Meghalaya

StateCommission

FA/09/2007

BSNL & Two Others - Complainant(s)

Versus

Smti Amit Amora - Opp.Party(s)

Mr.S.C.Shyam

14 Mar 2014

ORDER

 

 

MEGHALAYA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT SHILLONG

 

F.A No. 9 of 2007

 

Arising from Consumer Complaint No. 3 of 2007

 

 

BEFORE

 

 

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

Hon’ble Senior Member : Mr. Ramesh Bawri

 

 

 

   

1.   Bharat Sanchar Nigam Ltd. (BSNL)

2.   Chief General Manager, GMTD, Shillong

3.   SDE (Commercial). BSNL, Shillong                          ....... Appellants

 

                                                     Versus

 

 Shri Amit Arora, Shillong                                                   ....... Respondent

 

 

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

                                                                   Mr. B. Deb, Advocate

 

For the Respondent                  :           Nemo

 

Date of Judgment                      :           25.07.2014

 

Whether to be Reported           :            No

 

JUDGMENT AND ORDER

 

1.         Per Mr. Ramesh Bawri, Senior Member: Heard Mr. S.C.Shyam, learned Senior Counsel for the Appellants. None appears for the Respondent.

 

Brief Facts of the Case:

 

2.         Shri Amit Arora, Complainant/Respondent filed Consumer Complaint No. 3 of 2007 against BSNL Shillong, the Appellant/Opposite Party alleging that he could not avail the SMS outgoing facility from his mobile phone No. 09436102727 from 28/11/2006. He lodged several complaints through customer care of the region and also through all India Customer care BSNL 09400024365. He contacted the office of BSNL, Shillong personally and the person in charge (SDE COMM) told him that there must be something wrong either in the cell phone settings or in the SIM card itself. The cell phone setting was checked by the BSNL authorized personnel who predicted the fault to be in the SIM CARD and advised the Complainant to buy a new SIM card. The Complainant purchased a new SIM card on 17.01.2007 on payment of Rs 225/- but still could not send SMS to any number. Hence the complainant prayed for-

 

1. Payment of penalty by the BSNL for not providing the services they were bound to provide.
2. Refund of Rs 225/- which he had paid unnecessarily for a new SIM card.
3. Compensation and adjustment of his bill because in most of the cases he wanted to send SMS but was compelled to make calls whereby his expenses went up.

 

3.         The case was registered by the learned District Forum and notice served upon the SDE (Comm) BSNL Shillong on 31.01.2007 fixing 27.02.2007 for show cause. Although the Appellant / Opposite Party put in appearance they failed to file their show cause despite several chances being given to them on 27.02.2007, 26.03.2007 and 18.04.2007. The Appellants even remained unrepresented on 14.05.2007 and 30.05.2007 when the complaint was fixed for hearing. The learned District Forum therefore heard the complaint ex-parte of the Appellants on 30.05.2007 and delivered the impugned order on 26.06.2007.

 

4.         At the hearing the Complainant submitted that he could not send SMS through his cell since 28.11.2006 and lodged the complaint with the Opposite Party. The Complainant had met the Opposite Party in his office who had advised him to replace the SIM card. The Complainant purchased a new SIM card and paid an amount of Rs 225/- to the Opposite party on 17.01.2007. The Complainant could not send SMS through his cell even after replacing the SIM with the new one. The Complainant prayed for refund of the amount paid for the new SIM card, payment of compensation and refund of the value added service charged by the Opposite party from the Complainant every month.

 

Findings and Decision of the Learned District Forum:

 

5.         The Forum after hearing the submission of the Claimant and the material on record decided the case as follows:-

 

1. That the Opposite party had failed to submit its show cause despite being given sufficient time. On 18.04.2007 last chance was given to the Opposite party to file its show cause otherwise the case would be heard ex-parte. The Opposite party did not file any show cause and it was presumed that the case of the Complainant was true and the Opposite Party had no ground to defend itself. The Forum accepted the submission made by the Complainant that he could not send SMS through his cell with effect from 28.11.2006 and he had also changed the new SIM card on 17.01.2007 on payment of Rs. 225/- on the advice of the Opposite party. The Complainant could not send SMS even after replacement of the new SIM card as advised by the Opposite party and hence there was deficiency in service being provided by the Opposite party to the Claimant.

 

1. That the Opposite party was directed to refund the amount paid by the Complainant to the Opposite party amounting to Rs. 225/- for the new SIM card and to pay compensation amounting to Rs. 10,000/- to the Claimant within 90 days from the date of its order.

 

Jist of the Arguments and Submissions of the Appellant before us :

 

6.         That the judgment and order impugned is highly mechanical and suffers from non application of Judicial mind in as much as when a proceeding is going ex-parte it is incumbent on the part of the learned District Forum to safeguard  and protect the interests of the unrepresented Opposite party Defendant. By awarding a sum of Rs. 10,000/-(Ten Thousand Only) as compensation for non-availability of outgoing SMS facility without even an iota of evidence is wholly perverse and not sustainable under law.

 

7.         That the learned District Forum had failed to appreciate the fact that even after replacement of the SIM card by a new one the situation did not improve, hence it could be reasonably presumed that the fault lay with the Cell phone itself and not due to any deficiency or short coming on the part of BSNL .  As such awarding of compensation that too a sum of Rs. 10,000/-(Ten Thousand Only) merely on asking for it militates against the principle of natural justice, law and equity.

 

8.         That the Learned District Forum by awarding the compensation without any evidence worth the name has failed to exercise jurisdiction conferred by law and hence the impugned order is liable to be set aside and quashed.

 

9.         That in the instant case excepting the allegations made by the respondent no evidence was adduced in support of his allegations; as such awarding compensation of Rs. 10,000/- is wholly arbitrary, illegal and unwarranted.

 

10.       That BSNL is merely a custodian of public money and any compensation to be paid by BSNL, unless a strong prima facie case of deficiency of service due to human failure is established by adducing proper evidence, should not be awarded.

 

11.       That the appellant would therefore submit that the impugned judgment and order dt. 26.06.2007 passed in Consumer Case No. 3 of 2007 by the Learned District Consumer Disputes Redressal Forum, East Khasi Hills, Shillong be set aside and quashed with cost to the Appellant.

 

Our Decision

 

12.       As far as the facts are concerned, as the Appellants did not deny the allegations made in the Complaint before the Learned District Forum, as rightly pointed out by the Learned District Forum, these are to be taken as uncontroverted and true. As discussed above, the OP/Appellants did not even bother to file their show cause before the Learned District Forum despite so many opportunities and did not even appear for the hearing of the Complaint. This is only a reflection of their callous and lighthearted approach to a consumer complaint, even before the Consumer Fora.

 

13.       Now, when an award was passed against them they appear to have woken up from their slumber and raised all the arguments that we have noted above.

 

14.       We are truly shocked and at the same time tickled to hear them make a virtue out of vice when they find fault with the Learned District Forum stating “when a proceeding is going ex-parte it is incumbent on the part of the learned Forum to safeguard and protect the interest of the unrepresented Opposite party/ Defendant”. If we encourage such a fallacious argument every Opposite party would ensure that its interests were more safely ‘protected’ simply by choosing to stay away from all hearings and casting the duty of their protection upon the Consumer Fora.

 

15.       Equally fallacious is the argument that BSNL is ‘merely a custodian 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. 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.

 

16.       Further, in respect of their plea that unless of deficiency of service is established by adducing proper evidence compensation should not be awarded, the maxim ‘res ipsa loquitur’ applies. The facts speak for themselves and the fact is that right from 28.11.2006 upto 22.01.2007 when he filed the complaint before the Learned District Forum after lodging several complaints with BSNL and even changing the SIM card upon their advice the SMS facility did not work. It is too late in the day for BSNL to dispute this fact. A complainant cannot also be expected to furnish any definitive ‘evidence or proof’ for the quantum of loss. The fact of harassment and mental agony suffered by the Complainant is self-evident by the admitted non-functioning of the Complainant’s sms facility and quantification of compensation for such harassment is a subjective matter, incapable of being translated into evidence or proof.

 

17.       We are equally unimpressed by their argument that the Learned District Forum ought to have ‘presumed’ that, inasmuch as SMS could not be sent even after replacement of the SIM card, the fault lay with the Respondent Consumer’s cell phone itself and not with BSNL’s services.

 

18.       In the light of the above discussions, the Appellants have failed to convince us that the impugned order dated 26/06/2007 passed by the Learned District Forum in Consumer Case No. 3 of 2007 calls for any interference. We therefore dismiss the Appeal but without imposing any costs.

 

19.       Before parting, it may be stated 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.

 

20.       The Appeal stands disposed of accordingly. Return the learned District Forum’s case records.

 

 

 

 

  SENIOR MEMBER                                                   PRESIDENT