DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.186/23.11.2007 Decided on : 21.1.2009 Ganga Bishan Kath S/o Sh.Narata Ram, resident of Budhlada, District Mansa, through Smt.Sushil Kath widow of Sh.Ganga Bishan Kath. ..... Complainant. VERSUS 1.Accounts Officer, Bharat Sanchar Nigam Limited, Mansa. 2.S.D.O., Bharat Sanchar Nigam Limited. Budhlada, District Mansa. ..... Opposite Parties. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.Naval Goyal, Advocate counsel for the complainant. Sh.P.K.Singla, Advocate counsel for the Opposite Parties. Before: Sh.Pritam Singh Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.Pritam Singh Dhanoa, President. This complaint has been filed by Sh.Ganga Bishan Kath Son of Sh.Narata Ram, resident of Budhlada, District Mansa, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act'), on the averments, which may briefly be described as under: 2. The complainant has got installed a telephone, in his house, bearing Connection No.253131,from the opposite parties, as such, he is consumer, under them, qua the said telephone connection, got installed by him under Plans No.200 and 111. Under the former Plan, he is entitled to Contd.......2 : 2 : make 167 STD calls are free of costs and under the latter Plan, all the telephone calls made, by the customer, in the entire State of Punjab, are free. The complainant, has been regularly paying the amount of bills, drawn upon him, by the opposite parties, for making the telephone calls, on his telephone, and no amount is outstanding towards him. The opposite parties, had sent bill dated 5.4.2007, in the sum of Rs.1221/,- upon the complainant, in which excess amount in the sum of Rs.734/- had been included in addition to normal calls made by the complainant during the period of bill. On being approached by him, the opposite parties gave assurance, that amount of bills would be adjusted in future bills and asked him, to deposit the entire amount of the bill upto the stipulated date i.e. 20.4.2007. Thereafter the opposite parties, issued bill No. TO5082007353334 dated 5.8.2007, raising demand of Rs.1058/- including the metered call charges in the sum of Rs.309/-. They have also failed to adjust the excess amount of bill dated 5.4.2007. On protest, being lodged by the complainant, he was informed, by the opposite parties that there is defect, in the computer system, as such, he shall deposit the amount of bill and they also gave him assurance that an amount of Rs.734/- would be adjusted in his future bills. The complainant then deposited the entire amount of said bill, however, the opposite parties served upon him, bill bearing No.TO51200756213 dated 5.10.2007, in the sum of Rs.1507/-, without adjusting the amount of Rs.734/-. They have also added a sum of Rs.700/-, on account of metered calls, in excess of consumption. The complainant again approached the opposite parties and secured the details of the bills. As per details supplied by the opposite parties, amount has also been charged, on account of local calls and excess amount already been paid by the complainant, has not been adjusted. The complainant served legal notice dated 7.11.2007 upon opposite parties, which was received in his office, on 19.11.2007, but the opposite parties disconnected the telephone connection without affording any opportunity of being heard Contd........3 : 3 : to him and converted the connection into Single Way, permitting no outwards calls, as such, there is deficiency in service on their part. Since the complainant, has been subjected, to mental and physical harassment, due to conduct of the opposite parties, as such, he is entitled, to receive an amount of Rs.50,000/-, on account of compensation and another sum of Rs.25,000/-, on account, of financial loss, as the telephone is also used by his son, who is practicing as an Advocate, at Budhlada. Hence this complaint, for grant of compensation, in the sum of Rs.75,000/-, restoration of telephone connection and adjustment of excess amount of, Rs.734/-, Rs.309/- and Rs.800/-, already deposited by the complainant. 3. On being put to notice, Opposite parties filed written version, resisting the complaint, by taking preliminary objections; that the complainant, is not the 'consumer' within the purview of its definition given in the Act, because telephone connection, has been installed, in the name of Sh.Ganga Bishan Kath, who has since expired and, has not been transferred, in the name of the legal heirs; that complainant, has no cause of action, and locus standi, to file the complaint; that the complaint, is not maintainable, in the present form; that the complaint is bad for mis-joinder and non-joinder of necessary parties; that the complainant, has concealed material facts from the knowledge of this Forum; that complainant, has also filed another complaint bearing No.202, on 26.12.2007, in connection with same telephone connection, as such, this complaint is not maintainable and complaint, being false and vexatious, is liable, to be dismissed, with compensatory costs; On merits, factum of installation of telephone connection in the name of deceased complainant and issuance of impugned bills, has not been denied. It is submitted that complainant did not deposit the bill for 10/2007, as such, his telephone connection was disconnected, on 19.11.2007, which was reinstalled, in compliance of the order dated 26.11.2007, passed by this Forum, in the earlier complaint filed by him. It is contended that rent of Rs.734/-, charged in the bill, dated Contd........4 : 4 : 5.4.2007, is correct and amount on account of rent, for the period 1.2.2007 to 15.3.2007, at the rate of Rs.425/- and for the period 16.3.2007 to 31.3.2007, under Plan India at the rate of Rs.180/-, per month, has been correctly charged and total amounts for the said period comes to Rs.638/- and Rs 96/-, respectively. It is also submitted, that the details of calls charged, for the following periods,,are mentioned hereunder: From 1.4.07 to 30.6.07 From 1.7.07 to 31.7.07 Gross Calls 193 305 Free Calls 50 167 Net Calls 143 138 It is submitted, that telephone connection, in dispute, had been issued, under Plan No. 111, on 17.3.2007, whereas Plan No.200, was extended, on 30.6.2007 and lateron Plan No.425 was provided, to the subscriber, as per his request, on 19.6.2006 and, on 15.3.2007, the said Plan was converted into India I Plan and Plan 111 and rent is being charged accordingly. It is also contended that Plan No.111, was provided, on 17.3.2007, but due to technical mistake, the same was not activated, in the Telephone Exchange and details of the calls made, on his telephone, were sent, to the complainant and, had been given rebate of Rs.1382/-, on 5.12.2007. Rest of the averments, made in the complaint, have been denied, and a prayer, has been made, for dismissal, of the same with costs. 4. On being called upon, by this Forum, to do so, learned counsel for the complainant tendered in evidence, the affidavit of Smt.Sushil Kath and Sh.Zanny Kath, widow and son of the deceased complainant Ext.C-6 & C-7. He also tendered photocopies of documents Ext,.C-1 to C-5 and C-8 before he closed the evidence. On the other hand, learned counsel for the opposite parties has tendered affidavit of Sh.Mohinder Pal D.E.(Legal) and closed, their evidence. 5. We have heard the learned counsel, for the parties and gone through, the oral and documentary evidence, adduced on record, by them Contd........5 : 5 : , carefully, with their kind assistance. 6. To begin with Sh.Naval Goyal, Advocate, learned counsel for the complainant, has submitted that in their written version, the opposite parties, have admitted, that Plan No.111, could not be activated in the Telephone Exchange and rebate has been given, to the complainant, in bill dated 5.12.2007, but no such document, has been produced by them, to proof, the said fact. Learned counsel, has also drawn our attention, to copy of bill, dated 5.12.2007, in the course of arguments ,wherein the said amount, is not found adjusted. The learned counsel, has further argued that the opposite parties, have demanded the amount, on account of rent and against free calls, permissible to Plan No.111 and 200 and disconnection of his telephone connection installed in the name of the deceased complainant, before it was restored in terms of interim order passed by this Forum in the present complaint. Learned counsel, has argued that his son Sh.Zanny Kath, being an Advocate, had suffered, in his profession and deceased complainant, his widow, has been subjected to mental and physical harassment, as such, the opposite parties, are liable to pay compensation and costs, as prayed for, in the complaint. 7. On the other hand, Sh.P.K.Singla, Advocate, learned counsel for the opposite parties, has submitted, at the out set, that widow of the complainant, is not a consumer, within the ambit of its definition, given in the Act, and telephone connection, has not been got transferred, in her name, after the death of her husband, as such, she, has no locus standi, to pursue the same and the complaint is liable to be dismissed, on this technical ground alone. In support of his contentions, learned counsel, has placed reliance upon 2005(IV) CPJ 302 SDO(OP)HVPN versus Pradeep Kumar Khullar, wherein the complainant has been running a diagnostic centre and electric connection, continued in the name of partner, even after dissolution of partnership, but he never moved for change of the same, in his name, on account of which it was held, that he is not consumer and he Contd........6 : 6 : has no locus standi, to file the complaint and the order passed by the District Consumer Forum, Karnal was set aside, by the Hon'ble Haryana State Commission. 8. At this stage, learned counsel for the complainant, has argued that legal heirs and user of services are consumers, within the purview of its definition, given in the Act and as per Section 2(b)(v) of the Act, the legal heirs or representative, in case of death of a consumer, can pursue the complaint, as such, widow of the complainant, has locus standi, to file and pursue the complaint, which has been filed, by the complainant, during his life time. In support of his contentions, learned counsel, has relied upon 2006(2) CPC SC 667 Mukesh Kumari (Minor & Dead) by Lrs versus M.Lal Oswal Cancer Treatment and Research Foundation & anr., wherein death of victim took place due to medical negligence. It was held by the Hon'ble Apex Court, that right to sue, would survive, to the legal heirs to claim compensation from the opposite parties. It is further held, that in the present case, mother of the deceased is already on the record, as such, she is entitled to claim compensation, even as a legal heir, and impugned order, was set aside and case was remitted back, for fresh decision. 9. We find merit in the argument advanced by the learned counsel for the complainant. The word 'complainant', has been defined in Section 2(b)(v), as legal heir or representative, in case of death of a consumer, who makes the complaint. In the case in hand, deceased consumer, had personally filed the complaint. After his death, during the pendency of the complaint, his widow, Smt.Sushil Kath, was brought on record and was permitted, to pursue the complaint, on behalf of her deceased husband. For the above said reasons and being fortified by the ratio of judgment delivered in the authority relied upon by the learned counsel for the complainant, referred above, we have come to the conclusion that widow of the deceased complainant is entitled, to pursue the complaint , even if, telephone connection, has not been changed in her Contd........7 : 7 : name. 10. Learned counsel for the opposite parties, has further submitted that rebate for excess amount, has been given, in the sum of Rs.1382/-, in the subsequent bill dated 5.12.2007 and error had taken place due to non activation of Plan 111, in the Telephone Exchange, as such, the complaint has become infructuous. Learned counsel, has argued that as error has taken place due to defect in Telephone Exchange and there is no malafide on the part of the officials of the opposite parties, therefore, there is no deficiency in service on their part for which compensation may be awarded to the complainant. Learned counsel further argued that the telephone of the complainant, has been restored in terms of the interim order passed by this Forum, as such, no ground is made out, even for, award of compensation and costs and complaint is liable to be dismissed. 11. Admittedly, telephone connection bearing No.253131, has been installed, in the name of Sh.Ganga Bishan Kath, deceased husband of Smt.Sushil Kath and the said consumer, has died during the pendency of the instant complaint. It is also not disputed that deceased consumer, had been regularly making payment of amount of bills drawn upon him for the telephone calls made by him and the services provided by the opposite parties. After perusing the copies of telephone bills, placed on record, by the complainant Ext.C-3 to Ext C-5 and details of calls made on his telephone Ext.C-8, supplied by the opposite parties to him, we have come to the conclusion, that calls have also been made on mobile telephones and beyond the State of Punjab, in addition to free calls permissible under Plan No.200 and 111 secured by the complainant, but the opposite parties, have not disputed that free calls, are permissible, as projected, in the complaint under Plan No.111 and 200. However, their plea is that excess amount, deposited by the complainant, in the sum of Rs.1382/-, has been adjusted, in the bill dated 5.12.2007, but they have not produced any documentary proof, to show that the amount had been adjusted. Even the said amount is Contd........8 : 8 : not found adjusted, in the copy of the bill dated 5.12.2007 placed on record by the counsel for the opposite parties during the course of argument. Since liability, has not been disputed to that extent, by the opposite parties, therefore, they have no option, but to refund the excess amount deposited by the complainant, in the sum of Rs.1382/-, and to pay suitable amount to her widow for inconvenience caused to her and other members of his family including his son Sh.Zanny Kath, a Advocate practicing at Budhlada . The complainant, had to incur amount for filing of the instant complaint, due to deficiency in service on the part of the opposite parties. As such, the opposite parties are also liable, to pay costs, to the widow of the complainant, for pursuing the complaint on her behalf. It is well settled that interest and compensation, cannot be awarded simultaneously in the complaint filed under the Act. Since we are inclined to award interest, therefore, complainant is not entitled to payment of compensation for physical and mental harassment, if any. 12. For the aforesaid reasons, we partly accept the complaint and direct the opposite parties, to pay a sum of Rs.1382/-, to the widow of the deceased complainant, along with interest, at the rate of 9 percent per annum, from the date of deposit of the amount, till the date of payment, within a period of two months, from the date of receipt of the copy of this order. The opposite parties are also burdened, in the sum of Rs.1,000/-, to compensate the widow of the complainant on account of costs, incurred by him for filing the complaint. 13. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record. Pronounced: 21.01.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
