IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA

Wednesday the 31^st  day of May, 2017.

Filed on 30/05/2016

Present

1.    Smt. Elizabeth George, President 

2.    Sri. Antony Xavier, Member 

3.    Smt. Jasmine.D. (Member)                    in

  C.C.No.175/2016

                                                              between

Complainant:-                                                    Opposite Parties:-

Sri. Jagadeesh M.P                                                          The General Manager,

339,Gurukripa Kattumkal                              BSNL, Alappuzha-688 001.

Sanathanapuram PO,

Alappuzha 688 003.                                               (By Adv. K.B. Sindhu)                      

O R D E R

SMT ELIZABETH GEORGE ( PRESIDENT)

          The case of the complainant is as follows:-

Complainant has a land phone connection with the opposite party with No.0477-2267438.  The said connection was in a disconnected stage.  While so in the beginning of the year 2016, opposite party made advertisements regarding their New/Promotional Broadband Plans).  It is further understood that the following promotional scheme for a period up to 29/02/2016 in all the circles for those disconnected Broad band customers whose Broadband connections were disconnected till 30^th November 2015 and who want to restore their Broadband connection.

1. To wave off Broadband installation charges for the stand alone Combo BB plans
2. To waive off one month FMC(Fixed Monthly Charges) of the Broad band plan.
3. To offer 500 ON-NET (on BSNL network) free calls for one month (in addition to already available free calls)under Broadband combo plans.
4. Before restoration of such connection, the circles shall ensure that there are no outstanding dues against such customers.
5. All of the terms and conditions currently applicable to Broadband applicants shall remain the same.

The reconnection was on 03/03/16 for the complainant but bill dated 06/03/16 was issued for the bill period of 01/02/16 to 29/02/16 the period is prior to the date of reconnection.  Further bills issued during 01/03/16 to 31/3/16 and 01/04/16 to 30/4/16 also show the above stated unauthorized entries which is against the offers made in the said advertisements.  The complainant made earnest efforts to set things right by approaching the office of the opposite party but there is no fruitful approach at all from them.  All these days complainant is running pillar to post for his redressal of grievances.  Complainant suffered mental agony and physical hardship due to the said conduct of the opposite party alleging deficiency in service on the part of opposite party.

2. Version of the opposite party is as follows:

Telephone No.2267438 was reconnected as per BSNL Corporate office Circular No.R&C – CFA no.147/15-16 dated 21/22.01.16 & R&C-CFA No.174/15-16 dated 26.02.16 for reconnecting disconnected Broadband services with waival of BB installation charges, 500 free on net calls in  addition to the already available free calls and waival of one month broadband fixed monthly charges.  Due to erroneous data entry there was some mistake in the bill issued which was later corrected.  All the facilities offered in the circular has been complied with except the waival of the one month fixed monthly charges.  The one month broadband fixed monthly charge of Rs.675/- as per above offer was not waived because the complainant disconnected the broadband service on 22/04/16.  As mentioned in the Circular, the offer is intended to bring back the disconnected broadband customers of opposite party and hence the facility cannot be extended to this complainant who has opted out of the scheme vide letter dated 21/04/2016.  No payment is made by the complainant after reconnecting and hence the land line also stands disconnected with effect from 17/06/2016.  He has availed the offers during this period from 03/03/2016 to 17/06/2016.  The installation charges of Rs.850/- has been waived.  Availed free 24 units of BSNL calls and 1867 units of free night calls to any network all over India. There is also unlimited data usage of 17663874kb from 03/03/16 to 21/04/16.  There is no deficiency in service on the part of opposite party.

3. Complainant was examined as PW1.  Documents produced were marked as Ext.A1 to A5.  No oral evidence adduced from the part of opposite party.  Documents produced were marked as Ext.B1 to B3.

4. Points for considerations are:

     1) Whether the complaint is maintainable?

     2) Whether there is any deficiency in service on the part of opposite party?

     3) If so the reliefs and costs?

Point No.1

     The maintainability of the above complaint is challenged by the opposite party on the ground that the complaint is barred under Section 7(b) of the Indian Telegraph Act.  In support of the above,  the opposite party is relying on  a decision rendered by the Hon’ble Supreme Court, in General Manager, Telecom Vs. M. Krishnan and Another III 2009 CPJ 71(SC) decided on 1/9/09, wherein it is laid down that  “ in our opinion where there is a special remedy provided in Section 7.B of the India Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred”.  The reasons stated for allowing the decision by the Hon’ble Supreme Court is that  “ the special law contained in Section 7 B of the Indian Telegraph Act 1885 overrides the general law indicated by the Consumer Protection Act 1986”.  But it is pertinent to notice that the parties in the above case were the ‘telegraph authority’ defined under Section 4 of Indian Telegraph Act on one side and on the other side a private person.  In the present case the ‘telegraph authority’ is not a party and the dispute is between complainant and General Manager BSNL Alappuzha  a Company, incorporated under the Indian Companies Act.  BSNL is not a “telegraph authority” as defined under Section 4 of the Indian Telegraph Act 1885, as such no power under Section 4 of the Telegraph Act is vested with BSNL and BSNL is more or less equal to other private companies which are also companies functioning as private telecom service providers.  Hence the opposite party cannot claim protection and privilege under Section 7 B of Indian Telegraph Act, to object the jurisdiction of this Forum under Consumer Protection Act.  More over under Section 3 of the Consumer Protection Act the jurisdiction of this Forum is in addition to and not in derogation of the provision of any other law for the time being in force.

     The decision reported in III 2009 CPJ 71(SC) rendered by the Hon’ble Supreme Court was before the transaction of BSNL while the Telecom Authority was in existence. 

In the light of the above discussion at present there is no special law available to the BSNL to deal with the matter in dispute other than the Consumer Protection Act. Hence this Forum is of the humble view that it is fully justified in taking the above decision that the complainant is maintainable and is not barred under Section 7 of the Telegrpah Act .        The decision relied on by the learned counsel for the opposite party are also decisions rendered on the basis of the ruling reported in III 2009 CPJ 71 (SC) General Manager Telecom Vs M.Krishnan.

Point No.2

     The complainant’s case is that complainant was a consumer of the opposite party.  He was having a land line connection which was disconnected at his option.  Later the opposite party publish a circular with an attractive offer whereby the complainant applied for reconnection under the new scheme as per this circular. The telephone was reconnected as per the new scheme as on 3/3/16.  The dispute had arisen when a bill was issued by the opposite party after reconnection for a period prior to the date of reconnection that is 1/2/16 to 29/2/16.  Further bills issued during 1/3/16 to 31/3/16, 1/4/16 to 30//4/16 showed unauthorized entries which are against the offers made in the said advertisement.  In order to substantiate this allegation complainant produced the bill posted on  8/3/16 and 8/4/16 which marked as Ext.A2 andA5.  Opposite party filed version admitting that due to erroneous data entry there was some mistake in the bill issued.  According to the opposite party all the facilities offered in the circular has been applied with except the waiver of the one month fixed monthly charge of Rs.675/- because the complainant disconnected the broad band service in 22/4/16.  According to the opposite party as per the circular, the offer is intended to bring back the disconnected broad band customers of opposite party and hence the facility cannot be extended to the complainant who has opted out of the scheme.  Ext.B1 is the letter sent by the complainant to the opposite party expressing his intention to cancel the broad band connection.  The opposite party later rectified all mistakes with respect to the bills.  The complainant applied for disconnection of the telephone facility within a short period of 53 days.   According to the complainant apart from benefits he obtained by waiver of connection charge and withdrawal of bills issued by mistake, he is entitled to get waiver of bills for one month also as per the circular.  But opposite party refused to grant waiver for ‘one month fixed monthly charge’ for the reason that the scheme was intended to bring back customers who disconnected the land line earlier and to persuade them to continue the connection.  Since the complainant again decided to discontinue the connection  within a short span it was against the object of the circular and the complainant is not entitled to such a benefit as per the terms of the circular.  In the light of the above discussion this Forum finds that complainant is not entitled to claim waiver of the said one month fixed charge.  However it has come out in evidence that due to the issuance of the mistaken bill(Ext.A2) the complainant was  put to mental agony and inconvenience which amounts to deficiency in service from the part of the opposite party which warrants a nominal compensation for the complainant to the tune of Rs.1000/-.

     In the light of the above discussion the complaint is allowed, allowing the following reliefs:

1. Opposite party is directed not to recover any amount from the complainant other than the  bill amount for the period from 4-4-16 to

21-4-16 along with one month broadband fixed charge of Rs.675/-

2. Opposite party is directed to give Rs.1000/- towards compensation to the complainant.
3. If the complainant wants to reinstate the very same connection and continue to avail the connection under the very same terms and conditions, the opposite party is directed to reinstate the connection by waiving the one month fixed monthly charge.
4. No costs.

 The Order shall be complied within one month from the date of receipt of this order.

                Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in the Open Forum on this the 31^st day of May, 2017.

    Sd/- Smt. Elizabeth George, President      

                                                              Sd/-           Sri. Antony Xavier, Member 

                                                                  Sd/-        Smt. Jasmine.D. (Member)   

Appendix

Evidence of the complainant:

PW1            -        Jagadeesh M.P(Witness)

Ext.A1         -        Copy of letter dtd 9/5/16

Ext.A2         -         Bill  dtd 6/3/16

Ext.A3         -        Bill dtd 6/5/16

Ext.A4         -        Bill dtd 6/6/16

Ext.A5         -        Bill dtd 6/4/16 

Evidence of the opposite party:

Ext.B1         -        Copy of letter dtd 21/4/16

Ext.B2         -        Copy of letter dtd 29/4/16 issued by OP

Ext.B3         -        Copy of letter dtd 22/6/16 issued by OP 

//True Copy//

To     Complainant/Opposite party/S.F

By Order

Senior Superintendent.