Sri Shyamal Gupta, Member

This Appeal is preferred against the Order dated 17-07-2014 of the Ld. District Forum, Kolkata-II (Central) passed in C.C. No. 100/2014. 

Brief narrative of the Complainant’s case is that he took a postpaid connection from the OPs and used to pay telephones bills on a regular basis within due time. In the second week of April, 2007, he received a bill for an amount of Rs. 3,099/- for the period from 01-03-2007 to 31-03-2007 and the said bill was due for payment on 25-04-2007.  Accordingly, the Complainant made ready the payment of said amount by issuing necessary cheque for this purpose.  However, to the utter surprise of the Complainant, he noticed that incoming calls to his said mobile got suspended and on enquiry, he learnt that for non-payment of due bill, incoming facility to his mobile was withheld. Since the due date for payment of bill was slated for 25-04-2007, he was totally at a loss how could the OPs take such drastic measures.  Further, since the recorded message to the effect that incoming call facility was suspended in respect of his mobile no. due to non-payment of bills was percolated to his clients/well-wishers/relatives, it caused irreparable damage to his image in the society.  Although he made several complaints to the authority of the OPs, they did not bother to send a proper response, let alone redress his complaint.  Instead, OP No. 3 threatened to disconnect his landline connection without further notice besides sending repeated legal notices threatening to initiate civil and criminal cases against him.  Against such backdrop, the complaint.

On the other hand, case of the OPs is that as per their record, the Complainant paid all the bills regularly up to 30-08-2006 and as such, there was no problem with the said connection.  Thereafter, the line was disconnected on 16-04-2007 for non-payment of the bill dated 10-03-2007 for an amount of amount of Rs. 1,319/-, which was slated to be paid on 26-03-2007.  On 26-04-2007, the Complainant made payment of the bill although due date for making payment expired on 26-03-2007. It is further stated that as per Rules, there are some procedures in respect of surrender of a mobile connection.  The said connection was permanently disconnected on and from February, 2008 and as such, monthly rent was imposed till February, 2008.  After disconnection of the mobile phone temporarily, the Complainant filed to surrender the mobile phone properly as per Rule. 

Decision with reasons

Heard the Ld. Advocates of both sides; also carefully gone through the material on record.

It is claimed by the Appellants that due to non-payment of monthly telephone bill for the month of March, 2007 for an amount of Rs. 1,319/- which fell due on 26-03-2007, the incoming call facility to the concerned mobile no. was temporarily suspended. However, on going through the duplicate copy of the concerned bill, we find that as per the same, the Respondent only owed a sum of Rs. 831/- to the Appellants. 

Be that as it may, fact remains that the Respondent used to pay his telephone bills through ECS and as very rightly pointed out by the Ld. District Forum, the Appellants have not even made any such allegation that ECS payment was not honoured by the banker of the Respondent in the month of March, 2007, let alone, furnish cogent documentary proof to substantiate such allegation. 

It is clear, therefore, that the Appellants themselves for some obscure reasons failed to stake any payment claim with the banker of the Respondent in the month of March, 2007. Quite naturally, therefore, the bank concerned did not remit any amount to the Appellants. In order to get due payment, it was incumbent upon the Appellants to present the bill to the banker of the Respondent.  However, they have miserably failed to put forth any tangible proof in this regard.  Surely, therefore, the Appellants themselves are responsible for non-payment of the telephone bill for the month of March, 2007. 

It is claimed by the Appellants that by virtue of the terms and conditions contained in the application form for availing of Post-paid connection, they have every right to totally or partially disconnect the customer without serving any prior notice in case of non-payment of bills by the due date.  However, on a reference to the Customer Application Form for availing of such service, it transpires that the relevant stipulation in this regard runs as under:-

“Although no notice is mandatory, call warning or an SMS message notified to the customer on his mobile number or any other verbal or written communication shall be construed as due notice in this regard”.

It is clear from above stipulation that the Appellants do caution their customers for the probable adverse eventualities due to non-payment of bills.  However, no such averment is made anywhere either in the WV or any other document that the Respondent was duly alerted of the impending adverse consequences by the Appellants before embarking on taking such drastic steps. 

Also, we have noticed from the photocopies of duplicate telephone bills for the period from December, 2006 to March, 2007 that it was not the first time that some amount stood unpaid on the scheduled day of payment.  However, it seems, never before April, 2007, the Appellants took such drastic step for non-payment of bill. 

Since the Respondent opted for ECS option, it was quite difficult for him to keep a proper track of timely payment of telephone bills every month.  Further, under the ECS mode of payment, the primary responsibility of ensuring presentation of the bill on a timely basis falls on the biller itself.  That being not properly discharged, we feel that the Appellants did not have any legal right to opt for such harsh measures and thereby put a hapless customer in great trouble. 

Allowing the complaint against such backdrop was but natural.  However, it appears that the Ld. District Forum has imposed punitive damage @ Rs. 200/- per day upon the Appellants which in the facts and circumstances of the case appears to be totally uncalled for.  Our interference, thus, stands limited to eradicate this anomaly. Otherwise, the impugned order is fully justified.

The Appeal, thus, stands allowed in part.

Hence,

O R D E R E D

That the Appeal stands allowed on contest against the Respondent in part.  Appellants are exonerated from the liability of paying punitive damage @ Rs. 200/- per day.  Rest of the impugned order shall remain in toto.