CHIEF GENERAL MANAGER, TELECOMMUNICATION SERVICE ORGANISATION vs UPBHOKTA KALYAN SANGH

THIS is an appeal filed by the opposite party under Section 15 of the Consumer Protection Act, 1986 (for short the ''Act'') against the order dated 9.1.1996 passed in Case No.. 187/93 by the District Consumer Disputes Redressal Forum, Rewa (for short the ''District Forum'').

IT is not in dispute that one Gulzar Singh deposited Rs. 6,000/- under OYT (General) category for new telephone connection on 20.11.1992 but the telephone connection was not provided till 4.10.1993 inspite of repeated efforts of this prospective consumer which caused inconvenience, mental agony and loss in business. A complaint under Section 12 of the Act was filed through Upbhokta Kalyan Sangh. The opposite parties denied the allegations and submitted that according to are a wise waiting-list when the turn of applicant came the field staff went to instal the telephone but the applicant was not found on the address given. The applicant sent the application dated 16.3.1993 for installing telephone on the changed address. In the area of changed address due to technical non-feasibility report given by Junior Telecom Officer, telephone connection could not be provided. When the area became feasible, the telephone connection was provided on 6.10.1993, therefore, there was no deficiency in service. The District Forum after considering the material on record held that it was a case of deficiency in service, hence ordered payment of interest on the amount of advance deposit of Rs. 6,000/- according to the provisions made for New Telephone Connections in "Telephone Allotment Rules" and other instructions issued by the Department of Tele Communications, compiled in Swamy''s Treatise on Telephone Rules Second Edition and also awarded compensation of Rs. 3,000/- and costs of Rs.300/-.

It was first contended that the applicant Gulzar Singh was not the consumer as defined in Section 2(1)(d) of the Act, he was not the subscriber as telephone connection was not provided, till telephone connection is provided he cannot claim to be a consumer. Council cited a decision of Delhi State Consumer Disputes Redressal Commission in case of R.N. Gupta v. Union of India & Ors., III (1995) CPJ 328.

THE term "consumer" is defined in the Section 2(1)(d) and "service" is defined under Section 2(1)(o) of the Act which we quote : "2(1)(d). "Consumer'' means any person who,- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or parly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid any partly promised or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person; (Explanation.-For the purposes of Sub-clause (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self- employment.)"

"2(1)(o). ''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, housing construction, 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 service."

In the definition of "service" the words is made available to potential "users" are clear so as to include not only actual users but also potential users.

IN Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC), the Supreme Court after referring to the definition of service in para 8 considered the question relevant of which we quote : "8. It is in three parts. The main part is followed by inclusive clause and ends by exclusion any clause. The main clause itself is very wide. It applies to any service made available to potential users. The words "any'' and "potential'' are significant. Both are of wide amplitude. The word ''any'' dictionarily means "one or some or all''. IN Black''s Law Dictionary it is explained thus, word "any" has a diversity of meaning and may be employed to indicate "all" or "every" as well as "same" or "one" and its meaning in a given statute depends upon the context and subject matter of the statute. The use of the word "any'' in the context it has been used in Clause (o) indicates that it has been used in wider sense extending from one to all. The other word "potential'' is again very wide. IN Oxford Dictionary it is defined as "capable of coming into being, possibility''. IN Black''s Law Dictionary it is defined as "extending in possibility but not in act. Naturally and probably expected to come into existence at some future time, though not now existing; for example, the future product of grain or trees already planted, or the successive future instalments or payments on a contract or engagement, already made''. IN other words service which is not only extended to actual users but those who are capable of using it are covered in the definition. The clause is thus very wide and extends to any or all actual or potential users"

The Tamilnadu State Consumer Disputes Redressal Commission in case of Shanmugam Chemical Industries v. Telecommunication Department & Ors., I (1995) CPJ 302, where the complainant had applied for telephone connection under OYT Special Scheme considered the question, relying on the decision of the Supreme Court in Lucknow Development Authority''s case (supra), observed that it cannot be doubted that such a complainant who had applied for a telephone connection is a consumer within the meaning of the Act and the complaint is maintainable for alleged deficiency in service in view of the definition of service in Section 2(1)(o) which includes not only actual users, but also potential users. The National Commission in case of Union of India & Ors. v. Aman Dahiya, and Aman Dahiya v. Union of India & Ors., I (1993) CPJ 12 (NC)=1994 (1) CCC 81, though has not dealt with the question directly but for the delay of over one year in providing the telephone connection which prejudiced the complainant both financially and professionally, besides harassment awarded compensation of Rs. 6,000/-.

IN view of the above, the decision relied by Mr. K.K. Jain, learned Counsel in R.N. Gupta''s case, (supra), is of no help which is also distinguishable on facts, as in that case the applicant simply got himself registered in routine by depositing the registration fee for providing telephone connection in Non-OYT Scheme.

IT was next contended that the award of compensation is unjust. The compensation ought not to have been awarded as changed address was in non-feasibility area. To establish that appellant had examined the Junior Telecom Officer who proved his non-feasibility report. In Swamy''s Treatise on Telephone Rules, Section I deals with Digest on Telecom Facilities. The rules for New Telephone Connections have been complied from page 4. At page 11 Technical Feasibility, Technical Feasibility register has been dealt with which we extract : "Technical Feasibility : A report of the Technical Feasibility will be obtained in all cases. This Technical Feasibility will be verified by an official not lower in rank than a Junior Engineer. The Technical Feasibility report will have to be furnished by the field staff within seven days."

"Technical Feasibility register : A Feasibility Register will be maintained exchange wise in respect of all connections. The register will be examined by the inspecting officers who should check up to 5% of the non-feasible reports subject to a maximum of 100 cases or all cases whichever is less. All cases reported non-feasible should be reviewed by the Sub-Divisional Officer and 10% of them checked by District Engineer."

In the case in hand though non-feasibility report was produced to establish that the area was non-feasible, but non-feasibility register maintained exchange wise in respect of telephone connections was not produced. Therefore, adverse inference was raised against the appellant that the non-feasibility report was an after, thought. The Assam State Consumer Disputes Redressal Commission, in case of Dr. (Mrs.) Sulochana Kaur v. Union of India & Ors., III (1993) CPJ 1391, observed that before issuing advise note, Technical Feasibility report has to be obtained. According to relevant provisions, this feasibility report has to be verified by an official not lower in rank of a Junior Engineer and such a report has to be furnished by the field staff within seven days. After getting the feasibility report, it shall have to be entered in the feasibility register to be maintained exchange wise in respect of all connections. This register is supposed to be examined by the Inspecting Officer, but the said register was not produced therefore, objection was upheld by the State Commission that this non-feasibility report was obtained subsequently.

The same is the situation in the present case, therefore, we cannot accept the contention of Shri K.K. Jain that due to non-feasibility, telephone connection was not provided.

AS to interest on the amount of advance deposit, interest was rightly awarded as the deposits bear interest for which .provision has been made which we quote from page 9 of "Swamy''s Treatise on Telephone Rules" : "Deposits bear interest : The above deposits carry in interest for the period commencing on the date of deposit and ending with the date immediately preceding the date of installation of the telephone connection at the rate payable by the State Bank of India on Fixed Deposits for a period of one year and the interest shall be calculated for the completed number of months at the rate in force on the date of deposit."

The award of compensation of Rs. 3,000/- in the circumstances can also not be said to be unjustified, which was awarded for unjustifiable delay due to which the potential user suffered inconvenience, harassment and loss in the business.

IN the result the appeal fails and is dismissed with no order as to costs. Appeal dismissed.