(Delivered on 04/02/2019)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         Advocate Smt. Smita Deshpande is present  for the appellant.  No one for the respondent Nos. 1&2  is present since 20/02/2016. They  have not filed written notes of arguments.  Perusal of the record & proceedings of the appeal shows that  Advocate Mr. P.S. Kadam appeared lastly for  respondent Nos. 1&2 on 19/11/2015. We have heard appellant’s advocate  on the application  made by her for  production  of the documents  as per list dated 29/04/2016. She submitted that  said  documents  could not be filed before  the Forum  below due to over sight. According to her, the production of the said  documents may be allowed  to meet  the ends of justice. We have perused the said documents.  We find that the production of the said documents deserves to be allowed.  Hence, their production is allowed.

2.         We have also  heard  Advocate  Smt.  Smita Deshpande  for the appellant  at length finally on merits of appeal today.  As no one for the respondent  appeared since  long, we proceeded   to  decide the appeal on merit. We have also perused  the record and proceedings of the appeal. The District Consumer Forum below  by passing    impugned order, dismissed the complaint.

3.         The learned advocate of the appellant  submitted that  the telephone connection  was given to the appellant  by the respondent. But  the said  telephone  was not working  from  the year  2012 to 2014 and bills were issued by the respondent  to the appellant  during that period .  She further  submitted that   though the telephone  was not  in working  condition,  but respondent  issued bills and it constitutes deficiency in service on the part of the respondents. She also submitted that  the telephone  line  was not repaired by the  respondents  and therefore, the appellant  suffered heavy losses  in his business & hence, he had filed  consumer complaint   before the Forum below claiming  compensation of  Rs. 3,00,000/- from the respondents  towards  deficient service and further  claiming compensation  of Rs. 50,000/- for physical land mental  harassment  and litigation cost of Rs. 3000/-.

4.         The learned advocate of the appellant further  submitted that  though the telephone line  could have been repaired  but the same was not  repaired by the respondent  deliberately  and  therefore,  the Forum erred in  holding  that there  is no deficiency in service on the part of the  respondents. She  therefore, requested that  the impugned  order may be set aside and relief  sought  for  in the complaint may be allowed.  The learned advocate of the appellant has  also brought  to our notice, the documents  filed  as per list dated 29/04/2016 in this appeal.

5.         We find that  defence set out by the respondent  before  the Forum below  was  that it was  very  long overhead  telephone line given by them to the appellant  and as it was  broken  at  place to place, it was not possible to repair the said overhead telephone line. Hence,  the original  complainant/ appellant  was suggested from time to time  to opt  for  CDMA (wireless ) line, but he did not  accept the same. Hence, no deficiency  in service can be attributed to them. 

6.         It is seen from the documents filed in appeal that subsequent to passing of the impugned order CDMA (wireless) connection was provided by the respondents to the appellant.  However, the appellant’s advocate submitted that the said CDMA line   also could not work due to not having coverage and that therefore, the appellant has returned the CDMA phone instrument and other instrument as per letter dated 05/02/2015.

7.         We thus  find that  it was not possible for the respondents  to repair such a long overhead telephone line given by them to the appellant & hence, no deficiency  in service  can be attributed  to the to the respondents  for not repairing  the  said overhead  telephone  line. It is also clear in the  appeal that  the respondents  subsequent to  the impugned order had provided the CDMA (wireless) connection  to the respondents after  all the formalities   were completed.  Therefore, this also shows   bonafide  on the part  of the  respondents  and hence, no deficiency  in service can be attributed  to the respondents.

8.         We also find that if  CDMA did not work due to no coverage,  it is separate  cause of action  for  the appellant  for filing fresh  complaint.  The complainant can claim compensation if it is proved   by him that CDMA line provided to him also did not work and that it constituted deficiency in service.  In the present case, we find that as the respondents subsequent  to the impugned order provided the CDMA line connection, no deficiency in service can be attributed to the respondents for non repairing the long  old over head telephone line.

9.         We also find that  there is no evidence to  prove  that the appellant  sustained certain loss due to  non working  of broadband. We are thus of the considered view that  the Forum below has  not erred in passing the impugned order and dismissing the complaint.  Accordingly, the appeal deserves to be dismissed.

ORDER

i.          The appeal is dismissed.

ii.          The appellant is at liberty  to file fresh consumer complaint  against the respondent,  in accordance with law in respect of the alleged fresh cause of action.

iii.         No order as to cost in appeal.

iv.        Copy of order be furnished to both parties, free of cost.