State Consumer Disputes Redressal Commission
Tata Communications Internet Services ... vs R. Thanumalayan,110, Kothaval Chavadi ... on 31 October, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBER
Tmt.Vasugi Ramanan, M.A., B.L., MEMBER F.A.160/2010 [Against order in C.C.648/2004 on the file of the DCDRF, Chennai (South)] DATED THIS THE 31st DAY OF OCTOBER 2011 Tata Communications Internet Services Ltd., | (Formerly known as The Dishnet DSL Ltd., and | Appellants / Opposite Parties Videsh Sanchar Nigam Ltd., | Gee Gee Universal, 7th Floor, No.2, , | Mc Nicholas Road, Chetpet, | Chennai 600 031. | Vs. R. Thanumalayan, | Respondent / Complainant B2, Hari Om Flats, | 110, Kothaval Chavadi Street, | Saidapet, | Chennai 600 015. | The Respondent/Complainant filed a complaint before the District Forum against the appellant/opposite party praying for the direction to the opposite party to pay Rs.49,500/- being the deposit made during the time of installation along with the interest at the rate of 18% from the date of honouring the cheque by the Bank, deducting Rs.10,490/- payable to the opposite party as access charges for the month of January 2003, to pay Rs.39,070/- being the cost of installing the BSNL-ISDN backup in the event of failure on the part of the opposite party to stop the frequent disconnections and to step up the speed to 128 kbps and not providing the free dial-up account, Rs.374/- being the telephone charges met with reporting the disconnections and the slow speed to the CC and officers of the opposite party, to pay Rs.8450/- being the cost of elaborate advertisement in the event of change over of the internet speed from 64 kbps to 128 kbps which became useless because of the utter failure of the opposite party in rectifying the frequent disconnections and the very slow speed and to pay Rs.1,02,337/- being the loss created due to the utter failure of the opposite party to rectify the frequent disconnections of 577.80 hours in 175 times, as per the requests of the complainant, to pay Rs.35,000/-
being the compensation for mental agony, to pay Rs.10,000/- being the loss of goodwill for two years and to pay Rs.10,000/- being the cost of letters, suit and other incidental charges.
The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.22.12.2008 in C.C.648/2004.
This appeal coming before us for hearing finally on 12.10.2011, upon hearing the arguments of the either counsels and perused the documents, as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellant / Opposite Party : M/s.Dev, Sai & Shaffiq Associates, Advocate.
Counsel for the Respondent/Complainant : Mr. T. Natarajan, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The opposite parties are the appellants.
2. The respondent / complainant in order to provide self-employment to his son, who is unemployed, obtained DSL connectivity under the Power Plan I-64 kbps bandwidth, by depositing a sum of Rs.49,500/-, on a monthly fee of Rs.9995/-, which was installed on 13.12.2000. From the very next day of the installation, the Internet connection was disconnected, informed to the Engineer of the opposite parties, though it is said rectified, it was not functioning properly, thereby causing business loss in hours. Even after several requests, the Field Engineer of the opposite party did not turn up to rectify the reported defects, except on three days and because of the same, all the computers were shut down state and the income speed of the internet was slow, below 64 kbps, which was not sufficient for browsing as the complainant opted for an advised power plan 128 kbps on 1.8.2001. Though the opposite party assured uninterruption, speedy internet connection, failed the keep the same, thereby the complainant was compelled to go for BSNL, Chennai Telephones ISDN back up, at a cost of Rs.51,070/- to avoid the frequent disconnections and the slow speed. In view of the deficiency committed by the alone, the complainant was compelled to switch over and therefore, the opposite party is entitled to refund the amount collected by way of deposit, deducting access charges for the period from 1.1.2003 to 23.1.2003. Similarly the opposite party is also liable to pay Rs.94,410/- since the actual supply of internet delay was 64 kbps which costs only Rs.5245/-, in addition to, they are liable to refund the expenses of telephone calls incurred.
Thus alleging deficiency, a consumer complaint was filed, seeking several reliefs as seen from prayer paragraphs number (a) to (i).
3. The first and second opposite parties resisted the case inter alia contending, that the free Dial-up account that can be used at all times when the DSL Service is down, for which, no amount was charged, that data pipe was capable of handling the load intended, whereas slowing down in the speed may be due to external factors such as disconnection due to cable cut, electricity, surge destroying the equipment, road accidents etc., that whenever a complaint was given regarding disconnection or slow speed, the same was attended by the Engineer of the opposite parties promptly, thereby not committing any negligence or deficiency, thereby praying for the dismissal of the complaint.
4. The District Forum based upon the affidavits supported by Ex.A1 to Ex.A55 and Ex.B1 to Ex.B4 came to the conclusion that the opposite parties have not rectified the disconnection of internet, as and when reported, thereby compelled the complainant to shift from DSL to BSNL, that should be construed as deficiency in service. On the above finding, the opposite parties were directed to pay a sum of Rs.49,500/- being the amount deposited by the complainant, in addition to, a compensation of Rs.10,000/- with costs of Rs.3,000/- with interest thereon, as per the order dated 22.12.2008, which is challenged by the aggrieved opposite parties.
5. The first prayer in the complaint reads (a). Rs.49,500/- being the deposit made during the time of installation along with the interest at the rate of 18% from the date of honoring the cheque by the Bank, deducting Rs.10,490/- payable to the opposite party as access charges for the month of January 2003, thereby showing the complainant himself had conceded to deduct a sum of Rs.10,490/- payable to the opposite party as access charges. But, unfortunately that amount was not deducted, whereas the District Forum granted an order to refund the entire sum of Rs.49,500/- which appears to be prima facie incorrect, which we will further discuss infra, whether the complainant is entitled to this amount or not.
6. As seen from Prayer (g), a sum of Rs.35,000/- was claimed as compensation for mental agony. The rest of the prayers namely (b), (c), (e) and (f) are not granted. Aggrieved by the negativing of those prayers, the complainant has not preferred any appeal and therefore, in this appeal, we can safely conclude, that the dismissal of those prayers was accepted by the complainant.
Therefore, now we have to see, whether ordering refund of the deposit is correct, based upon the alleged deficiency, whether the Consumer Forum has jurisdiction.
7. The learned counsel for the appellant urged before us that the complaint filed by the present complainant itself is not maintainable, since the application was not signed by the complainant, whereas it was signed by his son. True, as seen from the DSL connectivity terms and conditions as well as the application, the complainants son alone had signed, but the application stands in the name of the complainant. Therefore, who is the signatory to the applicant may not loom large, that too, in view of the fact, that the internet connection was given only in the name of Thanumalayan/complainant. Therefore, the submission of the appellants, that the case filed by Thanumalayan, he being not an applicant, is unsustainable, to be rejected.
8. The learned counsel for the appellant argued that the transaction in this case is a commercial transaction and therefore, the Consumer Forum may not have jurisdiction, which is answered by the complainant, as if, the complainant will come within the explanation appended to Section 2 (1)(d) of the Consumer Protection Act. To appreciate this defence and offence, we have to see, the status of the complainant.
Admittedly, the complainant is a retired employee, a senior citizen, drawing pension and therefore, generally he may not come within the meaning of a person self-employed eking livelihood and in fact it is not the case of the complainant also. On the other hand, it is the case of the complainant that in order to provide self-employment to his son, the DSL activity was obtained from the opposite parties. If that is to be accepted as a self-employment, he should be a consumer and he should be a person and whose name, connection had been obtained, which is not the case. In the explanation also while exempting certain commercial purposes, a person who availed the service, exclusively for the purpose of earning his livelihood by means of self-employment alone is given exemption, not the father. It is also not the case of the complainant, that the case is filed by the Hindu undivided family, who may come within the meaning of a person, who will come within a meaning of complainant. Admittedly, even as pleaded in the complaint, the complainant availed the service of the opposite parties for business purpose that is profit oriented, since the premises itself described as business premises, as seen from Para 4 of the complaint. The accusation is, because of slow speed below 64 kbps, they were unable to browse as required, having many computers. Thus, by going through the pleadings, as rightly submitted by the learned counsel for the opposite parties, the transaction is a commercial transaction, which is excluded from the purview of the Consumer Protection Act, and in this view, the complaint is not maintainable, which was not properly considered by the District Forum.
9. The learned counsel for the appellants urged that as per the Condition No.54 of DSL Connectivity terms and conditions, they are not liable to pay any compensation, since the slow speed or disconnectivity should have happened due to external force, which is not seriously challenged. In this view also, it is doubtful, whether the complainant is entitled to any compensation or refund, one of the condition reads under Section 52 reads DSL Connectivity charges Refers to the one time up-front, non refundable charges payable to DISHNET for the TYPE OF CONNECTION requested by the CUSTOMER/SUBSCRIBER as determined by DISHNET from time to time. This includes sale value of DSL MODEM and DSL SERVICE activation charges. Thus, from the liabilities and responsibilities of the customers also, it is seen, the complainant may not be entitled, to refund of the amount. Further, as seen from the ground-19 of the Memorandum of Appeal, the deposit is non-refundable charges, payable to DISHNET for the TYPE OF CONNECTION requested and this being the position, when the complainant had shifted the service on his own, having availed the service connection, not entitled to the refund also.
10. A forcible submission was made before us, finally based upon the change of law after the disposal of this case by the District Forum on 22.12.2008.
At the relevant period, the Consumer Fora were entertaining the dispute between the consumer and service providers, regarding this kind of service also irrespective of Arbitration Clause available in the agreement, as well as under Indian Telegraphic Act. But the Honble Apex Court had taken a view in General Manager, Telecom Vs. Krishnan & Another that the dispute relating to telecom service should come under the Indian Telegraphic Act and therefore, the affected party, if any, should work out his remedy on Section 7 B of the Indian Telegraphic Act, which decision was repeatedly followed by this Commission in various appeals.
In this case, the dispute is regarding the slow and low speed as well as less KBPS, which alone compelled the complainant to shift from DSL to BSNL, which mater is within the jurisdiction of the Arbitrator to be appointed under Section 7-B of the Indian Telegraphic Act. Therefore, in view of the position declared by the Supreme Court in the above said ruling, at present the Consumer Forum has no jurisdiction and in this view also, order of the District Forum should be set aside, as one passed without jurisdiction and if at all the complainant is aggrieved for the alleged deficiency or slow speed or disconnection not properly rectified, they have to approach the appropriate authority and not the Consumer Forum.
For these reasons, appeal deserves to be accepted.
11. In the result, appeal is allowed, the order of the District Forum is set aside and the complaint is dismissed. No order as to cost in this appeal.
12. The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellants/opposite parties duly discharged, since appellants succeeded, and there is no need to retain the FDR.
VASUGI RAMANAN J. JAYARAM M.THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT