6 months, he approached the office of the opposite party and they told him that a cheque for the said amount was already issued in his Kozhikode address and advised him to enquire at the Kuthiravattom Post Office. It is stated by the petitioner that at the time of shifting to Manjeri he had given his new address there and informed to redirect the letters in his new address at Manjeri. As such he has been receiving the redirected letters from the Kuthiravattom Post Office without any hindrance. But he was not received the cheque allegedly issued by the opposite party. So he again approached the office of the opposite party and they told that once the cheque date was lapsed, they will get the statement of pending cheques from the bank, only after 4 months and only after receiving the said statement they can issue a duplicate cheque again and so they demanded to submit another application for the same. As per their demand on 07/01/2015, he had submitted another application at their office for the same along with the copy of the earlier application. But till date he has not received the deposit amount from the opposite party. The said act of the opposite party is deficiency in service on their part and as a senior citizen, this caused much mental agony, financial loss and such other difficulties to him. Hence this petition seeking reliefs.
The opposite party in their version admitted that the petitioner was their subscriber having land phone No. 0495-2741886 and closed his connection on 04/07/2014. They submitted that the available deposit of Rs.691/- was refunded to him vide cheque No. 193995 dated 29/10/2014. But the said cheque was not received back at their office. On receipt of a complaint from the petitioner the cheque clearance statement was collected from their bank after the validity period of the cheque and confirmed that the same was not cleared and hence the procedure to re-issue the cheque was initiated without delay. Meanwhile all their payments were centralized at the Circle Office at Trivandrum. Being a new software, there were some technical problems in re-issuing the cheque. This was an all Kerala phenomenon and the software problem got cleared later and this was the reason for the delay in re-issuing another cheque. This matter was already informed to the petitioner when he came to their office. They further submitted that at present the cheque for Rs.691/- dated 07/10/2015 is ready with them and they are ready to hand over the same to the petitioner. The delay was only due to the technical problem with the software and there were no willful latches or omission on their part in this regard. So the petitioner is not entitled to get any compensation in this regard and they are not liable to pay any compensation also. There is no deficiency in service on their side as alleged and hence prayed to dismiss the petition on accepting their version.
Evidence consists of the affidavit filed by the petitioner, opposite party, ext. s A1 to A3, B1 to B2 and depositions of PW1 and RW2.
At the evidence stage the opposite party raised a contention that this petition is not maintainable before this Forum as per Section 7B of the Indian Telegraph Act and prayed to dismiss the petition in-limini on the ground alone. They produced the judgements made by the Hon’ble State Commission and Supreme Court in similar cases.
In Krishnan and others Vs. General Manager, Telecom in Civil Appeal No. 7687/04, Hon’ble Supreme Court held that “In our opinion when there is a special remedy provided in Section 7-B of the Indian Telegraph Act, then the remedy under the Consumer Protection Act is by implication barred.”
This judgement was passed by the Hon’ble Supreme Court in the appeal against an order passed by this Forum itself dated 26/11/2001 in a complaint filed by Sri. M. Krishnan against Telecom Department. In this order this Forum ordered to the Telecom Department to pay Rs.5,000/- with 12% interest per annum to the petitioner as compensation for their deficiency in service. Aggrieved by this order the Telecom Department filed a writ petition before the Hon’ble High Court of Kerala challenging the jurisdiction of the Consumer Forum in entertaining disputes against Telecom Department. The Full Bench of the Hon’ble High Court dismissed the writ appeal confirming the order of this Forum.
Against this verdict the Telecom authorities filed appeal No.7687/04 before the Hon’ble Supreme Court by special leave. The Hon’ble Supreme Court allowed the appeal setting aside the juedgement of the Hon’ble High Court as well as the order of this Forum in its verdict dated 01/09/2009 cited supra. Based on this decision, the Hon’ble State Commission had allowed an appeal in Sri. N.N. Thomas, Sub Divisional Engineer, Karukachal Vs. Devassia Appeal No. 91/2015 in its judgement dated 19/06/2016.
The Forum is bound by rule of law laid down by the Hon’ble Supreme Court in Krishnan’s case that the Consumer Fora lacks jurisdiction to entertain or decide on merit a complaint coming under Sction 7-B of Telegraph Act. So we are of the considered view that there is no meaning in going to the merits of this petition as it is not maintainable and hence it is dismissed.
In the result, this petition is dismissed. No order as to costs.
Dated this the 21st day of July, 2017
Date of filing: 22/08/2015
SD/-MEMBER SD/-PRESIDENT SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1. Copy of closure application
A2. Copy of complaint
A3. Copy of complaint
Documents exhibited for the opposite party:
B1. Copy of despath list
B2. Copy of cheque
Witness examined for the complainant:
PW1. Gopalakrishnan T.V. (Complainant)
Witness examined for the opposite party:
RW1. Satheesh (Opposite party)
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
