Date of Filing – 02.08.2017

Date of Hearing – 16.01.2018

            The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Opposite Part Nos. 1 & 2 to assail the Order No08 dated 05.07.2017 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in Consumer Complaint No. 138/2017.   By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent Sri Badri Prasad Poddar under Section 12 of the Act exparte with the direction upon the Opposite Party Nos. 1 & 2/Appellants to refund an amount of Rs.3,790/- to the Respondent/Complainant, to pay litigation cost of Rs.5,000/-, compensation of Rs.10,000/- after striking down the bill raised by the Opposite Parties/Appellants amounting to Rs.1,72,394/-.

          The Respondent herein being Complainant lodged the complaint before the Ld. District Forum asserting that on 24.11.2016 the opposite parties claimed an amount of Rs.1,72,394.15P from him without any basis.  The Opposite Parties approached to him at his office at Premises No.79, Lenin Sarani, Kolkata – 700013 through their Team Leader Mr. Gautam Paramanik for an offer which was valid up to 08.11.2016 for making payment of Rs.3,790/-.  The said offer had to be adjusted as three months advanced rent in order to provide a free router, phone set, unlimited calling for local and STD and high speed internet at a speed of 16 mbps with a limit of 10GB data per month with an assurance that it will be activated by 10.11.2016.  However, the same was not activated.  Hence, the respondent approached the Ld. District Forum with prayer for several reliefs, including strike off fictitious bill of Rs.1,72,394.15P, Rs.30,000/- for loss of service, Rs.30,000/- for deficiency in services and unfair trade practices, Rs.30,000/- as compensation and Rs.10,000/- as litigation cost etc.

          Despite service of notice, Opposite Parties did not appear to contest.

          After evaluation of the documents placed before it and the evidence on affidavit and the other related documents, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the opposite parties, as indicated above.  Challenging the legality and validity of the said order, the OPs have come up in this Commission with the present appeal.

          Mr. Rajesh Biswas, Ld. Advocate with the assistance of the recorded Advocate for the Appellant has submitted that keeping in view the provisions of Section 7B of the Indian Telegraph Act, 1885 and the rules framed thereunder and keeping in view the decision reported in AIR 2010 SC 90 [General Manager, Telecom – Vs. – M. Krishnan & Anr.], the Ld. District Forum should not have proceeded with the case as it was a billing dispute.  He has further drawn my attention to another decision of Hon’ble Apex Court reported in 1997 (4) Supreme 66 [Ms. Raag Rang & Anr. – Vs. -The General Manager, Delhi Telephones & Ors.]

Having heard the Ld. Advocates appearing for the parties, in this regard, the order dated 02.05.2014 made by a larger Bench of the Hon’ble National Commission in MA/ 264/2014 in RP/12228/2013 ( Bharti Hexacom Ltd. – vs. – Komal Prapkash & Anr.) appears to be a pointer. In the said decision, it has been observed –

          “We may also note that the main point on which notice in this revision petition was issued was with regard to the maintainability of the complainant, in view of the judgement of the Hon’ble Supreme Court in General Manager, Telecom -  vs. – M. Krishnan & Anr. (2009) 8 SCC 481). However, subsequently, vide a letter dated 24.01.2014, the Government of India, Ministry of Communication and I.T. While responding to the communication received from the Secretary, Department of Consumer Affairs, Government of West Bengal on 07.10.2013, in relation to the Hon’ble Supreme Court’s judgement in M. Krishnan ( Supra ), has clarified that the said decision involved a dispute between the Department of Telecommunications ( DoT), which was a “ Telegraph Authority “ under the Indian Telegraph Act, as a service provider prior to hiving off telecom services into a separate company, viz Bharat Sanchar Nigam Limited ( (BSNL ). However, as the powers of a “Telegraph Authority” are now vested in the private telecom service providers, as in the case here, and also in the BSNL, Section 7B of the said Act will have no application and therefore, the Forum’s constituted under the Consumer Protection Act, 1986 are competent to entertained the dispute between individual telecom consumer and from service providers”.

          Relying upon the authority as mentioned above, it is quite apparent that the Ld. District Forum has rightly observed that the dispute is amenable before a Forum constituted under the Act.

          The next limb of submission made by Ld. Advocate for the appellant is that the Ld. District Forum was in a hurry to dispose of the matter without giving reasonable opportunity to the opposite parties and in this regard he has drawn my attention to the order sheets of the Ld. District Forum.  He has contended that at least 30 days time should have been given to the OPs to file written version but by Order No.03 dated 17.05.2017 the Ld. District Forum fixed 01.06.2017 and thereafter 09.06.2017 for filing written version and proceeded to dispose of the complaint in absence of the opposite parties for which natural justice has been violated.

          On perusal of the order sheets, I find that on 17.05.2017 the service upon the appellants were complete.  It is not clear from the order when the notice was duly served upon the appellants.  In any case, by Order No.05 dated 09.06.2017 the Ld. District Forum proceeded to decide the case ex-parte and ultimately the matter was heard on 14.06.2017. 

          Undisputedly, the OPs have failed to file written version in between 17.05.2017 and 14.06.2017 i.e. within 28 days i.e. from the date of acceptance of service of notice till the date of ex-parte hearing of the case.  It is to be seen, therefore, whether a further time can be granted to the OP to file the written version at that stage.  The issue has been examined by the Hon’ble Apex Court in various cases decided from time to time.  In a decision reported in 2016 (1) Supreme 319 (New India Assurance Co. Ltd. – Vs. – Hilli Multipurpose Cold Storage Pvt. Ltd.) the Hon’ble Apex Court has been pleased to hold that extension of time beyond 45 days cannot be granted.  In other words, an upper cap of 45 days has been imposed by the Hon’ble Apex Court in accordance with the provisions of the Act.

          However, in Civil Appeal Nos.1083-84 of 2016 dated 11.02.2016 (M/s. Bhasin Infotech & Infrastructure Pvt. Ltd. – Vs. – M/s. Venezia Buyers Association) the matter has been referred to a Larger Bench of the Hon’ble Supreme Court.  In the meantime, the Hon’ble Supreme Court has passed another order in Civil Appeal (D No.2365 of 2017) (Reliance General Insurance Co. Ltd. & Anr. – Vs. – Mampee Timbers & Hardwares) where it has been held:

          “We consider it appropriate to direct that pending decision of the Larger Bench, it will be opened to the concerned Fora to accept the written statement filed beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs, and to proceed with the matter”. 

          In this regard, it would be pertinent to record that challenging an order dated 21.06.2017 passed in CC/450/2015 by this Commission an appeal was preferred and the Hon’ble National Commission in that case reported in 2017 (3) CPR 179 (Tapsi Das & Ors. – Vs. – Dhruda Sen & Anr.) despite consent of Ld. Counsel of the complainant passed an order of setting aside the order passed by this Commission in order to enable the OP to file written version subject to payment of cost of Rs.50,000/-.

           In the case beforehand, the Appellants/OPs despite receipt of notice did not appear or could not appear within 28 days as recorded above.  Even on the date of delivery of judgement on 28.06.2017 they could not appear before the Ld. District Forum for which the Ld. District Forum constrained to dispose of the complaint ex-parte which in turn indicates that the case was disposed of after expiry of 30 days as stipulated.

          We must not be obsessed with the object behind the enactment of the Act which is to provide a speedier, cheaper, easier, expeditious and effective rederessal mechanism.  The rigors of the Evidence Act, 1872 and the Code of Civil Procedure, 1908 are not applicable to the proceedings before a quasi-judicial authority like a Forum constituted under the Act.  Therefore, having due regard to the scheme and the purpose sought to be achieved, viz. better protection of the interest of the consumers, the provisions of the Act have to be given purposive, broad and positive construction particularly, keeping in view the provision of Section 13(3A) of the Act which provides that every complaint shall be heard as expeditiously as possible and endeavour shall be made to decide the complaint within a period of three months from the date receipt of notice by the opposite party where the complaint does not require analysis or testing of commodities.  Therefore, the endeavour made by the Ld. District Forum to dispose of the complaint in accordance with the spirit of the Act cannot be faulted with. 

          However, keeping in view the broad principle that fair procedure is the hall mark of natural justice, an opportunity may be given to the appellants/OPs to contest the case but taking into consideration, the decision of Hon’ble Apex Court in the case of New India Assurance Co. Ltd. (supra) coupled with the decision of the Hon’ble National Commission in the case of Tapasi Das & Ors. (supra), the appeal may be allowed subject to payment of cost of Rs.50,000/- out of which Rs.25,000/- to be paid to the respondent/complainant and the balance amount of Rs.25,000/- in the State Consumer Welfare Fund.

          In view of the above, the appeal is allowed on contest with cost of Rs.50,000/- out of which Rs.25,000/- to be paid to the Respondent/Complainant and the balance amount of Rs.25,000/- in the State Consumer Welfare Fund.

          The Order No.08 dated 05.07.2017 passed by Ld. District Forum in CC/138/2017 is hereby set aside subject to payment of costs as mentioned above.

          To 26.02.2018 for appearance of the parties and showing receipt by the appellants/OPs as to payment of costs.  On showing receipts, the Ld. District Forum may accept the written version to be filed on the self-same date otherwise the Ld. District Forum will proceed to dispose of the case in accordance with law.

          The Registrar of the Commission is directed to send a copy of this order forthwith to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information.