Meghalaya

StateCommission

FA/12/2007

BSNL - Complainant(s)

Versus

Cantonment Ex Service Resettlement Association - Opp.Party(s)

Mr.S.C.Shyam

14 Mar 2014

ORDER

 

 

 

 

 

MEGHALAYA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

SHILLONG

 

F.A No. 12 of 2007

 

BEFORE

 

Hon’ble President: Mr. Justice P.K. Musahary (Retd.)

Hon’ble Senior Member: Mr. Ramesh Bawri

 

 

1. Bharat Sanchar Nigam Ltd., Shillong
2. Telecom District Manager, BSNL, Shillong
3. The Account Officer (TR), BSNL, Shillong                        

                                                                                                              ………….Appellants

 

Versus

 

      Cantonment Ex Service Resettlement Association

Represented by its General Secretary

      Shri. Anand Kumar Thapa,

R/o Jhalupara, Shillong - 2

                                                                                                                          ………….Respondent

 

 

For the Appellants:              Mr. S. C. Shyam, Senior Advocate

                               Mr. B. Deb, Advocate 

 

For the Respondent:           Mr. S.P. Sharma, Advocate

                                   

Date of judgment:                26.09.2014

 

Judgment & Order

 

Per : Shri Ramesh Bawri, Senior Member : One Shri  Anand Kumar Thapa, General Secretary, Cantonment Ex-Servicemen Re-Settlement Association, hereinafter called the 'Complainant' filed a complaint case dt. 15.9.06 No. 44 of 2006 before the District Forum under section 11(2) read with section 12 of the Consumer Protection Act,1986, against (1). The Telecom District Manager, BSNL, (2). The Accounts Officer (TR), BSNL and (3). Air Tel Pvt. Ltd. Shillong hereinafter called the 'Opposite Party No.1' or 'OP No. 1', 'Opposite Party No.2' or 'OP No.2' and 'Opposite Party No. 3’ or 'OP No. 3', respectively.

 

2.         The case of the Complainant was that his association had a telephone connection bearing No. 0364-2544312 under consumer No. 262795 and was paying the monthly bills regularly. During the months of January - February 2006 the Complainant received a bill higher than the usual bills paid earlier. The Complainant paid the bill believing bonafide that the bill was charged as per the calls made by the members of the association. The Complainant received the bill for the month of March-April 2006 amounting to Rs.1,387/- which was more than double the amount that was usually paid. On 19.5.06 the Complainant requested the OP No. 2 to supply the call details of the aforesaid bill and a reminder was sent on 5.6.06. The OP No.2 supplied the information on 28.6.06.

 

The Complainant on perusal of the call details found that 83 calls had been made to one number 98620-15978 (Airtel Number). The Complainant verified with the members of the association and found that no one had made such calls to the said telephone No. 9862015978. The Complainant made a call to the number 9862015978 and found that the number did not exist. The Complainant approached the OP. NO.3 to know the details of the number 9862015978 for locating the person who had misused the Complainant's telephone but the OP. No. 3 refused to furnish the information. The Complainant lodged an FIR with the Officer-in-Charge of Jhalupara Police Station on 17. 7.06 requesting him to investigate the matter. On 14.08.06 the Complainant sent a reminder to the O.C. with a copy to the Superintendent of Police, Shillong. The Complainant also made a complaint to the OPs to send the lineman/surveyor to rectify the leakage in the telephone line. The Complainant did not pay the telephone bill for the month of March-April 2006 pending settlement of the excess bill. However, the Complainant paid the subsequent bill for the period during May-June 2006. During the second week of July 2006 the telephone of the Complainant was barred from outgoing call facility. The Complainant sent two letters to the OP. No.2 on 6.8.06 and 21.8.06 but to no avail. The Complainant felt that the OPs had been grossly negligent and deficient in their service towards the Complainant as they had not made an effort to look into the grievances of the Complainant and therefore filed a complaint before the learned District Forum which registered the case on 3.10.06.

 

3.         The OP No. 2 and OP No. 3 filed their show cause on 17. 11.06. The OP No. 2 contested the case stating that the complaint was not maintainable and that there was no deficiency in service being provided to the Complainant. The bill raised against the telephone number 0364-2544312 was on the basis of the computerized recording of the calls made from the said telephone number and as such the same could not be termed as grossly negligent and deficient service. The said telephone was in the custody of the complainant and as such any unauthorised use or abuse of the facility made from that telephone number was the responsibility of the Complainant and not that of BSNL.  The outgoing call was debarred in accordance with Rule 443 of the Telegraph Rules. The Complainant could have used the Dynamic Lock Facility to avoid any such unauthorised use or misuse of the telephone.

 

4.         The OP No.3 in its show cause stated that the Complainant was not a consumer of the OP. No.3, and that the telephone No. 9862015978 was activated during the period March-April 2006 only. The name of the subscribers under the OP. No 3 could not be disclosed to the Complainant as per law. The OP No. 3 prayed for striking out its name from the case.

 

5.         The Complainant filed a rejoinder on 14.12.06.  The learned District Forum heard the submissions of the learned counsels of both the parties on 19.06.07 as none of the parties wished to adduce any further evidence. On perusal of the materials on records and the submissions of the learned counsels of both the parties it decided the case vide its order dated 18.7.2007 as follows: -

 

1. The Complainant had a telephone connection No. 0364 2544312 at    Jhalupara, Shillong and the outgoing call was barred by the OP No.1 & 2 during the second week of July 2006. The outgoing call was barred for non payment of the telephone bill amounting to Rs.1387/- for the period March-April 2006.

 

1. The Complainant had filed a complaint with the OP No.2 on 19.5.06 asking for verification of the bill and supply of the call details made during the period. Reminder was issued to the OP. No. 02 on 5.6.06.  The OP No. 2 supplied the call details of the Complainant during the period of March-April 2006 on 28.6.06. The Complainant after going through the call details records supplied by the OP. No. 2 averred that 83 calls made to one number 9862015978 were not made by him. The matter was brought to the notice of the OP No. 2 for sending the Linesman/ Surveyor for checking the leakage in its telephone line. The OP No.2 instead of making an enquiry into the complaint barred the outgoing calls of the Complainant during the second week of July 2006 for non payment of the telephone bill for March-April 2006 though the bill during the period May-June 2006 was paid by the Complainant. The OP.No. 2 defended the case stating that the bill was for the actual reading of the calls made and was correct. It was also averred that the readings of calls made was recorded by the computer, which is an automatic machine. Thus there was no possibility of any mistake therein. It was also averred that it was obligatory for the Complainant to pay the bill and since he did not pay the same the outgoing calls was barred.

 

1. The Forum was of the opinion that the OP No.2 had not made an enquiry to the complaint lodged by the Complainant relating to the excess billing of his telephone during March- April 2006 amounting to Rs.1387/-. The OP.No.2 was obliged to make an enquiry and to intimate the Complainant about the result of enquiry in writing, which they had failed to do. There was no document nor was any material placed on record to show the fact that an enquiry was undertaken by the OP.No.2. This apathy of the OP.No.2 clearly amounted to deficiency in service. The Telephone Rules and circulars provide for enquiry into the complaints of excess metering. A circular No.4-59/85-TR dt.9.4.86 has been issued for disposal of excess metering complaints on which the OP. No.2 had not taken any steps.

 

In view of the above findings, the Forum directed the OP.No.2 to restore the outgoing call facility of the telephone No.0364- 2544312 immediately on receipt on its order. The Forum also directed the OP. No.2 to pay an amount of Rs. 10, 000/- (Rupees ten thousand) only as compensation to the Complainant for deficiency in service and Rs. 1000/- (Rupees one thousand) as costs, within 90 (ninety) days from the date of its order.

 

6.         This appeal is preferred impugning the afore-mentioned judgment and order Dt. 18.07.2007, passed in Consumer Case No. 44/2006 by the Learned District Consumer Disputes Redressal Forum, East Khasi Hills, Shillong. The Grounds of Appeal raised by the Appellants and argued by their learned Senior Counsel are as follows:

 

1. The related bill was prepared by computerized billing system, recording the destination number and the duration of the call made from the said telephone. The process of billing being mechanized, the possibility of any human error or manipulation is totally out of the question.

 

1. The respondent has been paying the bills forwarded from time to time but for the bill for the months of January and February 2006, the respondent raised objection over the correctness of the amount shown in the bill alleging that the amount recorded was more than double of the preceeding bills. The objection of the respondent was enquired but no fault was found with the call recording system and the respondent association was asked to make the payment of the bill which is public revenue and cannot be withheld by the subscriber.

 

1. The respondent however did not make the payment of the outstanding bill and on such default the appellant in exercise of authority conferred on them by telephone rule No. 443 debarred the outgoing calls facility with notice to the respondent. The telephone  was under the custody and control of the respondent and blame, if any, for abuse or misuse of the said telephone lay squarely with the respondent and not with  B.S.N.L, the Appellants.

 

1. The allegations made by the respondents do not constitute deficiency of service attributable to any human short coming, failure or negligence in any manner whatsoever. The Learned District Forum disregarded the fact that the debarring of the outgoing calls was made due to the default of the respondent in making payment of the outstanding bill.

 

1. The judgment and order rendered by the Learned District Forum is highly mechanical and suffers from non application of judicial mind in as much as the Learned Forum did not consider the fact the B.S.N.L. is well within its right to debar the outgoing call if a subscriber defaults in making the payment of the bill on flimsy grounds. The Learned Forum failed to appreciate the fact that the telephone connection was installed in the office of an association where other than the office bearers of the association others also had access to the same. As such if any abuse or misuse was made resulting in a rise in the bill it was due to the fault of the respondent in maintaining adequate precautionary measures to prevent any such misuse of the telephone by anybody whosoever.

 

1. The Learned District Forum also erred in law and in fact by awarding compensation merely for the asking. It is a settled principle of law that compensation can be awarded only when a prima facie case is well established by adducing sufficient evidence by the claimant. In the instant case except the bald claim not an iota of evidence was produced by the respondent. As a matter of fact the judgment and award is based solely on surmises and conjectures and as such is not sustainable under law and is liable to be struck down by this Commission.

 

1. The Learned Forum also lost sight of the fact that the telephone bills are public revenue which is being ploughed back for the expansion of the telephone facilities in the remotest corner of the country. As such, the award of compensation like doles without any lawful justification is arbitrary, unjust and perverse and liable to be set aside and quashed.

 

1. The Learned District Forum has transgressed its jurisdiction by awarding compensation under the attending facts and circumstances of the case inasmuch as the debarring of the outgoing call facility was resorted to by the B.S.N.L. to ensure the payment of the legitimate outstanding bill which can, by no stretch of interpretation, be construed as deficiency of service or default or failure on the part of the B.S.N.L. As such, the impugned judgment and order Dt. 26.07.2007 passed in consumer case No. 44/2006 ought to be set aside and quashed with cost to the appellants.

 

7.         We have heard learned Counsels from both sides and perused the documents on record, besides the written submissions. It may be stated at the outset that BSNL had raised a preliminary objection to the jurisdiction of the learned District Forum, in view of the judgment of the Hon’ble Supreme Court passed in General Manager (Telecom) Vs M. Krishnan (AIR 2010 SC 90). The preliminary objection was heard at length and vide order dated 25.02.2014 this Commission held in favour of the jurisdiction of the learned District Forum. This issue having been settled, hearing on merits of the Appeal was proceeded with.

 

8.         It will be worth adding here that, after pronouncement of our order dated 25.2.2014, an Office Memorandum No.2 17/2013 Policy I dated 04.02.2014 has been issued by the Ministry of Communications and IT, Department of Telecommunications (Policy I Section), Government of India reflecting the view of the Government of India on the subject of  jurisdiction of the Consumer Fora to adjudicate disputes between individual telecom consumers and telecom service providers wherein it has been clearly stated that “ 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 ” and that “District Consumer Forums are competent to deal with the disputes between individual telecom consumers and telecom service providers “ .

 

9.         The crux of the matter and the undeniable fact is that the Consumer Assn. made repeated complaints to the Appellants specifically pointing out that its telephone connection was local and not even STD and that the Bills raised were too high. Hence it requested BSNL to ‘ make an inquiry regarding the same. (See its letter dated 21.03.2006). Later it specifically pointed out to the Appellants that calls were apparently made to a specific number 98620-15978 as was evident from the call details provided by BSNL but no such calls were in fact made by the subscriber and BSNL was required to continue the outgoing calls pending investigation by the police with whom the Consumer had even filed an FIR in this connection.

 

10.  The award of the learned District Forum is based on its clear uncontroverted finding that the Appellants “had not made an enquiry into the complaint lodged by the Complainant relating to the excess billing of his telephone during March – April 2006 amounting to Rs. 1387/-. The Opposite party No. 2 was obliged to make an enquiry and to intimate the Complainant about the result of the enquiry in writing, which they had failed to do. There is no document nor was any material placed on record to show the fact that an enquiry was undertaken by the Opposite party No. 2. This apathy of the Opposite party No. 2 clearly amounted to deficiency in service. The Telephone Rules and circulars provide for enquiry into the complaints of the excess metering. A circular No. 4-59/85-TR dt. 09.04.86 has been issued for disposal of excess metering complaints on which the Opposite party No. 2 had not taken any steps.”

 

11.       Although there is only a reference to circular No. 4-59/85-TR dt. 09.04.86, we have traced the same. It is a circular issued by the Ministry of Communications, Dept. of Telecommunications, Government of India, addressed to all the Heads of Telecom Circles. Although the party involved here is BSNL and not any Telecom Circle and the circular mostly deals with STD related complaints, it serves as a clear guide as to how complaints regarding excess billing are to be handled.

 

Relevant extracts from the circular under the heading ‘Investigation of an excess billing complaint’ are reproduced below:

 

Para 6.4 - Once the complaint has been received very prompt action must be taken to investigate the same.

 

Para 6.7 - It is possible that the excess bill exceeds the previous bi-monthly bills by substantial amounts. In such cases, temporary relief to the subscriber by way of issuing a split bill may be justified.

 

Para 7.1 (c) - In all cases in which the investigations reveal that genuine STD calls having been made from the subscriber’s number no rebate may be granted and the complaint may be suitably informed with due courtesy explaining briefly the investigations carried out and the results thereof.

 

Para 7.2 - On the other hand, if it is found that there had been in fact, a spurt for reasons unknown or there is a reasonable doubt as to the possible faults on the metering circuit or the subscriber’s equipment or a reasonable doubt exists about the possibility of some mischief, the competent officer may grant suitable rebate.

 

Para 7.3 - In every case, the final reply should go to the Complainant within a maximum period of 2 months from the date of receipt of the complaint.

 

12.       In the present case, the fact of the matter is that no action was taken by BSNL to investigate the Consumer Complaint, no interim split bill was issued, no rebate was granted and no reply was even given to the consumer, all of which the Appellants were duty-bound to do. On the other hand, BSNL was very prompt in barring all out-going calls from the Consumer’s phone, despite the Consumer’s written complaints, rendering it almost useless.

 

13.       As regards the inaction on the Complaint of excess billing we may also refer to the decision of the Hon'ble National Commission in Revision Petition No. 817 of 2005 decided on 20.08.2009 (Bharat Sanchar Nigam Ltd. & Ors Vs Sheikh Hussain Ali). This too was a case relating to alleged excessive billing where BSNL had stated in their Written Statement that the matter had been thoroughly investigated and, after investigation, it was found that the bills issued were as per meter reading. It was denied that there was any deficiency on their part. The Hon'ble National Commission held that "Respondent was not given the Report submitted after the investigation of the matter. Officer, who inquired into the matter, has not been produced as a witness. Respondent has been denied the opportunity to cross-examine the person who had submitted the Report, thus, denying him of an opportunity to question the correctness or otherwise of the Report submitted. Method adopted for ascertaining as to whether the matter was faulty or not has also not been disclosed." Accordingly, in the absence of any reassuring circumstance, the averment made in the Written Statements that the Consumer was correctly billed was not accepted and the Revision dismissed. The circumstances before us are similar. Here too, the Respondent was not given the Report submitted after the investigation of the matter if any such investigation was done at all. Officer, who inquired into the matter, has not been produced as a witness. Respondent has been denied the opportunity to cross-examine the person who had submitted the Report, thus, denying him of an opportunity to question the correctness or otherwise of the Report submitted. Method adopted for ascertaining as to whether the matter was faulty or not has also not been disclosed. The Appeal therefore deserves to be met with the same fate.

 

14.       We may now deal with BSNL’s contention that they were fully entitled to disconnect / restrict outgoing calls from the Complainant’s phone in exercise of the authority concerned by Rule 443 of the Indian Telegraph Rules, 1951. This Rule, hereinafter referred to as the I.T. Rules, reads as follows:

 

"443. Default of Payment   If, on or before the due date, the rent or other charges in respect of the telephone service provided are not paid by the subscriber in accordance with these rules, or bills for charges in respect of calls (local and trunk) or phonograms or other dues from the subscriber are not duly paid by him, any telephone or telephones or any telex service rented by him may be disconnected without notice. The telephone or telephones or telex so disconnected may, if the Telegraph Authority thinks fit, be restored, if the defaulting subscriber pays the outstanding dues and the reconnection fee together with the rental for such portion of the intervening period (during which the telephone or telex remains disconnected) as may be prescribed by the Telegraph Authority from time to time. The subscriber shall pay all the above charges within such period as may be prescribed by the Telegraph Authority from time to time."

 

First of all, in our opinion, assuming that Rule 443 of the I.T. Rules, 1951 apply to BSNL, it is evident that although the said Rule would technically empower it to disconnect / debar phones even without notice in case of default in payment, that does not mean that BSNL either ought to or has to resort to such drastic measures at the drop of a hat. A subscriber may forget to pay a Bill or unwittingly miss payment by some days. Notwithstanding the provisions of the Rule, justice and fairness require that a warning notice be issued to a subscriber in such cases. In our view, the drastic measure of disconnection / debarring is meant to be resorted to only in the case of habitual defaulters or for long overdue payment. 

 

Secondly, it needs to be seen whether Rule 443 of the I.T. Rules, 1951 and the powers conferred by it are at all available to a service provider such as BSNL. From Rule 443 of the Indian Telegraph Rules, 1951 which has been cited above it is clear that the powers conferred thereunder are conferred to the 'Telegraph Authority'. Now, the term 'Telegraph Authority' has been defined in Section 3 (6) of the Indian Telegraph Act, 1885, the parent Act under which the said Rules have been framed, in the following words:  “telegraph authority” means the Director General of Posts and Telegraphs, and includes any officer, empowered by him to perform all or any of the functions of the telegraph authority under this Act.

 

15.       We have already ourselves held in our earlier order dated 25.2.2014 while discussing the maintainability of the Complaint that has given rise to these Appeals that BSNL is not a ‘Telegraph Authority’. This has been reaffirmed by the GOI Notification dated 4.2.2014 which we have cited above  where it has been clearly stated that ‘Powers of the Telegraph Authority have neither been vested nor are available to private telecom service providers and BSNL’. As such, it is clear that BSNL not being a 'Telegraph Authority', it cannot draw on the power and authority conferred by Rule 443 of the Indian Telegraph Rules, 1951 to unilaterally debar / disconnect any telephone without giving due notice to a subscriber, even if the dues are not paid on time. It is required to act within the ambit of the canons of natural justice and to give reasonable prior notice before resorting to any such disconnection, whether partial by barring certain facilities or in totality, unless there is any such empowering clause in the contract / agreement between BSNL and the subscriber.

 

16.       With regard to BSNL’s argument of being custodians of public money, it cannot be forgotten that while such State instrumentalities swear by protecting the public exchequer the fact is that, in such cases, by attempting to defend their unacceptable actions through protracted litigation, it is they themselves who cause heavy loss to the public exchequer by way of fruitless legal counsel and litigation expenses, which have ultimately only to be borne by the common citizen of the country, besides wasting the valuable time of the Consumer Fora. We would advise them to discontinue the standard practice of appealing to our emotions by putting on the self-donned guise of ‘Protectors of the Public Exchequer’. Moreover, even though BSNL is an instrumentality of the State it is after all a business enterprise and it is futile for them to claim to be treated by Consumer Fora in a manner different from any private business enterprise.

 

17.       In view of the discussions above, having heard the learned counsels for both the sides, perused the records and applied our minds to the facts of the case, we are of the view that the orders passed by the learned District Forum are fair and judicious and call for no interference on our part. We uphold the impugned order dated 18.7.2007 and dismiss the appeal. We however refrain from imposing any costs. The Appeal stands disposed of accordingly.  Return the case records of the learned District Forum.

 

 

 

SENIOR MEMBER                                                  PRESIDENT