TELECOM DISTT. OFFICE vs SIKHA BHOWMICK

-THIS is an appeal arising out of the judgment and orders dated 7.8.2000 passed by the Consumer Forum of Darjeeling District at Circuit Bench at Siliguri in Consumer Case No. 20/S/1999. By this order the Forum allowed the complaint filed by the complainant, Smt. Sikha Bhowmick (the present respondent) on contest against the O.P., General Manager, Telecom District Office and another and directed the O.P. to provide telephone connection in the new address given by the complainant and to refund the minimum call charges received by the O.P.-1 to the complainant by way of adjustment. The Forum also awarded an amount of Rs. 1,000/- in favour of the complainant by way of compensation and also saddled the O.P. with a cost of Rs. 300/-. The Forum gave 30 days time to the O.Ps. to comply with the order.

BEING aggrieved by this order the O.Ps. have preferred this appeal challenging that order as erroneous, improper and unsustainable. The case of the complainant was that she was granted permission to run a telephone booth for I.S.D., S.T.D. and P.C.O. at New Cinema Road, Siliguri and a telephone being No. SLG 430881 was installed at her place of business on that New Cinema Road for a minimum charge of Rs. 1,680/- per month. Later, she applied for shifting of the telephone at the premises of J.P. Enterprises at 356/289, Nehru Road. The further allegation of the complainant was that the telecom department in spite of having received the said minimum charges of Rs. 1,680/- per month was not giving connection to the telephone thereby causing immense financial loss to her. She claimed immediate connection of the telephone at her new address as given above. Under such circumstances she filed the complaint before the Forum claiming the said relief as well as compensation to the tune of Rs. 65,200/- up to February 1999 and a further compensation @ Rs. 5,380/- per month till connection is given to the telephone. The O.P. telecom department contested the complaint by filing a written objection denying the material allegations and averring that on their inspection they came to know that the complainant was trying to sell the business to one J.P. Enterprises and for that purpose she was seeking shifting of the place of business. The further contention of the O.P. was that the complainant was not a consumer at all within the meaning and definition given under the Consumer Protection Act.

The Forum in its judgment has found that the O.Ps. having not allowed the application for shifting the place of business of the complainant and having not given connection to the telephone concerned although they were receiving the minimum charges to the extent of Rs. 1,680/- per month, they incurred their liability under the Consumer Protection Act as it was an instance of negligence and, for that matter, deficiency in service.

IN this judgment we are to consider whether such finding of the Forum below was justified. Mr. Sikdar, the learned Advocate for the appellant before us, has contended that the telecom department cannot be liable under the C.P. Act, because the complainant-respondent is not a consumer at all, he being a mere commission-agent of the O.Ps. IN other words, the relationship between the appellant and the respondent is that of franchiser and franchisee or franchise holder and in view of the decision of the National Commission reported in I (1994) CPJ 14 (NC). IN that judgment it has been held by the National Commission in an identical case that it is erroneous to hold that the franchise holder who is maintaining and running an S.T.D. and P.C.O. Office is not a consumer vis-a-vis the revision petitioner, that is, the Madras Telephones. It has been held that the franchise holder is only a licensee of the grantor of the franchise for operating S.T.D./P.C.O., etc. and collecting the call charges on behalf of the franchiser and it is the franchise holder who is rendering service to the grantor of the franchise, inasmuch as he runs and maintains S.T.D./P.C.O. booth to relieve the telecom department of the responsibility for providing and maintaining public call office. According to the National Commission the franchise holder performs two functions (a) establishes and runs a public call office and (b) collects the call charges on behalf of the department and for rendering this service to the franchiser the franchise holder gets a commission. A franchise holder renders service to those who use the public call office, a service which is performed by the telecom department directly wherever there is no franchisee to manage public call office. Consequently, it is erroneous to hold that the franchise holder who is maintaining and running an S.T.D./P.C.O Office is a consumer qua the telecom department. Applying this decision of the National Commission to our present case the facts of which are on all fours with those of the case under reference we cannot take a different view and we are firmly of the opinion that the said principles and findings would be applicable to this case. Therefore, the respondent who is the franchise holder being the commission agent of the telecom department and entrusted with the task of running the S.T.D./P.C.O. booth cannot be taken as a consumer under the definition as given in the C.P. Act. Therefore, this cuts at the very root of the complainant''s case and he being not a consumer at all has no locus standi to file such a complaint before the Consumer Forum and the complaint filed by him was not maintainable at all under the law. On this score alone the complaint is liable to be dismissed being not legally maintainable. Hence it is ordered that the appeal is allowed on contest and the impugned judgment and order of the Forum below be set aside. However, considering the circumstances we do not pass any order as to cost. Complaint dismissed.