In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/127/2022.

Date of filing: 15/06/2022.                     Date of Final Order: 02/01/2024.

Sri Uddalak Bhattacharya,

s/o Late Saktipada Bhattacharya and Smt. Jharna Bhattacharya,

of 372, B.B.D. Road, P.O. Hindmotor, P.S. Uttarpara,

Dist. Hooghly, 712233.                                                                     …..complainant

  -vs  -

1. Bharat Sanchar Nigam Limited,

A Government of India enterprise, Calcutta Telephones,

Representing by its AOTR-CC/Uttarpara, 7A, Rajmohan Road,

P.O. & P.S. Uttarpara, Dist. Hooghly, PIN. 712258.

2. AOTR- Uttarpara,

BSNL Calcutta Telephones,

7A, Rajmohan Road,

P.O. & P.S. Uttarpara, Dist. Hooghly, PIN. 712258.

…….opposite parties

Before:            President, Shri Debasish Bandyopadhyay.

                           Member, Babita Chaudhuri.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the complainant had been enjoying the service of the OP by way of using the landline telephone connection being number 033 26945819 as provided by the Op-1 both, for his personal as well as for his professional purpose.  The complainant had been enjoying the said service of the Op byway of using the said telephone connection upon payment of charges raised by the OP-1 in the telephone bills month by month and in respect of which the complainant had not been a defaulter.  On 3^rd July 2018 the men and agents of the OPs came to the resident of the complainant and informed him that they had come to disconnect the said telephone connection incompliance with the order issued by the OPs.   The complainant was shocked and surprised upon being so informed and upon inquiry from the said men and agents of the Ops came to know that in as much as one telephone bill remained outstanding the said disconnection order had been passed.  The said men and agents of the OPs handed over to the complainant a photocopy of the said disconnection order dated 20^th  June 2018 after execution of the said order and getting the signature of the complainant on the office copy of the said order as well as one the copy handed over to the complainant.

Accordingly the said telephone connection was disconnected despite the repeated urges made by the complainant that no amount could remain and was outstanding in respect of the said telephone connection.  In the later part of the very same day i.e. 3^rd July 2018 the complainant was served with a notice no. AOTR/UTP/NOTICE/INACTIVE/18-19/29 DATED 10^TH June 2018 issued by the OP-2 whereby in a very cryptic and vague manner it was stated as follows:  “it appears from our office records that Rs.1178/- remains unpaid against your telephone no.03326945819 A./C No-8006274120.  So kindly pay the above amount at our BSNL counters within 15 days from the date of receipt of this letter to avoid legal action. In view of the above, I have directed to inform that we will be happy if petitioner allow us to reconnect your above telephone connection after satisfying payment of those unpaid telephone bills by you.  In case the bills are already paid, kindly extend cooperation by showing the paid bills to the undersigned at an early date”.   It clearly appears from the envelope in which the said notice was served by postal department there is a seal of the date from which the day and the year is capable of being recognized and ascertained. It clearly appears from the said notice dated 10^th June 2018 that :-

It was not mentioned in respect of which month the said amount of Rs.1178/- was unpaid.  The OP was not sure as to whether the said amount was actually paid or not and hence he asked the complainant to show the proof of payment.  Although the complainant was asked to make the payment of the said alleged ;unpaid amount and asked to show the proof of payment yet he was kept in complete dark as regards the month in respect of which the said amount was alleged to have remained unpaid. The complainant was not given the opportunity to defend his case that the amount was actually paid in due time nor he was given the opportunity to show the proof of the payment as was demanded in the said notice.  More importantly by stating in the said notice that the said telephone connection would be reconnected after satisfaction of the payment of those alleged unpaid telephone bills without even mentioning the bills or the month in respect of which the same were raised, the OP-2 made it clear that sole intention of the OPs was to disconnect the said telephone connection and not to allow the complainant to show cause as to why the said disconnection should not beamed or even to prevent the said disconnection by way of making payment.  The said telephone connection of the complainant was cut off on 3^rd July 2018 without giving an opportunity to the complainant to reply the aforesaid letter sent by theOP-2.  In the said above referred notice OP asked the complainant to make the payment of the said amount ofRs.1178/- within 15 days from the receipt of the said letter.  It was further written in the said notice if the bills were already paid complainant was asked to show the bill at an early date.  But the said letter was served upon complainant on 3^rd July 2018 on the same very day the telephone line was disconnected and the period of 15 days was yet to be counted.  It clearly appears from the said notice dated 10^th June 2018 that the OP-2 did not mention therein for which month the telephone bill amounting to Rs.1178/- was due.  The vagueness of the said notice which is punitive in nature and thus completely incompetent and unlawful, smacks malafide intention on the part of the OP-2.  Additionally the vagueness and deficiency in particular of the said notice dated 10^th June 2018 demonstrates negligence and casual attitude of the OPs.  The above referred negligence and malafide action of the OP-2 resulted in mental agony, loss of reputation and harassment of the complainant whose clients on several occasions could not contact with him over the said telephone connection. Moreover it was a sorry state of affair before the local residents who witnessed with awe that the landline telephone connection of a reputed lawyer of the locality was disconnected for the alleged non-payment of telephone bill which although was a false allegation yet was sufficient to cause mental agony, harassment and loss of reputation and gross injustice to the complainant.  It clearly appears from the receipt for payments of bill notes generated from the BSNL portal that an amount of Rs.1178/- was successfully paid by the complainant.  The receipt contains the particulars described in w/v of complainant.

The complainant, through his advocate sent a legal notice annexing therewith the documents mentioned hereinabove and stating in unambiguous term that the alleged amount of Rs.1178/- was paid to the OP-1 on due time and before the disconnection of the said telephone connection. It was further stated therein that since the said disconnection was not proper the said telephone connection was to required to be restored. Although the said legal notice was served upon the op no. 2 on 25^th May, 2021 but the op no. 2 did not respond to the said notice. The said non denial or non response to the said legal notice which was served upon the op no. 2 on 25^th May, 2021 clearly demonstrates that the op no. 2 did not deny any of the contentions made therein but admitted each one of them. It was the duty of the op no. 2 to speak when he preferred to remain in silence and hence he has willfully acquiesced in/ admitted the contentions made in the said legal notice. Again by another legal notice dt. 29^th November, 2021 the complainant through his Advocate sent a reminder to the op no. 2 as to the admission made by him by his willful silence in respect of the earlier legal notice when the consequence of such silence was not unknown to the op no. 2 who was also aware that it was duty to speak.

Complainant filed the complaint petition praying direction upon the opposite party to restore the telephone connection and to pay a sum of Rs. 1,50,000/- along with interest @12% per annum for compensation and to pay the cost of proceedings.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.

Argument highlighted by the ld. Lawyers of the parties

Complainant filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.

            Argument as advanced by the agent of the complainant heard in full. In course of argument ld. Lawyer of complainant has given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties inspite of receiving notice have not filed any W/V and also have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. This District Commission after going through the materials of the case record finds that the complainant is a resident of Uttarpara, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. It has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus on close examination of the pleadings of the complainant it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the complainant and there is also necessity making scrutiny of the documents filed by the petitioner of this case.

            For the purpose of arriving at just and proper decision in respect of points of consideration nos. 4 and 5 this District Commission finds that there is necessity of making scrutiny of the evidence given by the complainant. In this regard it is important to note that the ops have filed W/V but have not filed any evidence on affidavit to disprove the case of the complainant. On close examination of the evidence given by the complainant side it is revealed that the complainant has categorically described his case in the evidence and the evidence given by the complainant is also supported by documents. It is also revealed that the evidence (oral and documentary) which is given by the complainant side remains unchallenged and/ or uncontroverted as no cross examination has been highlighted in this case by the ops. After going through the materials of this case record this District Commission finds that there is reason to disbelieve the unchallenged and uncontroverted testimony of the complainant side. It is also transpires that the complainant has proved his case by way of adducing evidence in connection with the points of consideration nos. 4 and 5 which have been adopted in this case.

All the above noted factors are clearly reflecting that the complainant is entitled to get relief in this case which has been prayed by this District Commission.

In the result it is accordingly

ordered

that the complaint case being no. 127 of 2022 be and the same is decreed ex parte but in part.

It is held that the complainant is entitled to get an award of declaration directing the ops to restore the telephone connection of the complainant and to pay a compensation of Rs. 20,000/- and litigation cost of Rs. 5000/- to the complainant  within 2 months from the date of final order otherwise complainant is given liberty to execute this award as per law.

            Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.