State Consumer Disputes Redressal Commission
Sycamore Software Solutions Pvt. Ltd. vs Bharat Sanchar Nigam Ltd., Pune on 14 January, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI First Appeal no.832/2007 @ M.A. No. 1127/2007 Date of Filing: 29/06/2007 Complaint .No.62/2005 District Consumer Forum: Pune Date of Order: 14/01/2009 Sycamore Software Solutions Pvt. Ltd., Appellant Regd. Office at A/203, Raj Valley, (Org.Complainant) D.P.Link Road, CTS No. 1271, IC Colony, Borivali (W), Mumbai- 400 103 Br.Office at- 2nd floor, The Orchid Apartments, CTS no. 767/12, S.No. 71, Old Shivajinagar, Pune- 411 004. By and through Mr.Abhijit Moreshwar Keskar, Power of Attorney Holder on behalf of Company V/S Principal General Manager, Respondent Bharat Sanchar Nigam Ltd., Pune Telephone Bhavan, Bajirao Road, Pune- 411 002. Corum : Mr.Justice B.B.Vagyani, Hon'ble President Mr.S.R.Khanzode, Honble Judicial Member.
Present:
Adv.Shri S.B.Prabhavalkar for appellant.
Adv.Shri V.D.Shukla for respondent.
:- ORDER :-
Per S.R.Khanzode, Hon'ble Judicial Member:
This appeal is preferred by the original complainant since his consumer complaint bearing no.62/2005stood dismissed by impugned order/award dated 30/05/2007 passed by District Consumer Forum, Pune( Forum below in short). Complainant made a grievance about the sudden spurt in billing vide bill dated 07/02/2000, which was raised for an amount of Rs. 90,560/-.
It is the case of the complainant that for their business they have taken telephone connections including ISDN line connection from respondent/ BSNL. Since inception of the connection bearing no.25679880 (ISDN line) an average monthly billing was about Rs.8,000/-. There was a sudden spurt in the reading for the month of January, 2004 for which the disputed bill, supra was raised. Not satisfied with the same and pointing out that they had not made any such large scale use of the telephone ISDN line, the complainant branded it as a case of issue of over billing vis--vis deficiency in telephone service provided by the respondent/original opposite party. A complaint was made to the authority but not satisfied with their response, the consumer complaint was filed.
Respondent/original opposite party denied that there is any over billing in the instant case. According to them, the billing was as per actual use recorded by the meter. The meter or the system was found without any fault in an observation carried by the department after the complaint or when the spurt was noticed. It is further contended on their behalf that the complaint is not a Consumer within meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986 (the Act for brevity) since, he has taken the telephone line, particularly ISDN line, for commercial use.
We heard Adv.Shri S.B.Prabhavalkar for the appellant and Adv.Shri V.D.Shukla for the respondent. Perused the record carefully including the affidavits and counter affidavits filed on behalf of the parties to the complaint.
The contention of Adv.Shri Prabhawalkar for the appellant is to the effect that the Ld.Forum below instead of deciding the matter opined that more evidence is required to settle the dispute of the over billing and as such, failed to discharge its own obligation to settle the dispute exercising the jurisdiction vested with it. We find this argument is devoid of any substance and hence rejecting the same.
Coming to the merits of the case, particularly, as to the status of the complainant as to whether he is a Consumer within the meaning of the Act. It could be seen that normally when the telephone department provides telephone line to a person, said person is a Consumer and telephone facility provided by the department is a Service as defined under the Act. However, admittedly, the complainant has taken telephone line, particularly ISDN line in respect of which the dispute is raised, for its business. Looking to the provisions of Section 2(1) (a) (ii) of the Act, a person who avails of any such services for the commercial purpose is not the Consumer. This particular objection is not properly considered by the Ld.Forum below and arrived at wrong conclusion particularly considering the undisputed facts and provisions of law referred earlier. Thus, the complainant being not a Consumer in this particular case, the complaint itself is liable to be dismissed on this ground.
The complainant tried to submit that his office was closed on 01/04/2004 and again on 10/01/2004 & 11/01/2004 being Saturday and Sunday. It further submitted that during the period between 01/01/2004 to 12/01/2004 as internet connection obtained by it from BSNL had expired and as such could not use it. However, the record further shows services of other internet providers were used in that evantuality. After the complaint, the opposite party department put the meter in question under observation. Their such report is on record at paper book page no. 40-46. No fault was found with the meter in question. There was also no fault found with the system. Similarly, if there is real fault either in the meter or system further reading recorded for the period next to disputed period would have been also faulty. Such is not the case. Even the meter readings were recorded fortnightly following the guidelines issued by the department. The statement thereof is also on record at paper book page no. 42. No doubt there is a spurt in the recorded calls in the fortnight covering the period from 01/01/2004 to 15/01/2004, but it can not be faulted with the meter in question. Further it could be seen that the international ISD calls were made mostly to a particular number in USA i.e. call no. 4118440 and this number is constantly used by the complainant and by nobody else. This eliminates the possibility of any mischief by other subscriber gloving hand with departmental staff. The affidavit of Mr.Keskar filed on behalf of complainant and is aimed to throw light on a fact as to the configuration of router installed at the ISDN line used by the complainant and is to rulee out hypothetical possibility pointed out on behalf of the department about putting the equipment on auto dial etc. But considering the over all circumstances and preponderance of probabilities since there is no fault in the metering equipment and since, the telephone line is used mostly for a particular number in USA used by the complainant, no possibility of any mischief (supra), and absence of any reliable evidence to show that there was no actual user of the telephone line by the complainant during the disputed period; we find it safe to rely upon the actual meter reading on the basis of which disputed bill was raised. It may be noted that opposite party has provided only ISDN line and complainant has provided its own other equipment so also the complainant has different service provider for their internet connection. Under the circumstance, we find ourselves in agreement with the Forum below when it observed that the complainant failed to establish the case of over billing and incorrectness of the bill in question. We find the appeal is devoid of any substance and pass following order:-
:-ORDER-:
1. Appeal stands dismissed with cost of Rs. 5,000/-.2. M.A. No. 1127/2007
stands disposed of.
3. Copies of the order herein be given to the parties.
(S.R.Khanzode) (B.B.Vagyani) Judicial Member President Nbh