State Consumer Disputes Redressal Commission
M/S.Bhart Sanchar Nigam Ltd vs Dattatraya Waman Patil on 28 August, 2013
1 FA/1216/2008
Date of filing :25/11/2008
Date of order :28/08/2013
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO. : 1216 OF 2008
IN COMPLAINT CASE NO.: 224 OF 2008
DISTRICT CONSUMER FORUM : JALGAON
M/s.Bhart Sanchar Nigam Ltd
Having its Office at Jalgaon and Pachora
Through its General Manager. Appellant
VERSUS
Dattatraya Waman Patil
R/o.VIP Colony,
Pachora Dist. Jalgaon. Respondent.
CORAM : Mrs.Uma Bora, Hon`ble Presiding Judicial Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Himanshu Patankar holding for Adv. Upadhye for the
appellant.
None for the respondent is present.
::: J U D G M E N T :::
( Delivered on 25/07/2013 ) Per.Mr.K.B.Gawali, Hon'ble Member.
1. This appeal is directed against the judgment and order dated 17/10/2008 passed by the Dist. Forum, Jalgaon in consumer complaint No. 224/2008 whereby appellant is held liable for the payment of compensation .
The appellant is the original opponent whereas the respondent is the original complainant.
2. Brief facts giving rise to the appeal are that:
The respondent/complainant had obtained mobile sim card bearing No. 9422212385 from the appellant. That, in order to get STD service for the said mobile number he had submitted necessary application and paid charges of Rs 2 FA/1216/2008 1000/- to the appellant/opponent on 16/05/2007 vide receipt No. 6494.
However, no STD service was provided to him till the date of filing of the complaint. It was contended that since the STD service was not given to him, he being a contractor by profession could not make contacts with the concern persons of his profession which resulted in to loss of his business. He had therefore submitted an application dated 21/06/2007 to the appellant /opponent to make him available STD service. However, his request was not considered and even his application was not replied. Therefore, he filed consumer complaint with the Dist. Forum seeking direction to the appellant/opponent to refund to him Rs 1000/- which were paid as STD charges and also compensation of Rs 10,000/- towards mental agony and further compensation of Rs 25,000/- towards financial loss of business. In addition he had also requested to pay him Rs 5000/- towards cost of the complaint.
3. The appellant/opponent had appeared before the Dist. Forum and resisted the complaint. It was contended that the application filed by the respondent/complainant for availing STD service was incomplete as there was no mention regarding demand for STD service in the required colom of the prescribed form and therefore he was not provided with the STD service. However, in respect to his application dated 21/06/2007 the respondent /complainant was provided with STD service from 26/06/2007. It was also contended that by his application dated 03/07/2007 he had also sought a new plan for his said mobile and accordingly on 04/04/2008 the said plant was sanctioned along with STD service. Therefore, it was averred that there was no deficiency in service on the part of the appellant/opponent and the complaint being false and baseless be dismissed.
4. The Dist. Forum after having perused the record and heard the parties passed the impugned judgment and order by allowing the complaint partly and directed the appellant/opponent to immediately provide STD service to the said mobile of respondent/complainant if it was not provided earlier. It was further directed to pay to the respondent /complainant Rs 5000/- as compensation 3 FA/1216/2008 towards physical and mental harassment and Rs 1000/- as cost of the complaint within a period of one month else the appellant/opponent was required to pay interest at 6 % p.a. till the realization of the amount from the receipt of the order. It has been held by the Dist. Forum that no evidence was produced by the appellant/complainant showing that it had provided STD service till the filing of the complaint which has also been observed by the Dist. Forum. That, even the application form as submitted by the respondent /complainant was not provided before the Dist. Forum to establish that the said application was incomplete. The Dist. Forum has therefore concluded that there was no deficiency in service on the part of the appellant/opponent and accordingly the impugned judgment and order holding the appellant/opponent liable has been passed.
5. Aggrieved by the said judgment and order the present appeal is filed in this Commission by the opponent. This appeal came to be finally heard on 21/08/2013. Adv.Shri.H.A.Patankar proxy advocate for Adv.Shri.Upadhye for the appellant was present. None was present for the respondent although notices was served to him. The proxy Adv.Shri. Patankar submitted written notes of arguments on behalf of the appellant and the matter was reserved for orders.
6. As per the written notes of arguments it was argued by the Ld. Counsel Shri. Patankar for the appellant that since the application dated 16/05/2007 filed by the respondent /complainant to avail STD service was incomplete as he had not selected the right option for STD facility given in the prescribed form and therefore the said facility was not provided. However, in response to his application dated 21/06/2007 immediately on 26/06/2007 the STD service was provided to him and therefore there was no deficiency in service on the part of the appellant/opponent. The Ld. Counsel further submitted that as per Sec. 7(B) of the Telegraph Act there is no jurisdiction to entertain the present complaint under Consumer Protection Act. In support of his contention he relied on the judgment of Appex Court in case of General Manager Telecom - V/s- M.Krishnan & Anr 2009 STPL (LC ) 42533 SC and 4 FA/1216/2008 thus requested to allow the appeal and set aside the impugned judgment and order passed by the Dist. Forum whereby the appellant/opponent is wrongly held liable for payment of compensation.
7. We have carefully gone through the record available before us and also written notes of arguments as filed by the Ld. Counsel Shri. Patankar for the appellant. The only question which arises for our consideration and decision is Whether deficiency in service is proved on the part of the appellant/opponent. The appellant /opponent has not disputed the application dated 16/05/2007 filed by the respondent /complainant along with necessary charges of Rs 1000/- for availing STD service for his mobile No. 9422212385. However, according to the appellant /opponent since the application form was incomplete the STD service was not provided to the respondent /complainant but in response to the application dated 21/06/2007 as submitted by the respondent / complainant he was provided with STD service on 26/06/2007 and therefore there was no deficiency on the part of the appellant /opponent in providing service to the respondent /complainant. It is however observed that no cogent evidence i.e. copy of the telephone bill etc. to prove that the respondent /complainant was provided STD service has been produced on record by the appellant /opponent. Secondly, as observed by the Dist. Forum even the said application form was not produced before the Dist. Forum to show that it was incomplete. It is further observed that there is no reply given by the appellant /opponent to the application dated 21/06/2007 submitted by the respondent /complainant stating that he was provided with STD service on 26/06/2007. Thus in absence of any evidence on record the contention of the appellant/opponent that it had provided STD service to the respondent /complainant can not be sustained and hence not accepted.
The ratio given in the case of "General Manager, Telecom -V/s- M.Krishnan and Anr. by the Hon'ble Appex Court, as referred by the appellant's Ld. Counsel is not applicable to the present case as facts and circumstances are different. The case under citation pertain to dispute about 5 FA/1216/2008 the telephone bill whereas the present complaint is about non providing of STD service.
8. In view of the aforesaid facts and observations we are therefore of the considered view that by not providing STD service to the respondent/complainant the appellant /opponent have committed deficiency in service which is also rightly held by the District Forum. We also find that the Dist. Forum has rightly awarded the compensation to the complainant. Therefore, no interference is warranted in the impugned judgment and order as passed by the Dist. Forum.
9. In the result, the appeal is being devoid of any merit deserves to be dismissed. Hence, the following order.
ORDER
1. The appeal is dismissed.
2. No order as to cost.
3. Copies of the judgment be issued to both the parties.
K.B.Gawali Mrs.Uma Bora Member Presiding Judicial Member Patil A.H. Steno H.G. 6 FA/1216/2008