Meghalaya

StateCommission

FA/08/2007

BSNL - Complainant(s)

Versus

Md. Imtiyaz - Opp.Party(s)

Mr.S.C.Shyam

14 Mar 2014

ORDER

 

         MEGHALAYA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT SHILLONG

 

 

 F.A.No.8 of 2007

 

Arising from Consumer Complaint No. 40 of 2006

 

 

BEFORE

 

 

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

Hon’         Hon’ble Senior Member : Mr. Ramesh Bawri

 

 

   

1.   Bharat Sanchar Nigam Ltd. (BSNL)

2.   Chief General Manager, N.E.-1, GMTD, Shillong

                                                                                                            ....... Appellants

 

                                                     Versus

 

      Md.  Imtiyaz, Shillong                                                           ....... Respondent

 

 

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

                                                         Mr. B. Deb, Advocate

 

For the Respondent                  :        Mr. M. F. Qureshi, Advocate

 

Date of Judgment                      :        25.07.2014

 

Whether to be Reported           :        Yes

 

JUDGMENT AND ORDER

 

1.         Per Mr. Ramesh Bawri, Senior Member: We have heard Mr. S.C. Shyam, learned Senior Counsel for the Appellants and Mr. M. F. Qureshi, learned Counsel for the Respondent/ Complainant.

 

Facts of the case in brief.

 

2.         The case of the Complainant before the District Forum was that he had been allotted 3 (three) telephones by BSNL for running a PCO on payment of security deposit.  His PCO phone numbers were 2506923, 2503951 and 2503876. The dispute arose when the Complainant received an excessive bill on 02.04.05 amounting to Rs. 37,575/- and on 17.04.05 amounting to Rs. 1, 04, 009/- in respect of phone No. 2506923. The Complainant approached the OP/Appellant on several occasions but to no avail. The OP instead issued a letter to the Complainant vide No. TRA/STD/PCO/CPT-1/2506923/26 dt. 21.08.06 that in the event of his failure to pay the outstanding bills by 22.08.06, his other two working PCOs No. 2503876 and 2503951 would be disconnected. The Appellants thereafter disconnected the working PCOs Nos. 2503876 and 2503951 on 22.08.06 even though bills for them had been paid upto date. According to the Complainant he had executed separate agreements in respect of all the three telephones with the OP; hence the OP could not disconnect the other 2 (two) telephones where the bills had been paid. The Complainant further stated that his business had come to a standstill and as it was his only source of income he suffered tremendous financial hardship and mental agony apart from losing his reputation for which the OP are liable to pay adequate compensation. The Complainant prayed for

 

1. A sum of Rs. 50,000/- on account of loss in business.
2. Rs. 50,000/- on account of mental agony, injury and hardship.
3. Rs. 50,000/- for loss of reputation/goodwill.

 

3.         The OP/Appellant contested the case and maintained that the telephone was disconnected due to default in payment of bills by the Complainant in exercise of the powers laid down under Rule 443 of the Indian Telegraph Rules (hereinafter, ITR). The OP was absent on 23.04.07, 15.05.07 and 06.06.07 when the case was fixed for hearing by the learned District Forum. Therefore, on 06.06.07, the case was heard in the absence of the OP. The Forum perused the materials on record furnished by both the parties and after hearing the submissions made by the Claimant decided the case.

 

Findings and Decision of the learned District Forum:

 

4. a)    The Claimant had filed the petition for excessive billing of the telephone No. 2506923 amounting Rs. 37,575/- dt. 02.04.05 and Rs. 1,04,009/- dt 17.04.05. The Claimant however had failed to bring out any evidence that the excessive billing was due to the deficiency in service being provided by the OP. The Claimant could not prove that there was a defect in the meter or that his telephone had been misused. The Forum therefore held that it had no jurisdiction to exercise or decide the matter regarding the excessive billing which could be decided only through Arbitration.

 

b)         The learned District Forum found that disconnection of the other 2 (two) telephones of the Claimant, that is Nos. 2503951 and 2503876, was done under ITR Rule 443 on the ground that the Complainant had failed to pay the bill of his telephone No. 2506923. Rule 443, empowered the OP to disconnect the telephone in default of payment of the bill. However, the OP had no jurisdiction to disconnect the other 2 (two) telephones No. 2503951 and 2503876 of the Claimant where there were no outstanding bills. The action of the OP in disconnecting the said 2(two) telephones No. 2503951 and 2503876 of the Complainant was therefore held to be without jurisdiction.

 

c)         The Forum was thus of the opinion that thus there was deficiency in the service being provided by the OP to the Claimant by disconnection of the 2 (two) telephones No. 2503951 and 2503876 without any authority as there was no default in payment of the bills. The Forum directed the OP to pay compensation to the Claimant to the tune of Rs. 50,000/- on account of loss of business and Rs. 10,000/- on account of mental agony, injury and hardship including loss of reputation. The OP was also directed to pay interest @ 12% with effect from 22.01.07, the date of filing of the complaint, up to the date of payment.”

 

Submissions made by the Appellants before this Commission:

 

5.         Aggrieved by the order dated 26.06.07 passed by the learned District Forum, the Appellants filed the instant Appeal. During the course of hearing their main arguments were as follows:

 

a)         The Respondent started defaulting in making the payment of the bills forwarded from time to time, alleging that there was excess billing which however was found to be without any basis after proper investigation and scrutiny and accordingly the Respondent intimated by letter dt. 21.08.2006 that in the event of his failure to pay the outstanding bill amount of Rs. 1,44,584/- in respect of P.C.O No. 2506923, the other two telephones working in his name  viz Telephone No.  2503576 and No. 2503951 would also be disconnected under the provisions of Rule 443 of the Indian Telegraph Rules. He failed to make the payment and disconnection of the Telephone No. 2503876 and 2503951 was therefore valid.

 

b)         The Learned Forum committed great error in awarding compensation for the lawful exercise of the powers conferred by the Rules inasmuch as the disconnection to ensure the outstanding dues, which is government revenue, cannot be construed as deficiency or short coming in service. As such the impugned judgment and order is liable to be set aside and quashed.

 

c)         The Judgment and Order rendered by the Learned District Forum was highly mechanical and suffered from non application of judicial mind inasmuch as compensation for loss of business alleged by the Respondent should not have been awarded without any evidence.

 

d)         The learned Forum had failed to appreciate that the collection through P.C.O. booth run by the Complainant is public revenue and the telephone rules have  been framed to arm the BSNL authority with some amount of coercive power to compel the defaulting subscriber to make payment of telephone bills. As such awarding of compensation for such legitimate disconnection is unjust, perverse and not sustainable under law.

 

e)         The learned District Forum also lost sight of the fact that BSNL money is public money and cannot be doled out only for the asking. The learned Forum granted compensation mechanically on the basis of a frivolous and concocted complaint which amounted to legitimizing the illegal and willful default of the Complainant in making payment of the outstanding bills.

 

Our Findings and Decision

 

6.         With regard to the Complainant’s allegation of over- billing the learned District Forum has recorded a finding that the Complainant could not substantiate his claim with any tangible evidence and hence declined to grant any relief on this count. Since the Complainant has not filed any counter Appeal in this respect we do not find it necessary to enter into this issue. However, it must be pointed out here that we do not agree with the observations of the learned District Forum to the effect that “This Forum has no jurisdiction to exercise or decide the matter regarding the excessive billing which is the jurisdiction of the Arbitration”.

 

7.         Whenever a complaint is entertained by the Consumer Fora, the entire complaint has to be gone into; it cannot be divided into parts and one part entertained while the other part referred elsewhere. Furthermore, Consumer Fora have the fullest jurisdiction to settle disputes relating to excessive billing and they would be failing in exercise of that jurisdiction if a Consumer’s grievance/dispute in this regard is not entertained. It must be remembered that Section 3 of the Consumer Protection Act, 1986 clearly states that ‘The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force’. This obviously includes the Arbitration Act and even an Arbitration clause in an agreement is not a bar to the entertainment of a complaint by the Consumer Dispute Redressal Agencies even in respect of disputes relating to over – billing. This is well settled and needs no further elaboration.

 

8.         The crux of this Appeal and the issue that really calls for deep consideration on our part is whether the finding and observation of the District Forum in the impugned order that disconnection of the other 2 (two) telephones of the Claimant, that is No. 2503951 and 2503876, was done under ITR Rule 443, on the ground that the Complainant had failed to pay the bill of his telephone No. 2506923. Rule 443 empowered the OP to disconnect the telephone in default of payment of the bill but the OP had no jurisdiction to disconnect the other 2 (two) telephones No. 2503951 and 2503876 of the Claimant where there were no outstanding bills is in accordance with settled law. If it is, then we are further to see whether the compensation awarded is fair and just.

 

9.         The Appellant’s counsel has not advanced any targeted arguments challenging the aforementioned specific findings and observations made by the District Forum, although he has emphasized in general terms that the phone was disconnected in exercise of the powers conferred by Rule 443 of The Indian Telegraph Rules and has also vehemently contested the quantum of compensation and denied any deficiency in service on the part of BSNL. However, we would fail in our duty to render complete justice if we did not enter into this specific question ourselves and arrive at a conclusion which would bear the stamp of legality.

 

10.       The facts and the question before us are very simple. The Consumer/Complainant/ Respondent had 3(three) phones for running a PCO in his own name. Bills for 2(two) of these phones were paid upto date but there were arrears in respect of the third phone, as a result of which his two working phones were also disconnected by BSNL. The learned District Forum held that BSNL could have disconnected the phone for which bills were due but could not have disconnected the 2 (two) other phones whose bills were clear. The short questions that therefore arise are (1) ‘Whether a service provider such as the Appellant BSNL can exercise the powers conferred by Rule 443 of the Indian Telegraph Rules’ and (2) ‘Whether, a telephone service provider such as BSNL is legally empowered to disconnect phone A and/or phone B of a subscriber whose bills have been paid upto date if he has defaulted in payment of bills for phone C which too belongs to the same subscriber.’   

 

11.       In respect of BSNL’s contention that they were fully entitled to disconnect the Complainant’s phones in exercise of the authority concerned by Rule 443 of the Indian Telegraph Rules, 1951, we need to read the said Rule which is reproduced below:

 

"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."

 

12.       From Rule 443 of the Indian Telegraph Rules, 1951 which has been quoted 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:

 

3 (6) “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:

 

13.       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 GOI Office Memorandum No. 2-17/2013-Policy-1 dated 4.2.2014, which too has been reproduced in our order dated 25.2.2014, 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 although, at the same time, it cannot be denied that it can disconnect a telephone line in case of default in payment of bills, acting within the ambit of the canons of natural justice.

 

14.       However, even without invoking Rule 443 of the I.T. Rules, we must note the sprit of the said Rule which is to ensure that all Bills by a ‘Subscriber’ are paid on time. We must then notice the definition of ‘Subscriber’ in the said Rules. Rule 2(pp) of the Indian telegraph Rules, 1951 defines a ‘Subscriber’ thus:  " 'Subscriber' means a person to whom a telephone service has been provided by means of an installation under these rules or under an agreement."

 

It is therefore immediately clear that even a service provider such as BSNL is entitled to disconnect the telephones of a “subscriber’ in the event of non-payment of Bills and entitlement to disconnection is not limited to the particular telephone for which a bill remains unpaid. In other words, disconnection is not telephone-centric but is subscriber-centric.

 

15.       In this view of the matter, and since it is not disputed that the disconnected phones also belonged to the same Subscriber/Complainant whose bills were outstanding, we hold that the learned District Forum erred in its conclusions that, while Rule 443 did empower the OP to disconnect the particular telephone in default i.e. phone No. 2506923, the OP had no jurisdiction to disconnect the other 2 (two) telephone Nos. 2503951 and 2503876 of the Claimant where there were no outstanding bills.

 

16.       As a result, we set aside the order dated 26.6.2007 passed by the learned District Forum in Consumer Case No. 40 of 2006 and allow the Appeal with full relief to the Appellants.

 

17.       Send back the case records along with a copy of this Judgment. Return the statutory deposit to the Appellants.

 

19.       Before parting, it may 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 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.

 

                                            PRESIDENT                                                          SENIOR MEMBER