1.Bharat Sanchar Nigam Ltd. (BSNL)
2.General Manager, GMTD, Shillong ....... Appellants
Versus
Smti. Battinora Rani,
Shillong ....... Respondent
Date of Judgment : 26.09.2014
Judgment & Order
Per : Shri Ramesh Bawri, Senior Member : The facts of the case are that the Complainant had filed a Consumer Complaint No. 25 of 2004 in the District Forum on 4th October 2004 stating, inter alia, that a complaint was lodged with the SDE (Commercial) BSNL on 23rd July 2004 regarding non functioning of her telephone at her residence (telephone no. 2229053). The complaint also alleged that till the date of filing of the Complaint no action was taken by the telecom officials regarding the unusually high bills charged by the BSNL (Opposite party). The gist of the complaint is that from November 2003 onwards the telephone became defective. Several complaints were filed and on 22nd June 2004 the telephone became functional again. Although the phone was non-functional, bills for period 1st April - 31st May 2004 indicated an amount of Rs. 340/- (Rupees three hundred and forty) only for local calls which would not have been possible because the outgoing line was not functioning. Moreover, the Complainant had asked the Opposite party BSNL for rental concession for the months from November 2003 till June 2004 but to no avail. To make matters worse, the telephone became dysfunctional again after sometime and was repaired to the Complainant's satisfaction only on 13th August 2004.
2. The Opposite party BSNL in its show cause reply mentioned that the computerized record of telephone No.2229053 showed that from 1.10.2001 till 24.7.2004 at no time was the telephone non functional or out of order for more than 7 days. Therefore, the entitlement for rebate on rental did not arise. Opposite party BSNL also stated that as per meter reading which is computerized , calls had been made from telephone No. 2229053; hence the subscriber must have made the calls as the machine had recorded the same.
3. After perusing the complaint petition and the show cause reply, the following issues were framed by the learned District Forum to settle the case.
(1) Whether it is a fact that the telephone No.2229053 belonging to the Complainant was defective from November 2003?
(2) If yes, whether any complaint was lodged and any rectification made to the defective telephone line?
(3) Whether it is a fact that the telephone lines were rectified completely only in August 2004.
(4) Whether the Opposite party BSNL had erred in charging rental and other charges when the telephone line was allegedly defective.
4. The Complainant argued the case herself. In her submissions, she charged the OP BSNL of deficiency in services and inefficient management. The Complainant stated that from November 2003 the telephone network in her house (bearing No. 2229053) could receive only incoming calls and no outgoing calls could be made. She had lodged a complaint but unfortunately no response was forth coming. She met the lineman who suggested to her that she should go to the office in April 2004. She complained in writing and was made to believe that the flexible wire had broken, therefore the calls were not smooth. However no concrete response was coming from their side and from November 2003 to June 2004 only incoming calls were coming and outgoing calls could not be made. She went to Lady Hydari Park Office of BSNL and made the complaint. On 20th June 2004 she went to the main office for the same purpose. She faced a lot of harassment and on the 21st of June 2004 again went to Lady Hydari Park Office of the OP BSNL. On 22nd June 2004 the defect was rectified and telephone was normal. However, after some days the telephone stopped working again and was finally rectified only on August 2004. The Complainant raised the pertinent question as to why the bill was the same during the period when her telephone network was defective. She charged that, perhaps, some cross connection may have taken place or somebody may have played some tricks. Therefore, she requested the Forum to redress her grievance by (l) seeking refund of the telephone bill charged to her during the period her telephone was defective. (2) awarding compensation caused to her due to harassment, mental agony, tension and stress.
5. Learned counsel of the OP BSNL Shri S.C. Shyam submitted before the learned District Forum that the complaint filed was not maintainable and liable to be rejected, the cause of action was not concrete and, therefore, the complaint petition was bad in law. He also stated that telephone No.2229053 as per computerized record of complaint clearly showed that at no point of time from 01.10.2001 till 24.7.2004 the said telephone was non functional or out of order for a period of more than seven days in any particular month. Therefore, Complainant was not entitled to any rebate of any rental as contended by her. Learned counsel also submitted that the Complainant has failed to establish a prima facie case of deficiency in services against the OP BSNL and the ill conceived complaint be rejected with costs to the Ops.
6. After hearing both the parties and also after perusing the records of the case including the computerized statement generated by the BSNL, the learned District Forum held as follows :
a) It is a fact that the telephone of the Complainant (telephone No. 2229053) went out of order in the month of November 2003 as can be seen from the computerized statement generated by the OP BSNL. The Complainant had reiterated that outgoing calls were not functioning whereas the incoming calls were working in her network. It is seen from the Statement that perhaps the OP had endeavoured to rectify the problem which had been shown accordingly. But the fact that the complainant kept on going to various offices in furtherance of her complaint meant otherwise .The statement indicated that the telephone had been tested and rectified. But in the statement there is no endorsement by the Complainant that the telephone had started functioning normally on the next day. This leaves a lot of scope for speculation in our thinking process. The question that rises in the instant case is , who is to be given the benefit of the doubt . We feel that the Complainant would not be running from pillar to post from Lady Hydari Park Office to the Main Office if her telephone was working normally ( this was not denied by the OP) . Therefore, we feel there is definitely some fault in the telephone network to make the Complainant go around complaining till the month of June 2004 and eventually till August 2004 when it was finally rectified.
b) On account of the facts and arguments narrated above we are of the opinion that the OP should refund and offer a complete rebate from the bill of November-December 2003 onwards till the month of July-August 2004 on the rental amount.
c) Regarding the outgoing calls charged in the bills, the same has not been proved by the OP BSNL. The computerized statement on the called numbers has not been submitted in the Forum. If the billing is computerized, the same should have been submitted to the Forum for the members to peruse. Therefore, we feel that the outgoing calls were not made but, perhaps, a cross-connection or an act of mischief committed.The total calls charged should, therefore, be refunded also between the period November-December 2003 till July-August 2004.
d) The BSNL by making an elderly woman run from one office to another without specific direction as to where her grievance could be ventilated has caused her immense harassment, mental agony for which she needs to be duly compensated. Therefore we are pleased to award a compensation of Rs.2,500/- to the Complainant for the same.
7. The instant appeal has been preferred impugning, the aforementioned judgment and order Dt. 19.04.2005 in Consumer Case No. 25 of 2004 passed by the learned District Consumer Disputes Redressal Forum, East Khasi Hills, Shillong on the following grounds:
a) That the learned District Forum on the basis of the pleading of the parties was pleased to frame 4 (four) issues, but none of the issues have been determined conclusively in favour of the respondent and it passed the award only on speculative basis.
b) That the judgment and order rendered by the learned District Consumer Forum is patently erroneous inasmuch as the learned Forum has observed that the question that rises in the instant case is who is to be given the benefit of doubt; as such awarding the compensation merely on surmises and conjectures is liable to be interfered with.
c) That excepting the allegations made by the respondent no evidence was adduced in support of her allegations; as such awarding compensation and refunding the amount against the bills is bad in law, justice and equity.
d) That the Appellant is merely a custodian of public money and no award of compensation ought to have been passed, unless a strong Prima Facie Case of deficiency of service due to human failure was established by adducing proper evidence.
e) That the impugned judgment and order Dt.19.04.2005 passed in consumer case No. 25 of 2004 ought to be set aside and quashed with costs to the appellants.
8. None has appeared for the Respondent. However, having heard the learned counsel for the Appellant, 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. The submissions made by the Appellants herein do not bear acceptance in view of the clear finding of the learned District Forum that “ It is a fact that the telephone of the Complainant (telephone No.2229053) went out of order in the month of November 2003 as can be seen from the computerized statement generated by the OP BSNL”. Furthermore, as noted by the learned District Forum, it has not been denied by the Appellants that the Complainant ran from pillar to post in the Appellant’s offices to get her outgoing calls restored and in that view of the matter, the conclusion of the learned District Forum that there was definitely some fault in the telephone cannot be found fault with as we are of the view that in such a case no strict evidence can be insisted upon and the maxim ‘ res ispa loquitur’ (facts speak for themselves) has to be applied to arrive at a decision. The Appellants have themselves not completely denied the allegation of the Complainant that the phone was out of order during the related period. They have in fact obliquely stated that at no time was the phone out of order ‘ for more than 7 days’.
9. If any authority is required we may refer to Smt. Geeta Devi vs MTNL [2006 (1) CPR 43 (NC)] where the Hon’ble National Commission held that charging of rental for a period when a telephone remained disconnected is unjustified as no service is rendered during that period and there is no question of raising bills for that period as no call is possible from disconnected phones.
10. It may also be borne in mind that a mere sum of Rs. 2500/- ( Rupees Two Thousand Five Hundred) has been awarded to the Complainant/ Respondent as compensation. No judicious working person can be expected to battle in the Consumer Fora for such a petty sum of compensation unless the cause and injury is genuine.
11. In view of the discussions above, we uphold the impugned order dated 19. 04.2005 and dismiss the appeal. We also find it a fit case to impose costs of appeal to be paid by the Appellants to the tune of Rs. 5000/- ( Rupees Five Thousand) to the Respondent within 1 ( one) month hereof. The Appeal stands disposed of accordingly.
12. Before parting it may be stated here 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.
13. Return the case records of the learned District Forum.
SENIOR MEMBER PRESIDENT
