B.L.KUMAR vs INTERNATIONAL ENGINEERS

BRIEFLY the facts are that the complainant is an ex-serviceman having retired from Indian Air Force. The respondent is a limited company and carrying on the business of providing telephone facilities under the direct agreement with Mahanagar Telephone Nigam Limited (M.T.N.L.). They advertised in various newspapers calling upon the members of the general public to book the telephone with them for the purpose of Public Call Office (P.C.O.). The complainant approached the respondent for that purpose and he was provided with one telephone on 24.1.91 for a Public Call Office, which was installed in the space provided by him.

IT is further pleaded that according to the terms of the contract the complainant used to collect the charges from the customers and the amount so charged by him was fed in the computer/instrument which had been provided by the respondent. The authorised representative of the respondent used to visit bis premises and collect the amount every day. Thereafter the respondent used to pay his commission on the total amount and paid the bills of the M.T.N.L. The amount received by the respondent was entered by their representative in a card provided to the Complainant. The complainant, on 14.7.92, it is next pleaded, found that the telephone was not working. He approached the respondent for rectifying the same but his request was not attended to by them. He therefore approached the M.T.N.L. and on enquiry it was discovered that the telephone had been disconnected for the reason that they had not deposited the bill of M.T.N.L. since April ''92. It is stated by the complainant that inspite of the repeated requests the telephone facility had not been restored by them. Consequently he has claimed an amount of Rs. 1,00,000/- as damages for loss of income and reputation.

The complaint has been contested by the respondent. They have inter-alia pleaded that the complainant is not a ''consumer'' as defined in the Consumer Protection Act (hereinafter referred to as the Act). They have further pleaded that there was an agreement between the parties to refer the matter to Arbitrator u/Sec. 34 of the Arbitration Act and consequently the Commission had no jurisdiction to entertain the Complaint. It is next pleaded that the complainant had not paid an amount of Rs. 8,285/- to them inspite of repeated requests and thus it was on account of his default that the telephone connection had been disconnected. The complainant has also taken a plea that M.T.N.L. was a necessary party to the present proceedings.

THE first question that arises for determination is whether the complainant is a ''consumer''. THE word ''consumer'' has been defined in Section 2(1)(d) of the Act and it means any person who hires any services for consideration, paid or promised, to be paid or partly paid or partly promised. THE word ''service'' has been defined in Section 2(1)(o) and it reads as follows : "service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal services;'' From a reading of the definition it is clear that it is not an exhaustive definition but an illustrative one. THE respondent had provided a telephone connection to the complainant on the basis of an agreement that the latter would make the payment of all the calls made from that telephone connection daily. THE respondent had been provided the telephone connection by M.T.N.L. authorizing them to provide that facility to the customers. Thus the respondent is providing the same service, which is being provided by M.T.N.L. to the public. It is well-settled that M.T.N.L. is covered by the provisions of the Consumer Protection Act providing service to the general public for consideration and on the same analogy we are of the opinion that respondent is also providing the service to the general public for consideration. Consequently we are of the opinion that the complainant is a ''consumer'' as defined in the Act. The second question that arises for determination is whether the matter is liable to be referred to the Arbitrator u/Sec. 34 of the Arbitration Act as there is a clause of arbitration in the agreement between the parties. The matter does not require detailed discussion as it has been settled by the decision of this Commission in Gateway Speciality Papers Pvt. Ltd. v. Oriental Ins. Co. Ltd. II (1992) CPJ 488. After noticing various decisions of the National Commission and provisions of the law it was observed by us that inspite of arbitration clause in the insurance policy the proceedings before the Commission are not liable to be stayed u/Sec. 34 of the Arbitration Act. Consequently we hold that the present proceedings are not liable to be stayed u/Sec. 34.

THE third question that arises for determination is as to whether M.T.N.L. is a necessary party to the present proceedings. THE telephone has been disconnected by M.T.N.L. It is admitted by the respondent that they were getting bills for each telephone connection provided to them, separately. THE case of the complainant is that the respondent has not cleared the bills of the present telephone. THE allegation of the complainant appears to be correct. He has attached dealer''s card. From the perusal of that (dealer''s) card it is evident that he has been paying daily the bills of the calls varying from about Rs 200/- to about Rs. 6,000/- (per day). THE remarks given on the dealer card by the representative of the respondent against each entry is ''good''. It is stated by the complainant that the agent of the respondent did not come to collect the charges from him for four days and that is why the amount of about Rs. 8,000/- was due from him. In addition, he was entitled to get the amount of his commission from the respondent which was about Rs. 5,000/-. This plea of the complainant to our mind is also correct. If the respondent had paid the bills of the M.T.N.L. they would have produced the receipt of payment obtained by them. However, that has not been done. If the complainant was paying the amount of Rs. 6,000/- in one day he could easily pay the amount of Rs. 8,000/- and odd within four days if the respondent''s representative have visited him. It appears that the respondent intentionally did not send his representative to him in order to create a false defense. We are of the opinion that the fault regarding non-payment of the telephone bills is not on the part of the complainant but on the part of the respondent and that is why the telephone connection has been disconnected. THE respondent is, therefore, liable to re-imburse the complainant for the loss suffered by him. Faced with this situation the learned Counsel for the respondent sought to argue that the telephone was being mis-used by the complainant as he had been charging higher amount from the general public and that he had encroached upon the public place. It is not disputed that the respondent did not take these points in the written statement. Consequently the complainant could not give any reply to these allegations. It is well-settled that at the time of arguments a party cannot be allowed to raise such new points, which involve questions of facts. Consequently we reject the submission of the learned Counsel for the respondent. The last question to be decided is to what amount of compensation the complainant is entitled to. He is an ex-serviceman and was running a P.C.O. Thus he was earning his livelihood from the telephone connection. He has been deprived of his earning on account of default on the part of the respondent. The telephone was disconnected on 14.7.92 and it has not been reinstated till date. No proof of actual loss suffered has been given by the complainant. Taking into consideration the aforesaid circumstances we grant Rs. 20,000/- as exemplary damages, to the complainant.

FOR the aFOResaid reasons we accept the Complaint with costs and direct the respondent to deposit the amount of the rent due to the M.T.N.L. regarding the telephone connection and restore the same to him within a period of one month from the date of the order and they should pay the amount of Rs. 20,000/- to the complainant within a period of three months, FORm the date of the order. In case they fail to deposit the amount in the M.T.N.L. or pay the amount of damages to the complainant within the aFOResaid period they shall further be liable to pay interest to the complainant @15% p.a. from the date of complaint till the date of payment and liable to be prosecuted u/Sec. 27 of the Consumer Protection Act. Costs Rs. 2,000/-. Complaint allowed with cost.