STATE CONSUMER DISPUTES REDRESSAL COMMISSION
ANDAMAN & NICOBAR ISLANDS
PORT BLAIR
Appeal Case No. 1 of 2008
Mr. D.N. Thakur, CTO (AIR), Tech Division,
ANC (HQ), Port Blair Petitioner
vs
The Proprietor, ARK Raja Telecom,
Carbyns Cove Chowk, Port Blair. Opposite Party
PRESENT :-
1. Justice P.N. Sinha, President, State Commission.
2. Shri Bimal Bihari Chakravarty, Member, State Commission.
Date : 21st day of November, 2008
JUDGMENT
This appeal is directed against the judgment and order dated 16.11.2007 passed by the District Consumer Redressal Forum, A & N Islands in C.D. case No. 7 of 2007. The appellant before us lodged the complaint before the District Forum and he filed the complaint seeking compensation of Rs.15703.50 for his suffering and mental agony but, the District Forum passed an award of Rs.150.00 only as compensation. Being aggrieved by and dissatisfied with the order of the District Forum the appellant moved this commission through this appeal.
The facts of the case, in short, is that on 27.01.07 the appellant went to the shop of the respondent and made one STD call from the STD Booth of respondent for which he was charged Rs.16.49. The appellant paid Rs. 20.00 to the respondent and the respondent returned only Rs. 3.00 instead of paying back Rs. 3.50 paise. The appellant asked the respondent to make payment of balance 50 paise but the respondent did not pay it. The appellant demanded one toffee instead of 50 paise but, it was also denied by the respondent. Thereafter, the appellant on different dates made several requests to the respondent to refund 50 paise but, it was not paid back to him. Ultimately, one day an altercation was ensued between them and respondent denied refund 50 paise and asked the appellant to take whatever step he may take. Thereafter, the appellant lodged the complaint before the District Forum.
The respondent contested the complaint by filing written objection, and therein, he denied the allegations made by the appellant. The respondent inter-alia, contented that the appellant was in a drunken condition and he refused to pay the STD charges initially. When he threatened to report the matter to the Superior Officer of the appellant, the appellant has lodged the complaint for harassment. He paid back entire amount of Rs.3.50 to the appellant and the appellant has lodged the false case.
At the time of hearing before the District Forum, the appellant examined himself as PW-I and the respondent examined himself as OPW-I. The appellant also produced the receipt of the STD charges during the hearing, and after considering the evidence, both oral and documentary, the District Consumer Forum passed an award of Rs.150.00 in favour of the appellant. We have already indicated that this appeal has been preferred as the appellant was not satisfied with the amount of compensation awarded in his favour.
Before us Mr. D. Sivabalan, the learned Advocate for the appellant submitted that the judgment and order of the District Forum is not in accordance with law. The District forum did not consider the matter of mental agony suffered by the appellant. The District Forum also did not consider the cost that was incurred by the appellant in contesting the complaint before the District Forum. Accordingly, the order of the District Forum should be set aside and the amount of compensation should be enhanced.
On the contrary, Mr. Illango, the learned Advocate for the respondent submitted that the complainant did not examine any other witness to establish the fact of non-refund of 50 paise by the respondent. The appellant did not lodge any FIR at Police station or did not lodge any complaint before the criminal court for the alleged misbehaviour of the respondent. The appellant is a man of air force and on the relevant date he accompanied by his colleagues in a drunken condition abused the respondent and when the respondent told the appellant about reporting the matter to his Superior Officer the complaint was lodged 15 days thereafter.
Mr. Illango, further submitted that the District Forum came to the conclusion that the respondent harassed the appellant merely on presumption and surmise though there was no evidence to establish alleged harassment of appellant. He further contented that in his evidence PW-I did not state at all that he suffered mental agony for the incident and that he was entitled to compensation for mental agony. The amount of compensation awarded by the District Forum was without any basis and it should be set aside and the appeal should be dismissed.
We have duly considered the submissions of the learned Advocates for both the parties and carefully perused the evidence and materials on record. From the evidence of PW-I and exhibit-I (the STD charge receipt), it is clear that on 27th January, 2007 the charge for the STD made by the appellant from the STD booth of respondent was Rs. 16.49 paisa. There is no ground to disbelieve the evidence of PW-1 that he paid a note of Rs. 20.00 denomination to the respondent. From here starts the dispute between the parties as according to appellant, respondent was to refund him Rs. 3.50 paisa but, the respondent paid him back only Rs. 3.00. On the other hand, respondent’s contention is that, the appellant was in drunken condition and being a man of air forces he initially was not interested to make any payment. When he disclosed that he would report the matter to Superior Officer, the appellant made the payment and the respondent paid back Rs. 3.50 to the appellant. After closely scrutinizing the evidence of the parties we find that the evidence of PW-I is more reliable than the evidence of OPW-I in this respect. It has been established from evidence including cross-examination of both the witnesses that the appellant paid Rs.20 to the respondent but, he did not make refund of Rs. 3.50 and made return of Rs.3.00 only. It has been well established from evidence that inspite of repeated demands made by the appellant the respondent did not refund balance 50 paisa. The appellant was able to establish his case before the District Forum and the allegations made in the complaint were proved beyond all reasonable doubts.
An amount of 50 paisa only may be very meager but, it was the duty for the respondent to pay back the balance 50 paisa. It has now become a common practice not to return coins whenever there is any fraction of 50 paisa or odd and the Person who is to refund it does not make payment. It happens everywhere and in every shop or establishment and the person who was to get back such minimum paisa do not press much for return. We may ignore refund of small amount of paisa but, that cannot create vested right for any shop owner not to refund such small fraction of paisa to each customer, and if he does so, causes harassment as well as mental agony to the customer.
In the instant case such fact occurred and the respondent did not pay back of 50 paisa to the appellant. The appellant was a man of air force and this incident definitely touched his sentiment as well as prestige and conscience. In spite of repeated demands made by him the appellant did not receive back his due amount of 50 paisa from the respondent and refusal by the respondent to make payment of balance 50 paisa to appellant clearly proved that the appellant thereby suffered mental agony. The appellant was therefore entitled to claim compensation for mental agony.
It is true that in examination in chief the appellant as PW-I specifically did not state that he suffered mental agony but, he stated that the conduct of O.P was painful and hostile and there was deficiency to tackle with the customers. In our opinion this part of evidence is sufficient to establish that the appellant indicated in his evidence about mental agony suffered by him.
We are unable to accept the submission of Mr. Illango that non-examination of corroborating witness failed to establish complainant’s case. In our opinion PW-I himself was sufficient to prove his case and there was no ground to disbelieve his testimony.
The respondent did not examine any witness to prove his case that appellant was in a drunken condition. After considering the entire evidence we find that such an allegation was made by the respondent only to avoid the claim of the appellant.
From the evidence and materials on record it has been established that the respondent did not refund 50 paise to the appellant which the respondent was duty bound to refund. This act of respondent proved his negligence as well as deficiency in service because, while running STD booth the respondent cannot ignore his duty to refund fraction of paisa to the customers. The negligence and deficiency in services of the respondent and his conduct caused mental agony to the appellant. The District Consumer Forum thereby did not make illegality by observing that the complainant needs to compensated. In our opinion amount of compensation to the tune of Rs. 150.00 only was inadequate and for this reason the order of the District Consumer Forum requires to be modified.
After considering the nature of the case, the facts and the circumstances we are of the opinion that it would meet the ends of justice if we allow compensation for mental agony to the appellant to the tune of Rs.500/-. The appellant is thus in all entitled to an amount of Rs.650/- including mental agony and Costs as we find materials to award costs of Rs.150/-. Claim of Rs. 15000.00 as compensation for mental agony in a case of this nature was excessive in our opinion.
In view of the discussions made about the appeal is allowed in part in the light of the observations made above. The respondent is directed to make payment of Rs.650/- as compensation to the complainant appellant within 15 days from this date and such amount should be deposited before the District Consumer Forum, Port Blair. If the amount as mentioned above is not paid by the respondent within the time indicated above, the appellant would be at liberty to move the District Forum for enforcing the order in accordance with law. The judgement and order of the District Consumer Forum, Port Blair is modified in the manner and extent as indicated above.
Send down the records of the C.D. Case No.07/07 to the District Consumer Forum, Port Blair along with a copy of this judgment and order for information and necessary action.
Office is directed to supply copy of the judgment to the parties free of cost after observing all necessary formalities.
