BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 30^th DAY OF MAY 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) claiming refund of entire deposit amount together with interest and compensation of Rs.1,00,000/- with litigation cost.

2. The brief averments made in the complaint are as under:

During the year 1991-92 the complainant obtained telephone line connection by depositing Rs.1,000/-.  The said telephone was registered in the name of Pratap M. Thacker.  Correspondence was made with BSNL as Pratap Thacker (without middle name) and bills were issued in the same name as per registration, Pratap M. Thacker.  The telephone service line was terminated during Feb/March 2006.  Bills were coming in the name of Pratap M. Thacker till manual billing system was prevailing for bills preparations.  After introduction of computerized billing system, the same were issued in short spelled form as P.M THACKER.  Though there was fault in the name to avoid disconnection of line, bills were paid regularly.  This does not mean that there is a change in the registered name.  Orally and on phone the complainant brought the same to the notice of accounts section.  The deficiency in service started in feeding the name in computer system of account section.  The concerned officer entered short spelled and wrong spelled name in the system.  This continued till termination of line in the year 2006.

The account section of BSNL wrongly calculated and spelled cheque No.411244 of Corporation Bank dated 26.04.2006 for Rs.516/- making “ACCOUNT PAYEE NOT NEGOTIABLE”.  The cheque became the third party due to wrong spelling since the complainant do not have Bank account in that name.  Therefore, he could not send the said cheque for collection.  The name written in the cheque was ‘P.M Thackir’ which was totally wrong.  After several personal visits, phone calls, correspondence during 5 years with BSNL the complainant received second amended and wrongly calculated cheque No.119486 of Corporation Bank dated 27.11.2010 again for Rs.516/-.  The said cheque was Account Payee.  The said cheque also could not be sent for collection as the name written was ‘Thacker P.M’ which is wrong again.  The envelopes addressed by the forwarding clerks were correctly written but the cheques were written in wrong name.  After repeated correspondence and show cause notice dated 27.12.2010 the complainant received a third cheque with proper name drawn on Corporation Bank dated 17^th January 2012 for Rs.561/- without covering letter or any clarification regarding calculation.  The said cheque was sent for collection accepting the same under protest.  The OP has not paid interest of the said amount for the last 5 years 10 months.  Therefore, the said amount received on 20^th January 2012 is considered as part payment towards the claim.  After receiving the third cheque under protest the complainant wrote a protest letter dated 25^th January 2012 to the Chief Accounts Officer by registered post which was not replied.  The account section of OP has sent the said cheque for Rs.561/- without properly verifying amount due and without calculating the interest.  The Principal General Manager who is the highest officer instead of taking action against the signatory of the cheque in the account section, tried to shield them and gave false information sought under RTI Act.  To shield the Principal General Manager the CPIO has passed false information stating that no letters have reached to PGM, to whom all the letters were addressed.  The second Appellate authority to shield himself passed on false information denying receipt of complaint letters thereby all the concerned in the OP rendered deficient service.  The delay in refunding the deposit amount and denying the correspondence and communication caused the complainant severe mental agony, physical harassment and false letters during past 5 years 10 months.  The mistake in the name corrected in the third cheque of January 2012 could have been done during April 2006 itself but the same was not done due to dereliction of the duty on the part of OP.  Till the complainant gets his entire deposit amount he remains the Consumer of OP.  The complainant is a senior citizen aged more than 73 years and has been put to lot of harassment by the OP without refunding his entire deposit amount and by sending refund cheques in wrong names and without proper calculations.

For the aforesaid reasons, the complainants pray for an order directing the OP to refund him a sum of Rs.816/- out of Rs.1,000/- after deducting the last bill of Rs.184/- and compensation of Rs.1,00,000/- with costs.

3. In response to the notice issued OP appeared through their advocate and filed their version contending, in brief as under:

This Forum has no jurisdiction to entertain the present complaint as per judgment rendered by the Hon’ble Supreme Court in case between General Manager Vs. M. Krishna and another.  The complainant is a subscriber of OP department and provided with a landline telephone on 10.05.1980.  As per the master database in the computer system, the name of the subscriber is P.M Thaker.  As per the computer records with effect from 01.08.1997 to 07.01.2006 the name of the subscriber has been recorded as P.M Thaker.  The bills have also reached the subscriber through postal department in the name of P.M Thaker and cleared by the subscriber.  The said telephone was permanently closed on 05.01.2006.  There is no any deficiency of service as alleged by the complainant.  If at all there was any incorrect cheque dated 26.04.2006 the complainant could have approached the concerned Accounts Officer for redressal of his grievances.  The complainant having a bank account is very much aware of the fact that the validity of any cheque was only six months at that point of time.  But the complainant has chosen to knock the doors of the Forum after a gap of nearly 6 years which by itself is time-barred.  That the address on the envelope is written based on the recent correspondence made by the complainant.  That after making necessary enquires after visiting the house of the complainant a fresh cheque was issued in the name of Pratap M Thacker.  The complaint ceases to be a consumer after voluntary closure of the telephone line on 05.01.2006.

For the aforesaid reasons, OP prays for rejection of the complaint.

4. Subsequent to filing of the version, the complainant was called upon to file his affidavit evidence.  Accordingly, he filed his affidavit evidence in lieu of oral evidence reiterating the allegations made in the complaint.  Thereafter one K.S Bhanuprakash, Assistant General Manager (Legal) Bangalore Telecom District, BSNL filed his affidavit evidence on behalf of OP in support of the averments made in the version.  Written arguments have been filed by both sides.  Both the parties have placed reliance on certain documents.

5. On the rival contention of both the parities the points that arise for our determination in this case are as under:

        6. Perused the pleadings of both the parties, sworn testimony of complainant as well as OP, written arguments, various documents relied upon by both sides and other materials placed on record.

7. Our answer to the above issues are as under:

REASONS

8.  It is not in dispute that, the complainant Prathap M Thacker obtained a telephone line connection somewhere during the year 1991-92.  According to the complainant, his name has been registered with OP as PRATAP (first name) M (second name) THACKER (last name).  According to the complainant, he was receiving all the bills written as Pratap M Thacker as long as the bills were prepared by OP manually.  The complainant alleges that, after introduction of computerization billing system his name was spelled as P.M THACKER by the OP and he alleges that, his name as P.M THACKER was fed to the computer and thereafter he started receiving bills as P.M Thacker in regard to which he made complaint to the OP.  However, OP continued to sending him bills as P.M Thacker only.  The complainant alleges that, his registered name was Pratap M Thacker in all the relevant records with OP but at the time of computerization his name has been wrongly fed to the computer as P.M Thacker.  However the OP claims that, as per the data records the name of the complainant is recorded as P.M Thacker in all the relevant records.  Therefore, they addressed all the correspondence including cheques in the name of P.M Thacker.  From the materials placed on record, it appears to us that, there is no reason for the complainant to make false claim against the OP as far as his name is concerned.  It appears to us his name was registered with OP as Pratap M Thacker and not as P.M Thacker as claimed by OP.  It appears that, when the computerization was introduced in the OP, the concerned have wrongly recorded the name of the complainant as P.M Thacker instead of Pratap M Thacker.  On the basis of wrong name entered in the computer, the OP is claiming that the name of complainant as recorded in their data base is P.M Thacker.

9. The complainant alleges that, at the time of obtaining the telephone line connection he deposited a sum of Rs.1,000/- with the OP.  OP though denied that Rs.1,000/- was deposited by the complainant but did not substantiate by producing relevant records as to what was the amount to be deposited during the relevant period for obtaining a land phone connection.  Nothing prevented the OP to produce circulars, notifications, rules and regulations regarding to the amount to be deposited for obtaining a land phone connection during the relevant period.  Therefore, we are not able to accept the contention of the OP that the amount deposited by the complainant was Rs.700/- at the time of obtaining the telephone line connection.

10. The complainant claims that, the last bill which he was due to the OP was Rs.184/- and it was dated 19.02.2006.  The OP did not deny the same.  According to the complainant, the telephone line was surrendered / closed during the month March-April 2006 and thereafter he requested the OP to refund him the deposit amount after deducting Rs.184/- being the amount under the bill dated 19.02.2006.  However, OP sent a cheque dated 26^th April 2006 for Rs.516/- to the complainant in the name of “P.M Thackir”.  OP did not explain how that amount of Rs.516/- was arrived at instead of Rs.816/-.  Further, there is no explanation from the OP either in the version or in the affidavit as to why the name of the complainant was wrongly written as “P.M Thackir” in the cheque though his registered name is Pratap M Thacker.  Admittedly, the complainant could not get the said cheque encashed as his name in the Bank is Pratap M Thacker from the material placed on record by the complainant.  Despite repeated requests made by the complainant orally as well as in writing the OP did not bother to send a proper cheque in a proper name with correct amount immediately thereafter.  The OP has made the complainant to run from post to pillar for getting the said refund.

11. Nearly after more than 5 years, OP has issued a fresh cheque again for the very same amount of Rs.516/- in the name of Thacker P.M.  According to the OP, the name of the complainant as recorded in the records is P.M Thacker.  There is no explanation from the OP as to why the cheque was issued in the name of “Thacker P.M” in the year 2006.  Initially OP issued cheque as ‘P.M Thackir’ and now they have issued the cheque mentioning the name of complainant as ‘Thacker P.M’.  Admittedly the complainant known as either P.M Thacker or ‘Pratap M.Thacker’.  This attitude of OP in sending the cheque in wrong name certainly amounts to grave deficiency in service.  It shows callous attitude of officers of OP in writing the cheque.  It appears that, the Chief Accountant Officer and his subordinates did not verify the correct name of the person/consumer before writing the cheque.  Not only there is a delay of more than 5 years in refunding the deposit amount but there is a grave mistake in calculating the amount to be refunded and also in writing the correct name of the complainant in the cheque.  Therefore, despite getting the cheque complainant could not encash the cheque.  The various copies of letters and communications produced by the complainant goes to show that, he has repeatedly approached the OP for refund of the proper amount and in proper name.  Though he has written more than three letters to the Principal General Manager who is the head of the office at Bangalore, he has failed to initiate action against erring officer/official for refunding the incorrect amount and in not mentioning correct name.  The Principal General Manager even goes to the extent of denying receipt of the letters though the complainant has acknowledgment for having sent the same.  Unfortunately the first CPIO also erred in taking note of the various letters addressed by the complainant to Principal General Manager and the grave errors committed by the account section in writing cheque for incorrect amount and in wrong name.  Similarly second appellate authority also failed to provide any justice to the complainant.  Thus at every stage the various authorities in OP have failed in their duties in providing relief to the complainant.  Despite the fact that the complainant is senior citizen aged more than 75 years, the OP has made him to suffer for more than 6 years in getting back the deposit amount.

12. After repeated representations and visits ultimately the OP has issued cheque dated 20^th January 2012 in a sum of Rs.561/- in the proper name of the complainant as Pratap M Thacker.  This amount of Rs.561/- has been refunded to the complainant after more than six years from the date of closure of the telephone line by the complainant.

13. From the discussions made above, we are of the considered opinion that, there is grave deficiency in service on the part of OP in refunding the deposit to the complainant.  However, though the OP has refunded the deposit after six years but the amount sent is incorrect.  Instead of Rs.816/- OP has sent only Rs.516/-.  Therefore, OP is liable to refund the balance amount together with interest.

14. It is argued on behalf of OP that, the present complaint is not maintainable, in view of the judgment rendered by the Hon’ble Supreme Court of India in a case between General Manager, Telecom Vs. M. Krishnan and another reported in 2009 AIR SCW 5631.  In this regard it is necessary to refer to the Office Memorandum dated 04^th February 2014 issued by the Government of India, Ministry of Communications & IT, Department of Telecommunications (Policy-I Section).  In the said Office Memorandum it has been stated as under.

2.     The matter has been examined in this Department.  It is mentioned that the matter referred to in the Hon’ble Supreme Court involved a dispute between Department of Telecommunications (DoT) as a service provider prior to the hiving off of telecom services into a separate company namely Bharat Sanchar Nigam Limited (BSNL).  Since DoT was also the telegraph authority, reference was made by the Hon’ble Supreme Court to the provisions of section 7B.  However, powers of the telegraph authority have neither been vested nor are available to private telecom service providers and BSNL.  Therefore, recourse to section 7B in case of disputes between consumers and private service providers and BSNL would not be available.  The Hon’ble Supreme Court’s judgment is sui generis in its application and has to be read with reference to the particular facts and circumstances of the case before it.

3.     Further, while commenting on the implementation of provisions of National Telecom Policy-2012, related to amendment of Indian Telegraph Act to bring disputes between telecom consumers and service providers within the jurisdiction of District Consumer Dispute Redressal Forum (District Forum) established under Consumer Protection Act, Legal Advisor, DoT opined that District Forums are already having jurisdiction and promulgation of ordinance is apparently not required.

4.     The District Consumer Forums are competent to deal with the disputes between individual telecom consumers and telecom service providers.

5.     The above position has been brought to the notice of Secretary, Department of Consumer Affairs, Government of India and Chief Secretaries/Administrators of States/Union Territories for taking the matter up with District Consumer Dispute Redressal Fora and the State Consumer Disputes Redressal Commission in the States/UTs.

15. In view of the above mentioned Office Memorandum the present dispute is very well maintainable in this Forum.  The allegations of OP that, the claim is barred by limitation is also not acceptable since the OP has not refunded the entire amount to the complainant till today.

16. In view of the discussions made above, we feel it appropriate to direct the OP to pay interest @ 12% p.a on the amount of Rs.861/- from 01^st April 2006 till 20^th January 2012 and thereafter on Rs.300/- till the date of realization.  The callous attitude of the OP in refunding the deposit amount and inordinate delay must have put the complainant to great hardship, inconvenience and mental agony.  Therefore, we feel it appropriate to direct the OP to pay compensation of Rs.5,000/- together with litigation cost of Rs.4,000/-.

17. The order could not be passed within the stipulated time due to heavy pendency.

18. In the result, we proceed to pass the following:

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OP is directed to pay interest @ 12% p.a on the amount of Rs.861/- from 01^st April 2006 till 20^th January 2012 and thereafter on Rs.300/- till the date of realization.  Further OP is directed to pay compensation of Rs.5,000/- together with litigation cost of Rs.4,000/-.

OP shall comply the said order within four weeks from the date of communication of this order.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 30^th day of May 2016)

MEMBER                            MEMBER                    PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 10.07.2012.

1. Sri.Pratap M. Thacker

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 06.09.2012.

1. Sri.K.S Bhanuprakash.  

Documents produced by the Opposite party:

MEMBER                            MEMBER                    PRESIDENT

Vln*