Meghalaya

StateCommission

FA/12/2008

BSNL - Complainant(s)

Versus

Smti Santissima Mary Kharkongngor - Opp.Party(s)

Mr.S.C.Shyam

28 Mar 2014

ORDER

 

MEGHALAYA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

SHILLONG

 

F.A. No.12 of 2008

 

 

BEFORE

 

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

Hon’ble Senior Member : Mr. Ramesh Bawri

 

 

1. Bharat Sanchar Nigam Ltd., Shillong
2. General Manager, BSNL, Shillong
3. The Accounts Officer (TR), BSNL, Shillong

………….. Appellants

 

                                                      Versus

 

Smti Santissima Mary Kharkongor,

W/o Shri F. Syiemlieh,

R/o Jaiaw Lumpyllon, Shillong

…………….Respondent

 

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

                                                                    Mr. B. Deb, Advocate

 

For the Respondent                  :             Mr. P. Luikham, Advocate

 

Date of Judgment                      :             20.06.2014

 

 

JUDGMENT AND ORDER

 

1.         Per : Mr. Ramesh Bawri, Senior Member: Heard the respective learned counsels and perused the memo of Appeal and the case records. The brief facts of the case are that the Respondent/Complainant is the customer of the Appellant/Opposite Party being subscriber of telephone No 2240457 at her residence. The Complainant alleged before the learned District Forum in her Complaint No.31 of 2007 that there was discrepancy towards excess meter reading and billing despite moderate use of the telephone for local calls only. The matter was brought to the  knowledge of the OP on 29.8.05. On 19.1.06 the OP informed the Complainant that there was no fault found in the meter reading of the Complainant and asked for clearance of the bill dt.5.7.05 and all outstanding bills. On 7.2.06 the Complainant paid all the outstanding bills as directed by the OP. On 27.2.06 the Complainant requested the SDE (Commercial) BSNL to cancel the existing telephone No.2240457 by replacing with a new number as the Complainant was encountering frequent faulty functioning of the telephone line. There was no response from the OP and the telephone line of the Complainant was disconnected on February 2006. ON 2.5.06 the Complainant wrote a letter to the OP for restoration of the telephone line. A reminder was issued on the 5.5.06. Lastly, on 30.8.06 a pleader’s notice was issued to the OP reiterating that the telephone line was disconnected since February 2006 but the bills were being sent regularly by the OP despite which the OP failed to look after and rectify the complaint of the Complainant which amounted to deficiency of service and negligence of duty on the part of the OP. The Complainant prayed before the Forum to :

1. Direct the OP to replace the existing telephone of the Complainant with a new number
2. Order the OP to withdraw the bills to the Complainant since February 2006 till date.
3. Pass necessary order for payment of compensation of Rs.50,000/- only for the loss and sufferings caused upon by the OP along with interest @12%

 

2.         The OP filed its show cause on 29.11.07 stating inter alia that the faults alleged by the Complainant were due to mechanical snags, that the bills of the telephone No.2240457 had been prepared/recorded through the computer indicating the number dialed, the time and duration of the calls made and that the application dated 29.8.05 of the Complainant was processed but due to non-availability of indicator, changing of telephone number could not be done at that time.

 

3.         Besides the Complainant, 3(three) witnesses were examined by the OP’s namely, Shri G.L. Hati, DE(Operation & Commercial) BSNL, Shri Paritosh Choudhury, Sr. Accounts Officer (TR) of BSNL and Shri S.K. Deb, SDO, BSNL.

 

4.         On perusal of the materials on record vide its order dated 8.9.2008 which is under challenge before us, the Forum decided as follows:

 

1. Whether there is negligence or deficiency in service by the OP?:- The Complainant alleged that the bills of the telephone No.  2240457 were excessive. The meter was faulty. On 27.2.06 the Complainant requested the OP to replace the telephone with new number as there was frequent faulty functioning of the telephone. However, the telephone line of the Complainant was disconnected in February 2006. On 2.5.06 the Complainant requested the OP for restoration of the telephone line and reminder was issued on 5.5.06. Since there was no response from the OP, the Complainant had to serve Pleader’s notice on the 30.8.06. the Complainant further alleged that though the telephone was not functioning the OP had sent the bills to the Complainant regularly. The OP denied that the meter reading of the telephone of the Complainant was defective and the Complainant was informed accordingly on 19.1.06. The OP admitted that the Complainants were filed by the OP regarding the non-functional of the telephone since February 2006 and the statement corroborated with the evidence given by the CW-4. CW-2 admitted that the Complainant had filed the complaint on 27.2.06. However the OP did not take step to repair the telephone line and the Complainant had to serve Pleader’s notice on 30.8.06 that is after seven months. The OP could not produce satisfactory reply or evidence to support their case about the delay in repair of the telephone line. The OP did not inform the Complainant about such delay. Hence the Forum is of the opinion that there was delay on the part of the OP to take steps to rectify the telephone of the Complainant which is definitely deficiency in service and negligence. The issue is decided in the affirmative and in favour of the Complainant.
2. Whether the Complainant is entitled to any compensation? :- The Complainant demanded an amount of Rs.50,000/- only as compensation for the loss and sufferings caused upon by the OP along with interest @12%. As discussed in the issue No.(i) above, the OP could not produced satisfactory reply to the delay in attending to the complaint lodged by the Complainant regarding repair of the telephone line and deficiency in service is well established, the OP is directed to pay an amount of RS.10,000/- as compensation to the Complainant.
3. Any relief entitled to by the Complainant? :- The Complainant demanded that the OP should replace the existing telephone of the complainant with a new number and to withdraw the bills issued to the Complainant since February 2006 till date as the telephone did not function. The OP in the show cause stated that the application dt.29.8.05 for change of the telephone with new number could not be done due to non-availability of indicator. The OP is therefore directed to change the telephone NO.2240457 of the Complainant with a new number. Regarding the bills charged by the OP for the period with effect from February 2006 when the telephone was out of order, the Forum is of the opinion that the same could not be charged as the CW-3 also has admitted that the telephone during the period was not in use and no outgoing calls were made. The prayer of the Complainant to waive the bills charged with effect from February 2006 till the telephone is changed with a new number is also allowed by the Forum.

 

5.         The relevant Grounds of Appeal taken by the Appellants read as follows:

 

1. For that the learned District Forum, erred in law and in fact by awarding compensation with a total disregard to the fact that the withdrawal of the outgoing call facility, was resorted to due to the non-payment of outstanding bill by the Respondent, as such the Impugned Order is not sustainable under the law and liable to be set aside and quashed.
2. For that the learned Forum, failed to take into account the specific assertion of the appellants that the Respondent was pressing for changing of the indicator which could not make available due to the shortage of the supply. As such, the same cannot be construed as deficiency of service under Consumer Protection Act. As such the finding of the Learned Forum, is erroneous and liable to be interfered with.
3. For that the Learned Forum miserably failed to appreciate that the telephone bills are the Govt. revenues and the Rules have conferred on the BSNL authorities the power to withdraw the facility in the event of non-payment of the bills. As such, the same cannot be viewed as deficiency of service
4. For that the Learned Forum also failed to appreciate the fact that compensation should not be awarded as a matter of fact. The claimant must establish a case of clear deficiency of service on the part of the BSNL authority. In the case in hand, the telephone of the Complainant was never out of service continuously for 7 days. As such, the question of waiving of the bills or rebate does not arise, hence, the Impugned Order is liable to be interfered with.

 

6.         The major plank of the arguments of the Learned Senior Counsel for the Appellants in challenge of the impugned order dated 8.9.2008 is that “Deficiency of Service” according to section 21(g) of the CP Act 1986  is defined to mean any fault, imperfection, shortcoming or inadequancy in the quality, nature and manner of performance which is required to be maintained by or under any law or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service, which indicate that short coming on the part of the authority or things resulting out of human figure can be termed as ‘deficiency of service; however in the instant case non availability of the indicators as a result of which telephone number could not be made at that time cannot be termed as ‘deficiency of service’.

 

It is also argued that the CP Act being a beneficial legislation protecting the rights of the consumers the legislative intent is that there may be certain circumstances beyond the control of the person performing the services. If such circumstances deter a person from rendering services of the desired quality, nature and the manner such person should not be penalized. Further that it is apparent that the world of telecommunication has developed to such an extent that the world has become a global village, the number of consumer utilizing the cell phones and telecom facilities is reaching millions, as a result of which abnormal circumstances can arise at times which is beyond control and any shortage of indicators cannot be termed as deficiency of service or negligence of duty on the part of the BSNL.

 

It is also submitted that withdrawal of the outgoing call facility was restored to due to the non payment of outstanding bill by the respondent and the alleged excess billing cannot be questioned as the bills are prepared on the basis of Computerized Billing System, recording the time, the duration and the number called with the dates, hence, the impugned judgment and order is not sustainable under the law and is liable to be set aside.

 

7.         However, having heard the arguments and thoroughly examined the documents on record, we are of the considered view that the impugned order dated 8.9.2008 passed by the learned District Forum is just and proper and calls for no interference by us for the following reasons:

 

1. The Complainant has clearly averred in three paragraphs of her complaint viz paras 2(iii), 3(i) and 3(ii) that her phone remained inoperative ever since February 2006 right upto the time when she approached the learned District Forum on 24.7.07, despite her intimations and reminders to the OP/Appellant on 27.2.2006, 2.5.2006, 5.5.2006 and 30.8.2006. Nowhere has this allegation been specifically denied by the Appellant in its para-wise show cause filed before the learned District Forum, which amounts to an admission of the fact. It is for the first time that the Appellant has stated, in its Grounds of Appeal, that the phone was never out of service continuously for 7 (seven) days.
2. The Appellant/OP examined 3(three) of its own officers as witnesses before the District Forum, as stated above. None of the officers deposed to the fact that the allegation regarding non-functioning of the phone was false. In fact this issue was not even touched upon.
3. On the other hand, para 3 of the show cause filed by the Appellants under Affidavit before the learned District Forum reads “ That the Complainant has no cause of action against the Respondents in as much as the fault alleged in the complaint are not attributable to any human failure but due to mechanical snags.” This, by itself, is undeniably a clear admission of the faults alleged in the complaint.
4. This admission, read with the Appellant’s major plank of argument which we have noted above go to show that while they do not deny the factum of the alleged faults, their stand is that such faults occurred arising to ‘mechanical snags’ and such snags take the faults out of the  ambit of deficiency in service. While this is tantamount to an admission of fault, we are of the clear view that  even if deficiency in service arises from mechanical reasons it does not relieve them of their responsibilities, as BSNL is obviously trying to claim. As long as there is deficiency it matters little whether the cause is human or mechanical as long as it is completely beyond human control which, in this case, it is not.
5. On similar unacceptable lines is their stand as taken in para 7 of their show cause before the learned District Forum that the phone number could not be changed owing to non-availability of indicators. When running an organization of such size it was the Appellant’s duty to keep adequate stock of indicators and, if necessary, make arrangements to procure them. They did nothing for as long as 17 (seventeen) months from 27.2.06, the date of the Respondent’s request, upto 24.7.07 when the complaint was filed. If this is not deficiency in service, we do not know what is.
6. In their written submission before us the Appellants have admitted that withdrawal of outgoing facilities was indeed resorted to by them. However, in the same breath, they claim that this was done owing to non-payment of outstanding bills by the Respondent. This is a totally unacceptable stand, as is clear from the records. Payment upto the last bill for the period from 1.11.05 to 31.12.05 was made by the Respondent on 7.2.06, despite which the phone was admittedly barred in February 2006. The next bill for the period from 1.1.06 to 28.2.06 was raised only on 7.3.06 and became due for payment only by 30.3.06. This and subsequent bills, even if due, could not have been the cause of or justify debarring in February 2006 itself.
7. As regards the Complaint of excess billing we may refer to the decision of the Hon'ble National Commission in Revision Petition No. 817 of 2005 decided on 20.08.2009 (Bharat Sanchar Nigam Ltd. & Ors Vs Sheikh Hussain Ali). This too was a case relating to alleged excessive billing where BSNL had stated in their Written Statement that the matter had been thoroughly investigated and, after investigation, it was found that the bills issued were as per meter reading. It was denied that there was any deficiency on their part. The Hon'ble National Commission held that "Respondent was not given the Report submitted after the investigation of the matter. Officer, who inquired into the matter, has not been produced as a witness. Respondent has been denied the opportunity to cross-examine the person who had submitted the Report, thus, denying him of an opportunity to question the correctness or otherwise of the Report submitted. Method adopted for ascertaining as to whether the matter was faulty or not has also not been disclosed." Accordingly, in the absence of any reassuring circumstance, the averment made in the Written Statements that the Consumer was correctly billed was not accepted and the Revision dismissed.

 

The circumstances before us are similar. Here too, the Respondent was not given the Report submitted after the investigation of the matter. Officer, who inquired into the matter, has not been produced as a witness. Respondent has been denied the opportunity to cross-examine the person who had submitted the Report, thus, denying him of an opportunity to question the correctness or otherwise of the Report submitted. Method adopted for ascertaining as to whether the matter was faulty or not has also not been disclosed. The Appeal therefore deserves to be met with the same fate.

 

8.         For all the reasons aforementioned we uphold the impugned order dated 8.9.2008 passed by the learned District Forum in Consumer Case No. 31 of 2007 and dismiss the appeal.

 

9.         At the same time, 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 de-incentivizing 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 her incur heavy litigation costs simply to protect her meagre award. 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 female 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. Here we are also reminded of the observations made by the Hon’ble Supreme Court in Lucknow Development Authority vs M.K. Gupta  (AIR 1994 SC 787) explaining the social evils that arise from arbitrary and capricious exercise of power in the following words, in para 10 :

 

“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. ….. 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.”

 

The Appellant shall, therefore pay Rs.10,000/- (Rupees ten thousand) as costs of Appeal to the Respondent within 30(thirty) days hereof.

 

10.       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.

 

11.       The Appeal stands disposed of. Case records be returned to the learned District Forum.  

 

 

          

         SENIOR MEMBER                                               PRESIDENT