Meghalaya

StateCommission

FA/04/2009

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

Versus

Smti Betty Sebastian - Opp.Party(s)

Mr.S.C.Shyam

28 Mar 2014

ORDER

 

 

 

 

MEGHALAYA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

SHILLONG

 

F.A No. 4 of 2009

 

BEFORE

 

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

Hon’ble Senior Member: Mr. Ramesh Bawri

 

 

1.             The Chief General Manager, BSNL,llong                                 

 

2.             Bharat Sanchar Nigam Limited (BSNL), Shillong

 

3.             The General Manager GMTD, BSNL,  Shillong.

 

                                                                                                ………Appellants

Versus

                                   

      Smti Betty Sebastian

      R/o Quarter No. C-5 E N,

      NEIGRIHMS, Mawdiangdiang

      Shillong- 793012.

                                                                                                ………..Respondent          

 

 

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

                                                            Mr. S. Deka, Advocate 

For the Respondent               :        Mr. S. P. Sharma, Advocate

Date of judgment                    :        26.09.2014

 

Judgment and Order

 

Per : Shri Ramesh Bawri, Senior Member : The facts of the case are that Consumer Complaint No. 23 of 2008 was filed before the learned District Forum under section 11(2) read with section 12 of the Consumer Protection Act, 1986, by the Complainant/ Respondant against the Opposite Parties/ Appellants alleging that the Complainant is a customer of the OP being subscriber of telephone No 2590466 at her residence at Langkyrding. On 8.6.06, the Complainant applied for shifting of the said telephone to her new address at NEIGRHIMS. After one year the Complainant received some outstanding bills for telephone No. 2537695 as listed below: -

  

Sl.No               Bill No                          Date                            Amount

1.                     35152150                    7.6.06                          Rs.611/-

2.                     36205025                    7.8.06                          Rs.414/-

3.                     39941760                    7.3.07                          Rs.626/-

4.                     41027620                    7.5.07                          Rs.404/-

 

2.         The Complainant was shocked to receive these bills as the said telephone had been disconnected was not even installed at her residence during these periods. On 14.6.07 she wrote a letter to the OP No-1 to write off the bills at Sl. Nos 2 to 4 and also to install the telephone at her residence immediately. On 19.12.07 a legal notice was served to the OP to install the telephone at her residence and rectify the bills within 15 days. On 7.1.08 the OP installed the telephone line at her residence with new number 2538035 and informed her on 23.01.2008 that the old telephone bills are being looked into for settlement. On 22.3.08, the OP informed the Complainant that other outstanding bills would be cancelled in due course but the following bills were required to be paid by her:

 

Sl.No               Date of the bill                        Amount.

1.                     7.6.06                                      Rs.  611/-

2.                     7.3.07                                      Rs.  626/-

3.                     7.11.07                                    Rs.1092/-

4.                     7.1.08                                      Rs.1785/-

5.                     7.3.08                                      Rs.  533/-

 

3.         The Complainant alleged that during the period upto 7.1.08 the said telephone was not installed at her residence and the old telephone had been disconnected. The Complainant however paid the bills dt. 7.6.06 and 7.3.08 amounting to Rs. 611/- and Rs.533/- respectively. On 2.4.08 the Complainant requested the OP that the bills dt. 7.3.07, 7.11.07 and 7.1.08 be written off as the telephone was not installed at her residence during the related periods. However in the month of March 2008 the outgoing call facility of the said telephone was barred and in the month of April 2008 incoming calls were also barred. Hence the Complainant prayed for compensation as follows:

 

I.      Amount for loss incurred on account of delay                 Rs. 10000/-

        ( in shifting the phone)

II.     Cost of compensation, damage on account of                Rs. 25000/-

        mental agony and harassment

III.    Cost of Man hours spent on correspondence made      Rs.   1500/-

        and other expenditure incurred

IV.   Cost of the complaint petition

        (a)      Lawyer’s fee                                                                Rs.   3000/-

        (b)      Cost of typing & Xerox                                               Rs.   1000/-

V.    Interest @ 12% on Rs. 40500/- till disposal of the case.

 

4.         The complaint was registered by the Forum and the issues framed by the Forum were: (i) Whether the complaint is maintainable? (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 OP? (iv) Whether the Complainant is entitled to any compensation?  (v)  Any relief entitled to by the Complainant.

 

5.         The OP filed its show cause and while contesting the case as being not maintainable, stated that the delay in shifting the telephone was due to the fact that the NEIGRIHMS have their own underground network and it was not possible for the OP to transfer the connection to the official quarter. The telephone man was instructed to do the needful who after assessing the feasibility verbally reported back to the OP on 14.6.06. A letter was sent to the SDE (RLU) Rynjah on 14.6.06 for internal wiring and creation of new telephone No. 2537695 which was changed to No. 2538035 later on. The outstanding telephone bill dt.7.5.07 was as per their records and no irregularity was detected after verification from the meter. The Complaint of the Complainant was investigated and she was informed vide letter dated 22.3.08 that the outstanding bills were genuine. The delay in providing the telephone connection was due to the fact that the underground cable was not available. The telephone was disconnected for non payment of the outstanding bills as per rules.

 

6.         On perusal of the materials on record the Forum decided the case as follows, there being no witnesses to be examined by the parties: -

 

(i)         Whether the Complaint is maintainable? : - The Complainant is residing at NEIGRIHMS, Shillong and the OP has its office within the jurisdiction of this Forum and providing telephone service, to the Complainant. The telephone line of the Complainant was disconnected during March/April 2008 on the ground that the outstanding were not paid. The complaint was filed before the Forum on 13.5.08. Hence there is no doubt that the complaint is maintainable and the issue is decided in the affirmative and 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 has a telephone connection No.2538035 provided by the OP on payment of charges on calls made and monthly rent. The telephone is used by the Complainant not for business or commercial purposes. The OP is therefore supposed to provide satisfactory service to the Complainant. Hence, the Complainant is a consumer as defined u/s 2(1)(d) of the Consumer Protection Act, 1986 and the issue is decided in the affirmative and in favour of the Complainant.

 

(iii)       Whether there is negligence or deficiency in service by the OP? :  The Complainant alleged that on 8.6.06 she had applied for shifting of her telephone No 2590466 from Langkyrding to her quarter at NEIGRHIMS. On 19.12.07 she had given a legal notice to the OP to shift the said telephone line. On 7.1.08 the said telephone was installed at her quarter at NEIGRHIMS by the OP. The OP in the show cause defended his case that the said telephone line could not be shifted immediately as the cable is not available with the OP. The Complainant also alleged that she had received the bills dt. 7.3.07, 7.11.07, 7.1.08 amounting to Rs. 626/-, Rs.1092/- and Rs.1785 respectively during the period where the shifting of the said telephone has not been done and hence was not used by her. The matter was informed to the OP on 2.4.08 but her telephone line was disconnected in the month of April 2008 for non payment of outstanding bills as aforesaid. The OP in the show cause defended that the bills were generated as per the meter reading and hence genuine. The Forum on perusal of the records and evidence available noted that the prayer for shifting was submitted to the OP on 8.6.06 and the said telephone was shifted on 7.1.08 that is after one and half years. The shifting was done after receiving the legal notice of the Complainant dt.19.12.07. The Forum is of the opinion that the shortage of cable for one and half year can not be accepted as the reason for the delay. Further the prayer for shifting was filed by the Complainant on 8.6.06 and shifting was done on 7.1.08. Hence there is no reason for the Complainant to pay the bills during the period of shifting that is between 8.6.06 up to 7.1.08 as the said telephone was not installed at the residence of the Complainant. The statement of the OP that the bills were generated as per meter indicated can not be accepted as the said telephone was not in use of the Complainant. The issue is decided in the affirmative and in favour of the Complainant.

 

(iv)       Whether the Complainant is entitled to any compensation? : - The Complainant demanded an amount of Rs.10,000/- only for loss incurred on account of delay; Rs. 25,000/- for damage on account of mental agony and harassment; Rs.1500/- on correspondence; Rs. 3000/- as Lawyer’s fee and Rs. 1000/- for the cost of typing and Xerox copy. There is no evidence placed before the Forum for loss incurred on account of delay by the Complainant and the same could not be adjudicated. The Forum is of the opinion that the Complainant is entitled to damage on mental agony and harassment, Lawyer’s fee and cost of the petition. The issue is decided in the affirmative and in favour of the Complainant. 

 

(v)       Any relief  entitled to by the Complainant ?: -   In view of the findings of the Forum as above the OP is directed to pay compensation to the Complainant as follows: -

 

(a)  Payment for mental agony and harassment                  Rs. 10,000/-

(b)  Cost of the Petition                                                             Rs.    2000/-

(c)  Lawyer’s fee                                                                         Rs.    3000/-

 

The OP is also directed that the bills during the period with effect from 8.6.06 to 7.1.08 should by written off as the said telephone was not in use of the Complainant during the said period.

     

7.         This appeal is preferred impugning the aforementioned judgment and order dated 28.11.2008 passed in Consumer Complaint No. 23 of 2008 by the Learned District Consumer Disputes Redressal Forum, East Khasi Hills Shillong. The main arguments of the Appellant’s counsel are as follows :

 

a.         That on the allegation of deficiency of service no evidence worth the name was adduced by the respondent and hence the award of compensation by the Learned Forum is erroneous and the same is liable to be set aside and quashed.

 

b.         That the Learned Forum failed to appreciate that the installation or shifting of the new telephone No. of the respondent was from the private residence to her official accommodation at Neighrims, Mawdiangdiang where all the telephone numbers inside the campus has been changed to DLC telephone numbers which required BSNL to lay underground cable network within the Neighrims complex where the telephone was to be shifted. As soon as the underground cable network was found to be feasible the necessary shifting was effected.

 

c.         That deficiency of service as per section 2(g) of the C.P. Act 1986 means any fault, imperfection, inadequacy in the quality nature and manner of performance which is required to be maintained by or under the law for the time being inforce or has been undertaken to performed by a person in pursuance of a contract or otherwise in relation to any service. As such the above circumstances do not indicate failure on the part of the B.S.N.L. authorities but rather abnormal circumstances beyond the control of the authorities to perform the services and the legislation intends that if such circumstances prevent a person from rendering services of the desired quality, nature & manner, such person should not be penalized.

 

d.         That the line condition of the subscriber was verified from the MDF of respective exchange before creation of new Telephone number from the exchange, that apart, all the telephone numbers inside the campus of Neighrims have been changed to DLL Telephone No. booth and the Telephone number of the complainant was changed from 2537695 to 2538035 on 10.09.2007. Accordingly the bill was generated against the new Telephone No. as such nothing irregular, unjust or arbitrary can be attributed.

 

e.         That the complaint filed against the appellant was nothing but a speculative exercise demanding a huge amount of compensation which was not maintainable under the facts and circumstances of the case. Moreover, the Learned Forum failed to appreciate that such speculative demand of compensation would be met out from public Exchequer and BSNL being merely a custodian of the money of the citizens, awarding of compensation for alleged deficiency of service by the complainant could have been awarded only when a very strong prima facie case was established by the claimant. In the instant case the complainant had alleged that the shifting of the telephone from her residence to her quarter within Neighrims complex was delayed but the telephone bills against her said No. used to be raised against her said telephone No. and the Learned District Forum mechanically accepted the said statement with total disregard to the fact that complainant respondent did not surrender the telephone No. soon after her shifting to the hospital accommodation at Mawdiangdiang or intimated the B.S.N.L. authority to disconnect the said telephone connection until the shifting of the same to her new accommodation at Mawdiangdiang. As such the impugned judgment and award is wholly perverse, bad in law, justice and equity and the judgment and award Dt. 28.11.2008 is liable to be set aside and quashed with costs to the appellant.

 

8.         Learned Counsel for the Respondent, while supporting the orders passed by the District Forum has placed before us two judgments of the Hon’ble National Commission which are germane to the issue and which we shall keep in mind while deciding this Appeal.

 

In Lt. Col. Balbir Singh vs G.M. Telephones Faridabad [2002 (3) CPR 242 (NC)] it was held that telephones are a necessity and even a three-month delay would certainly amount to deficiency in service, entitling a consumer to compensation on this account. It was further held that it was not even necessary for the Complaint to prove any loss or inconvenience in such a case.

 

We may also 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.

 

9.         Having heard learned counsels from both sides and perused the case records and having applied our minds to the matter, we find that the submissions of the Appellants are only wishy washy and without substance. The findings of the learned District Forum that the Complainant’s phone was disconnected for shifting purposes in June 2006 and re- connected only in January 2008 after 1 ½ years are clear and there is nothing on record to  controvert the same. It is therefore obvious that when even a telephone connection did not exist in the Complainant’s residence during this period there was no question of her making any calls or paying any bills for this period.  The learned District Forum was therefore right in directing that the bills for the said period be written off by the Appellants.

 

10.       As regards the compensation awarded too, we are of the clear view that it is fair, reasonable and judicious. One can only imagine the plight of a Consumer who is deprived of use of a basic necessity such as a telephone for over 1 ½ years, that too in a far flung area. And, over and above that, to be harassed with bill after bill for a phone that did not exist and then, once the phone was at last connected, to be disconnected once again for non- payment of the non-payable bills, without any regard or action on the Complainant’s repeated protests and objections is a very high degree of deficient service. It is sad indeed that the Appellants instead of acting promptly in the matter have defended and tried to justify their inaction before the learned District Forum and even before us on grounds which we do not accept.

 

11.       In view of the above discussions, we uphold the impugned order dated 28.11.2008 passed by the learned District Forum and at the same time impose Rs. 5000/- ( Rupees Five Thousand) as costs of appeal to be paid by the Appellants to the Respondent within 1 (one) month hereof, also hoping that this will help in mending their ways in future.

 

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.       The Appeal stands dismissed and disposed of with these directions. Registry shall return the learned District Forum case records.

 

 

 

 

SENIOR MEMBER                                                  PRESIDENT