F.A. No.14 of 2008
- Bharat Sanchar Nigam Ltd., Shillong
- General Manager, BSNL, Shillong
………….. Appellants
Versus
Shri Vimal Goenka,
G.S. Road, Shillong …………….Respondent
WITH
F.A. No.5 of 2009
Shri Vimal Goenka,
G.S. Road, Shillong …………….Appellant
Versus
- General Manager
District Telecom, BSNL, Shillong
…………..Respondent
For the Appellant in F.A. No.14 of 2008 : Mr. S.C. Shyam, Senior Advocate
and Respondent In F.A. No.5 of 2009 Mr. B. Deb, Advocate
For the Respondent in F.A. No.14 of 2008 : Mr. S.P. Choudhury, Advocate
and Appellant in F.A. No.5 of 2009
Date of Judgment : 20.06.2014
To be Reported : Yes
JUDGMENT AND ORDER
1. Per: Mr. Ramesh Bawri, Senior Member: These are two Appeals filed against the order dated 22.09.2008 passed by the learned District Forum, Shillong in Consumer Case No.15 of 2008. Appeal F.A. No.14.of 2008 has been filed by BSNL, the Opposite Party in the Complaint. Appeal F.A. No. 5 of 2009 has been filed by the Complainant, Shri Vimal Goenka. As both Appeals arise from the same order, these have been clubbed and heard together and a common order is being passed.
2. Heard the learned counsels for the respective parties. Perused the case records, memo of appeal and written submissions on record.
3. 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.
4. It will be worth adding here that, after pronouncement of our order dated 25.2.2014, we have come to learn about an Office Memorandum No.2 17/2013 Policy I dated 04.02.2014 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 which is reproduced below :
No. 2 17/2013 Policy I
Government of India
Ministry of Communications & IT
Department of Telecommunications
(Policy I Section)
New Delhi dated the 4th February, 2014.
OFFICE MEMORANDUM
Subject: Jurisdiction of District Consumer Dispute Redressal Forum (District Forum) to adjudicate disputes between individual telecom consumers and telecom service providers - regarding.
The undersigned is directed to enclose the brief on view taken by Government of India on the above subject for wide publicity. .....
References are being received regarding Telecom Consumers' agitation throughout the country against ousting the jurisdiction of Consumer Fora since 2009 as a consequence to the judgment passed by Hon'ble Supreme Court of India, decided on 1.9.2009, wherein it has been inter-alia observed " ... In our opinion, where there is a special remedy provided in S. 7 B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred... ."
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.
Sd/-
Anand Agrawal
Director (P&RB)
5. We are happy to find that, at long last, after considering the M. Krishnan judgment and the provisions of Section 7B of the Telegraph Act the Government too has taken a view that recourse to Section 7B of the Telegraph Act in case of disputes between consumers and private service providers as well as BSNL would not be available and that Consumer Fora are competent to deal with disputes between individual telecom consumers and telecom service providers. This view of the Government of India conforms with our own decision dated 25.2.2014 and puts the matter even further beyond any doubt, not that we ever harboured any. Of course, we cannot help but sadly observe that had this memorandum been issued earlier, instead of coming more than 4 years after the Krishnan judgment, it would have provided better protection of the interests of the billion consumers for which the C.P. Act has itself been enacted as is borne out by its objects. It would have also forestalled a great deal of heart burn and litigation and lessened the load on the already over-burdened courts and tribunals of our country. However, as the adage goes, it is always better late than never.
6. Coming to the present Appeals, the facts in a short compass are that the Complainant had taken a mobile connection No.94361 02775 from the Opposite Party. On 13.5.2008 outgoing calls from the said mobile connection were barred. On 16.5.2008 the Complainant lodged a complaint with the Opposite Party bearing No. 2699935 but there was no response and on 19.5.08 a second complaint was lodged with the Opposite Party. Outgoing calls were restored by the Opposite Party on 20.5.08 after the second complaint but incoming calls were barred. A third complaint was lodged on 23.5.08 but to no avail. A Pleader’s Notice was issued by the Complainant on 26.05.08 but even then there was no action or reply from the Opposite Party. Alleging that there were no pending bills pending against the said mobile phone and that he who was dealing in transportation business had monetarily suffered due to poor contact with his customers, the Complainant filed a complaint before the learned District Forum on 07.07.08 and sought compensation from the Opposite party for his loss. The Opposite Party filed its show cause inter alia stating that the Complainant was liable to be rejected. Further that there was no cause of action as the incoming and outgoing calls were barred due to non-payment of bill dated 19.7.08 by the Complainant and withdrawal of the facility consequent upon the non-payment of the bills could not be construed as deficiency in service.
7. The following issues were framed and decided by the learned District Forum (i) Whether the Forum has the jurisdiction to entertain the Complaint? (ii) Whether the Complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer protection Act, 1986? (iii) Whether there is negligence or deficiency in service by the Opposite Party? (iv) Whether the complainant is entitled to any compensation? (v) Any relief entitled to by the Complainant. Upon hearing the parties and on perusal of the materials on record the Forum decided the case on the various issues as follows :
(i) Whether the Forum has jurisdiction to entertain the complaint? :- The office of the Opposite Party is located in Shillong city and within the territorial jurisdiction of this Forum. The Opposite Party had raised the issue that this Forum has no jurisdiction to entertain this petition but had failed to support any evidence to satisfy the Forum about the same. Hence the issue is decided in the affirmative as in favour of the Complainant.
(ii) Whether the Complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer protection Act, 1986? :- The Complainant had taken a mobile connection from the Opposite Party on payment of the connection service charge and on payment of the monthly bills. The Opposite Party is therefore binding to provide a satisfactory service to the Complainant. The issue is decided in the affirmative and in favour of the Complainant.
(iii) Whether there is negligence or deficiency in service by the Opposite party? :-The dispute in this instant case is about payment of the monthly bills leading to disconnection of the mobile telephone No. 94361 02775 of the Complainant. The Complainant alleged that his mobile connection was disconnected on 13.5.08 and 20.5.08. The Complainant alleged that he has cleared all the bills of the said telephone and a complaint were lodged on 16.5.08, 19.5.08, 23.05.08 and pleader’s notice on 26.05.08 for non functional of his mobile phone but there was no response from the Opposite Party and hence a deficiency in service. The Opposite Party in the show cause stated the bill 19.7.08 was pending. The Opposite Party could not produce any document to prove that there was any outstanding bill against the said mobile phone prior to the date of the disconnection. The mobile phone was disconnected temporarily on 13.5.08 and completely on 20.5.08. The Opposite Party could not place on record that there was any outstanding bill against the Complainant which warrant disconnection of the mobile phone on 13.5.08 or 20.5.08. The Opposite Party had produced the outstanding bill dt. 19.7.08 only. Despite the fact that there was no outstanding bill before the disconnection was made, the Opposite Party did not attend to the complain of the Complainant to rectify the mobile telephone. Hence the Forum is in the opinion that there was a deficiency in service by the Opposite Party and the issue is decided in the affirmative and in favour of the Complainant.
(iv) Whether the Complainant is entitled to any compensation? :- The Complainant claimed that he is a businessmen in transportation and had lost his business with his consumers due to non-functional of his mobile phone and claimed an amount of Rs.5,00,000 as compensation. However, there is no evidence placed before this Forum to support the claim of the Complainant. The Forum is therefore not convinced about the claim of compensation of the Complainant up to Rs.5,00,000 as there was no evidence or proof for the same. The Forum is therefore declined to award compensation amounting to Rs.5,00,000 to the Complainant.
(v) Any relief entitled to by the Complainant? :- As appeared from the case records the mobile telephone of the Complainant has not been rectified or activated by the Complainant. The Forum directed that the Opposite Party is to reactivate the said mobile phone No. 94361 02775 of the Complainant forthwith and the Complainant is to pay an amount of Rs.10,000 as the cost of this petition to the Complainant.
8. As far as the Appeal filed by BSNL is concerned, before us their basic challenge to the decision of the learned District Forum is that its Bill dated 19.7.2008 having not been paid by the Complainant, they were fully entitled to disconnect the services in exercise of the authority conferred by Rule 443 of the Indian Telegraph Rules 1951; hence there was no deficiency in service as held by the learned District Forum. The Appellant would submit that telephone bills are a source of public revenue, utilized for expansion and improvement of the telephone network to the remotest corner of the country and as such the legislature has empowered the BSNL authorities to exercise stringent measures such as debarring outgoing calls with notice at the initial stage of default and to totally withdraw the service if the partial withdrawal does not elicit any positive response from the subscriber; as such the awarding of cost for the complaint is not warranted under the facts and circumstances of the case. BSNL also wants us to appreciate that they being trustees of the public exchequer can ill afford to pay the cost for litigation and speculative exercises. As such the impugned order passed by the learned District Consumer Forum is liable to be set aside and quashed and this appeal may be allowed with costs to the Appellant.
9. However, having carefully perused the records, we find that there was never any Bill outstanding for payment as the following chart will show :
Month Bill Date Bill Due On Bill Paid On
Feb’08 10/03/08 04/04/08 28/03/08
March’08 10/04/08 05/05/08 06/05/08
April’08 10/05/08 04/06/08 03/06/08
May’08 10/06/08 03/07/08 02/07/08
June’08 10/07/08 04/08/08 22/07/08
July’08 10/08/08 03/09/08 22/08/08
10. In view of the above we are utterly astonished how BSNL has claimed both before the learned District Forum and before us that a purported Bill dated 19.07.08 was outstanding, for which reason the mobile was disconnected. Other than making this bald statement regarding non-payment, no such outstanding bill was ever produced by BSNL. Moreover, it is evident from the chart above that their monthly bills are invariably issued on the 10th of each following month and it is highly unlikely that there could ever be a Bill dated 19.07.2008 and it only appears to be a figment of their imagination. Even more importantly, it must be remembered that the mobile was admittedly barred as far back as on 13.05.08 and the complaint before the learned District Forum was filed on 11.06.08. Even assuming that a purported Bill dated 19.07.2008 was in fact raised, purported non-payment of such a Bill could have had no bearing on the barring of the mobile on the prior date of 13.05.2008.
11. BSNL’s further contention is that they were fully entitled to disconnect the Complainant’s mobile 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."
At the same time, BSNL has itself admitted in its written submissions that it is required to debar outgoing calls with Notice at the initial stage of default and to totally withdraw the service if the partial withdrawal does not elicit any positive response from the defaulting subscriber. It is not BSNL’s case that any such notice was issued to the Complainant before they resorted to debarring, in which case such unilateral debarring without service of notice constitutes deficiency in service on their part.
12. As is clear from the above that BSNL has taken a dual stand with regard to issuance of Notice to a subscriber before resorting to call debarring in the event of non-payment of its bills. On the one hand they cite Rule 443 of the I.T. Rules, 1951 to say that they have the authority to debar / disconnect phones without notice and on the other hand they themselves state that a prior notice is required to be issued at the initial stage of default. We are therefore required to delve deeper into this aspect and come to a conclusion about the correct legal position.
13. 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.
14. 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:
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:
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 at para 4 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. Going further and digressing a bit, strictly as an academic exercise, what we have said above appears to apply with even more rigour in the case of mobile phones inasmuch as such phones are wireless telegraphs for which there appears to be a separate set of legislation viz. The Indian Wireless Telegraphy Act, 1933 and The Indian Wireless Telegraph Rules, 1973. While The Indian Wireless Telegraph Rules, 1973 have been framed to regulate the conduct of wireless telegraphs established, maintained and worked by persons licensed under the said Act, The Indian Wireless Telegraphy Act, 1933 contains the following definitions which appear to bring mobile phones within their ambit as these work on the Global System for Mobile Communications (GSM) network standard normally using the 900 MHz or 1800 MHz bands:
2. Definitions In this Act, unless there is anything repugnant in the subject or context:-
1. Wireless communication means any transmission, omission or reception of signs, signals, writing, images and sounds, or intelligence of any nature by means of electricity, magnetism, or Radio waves or Hertzian waves, without the use of wires or other continuous electrical conductors between the transmitting and the receiving apparatus.
Explanation: Radio waves or Hertzian waves means electromagnetic waves of frequencies lower than 3,000 gigacycles per second propagated in space without artificial guide.
2. Wireless telegraphy apparatus means any apparatus, appliance, instrument or material used or capable of use in wireless communication, and includes any article determined by rule made under Sec. 10 to be wireless telegraphy apparatus, but does not include any such apparatus, appliance, instrument or material commonly used for other electrical purposes, unless it has been specially designed or adapted for wireless communication or forms part of some apparatus, appliance, instrument or material specially so designed or adapted, nor any article determined by rule made under Section 10 not to be wireless telegraphy apparatus.
(2A). Wireless transmitter means any apparatus, appliance, instrument or material used or capable of use for transmission or omission of wireless communication;
17. This strictly prima facie view of ours is reinforced by recent media reports to the effect that "To ensure that device manufacturers comply with SAR norms set by the government, the Department of Telecommunications (DoT), is examining the option of including mobile phones within the definition of the word ‘telegraph’, so that all mobile handsets get certified safe after being screened at local telecom testing laboratories. At present, DoT does not have the power to seek such compliance since mobile handsets are categorised as consumer goods and the ITR (Indian Telegraph Rules) 1951 only covers the telecom network and infrastructure equipment. The DoT’s move comes in the wake of the government directing the Bureau of Indian Standards (BIS) to finalise safety standards for mobile handsets in coordination with the Telecom Engineering Centre, the technical arm of the department. According to DoT, legal enforcement of SAR norms cannot be ensured unless ITR (Indian Telegraph Rules) 1951 is amended to include mobile phones within the definition of ‘telegraph’". However, we must strongly emphasise here that, since no arguments have been advanced on this count, we forbear from expressing any considered view on this particular issue and it only remains a passing observation, not intended to have any impact on our decision herein. This issue may be decided later in a proper case, if the need arises.
18. Be that as it may, the fact remains, as held by us earlier, that BSNL debarred the Complainant’s mobile phone arbitrarily even though there was no bill outstanding, that too without any notice or opportunity to the Complainant to clarify about any outstanding that might have been reflected in its records. This is a clear case of negligence and deficiency in service leading to mental agony, harassment and loss to the Complainant for which he is entitled to be compensated. In our considered view, 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 deincentivizing this kind of conduct. We find that BSNL has driven the Complainant / Respondent to added meaningless litigation by filing the instant merit-less Appeal without bonafides, thereby making him incur heavy litigation costs, even when no real monetary relief was granted to him by the learned District Forum. 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 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.
19. In view of the discussion above, we file no merit whatsoever in the Appeal filed by BSNL and we hereby dismiss the same. Further, as we are of the view that the Appeal has been filed absolutely mindlessly, resulting in added harassment (by having to pursue the frivolous Appeal) to the Complainant / Respondent who was not even awarded any compensation by the learned District Forum for the deficiency in service, despite a clear finding to that effect, and was only awarded costs of the complaint, we deem it fit, just and equitable to impose further exemplary costs of appeal to the tune of 20,000 (Rupees twenty thousand) to be paid by Appellant BSNL to Respondent Shri Vimal Goenka within 30 (thirty) days of this order.
20. Appeal No.14 of 2008 stands disposed of with the directions made above.
21. In respect of Appeal No.5 of 2009 filed by the Complainant, his major grouse is that, despite a clear finding of deficiency in service on the part of BSNL, the learned District Forum only awarded payment of costs but failed to compensate him for the harassment and mental agony he suffered due to BSNL’s negligence, particularly when the defense taken by them throughout the proceeding was so hollow and indefensible. Learned counsel for the Complainant / Appellant submits that for the mental tension, agony, loss of goodwill from the valuable customers and tremendous breakdown in business during the days of disconnection of the mobile phone his client is totally entitled to and otherwise eligible for getting the requisite compensation from the Respondent as prayed for before the Learned Forum.
22. There is force in the submission of the Learned Counsel for the Complainant / Appellant. It is clear from the order passed by the learned District Forum that although it clearly found BSNL to be deficient in its services, it declined to award any compensation to the Complainant, observing that it was not convinced about the claim of compensation of the Complainant as there was no evidence or proof for the same. We are of the view that suitable compensation ought to have been awarded to the Complainant when there was a clear finding of deficiency in service. The quantum of such compensation is to be determined by the Consumer Fora upon proper application of mind in the facts and circumstances of any given case and a complainant cannot be expected to furnish any definitive ‘evidence or proof’ for the same as was held by the learned District Forum. The fact of harassment and mental agony suffered by the Complainant is self-evident by the illegal barring of the mobile and quantification of compensation for such harassment is a subjective matter, incapable of being translated into evidence or proof.
23. In Lucknow Development Authority vs M.K. Gupta (AIR 1994 SC 787) the Hon'ble Apex Court explained the social evils that arise from arbitrary and capricious exercise of power in the following words, in para 10 :
"The jurisdiction and power of the courts to indemnify a citizen for injury suffered due to abuse of power by public authorities is founded as observed by Lord Hailsham in Cassell & Co. Ltd. v. Broome, 1972 AC 1027, on the principle that, 'an award of exemplary damages can serve a useful purpose in vindicating the strength of law'. An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law. It acts as a check on arbitrary and capricious exercise of power. In Rookes v. Barnard, 1964 AC 1129, it was observed by Lord Devlin, 'the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service'. 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. Compensation or damage as explained earlier may arise even when the officer discharges his duty honestly and bona fide. But when it arises due to arbitrary or capricious behaviour then it loses its individual character and assumes social significance. 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. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it. Therefore the award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil. It may result in improving the work culture and help in changing the outlook."
24. Here we are also reminded of the landmark observations of the Hon’ble Supreme Court in the same judgment cited above where it was pointedly stated in para 8 that ".... Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour before authorities created under the statute like the commission or the courts entrusted with responsibility of maintaining the rule of law. Each hierarchy in the Act is empowered to entertain a complaint by the consumer for value of the goods or services and compensation. The word compensation' is again of very wide connotation. It has not been defined in the Act. According to dictionary it means, 'compensating or being compensated; thing given as recompense;'. In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Commission has been vested with the jurisdiction to award value of goods or services and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. The provision in our opinion enables a consumer to claim and empowers the Commission to redress any injustice done to him. Any other construction would defeat the very purpose of the Act. The Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him."
25. This Appeal is one that has shocked us and, as discussed above, displays the total arbitrary, capricious and perverse actions of BSNL a public body which, although mandated to serve the nation and its citizens and to act fairly, has done just the opposite. The least it could have done was to have fairly conceded its fault before the learned District Forum and offered to make amends, rather than defend their indefensible actions. Their mindless resistance continued even before us at the appellate stage. It must be remembered that the majesty of law is as much damaged and disservice caused to the Nation by not giving relief in deserving cases as it is by granting undue reliefs.
26. In the light of the above and for the ends of justice, we therefore consider it fit to grant the relief that the learned District Forum refused to grant to the Complainant / Appellant. Further to the directions passed by the learned District Forum, we award a sum of Rs.30,000 (Rupees thirty thousand) as compensation for the harassment and mental agony caused to the Complainant owing to negligence and deficiency in service on the part of BSNL, the Opposite Party. The order dated 22.09.2008 passed by the learned District Forum in Consumer Case No. 15 of 2008 stands modified to this extent. BSNL shall pay this sum to the Complainant within 30(thirty) days hereof.
27. Before parting with this case, let us state that we do hope and trust that the top management of BSNL will put proper mechanisms in place to ensure that consumer complaints are at least not resisted on such flimsy grounds as in the present case. It cannot be forgotten that while such State instrumentalities swear by protecting the public exchequer (see BSNL’s submissions at para 8 above) 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. Their own commercial interest cannot be allowed to over-ride the interest of the consumer and the earlier they understand and attune themselves to this fact, the better.
28. Appeal No.5 of 2008 is disposed of with the directions made above. Return the learned District Forum case records with a copy of this judgment. The instrument for the Statutory Deposit amount shall be returned to BSNL after submission of report of full compliance of this order.
