Meghalaya

StateCommission

FA/05/2006

Gen. Manager, GMTD, BSNL. - Complainant(s)

Versus

Kum D. Phawa - Opp.Party(s)

Mr.S.C.Shyam

25 Feb 2014

ORDER

        MEGHALAYA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

SHILLONG

 

F.A. No.5 of 2006

 

BEFORE

 

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

Hon’ble Senior Member : Mr. Ramesh Bawri

 

1. Bharat Sanchar Nigam Ltd., Shillong
2. General Manager, GMTD,BSNL, Shillong

………….. Appellants

 

                                                      Versus

 

Kum D. Phawa, MCS,

Executive Magistrate,

O/o The Deputy Commissioner,

Nongpoh, Ri-Bhoi District

                                                                                          …………Respondent

 

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

                                                                  Mr. B. Deb, Advocate

 

For the Respondent                  :           Mr. Sandeep Jindal, Advocate

                                                                  Miss S. Poddar, Advocate

 

Date of Judgment                      :           20.6.2014     

 

JUDGMENT AND ORDER

 

1.         Per : Mr. Ramesh Bawri, Senior Member: The brief facts leading to this Appeal are as follows:

 

a.      Complaint Petition No. 7 of 2006 was filed on 04.05.2006 in the District Forum, Ri Bhoi District by the Respondent in this Appeal, who is a public servant, against the BSNL, the Appellants, alleging deficiency in service in respect of her BSNL mobile phone no. 9436107729 inasmuch as the said mobile phone  was barred from making outgoing calls from 17-02-2006 to 23-02-2006 and again from 14-04-2006 to 22-04-2006 although she had been paying all her bills regularly right upto March 2006, receipts for which were attached. It was also alleged that incoming calls were barred from 01.05.2006 and her complaint letter dated 21.02.2006 to BSNL met with no response.

 

b.      Subsequently, another petition dated 26-06-2006 was filed by the Complainant / Consumer stating that her mobile phone was again barred for outgoing calls with effect from 13-06-2006 to 16-06-2006 and that on 23-06-2006, she received a message from BSNL which read “Dear customer, your incoming facility has been barred due to non-payment of outstanding dues. Please pay outstanding dues at BSNL Counters only”. This was despite the fact that she had also paid her bills for April 2006 and May 2006 to prove which she filed the relevant bills and receipts.

 

c.      The Complainant/ Consumer prayed for compensation amounting to Rs. 20,000/- (Rupees Twenty thousand) along with interest as such unwarranted and negligent action on the part of the BSNL had caused her deep mental agony and disrupted her daily work.

 

d.      BSNL filed their show cause before the District Forum. They did not deny the fact that the phone had been barred during the periods stated in the Complaint but they denied any deficiency in service on their part. During the hearing of the complaint they defended their actions on the grounds that-

 

(a) The Complainant had not informed the BSNL about the payments made and

 

1. The deficiency was not caused by human error but through computer from BSNL’s Kolkata Billing Centre.

 

e.      The Forum perused the photocopies of the bills and receipts filed by the complainant and found that payment of all the Bills was indeed upto-date as claimed by the Complainant/Respondent.

 

f.       The District Forum further held in its order dated 17.08.2006 that: “The submission of the Learned Counsel for the BSNL that:

(i)      The Complainant have not informed the BSNL about the payments made cannot be accepted as it is not the duty of the Complainant to do so, when the BSNL have authorized the State Bank of India to collect the same. It is the matter to be sorted out between the BSNL and the State Bank of India.

 

(ii)     The deficiency was not caused by human error but through computer from Kolkata Billing Centre also is rejected by the Forum on the following grounds: Once the amount is paid by the Consumer, it is the duty of the data entry operator of the BSNL to make an entry accordingly through computer and such information would definitely reach the Kolkata Billing Centre within a second with the present technology available. It is very unfortunate that such entry has not been entered into the computer for more than 10 days after the payments were made. These were the lapses on the part of the Officer/Staff of the BSNL for not updating the amount paid by the consumer in time and cannot be termed as technical defect and hence the judgement dated 30-03-1995 of the Hon’ble Patna High court is not applicable in such cases.

 

g.      Based on these findings, the Forum directed BSNL to pay an amount of Rs. 5,000/- (Rupees Five Thousand) only to the Complainant within 30 days from the date of its Order failing which an interest @ 12% per annum would be charged, with effect from 17.09.2006 till the date of payment.

 

2.      BSNL, as Appellants, are before us in Appeal against the aforementioned order dated 17.08.2006 passed by the District Forum, Ri Bhoi District in Consumer Case No. 7 of 2006. Heard Shri. S. C. Shyam, learned Senior Advocate for the Appellant, assisted by his junior Shri. B. Deb. Also heard Shri. S. Jindal and Miss S. Poddar, Advocates for the Respondent/ Complainant. Also perused the documents on record and the written submissions filed by both sides.

 

3.         Before discussing the merits of the Appeal let it be stated here for the record 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 by 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.

 

4.      As regards the merits of this Appeal the facts could not be simpler and more crystal clear. All Bills were paid on time from time to time by the Complainant. The Appellants have never denied or disputed the fact of having received the payments.  The bills and receipts for the related period are on record and have been perused both by the District Forum and by us. Notwithstanding such regular payment, outgoing and/or incoming calls from the Consumer’s mobile phone were indeed barred during the periods 17.02.2006 to 23.02.2006, 14.04.2006 to 22.04.2006 and 13.06.2006 to 16.06.2006 which is borne out by the Appellant’s own admission. The only notice regarding non- payment of bills and barring of facilities that the Complainant ever received was on 23.06.2006, subsequent to the act of call- barring, that too only through an SMS. Despite submission of copies of the receipts along with the complaint petitions, instead of accepting any fault on their part, thereby perhaps mitigating their negligence, BSNL surprisingly laid the blame on the Complainant herself stating that she had failed in her duty to keep BSNL informed about the payments made by her from time to time, that the call-barring was done not by them but by their Kolkata Billing Centre, that the payments could not be recorded by them as State Bank of India, the Bank duly authorized by them to receive payments on their behalf, had failed to communicate to them the fact of payment. It was also contended by BSNL that they had “made all endeavours to get the cooperation of the consumer to update the bill on the basis of payment particulars furnished by the Complainant but was of no avail” thereby again laying the blame at the Consumer’s doorstep. However, other than this bald statement in their show cause which has also been repeated before us, no evidence was brought before the District Forum to show how and when such ‘cooperation’ had been sought from the Consumer by BSNL.

 

5.      Shockingly, even at this late stage of hearing before us, learned counsel for BSNL has chosen to turn a blind eye  to all the facts on record as stated above, to the payment receipts enclosed with the complaint petitions and to their own admission of having received the payments during the relevant period and perseveres in stating before us  “ That the judgment and order rendered by the learned District Consumer Forum is patently erroneous as much as the outgoing call was debarred automatically due to the non- payment of the outstanding bill by the Respondent as such the same cannot be construed as deficiency of service”. All we can say is that we are astounded.

 

6.      In reply to the Appellant’s arguments, learned counsel for the Respondent submits before us that:

 

a.      The Appellant as argued (at ground (i) of the Memo of Appeal) that the learned District Consumer Forum has reached an erroneous conclusion by holding that the phone services of the Respondent were barred ‘unnecessarily’. In reply the Respondent states that from the materials on record it is evident that the said barring was indeed unnecessary. This is on account of the fact that all relevant bills have been cleared by the Respondent as has been reflected at para 9 of the impugned order.

 

b.      The Appellant has pointed out (at ground (ii) and (iii) of the Memo of Appeal) that the phone of the Respondent was barred for roughly 20 days and that awarding Rs. 5000/- as compensation is disproportionate punishment that has been imposed on BSNL. In reply, the Respondent firstly submits that advancing this argument means that BSNL has accepted the illegality / unsustainability of its actions and the only grievance is now regarding the quantum of compensation. In this respect the Respondent submits that the award of Rs. 5000/- as compensation is perfectly proportionate and, if anything is on the lower side. To ask for material on which this compensation amount should be based would be going against the scope and intent of the Proviso to Section 14(1)(d) of the C.P. Act. In addition, this Hon’ble Commission vide Order dated 30.11.2013, passed in F.A. No. 3 of 2007, has already observed that the purpose of award of compensation is not just to compensate a person but is also to serve as a deterrent against the Opposite Party conducting similar actions in future. It is therefore humbly submitted that Rs. 5000/- would be adequate deterrence for BSNL to commit illegalities in future.

 

c.      The Appellant has gone on to extend (at grounds (iv) and (vii) of the Memo of Appeal) several technical arguments whereby the Appellant has sought firstly to shift the blame onto the State Bank of India and secondly the Appellant has sought to blame the ‘geo-physical features of the NE Region’ which might have prevented the availability of micro wave network which in turn might have prevented the uploading of payment details etc. The short reply of the Respondent is that the arrangement between BSNL and SBI is their internal matter and any short coming on the part of SBI cannot be a ground to deny compensation to the Respondent who is a consumer of BSNL. Further, the argument of ‘geo-physical features of the NE Region’ proving an impediment is a specious argument and, in any event there is nothing contained the subscriber form/ contract which releases BSNL from any liability on account of the said ‘geo-physical features of the NE Region’.

 

d.      The Appellant has argued (at ground (viii) of the Memo of Appeal) that the Respondent, being a civil servant, has been provided with other telephones and therefore, she was not required to be paid compensation since she would not have suffered much inconvenience. In this connection the Respondent humbly states that it is immaterial whether the Respondent has other telephones. What is material for the purposes of the present matter is the deficient service provide by BSNL.

 

7.      Having given due consideration to the afore-stated facts of the case and the reasoning and findings of the District Forum, the arguments of the Respondent’s counsel appeal to us completely and the arguments of the Appellant’s counsel we find utterly meritless. We fully agree that BSNL’s Kolkata Billing Centre is a part and parcel of BSNL and the Appellant cannot escape its liability on account of deficiency in service by passing the buck to another organ of the same organization. Similarly, State Bank of India acts as an Agent of the Appellant for collection of payments and even if they failed to give intimation of the payments to the Appellants (for which also no evidence has ever been sought to be led), the liability still remains with the Principal, i.e. BSNL. The Respondent’s cell was barred without any justification whatsoever despite timely payment of bills making it a clear act of negligence and deficiency in service which is required to be compensated.  We are of the firm view that the decision and findings of the District Forum and its award of Rs. 5000/- as compensation are faultless and its order dated 17.08.2006 passed in Consumer Case No. 7 of 2006 requires to be upheld, which we hereby do.

 

8.         In view of the above, while dismissing the Appeal we also find that BSNL has driven the Complainant / Respondent to added meaningless litigation by filing the instant merit-less Appeal which utterly lacks bonafides, making her incur heavy litigation costs simply to protect her award for a meagre sum of Rs. 5000/-. Perhaps a Goliath like the Appellant can afford such litigation expenses (the burden for which, of course, ultimately falls on the common man) but such expenses a female David like the Complainant/Respondent can ill afford. Moreover, if state instrumentalities like BSNL, the Appellant, are allowed to continue to use their might to engage small Consumers in protracted litigation even in such clear cases of deficiency in service and negligence on their part, the Consumers’ confidence in the Consumer Fora will be utterly shaken and wrong will tend to prevail over right.  This we cannot allow. As the facts narrated above will show, this Appeal has been filed in a frivolous and routine manner, resulting in wastage of precious time of this Commission. It is incumbent upon the concerned BSNL supervisory authority, not to give his authorisation on such frivolous issues without properly examining the facts of the case as this results in unnecessary expenditure to the consumer who has undergo the trauma of engaging counsel and paying substantial fees to defend the case when the Appellant has no case at all. A routine exercise by people who perhaps do not wish to take any responsibility, results in such Appeals being filed which benefits no one and rather defeats larger public interest. At a time when evolving societal pressures demand greater degree of accountability in the governance, it does no good to the judicial institutions to watch such situations as helpless spectators. The time has therefore come that a strong check is put to such harassment to consumers by de-incentivizing this kind of conduct. Here we are also reminded of the observations made by the Hon’ble Supreme Court in Lucknow Development Authority vs M.K. Gupta  (AIR 1994 SC 787) explaining the social evils that arise from arbitrary and capricious exercise of power in the following words in para 10 :

 

“A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it. ….. Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness.”

 

 

9.      We therefore deem it fit and proper to award Rs. 20000/- (Rupees Twenty Thousand) as litigation costs for being dragged into contesting this utterly frivolous Appeal which are to be paid by the Appellant within 30 (thirty) days hereof. We hope that the Appellants would change their litigant ways in future.  This payment shall be made in favour of the Respondent and deposited with this Commission. Registry shall hand over the payment to the Respondent or her engaged counsel upon obtaining a receipt therefor.

 

10.    This Appeal is disposed of with the directions above. Return the Case records along with a copy of this judgment and order.