TELECOM DISTRICT MANAGER vs Velayutham

THE Telecom District Manager, being aggrieved by the order of the District Consumer Disputes Redressal Forum at Pondicherry in C. No. 112 of 1998 dated 15.12.1998 has preferred this appeal under Section 15 of the Consumer Protection Act, 1986.

HEARD Mr. R. Balaraman, learned Government Pleader appearing for the appellant and none appears for the respondent, despite service of notice. This Court heard the arguments of the appellant and reserved orders on 7th of August, 1999. The learned Government Pleader mainly contended that the respondent is not a consumer and the complaint is not maintainable and the conclusion of the District Forum is vitiated. Once this question is answered in favour of the appellant it may not be necessary to go into the other aspects of the complaint.

For convenience, the parties to this appeal will be referred as arrayed before the District Forum.

ACCORDING to the complainant he is a freedom fighter and he was running a fax centre since 1994 in Telephone No. 32482 at Velayutham Complex, Natesan Nagar, Pondicherry-5 for his livelihood. On 15.5.1997, the complainant admittedly by a letter requested the opposite party to reclassify the fax machine from commercial to personal and to reduce the fees payable for the same as well as the annual licence fee for fax machine. The complainant also requested for revision of the bill dated 1.5.1997 issued by the opposite party. As the bill amount had not been paid, the opposite party had disconnected the line. As claimed the complainant admittedly paid the bill on 21.11.1997 but the telephone line had not been restored. Hence the complainant by letter dated 9.12.1997 requested the opposite party for conversion of the fax connection from commercial to personal. Subsequently on 20th January, 1998, the staff from the opposite party inspected the complainant''s fax centre for verification. It is the case of the complainant that fax machine remains inoperative since May 1997, even though the bill has been cleared off and the opposite party was reminded several times in this respect.

ACCORDING to the complainant, the complainant requires the telephone connection to reach expert medical consultant and restoration is required immediately. The complainant requires the shifting of the telephone without further delay. The inaction had caused mental agony apart from physical strain. Hence the complaint. Per contra, the opposite party while admitting that the complainant is a subscriber of Telephone No. 32482 from 4.5.1993 under the special category "freedom fighter quota" and he is running a fax centre for commercial purposes, it was pointed out that the complainant has not paid the bills dated 1.5.1997 and 1.7.1997 respectively for Rs. 8,983/- and Rs. 4,630/-. Hence the said telephone connection was disconnected for default after giving reminders and following the procedure. The bills were paid on 24.11.1997 after six months and a request for reconnection was made only on 9.12.1997. The reconnection has been approved by the Telecom District Manager as per para 169 of P. and T. Manual and it is the Telecom Manager who has discretionary power to restore the telephone connection closed for non-payment of dues as per the procedure prescribed. Only thereafter, the complainant''s letter dated 15.5.1997 for cancellation of annual licence fee for the fax for commercial purposes was taken up for consideration and orders have been passed. The disconnection is warranted by the non-payment of bills and it has been effected after following the procedure. There is no deficiency in service. Further the fax machine has been installed for commercial purposes and therefore, till the complainant is permitted to change the category, no complaint is maintainable as the complainant is not a consumer. Hence the complainant is not entitled to maintain the complaint and he is not entitled to any relief.

THE District Forum by order dated 15th December, 1998 after framing three points for consideration held that there was deficiency in service and awarded a compensation of Rs. 2,000/-with interest at 12% from 3.1.1998 till realisation, besides awarding a cost of Rs. 500/-. Hence the present appeal.

CONCEDINGLY, the complainant, a freedom fighter had applied under a special category to run a fax centre on a commercial basis, which he had been running from the inception till be made a request for change of the classification. As such from the inception till the classification is changed the complainant who had been running a commercial fax centre is excluded from the definition of consumer and he is not a consumer. In this respect, the learned Government Pleader referred to the definition of the expression "consumer" as found in Section 2(d) of the Act and emphasised that the complainant who is running a commercial fax centre being a commercial purpose is excluded from the expression "consumer" and therefore, the complainant is not entitled to maintain the complaint.

It is true that Section 2(d) which defines the expression "consumer" excludes a person, who engages purchases goods or hires or avails of any service for a commercial purpose. The fax centre being run on a commercial basis, the complainant collects fax charges on behalf of the department for which he gets a commission and he is only a licensee of the grantor of the franchise for operating the fax centre. As such according to Mr. R. Balaraman, the learned Government Pleader, the complainant is not a consumer and he is not entitled to maintain the complaint before this Forum.

IT is well-settled that the telephone subscriber is a consumer as he has been provided with telephone facility. However, the complainant who runs a fax centre on a commercial basis cannot claim himself to be a consumer. The fax centre is like any other franchise holder of telephone department and he is only a licensee of the grantor of the franchise for operating fax centre like STD/PCO and he collects the franchise holder who is rendering service to the grantor of the franchise. This question has already been decided by the National Commission in General Manager, Madras Telephones & Ors. v. R. Kannan, I (1994) CPJ 14 (NC), as well as in CIII (1995) CPJ 67 (NC). In the said two pronouncements, the National Commission had occasion to consider whether the franchise for operating STD/PCO is a consumer or not and the National Commission held that a franchise holder is only a licensee of the grantor of the franchise for operating STD/PCO and collecting the call charges on behalf of the franchiser and it is franchise holder who is rendering service to the grantor of the franchise inasmuch as he runs and maintains STD/PCO relieving the Telecom Department of the responsibility for providing and maintaining public call offices.

THE commercial fax centre is identical in all respects to STD/PCO and he is only a licensee of the grantor of the franchise. Hence the said pronouncements of the National Commission squarely applies to the facts of the present case. The commercial fax centre provides or maintains functions identical to STD/PCO and the only difference being the fax machine receives the message or information or script which are fixed and it is handed over to the customer. As such in the light of the said pronouncement of the National Commission, this Commsision finds that the complainant is not a consumer as his fax centre is only a franchise till the category of the commercial classification is changed or decategorised, the complainant cannot maintain a complaint. This legal position follows in the light of the said two pronouncements of the National Commission. In the present case, the District Forum proceeded on the assumption that commercial fax centre is different from that of the STD/PCO while failing to note that the complainant is an authorised commercial faxing centre subject to the terms and conditions stipulated by the opposite party and it is on par with STD/PCO. The distinction made by the District Forum cannot be sustained.

THE telephone connection had been restored in the month of July, 1998. Till the commercial fax centre or licence or franchise is decategorised and the complainant is permitted to have the conversion to one of his personal, it is clear the complainant cannot maintain the complaint. It may be that the complainant may initiate some other proceedings and work out his remedies for alleged loss caused or for breach of the conditions subject to which he had been licensed to run a fax centre.

FOR the above reasons, it is clear that the complainant is not a consumer as has been held by the National Commission. Following the same this Commission holds that the complainant is not a consumer and therefore, the complaint is not maintainable. During the relevant period the complainant was only running a commercial fax centre and it follows that till the commercial fax centre is decategorised and the complainant is permitted to have the connection as personal connection, the complainant is not entitled to maintain a complaint. Mr. R. Balaraman is well-justified and his contention deserves to be accepted.

In the circumstances, the appeal is allowed. The order of the District Forum is set aside. In the result, the complaint filed by the complainant before the District Forum stands dismissed. The parties are directed to bear their respective costs throughout. Appeal allowed.