State Consumer Disputes Redressal Commission
Shri. Sebastiao Teles, vs Manager, Bsnl Goa on 12 March, 2013
BEFORE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI- GOA FA No. 08/2012 Shri. Sebastiao Teles, Major, r/o. H.No. 321, 2nd Daddio, Telaulim, Navelim, Salcete, Goa. ..Appellant/Complainant Appel v/s. 1. Manager, BSNL Goa Telephone Exchange Building, Margao, Goa 403 601. .. Respondent No. 1/O.P. No. 1 2. Manager, India Times Services, C/o. BSNL Goa, Telephone Exchange Building, Margao Goa. ..Respondent No. 2/O.P. No. 2 Appellant/Complainant is represented by Adv. Shri. Edward J. Fernandes. Respondent No. 1 /O.P. No.1 is represented by Adv. Shri. C. A. Ferreira. Respondent No. 2/O.P. No. 2 is represented by Adv. Shri. U.R. Timble. Coram: Shri Justice N.A. Britto, President Smt. Vidhya Gurav, Member Dated: 12/03/2013 ORDER
[Per Shri Justice N.A. Britto, President] The Appellant herein is a complainant in C.C. No. 24/12 and hereinafter shall be referred to as such. He is a consumer who was first dissatisfied with the service provided for by O.P. No. 1, Bharat Sanchar Nigam Ltd., (BSNL, for short) and now he is dissatisfied with the order dated 09/02/12 of the lr. District Forum, South Goa, at Margao by which the complaint filed by him has been dismissed at the threshold in the light of the judgment of the Apex Court in General Manager, Telecom vs. M. Krishnan & anr., 2009 (8) SCC 481.
2. Some more facts are required to be stated to dispose off the present appeal some of which we have pinned them together.
2.1.
The complainant is a subscriber of BSNL cellular connection. BSNL is a service provider. The complainant had a prepaid mobile connection given by BSNL which he converted to postpaid w.e.f 30/10/09. The complainant was given the said connection on certain terms and conditions.
Complainant himself did not retain a copy of the application made by him, to obtain the said connection nor did BSNL have one and as such he had to obtain a copy of the same via RTI Act, 2005. As can be seen from the terms and conditions of the application, the agreement between the complainant and BSNL was to run concurrently with the license agreement between the Department of Telecommunication, Ministry of Communication, Government of India and BSNL for the operation of Cellular Mobile Telephone Service in the concerned licensed geographical areas and was to be subject to all applicable laws, byelaws, rules regulations, notifications, orders, directions of the Government/Court/Tribunal and was to be subject to other terms of the agreement.
The SIM card or the personalised telephone number 9422444575 alloted to the Complainant was to be the property of BSNL.
2.2.
The agreement between the parties, provides for dispute resolution.
Clause 9.1 of the said agreement stipulates that in case of any dispute, the matter will be referred to the sole arbitration of Chief General Manager, Telecom, BSNL of the concerned area or his nominee and will be governed under provisions of the Arbitration and Conciliation Act, 1996 or any statutory mode or re-enactment thereof or any rules made thereof (SIC thereunder). Customer will have no objection for any such appointment that arbitrator so appointed is an employee of BSNL. Condition 11.5 of the agreement provides that the scope of the cellular services is governed by the Statutory Guidelines issued by Telecom Regulatory Authorities & Govt. of India within the parameters of License Agreement executed with Ministry of Communications, Govt. of India. The cellular services are governed by the Telegraph Act, 1885 and the Indian Telegraph Rules framed under the same Act, as amended from time to time, and the customer is required to abide by them (exact text is not legible).
2.3.
It is by now common knowledge that by virtue of Section 4 of the Indian Telegraph Act, 1885, the Central Government has the exclusive privilege of establishing, maintaining and working telegraphs:
Provided to the Central Government may grant a license, on such conditions and in consideration of such payments as it thinks fit, to any person to establish, maintain or work a telegraph within any part of India. Sub-section (2) of Section (4) of the Act further provides that the Central Government may, by notification in the Official Gazette, delegate to the telegraph authority all or any of its powers under the first proviso to sub-section(1).
2.4.
Section 3(6) of the IT Act, 1885 defines Telegraph Authority to mean the Director-General of Posts and Telegraphs, and includes any officer empowered by him to perform all or any of the functions of the Telegraph Authority under this Act. It is also common knowledge that the exclusive privilege of establishing, maintaining and working telegraphs which the Central Government had, came to be entrusted, inter alia, to BSNL and MTNL and they carry the said functions under licenses granted to them by the Government of India.
2.5.
Section 7-B of the I.T. Act reads as follows:
7-B. Arbitration of disputes-(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this Section.
(2) The award of the arbitrator appointed under sub-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any court.
2.6. Rules 413 and 443of the I.T. Rules, 1951 read as follows:
413. All Services subject to rules.- All telephone connections and other similar services provided or authorised by the Department shall, unless governed by a separate contract, by subject to the conditions set forth in these rules.
443. Default of payment.- If, on or before the due date, the rent or other charges in respect of the telephone service provided are not paid by the subscriber in accordance with these rules, or bills for charges in respect of calls (local and trunk) or phongorams or other dues from the subscriber are not duly paid by him, and telephone or telephones or any telex service rented by him may be disconnected without notice.
The telephone or telephones or the telex so disconnected may, if the Telegraph Authority thinks fit, be restored, if the defaulting subscriber pays the outstanding dues and the reconnection fee together with the rental for such portion of the intervening period (during which the telephone or telex remains disconnected) as may be prescribed by the Telegraph Authority from time to time. The subscriber shall pay all the above charges within such period as may be prescribed by the Telegraph Authority from time to time.
3. O.P. No. 1/BSNL has entered into an agreement with O.P. No. 2, Times Internet Ltd., (TIL, for short) on or about 23/08/10 and which has been renewed subsequently on 28/03/11, and, we are told by Shri. C.A. Ferreira, the lr. Adv. on behalf of BSNL, that the said agreement is a confidential document.
Shri. Ferreira submitted a copy of the agreement for our perusal and on perusal of the same we find that Clause 9 of the said agreement says that it is a confidential document and TIL and BSNL shall not divulge any part of the agreement either through oral or written communication or through any other mode to any third party. In fact, the complainant has also been denied information as regards the same under Section 8(1)(d) of the RTI Act, 2005 by the Divisional Engineer, Mobile by his reply dated 03/08/12.
3.1.
BSNL has entered into the said agreement dated 23/08/10 with TIL to provide certain services to cellular mobile subscribers of BSNL including SMS/GPRS 3G based value added services in NEWS zones. The SMS based VAS (value added services) to be provided include plain text services such as news, astrology, stocks, cricket news, jokes etc., etc. BSNLs cellular mobile operations are divided into 4 zones namely North, East, West and South. Incidentally, State of Goa is not mentioned in any of the said 4 zones.
TIL is required to constantly monitor that the content of the services is correct, relevant and confirms to the Indian laws at all times. In case of dispute or difference arising under the said agreement or in connection therewith, the same is required to be referred to the sole arbitration of CMD, BSNL, New Delhi or in case his designation is changed or his office is abolished then in such cases to the sole arbitration of the officer for the time being entrusted (whether in addition to his own duties or otherwise) with the functions of CMD, BSNL or by whatever designation such officer may be called. The cost of content/services to be payable to TIL is mentioned in the relevant clauses of the agreement. The agreement mentions that TIL is required to meet minimum monthly zonal revenue commitments and in case such commitments are not met for a period of atleast 6 months in a year, the agreement may not be renewed.
4. The complainant on or about 28/10/10 received the following SMS on his mobile phone:
Thanks 4 using India Times Subscription Services. Your total cost is Rs. 10/- sent from the No. 58888010.
4.1.
The complainant claims that he has not subscribed to the said India Times (TIL) subscription service. To avail of the said subscription service a subscriber or a consumer is required to opt for the service by clicking on promotional link or sending confirmation message to India Times short code No. 58888 and a subscriber has a option not to give his consent for activation of such service.
If such service is subscribed it is shown on the receiver device of both BSNL and TIL. In case a dispute or a request for refund is made, TIL is required to produce conclusive evidence and if not, the disputed charges are to be deducted by BSNL from the payment to be made to TIL and are to be adjusted in the subsequent bill of the postpaid subscriber under intimation to him.
4.2.
The complainant therefore sent a written complaint to O.P. No. 1, BSNL at their Margao office dated 04/11/10 stating that he had not subscribed to the said service and therefore there was no question of deduction of Rs. 10/- from his prepaid account. The complainant also requested BSNL to conduct an inquiry into the said illegality and requested them to credit the said sum of Rs. 10/- within a period of 20 days. The said letter dated 04/11/10 was followed by notice dated 16/12/10 stating that in case of failure to credit the sum of Rs. 10/- within one month, necessary proceedings would be taken in the competent forum.
4.3.
Upon receipt of notice BSNL sent the following SMS to the Complainant:
Dear Customer, Thank you for calling BSNL call centre, your docket number is 4567255 for complaint booked at our call centre 12/16/2010 12:02:28 PM. Thank You.
5. The complainant then filed the complaint before the lr. District Forum at Margao on or about 05/04/11 which came to be dismissed by the impugned order. However, it would be relevant to note that during the pendency of the said complaint the complainant called BSNL on various numbers, on various days, to persuade BSNL to reimburse Rs. 10/- but without any success. (see para 3 of appl. dt. 18/07/12)
6. As stated on behalf of the complainant, during the pendency of this appeal, on or about 18/07/12 a sum of Rs. 6.9 has been credited to the prepaid account of the Complainant but the Complainant has submitted that prayer (a) of the complaint still subsists.
7. Be that as it may, it is common knowledge that after coming into force of the C.P. Act, 1986, the Fora under the C.P. Act have been entertaining complaints against the arbitrary and even capricious ways of functioning of the Telecom Department. Prior to that, a subscriber could do no better then to approach the High Court for the redressal of his grievances, Section 7B of the I.T. Act having been more of a illusory remedy, rather then a practical remedy which the consumers could avail of, without much waste of time, money and energy. It is more on paper. If approached, the High Court would only direct that the dispute between the consumer and the Department be settled in terms of Section 7B of the IT Act.
An arbitrator appointed by the Department or by BSNL is invariably their own officer and this does not inspire much confidence in a subscriber who would feel, as the Lr. author R. M. Vats, would aptly say, is like appealing from Caesar to Caesar.
7.1.
The first of such cases where the Fora under C.P. Act exercised jurisdiction was decided by the Rajasthan State Commission which had observed that the facility of providing a telephone on payment of installment charges, rental charges and call charges was clearly a service as defined in the Act and the Complainant who hires such services for consideration is a consumer who is entitled to maintain a complaint before the Fora under the Act and the said order was upheld by the National Commission in the case of Union of India vs. Nilesh Agarwal, (I) 1991 CPJ, 203, observing that:
the definition of expression, service in Section 2(1) (o) expressly states that it will take service of any description which is made available to potential users other then services provided free of charge or under a contract of personal service. The non mention of telephone facility in the inclusive portion of the definition is of no consequence in view of the very wide language used in the main part of the definition which takes in every form of service.
Admittedly, the telephone facility is not provided free of charge and hence the last portion of the definition/Section which excludes service rendered free of charge does not get attracted nor are we concerned in this case with a contract of personal service. As a matter of fact, next only to the Indian Railways, the Telephone System of this Country is the biggest public utility undertaking providing round the clock service to the people all over this sub continent.
The expression consumer contained in Section 2(1)(d) takes in any person who hires any service for consideration which has been paid or promised or partly paid and partly promised or under any system of differed payment. A subscriber who has been provided with a telephone facility will clearly fall within the scope of this definition and hence it is impossible to escape the conclusion rightly reached by the State Commission that the complainant is a consumer.
8. Then came the judgment of the Apex Court in M. Krishnan and anr. (2009) 8 SCC 481 which still holds the field.
9. The question therefore is whether the ratio of M. Krishnan is applicable to the facts of this case? The Apex Court in M. Krishnan held in para 5 that when there is a special remedy provided in Section 7-B of the Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the C.P. Act is by implication barred. The Apex Court then referred to Section 7-B of the I.T. Act and held in para 7 as follows:
7. Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to the Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules.
Then in para 8, the Hon. Apex Court held as follows:
8. It is well settled that the special law overrides the general law. Hence, in our opinion the High Court was not correct in its approach.
In Thiruvalluvar Transport Corpn. v. Consumer Protection Council it was held that the National Commission has no jurisdiction to adjudicate upon claims for compensation arising out of motor vehicles accidents. We agree with the view taken in the aforesaid judgment.
9.1. The case of M. Krishnan had arisen on account of non payment of telephone bill for the telephone connection provided to the said M. Krishnan and for the said non payment of the bill the telephone connection was disconnected.
9.2. Shri. C. A. Ferreira would contend that the ratio of M. Krishnan is applicable. According to him, Rs. 10/- were deducted due to error in the system. Lr. Adv. submits that BSNL is a formal party as the sum was deducted by O.P. No. 2 TIL. Shri. E.J. Fernandes as well as Shri. C. A. Ferreira seems to contend that the dispute is essentially between the Complainant on one hand, and O.P. No. 2 TIL, on the other hand. We do not accept this contention.
We accept Complainants contention that in a prepaid connection, the money paid by a subscriber is held in trust by the service provider and therefore the Complainant as subscriber would be concerned only with BSNL, as service provider. It would be no concern of the Complainant if the said prepaid sum is pilfered by the employees of BSNL or some other entity with whom BSNL has arrangements like O.P. No. 2, TIL. The submission of the complainant on this score appears to have been made with a view to wriggle out of Section 7-B of I.T. Act. If BSNL is the trustee of the amount paid, BSNL has to account for it to the Complainant. BSNL cannot afford to allow others to pilfer if from its pocket, if we may use that expression. Primarily, it is BSNL who is liable for wrongful deduction of Rs. 10/- out of which Rs. 6.90 has been paid back to the Complainant.
9.3. Shri. E. Fernandes, would then submit that the ratio of M. Krishnan is not applicable to the facts of the case. Shri. Fernandes would contend that unlike the case of M. Krishnan, the case at hand is a case of fraud wherein without any request from the complainant for any value added service, a sum of Rs. 10/- has been deducted from the prepaid account of the complainant. Lr. Adv. submits that a fraudster should not be given protection by law. Shri. Fernandes would then contend that the Telegraph Act was enacted in the year 1885 at a time when modern mobile phone services with third party contracts were unheard of nor envisaged. Lr. Counsel submits that the Legislature when it enacted Section 7-B of the IT Act had no intention that a dispute involving third parties, one of which is a private enterprise, should be settled by arbitration. Shri. Fernandes submits that BSNL is not a Telegraph Authority as defined in the I.T. Act, and if at all, it is a licensee of the Department of Telegraphs. He further points out that the case of M. Krishnan was a case of postpaid service whilst the case at hand is a case of prepaid service. According to him, in case the complainant succeeds, the compensation and costs can be recovered from O.P. No. 2, TIL. According to him, the judgment in M. Krishnan was rendered in a case filed against the General Manager, Telecom and not against BSNL and it is quite probable that the said judgment was rendered even before BSNL was established in the year 2000.
9.4. Alternatively, Shri. Fernandes contends that notice was given to O.P. No. 1, BSNL to settle the dispute through arbitration and in fact no attempt whatsoever has been made by BSNL to settle the dispute through arbitration. Lr. Adv. contends that if it is held that a consumer has to await for arbitration when the dispute arises between a third party which has a contract with BSNL concerning SMS services, it will give a chance to unscrupulous operators like O.P. No. 2 TIL to bid high to get the contracts concerning value added SMS services with BSNL, knowing that they can fleece customers of BSNL, taking shelter behind Section 7-B of I.T. Act as most subscribers will let go off the remedy of arbitration, as they will have to shell out disproportionate amount of money in terms of time lost, engagement of a lawyer, travel expenses to get the refund of a relatively small amount like in the present case.
10. The Apex Court, speaking through three learned judges, in State of Karnataka vs. Vishwabharathi House Bldg. Society and ors., 2003 (2) SCC 412, reiterated the view held in Fair Air Engineers (P) Ltd., that the provisions of the C.P. Act are required to be interpreted as broadly as possible.
On the question of jurisdiction it is stated that the forums under the Act have jurisdiction to entertain a complaint despite the fact that other forums/courts would also have jurisdiction to adjudicate upon the lis. It is also noticed that the Act provides for a further safeguard to the effect that in the event a complaint involves complicated issues requiring recording of evidence of experts, the complainant would be at liberty to approach the civil court for appropriate relief. Again in Thirumurugan Cooperative Agricultural Credit Society, AIR 2004 SC 448, the Apex Court held that having regard to the Scheme of the Act and the purpose sought to be achieved to protect the interest of the consumers better, the provisions are to be interpreted broadly, positively and purposefullyto give additional/extended jurisdiction particularly when section 3 seeks to provide remedy under the Act in addition to other remedies under other Acts unless there is a clear bar. Yet again in Kishori Lal, II 2007 CPJ 25, it has been held that the jurisdiction of a Consumer Forum has to be construed liberally so as to bring many cases under it for their speedy disposal. (emphasis supplied) 10.1. In Lucknow Development Authority vs. M.K. Gupta, 1994(1) SCC 243, the Apex Court referring to C.P. Act held that the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory.
Various legislations and regulations permitting the State to intervene and protect interest of the consumers have become a haven for unscrupulous ones as the enforcement machinery either does not move or it moves ineffectively, inefficiently and for reasons which are not necessary to the stated. The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful, business, described as, a network of rackets or a society in which, producers have secured power to rob the rest and the might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting against it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot.
11. Keeping the above principles in mind, we proceed further. In our view, the ratio of M. Krishnan is inapplicable to the facts of this case. Firstly, any dispute to be referred to arbitration in terms of Section 7-B of the I.T. Act has to be a dispute between the Telegraph Authority as defined under I.T. Act and a subscriber or a consumer. The dispute in M. Krishnan was a dispute between the Telegraph Authority and the subscriber/consumer of the service. Telegraph Authority has been defined in Section 3(6) of the I.T. Act.
General Manager, Telecom, is part and parcel of DoT (Department of Telecommunications) of Government of India.
So also is the Director-General of Posts and Telegraphs. BSNL is not a part and parcel of DoT of the Government of India. On the contrary, it is a Government Company registered under the Companies Act, 1956, having its own separate and distinct identity apart from Government of India. It carries on business of providing cellular services or other telephone services for that matter, pursuant to a licence obtained from the Government of India in terms of section 4(1) of the I.T. Act as is evident from the application which is the basis of the agreement between the Complainant and BSNL. BSNL does not run the cellular service under delegated powers which can otherwise be delegated under sub-section (2) of Section 4 of the I.T. Act.
The period of service to be provided to the Complainant is co-terminus with the licence BSNL has obtained u/s 4(1) of the I.T. Act from Department of Telecommunication, Ministry of Telecom - Government of India. Therefore BSNL cannot be termed to be a Telegraph Authority as referred to in Section 7-B of the I.T. Act. Moreover, in the case at hand, Rule 413 of the 1951 Rules would not be applicable because the cellular service provided to the Complainant is governed by a separate contract. Likewise, Rule 443 of the same Rules would also be inapplicable as the service is prepaid.
Fully knowing this Legal position, in our view, that BSNL has provided for arbitration clause, which clause, at the cost of repetition, could be reproduced. It reads as follows:
9.1. In case of any dispute, the matter will be referred to the sole arbitration of Chief G. Manager Telecom, BSNL of the concerned area or his nominee and will be governed under Provisions of the Arbitration and Conciliation Act, 1996 or any statutory mode or reenactment there of or any rules made thereof, customer will have no objection any such appointment that arbitrator so appointed is employee of the BSNL.
11.1. If BSNL was governed by Section 7-B of the I.T. Act, BSNL would not have provided for another arbitration clause namely clause 9.1 in the application form which has to be construed as a agreement between the parties to settle their disputes through arbitration. We are therefore of the view that Section 7B of the I.T. Act nor the ratio of M. Krishnan are applicable to the facts of this case. That should take us to Section 8 of the Arbitration and Conciliation Act, 1996, which reads as follows:
8. Power to refer parties to arbitration where there is an arbitration agreement.-(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.
(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.
12. Complainant raised the dispute for the first time by letter dated 04/11/2010.
Was it not the duty of Manager, BSNL to have referred the dispute to arbitration in terms of Clause 9.1 of the agreement r/w instructions contained in Circular dated 8/9/2009 which required the officers of all field units to refer such disputes to arbitration? The answer has got to be in the affirmative.
Then the Complainant gave notice dated 16/12/10. Still there was no response from BSNL. What action was taken on complaint recorded under No. 4567255, we do not know. Then the Complainant ran from pillar to post by dialing various numbers as mentioned in application dated. 19/06/12. How does an insignificant consumer like the complainant wake up a sleeping commercial giant like BSNL? Is not BSNL a State within the meaning of article 12 of the Constitution and as such expected to act fairly and within a reasonably time? BSNL was served in this appeal on or about 26/6/12 and put its appearance on 09/07/12 and since then both BSNL as well as TIL have only been taking dates. They have not even filed a response in this appeal to assist the Commission, inspite of advising them to do so. O.P. No. 2, TIL filed the very instructions given to their advocate. Not even written submissions have been filed as required under Regulation 13(2) of the C.P. Regulations, 2005. Nothing prevented BSNL from 09/07/12 till date from informing this Commission that they would get the dispute raised by the Complainant settled through arbitration as per Clause 9.1 of the agreement within a time frame through the Chief General Manager or his nominee. In the circumstances therefore, we have no other option but to draw the conclusion that BSNL has waived or abandoned their right to settle the dispute by arbitration as per agreement between the parties and consequently we assume jurisdiction to decide the complaint.
13. In other words, this is a case where BSNL has neither invoked the arbitration clause nor has complied with the prerequisites of Section 8 of the 1996 Act.
In arriving at the conclusion we have arrived at, we have taken into consideration the decision of the Constitution Bench of the Apex Court in SBP and Company vs. Patel Engineering Ltd & anr., 2005 (8) SCC 618, wherein it has been held that the expression Judicial Authority in Sub-Section(1) Section 8 would include other courts or even a special tribunal like Consumer Forum, and, also the decision of the Division Bench in Rashtriya Ispat Nigam Ltd., AIR 2006 SC 2800, wherein it is held that waiver of a right on the part of a defendant to the lis must be gathered from the fact situation obtaining in each case.
14. Shri. Ferreira looks forward for a remand of this case to the Lr. District Forum to dispose off the complaint. We are not inclined to adopt such an approach. Are we to remand this case for an order to be made to recover a paltry sum of Rs. 3.10 and some compensation? We do not wish that the complainants travails should continue any longer. In fact it is submitted by Shri. Fernandes that the Complainants fight is based only on principle. We do appreciate Complainants patience, perseverance and tenacity to doggedly fight the injustice caused to him on account of debiting unlawfully an amount of Rs. 10/- from his prepaid account. The Complainant filed various applications to get necessary information under R.T.I Act. We would take a cue from Ghaziabad Development Authority vs. Balbir Singh, AIR 2005 SC 2141 and decide the complaint ourselves with a view not to cause further unnecessary waste of time, money and energy for both the parties, and particularly to the complainant.
15. On behalf of BSNL it was submitted that deduction of Rs. 10/- from the prepaid account of the complainant was due to a system error. Are we to believe that the complainant was the only person who became the victim of such error? Or were there such errors made by the click of a button in case of hundreds or thousands of other BSNL subscribers with a view to earn profits for TIL to meet the minimum payments to be made to BSNL under the agreement, knowing fully well that not many consumers would make a issue of a deduction of a paltry amount of Rs. 10/-? If such errors are committed in relation to various subscribers one can certainly imagine the amount of money which can be pocketed by use of modern technology with no meaningful redressal mechanism in place.
16. The Apex Court in Balbir Singh (supra) held that the word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him.
The Commission/forum must determine that such sufferance is due to malafide or capricious or oppressive act.
It can then determine the amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
17. The Apex Court in State of Karnataka vs. Vishwa Bharati House Building Co-operative Society & anr., 2003 (2) SCC 412, has held that even when quantifying damages, they (the Fora) are required to make an attempt to serve the ends of justice aiming not only recompensing the individual but also to bring about a qualitative change in the attitude of the service provider. Will there be a change in the attitude of BSNL after this order?
18. In the circumstances, therefore, we allow the appeal and set aside the impugned order dated 09/02/12 and allow the complaint in terms of prayer clause (a), (b) and (c). In other words, the complainant shall be paid the balance amount of Rs. 3.10 in terms of prayer clause (a) and compensation of Rs. 6000/- in terms of prayers (b) and (c). The Complainant shall also be paid a sum of Rs. 5000/- as costs of the complaint and another sum of Rs. 5000/- as costs of this appeal. The said payments to be made to the complainant jointly and severally by both the O.Ps. BSNL would be entitled to recover the said sum from any of the officers including the officers in-charge of field units who failed to refer the dispute raised by the complainant to arbitration. The amount awarded herein shall be paid to the Complainant within a period of 30 days and in case it is not paid, the same shall carry interest at the rate of 9% untill it is paid.
[Smt. Vidhya R. Gurav] [Shri. Justice N.A. Britto] Member President