State Consumer Disputes Redressal Commission
Ms. Sriparna Roy vs Bharat Sanchar Nigam Ltd. on 19 February, 2010
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : FA/384/2009 DATE OF FILING : 01.10.2009 DATE OF FINAL ORDER: 19.02.2010 APPELLANT Ms. Sriparna Roy Residing at 101, Sovabazar Street P.S. Shyampukur Kolkata-700 005. RESPONDENTS 1. Bharat Sanchar Nigam Ltd. Carrying on business in the name of Calcutta Telephones Service through the Chief General Manager Calcutta Telephones B.S.N.L., Telephone Bhawan, 34, B.B.D. Bag, Kolkata-700 001 P.S. Hare Street. 2. The General Manager (East) (In-Charge of GM(North)) BSNL, Calcutta Telephones, DE Block, Salt Lake, Salt Lake Telephone Exchange Kolkata-700 064. 3. Area Manager (North), BSNL, Calcutta Telephones 11, Bhupen Bose Avenue Kolkata-700 004. 4. The Accounts Officer (TR)/North, BSNL, Calcutta Telephones, 11, Bhupen Bose Avenue Kolkata-700 004. 5. Senior AOTR/ Genl., BSNL, Calcutta Telephones 8, Hare Street, Kolkata-700 001. 6. The Divisional Engineer Baghbazar Telephone Exchange Calcutta Telephones, 4, Old Mayors Court Kolkata-700 005. 7. General Manager (CR), BSNL, Calcutta Telephones Telephone Bhawan (2nd Floor) B.B.D. Bag, Kolkata-700 001. BEFORE : MEMBER : MR. P.K.CHATTOPADHYAY MEMBER : MR. S.COARI FOR THE PETITIONER / APPELLANT : Mr. Indrajit Dasgupta, Ld. Advocate FOR THE RESPONDENT / O.P.S.: Mr. S.Nayak, Ld. Advocate : O R D E R :
MR.
P.K.CHATTOPADHYAY, LD. MEMBER This Appeal arose out of judgement and order dt.
1.9.09 in DCDRF, Kolkata Unit-II Case No. CDF/Unit-II/C.C.No. 732 of 2008 where the complainant, Ms. Sriparna Roys complaint related to OP, Bharat Sanchar Nigam Ltd./Kolkata Telephones on her landline telephone connection no. 2554 0030 which also had a broadband connection for two months on initial offer since surrendered and then further broadband connection resumed after a period and then non-receipt of broadband bill charges for protracted period though telephone bills during the said period, were received and paid regularly and then receipt of one bill amounting to Rs. 67,767/- for supposed post-period broadband consumption, which bill again was arithmetically incorrect and had other discrepancies/inconsistencies/lacunae.
After fruitless efforts to reason with the OP, the complainant moved the Ld. Forum below seeking cancellation of bills dt. 7.2.08, 7.4.08, 7.5.08, 7.6.08, 7.7.08 and 7.8.08 with prayer for orders for issuing fresh bills for the period from January, 2008 to 17th March, 2008 only in respect of telephone charges and for immediate restoration of the telephone connection with payment of compensation for an amount of Rs. 10,000/- and Rs. 10,000/- for cost of litigation and any other order/orders deemed fit in this matter.
The Op namely BSNL/Kolkata Telephones entered appearance before the Forum below and filed written version denying and disputing the allegations made out in the complaint and stated inter alia that the case was not maintainable under law and the total outstanding dues had grown to Rs. 71715/- by the time the written version was being filed. It was admitted by the Ops that due to initial problems consumption bills could not be generated regularly and had there been a prayer, installment payments could have been allowed. The Ops then prayed for dismissal of the complaint with cost.
The Ld. Forum below after hearing both parties passed its judgement and order as under
1) The Ops will restore the telephone line of the complainant on getting 10% (ten per cent) of the billed amount within a period of one month from the date of receipt of a certified copy of the order, pending receipt of the award of the Ld. Arbitrator.
2) The Ops will refer the matter regarding excess billing to the Ld. Arbitrator u/s 7B of the India Telegraph Act, 1885 for adjudicating the matter and Ld. Arbitrator will give his award within a period of three months. The complainant will pay the outstanding dues as determined by the Ld. Arbitrator, after deducting the amount already paid in 10(ten) equal monthly installments along with the current bill as may be raised.
3) The complainant will go on paying the current bills as may be raised by the Ops.
4) The Ops will pay Rs. 5,000/- (Rupees five thousand only) to the complainant as compensation for causing harassment, mental agony and dragging her to this Forum. This amount may, however, be adjusted by the OP with outstanding dues of the complainant.
Being aggrieved and dissatisfied with the impugned judgement and order of the Ld. Forum below the complainant in the Forum below namely Ms. Sriparna Roy, filed this Appeal contending inter alia that the Ld. Forum erred in finding that the dispute of excess billing could be referred to arbitrator under section 7B of the Indian Telegraph Act 1885. It was further argued that the Ld. Forum failed to consider the extent of harassment, mental agony and expenses suffered by the Appellant when compensation allowed for Rs. 5,000/- was too small and inadequate and the Ld. Forum also failed to set aside the disputed bills even after holding that bills should not have been raised for a period when there was no broadband connection at all. Stating that Ld. Forums order allowing only 10 installments for payment of the disputed bills for about two years was totally erroneous, the Appellant prayed for setting aside of the impugned judgement and order and for passing of appropriate orders towards relief.
The Respondents namely BSNL/Calcutta Telephones entered appearance but did not file any BNA. The matter was heard from respective sides when both the contending parties filed WNA. In her WNA, the Appellant reiterated the fact of the case and dealt exhaustively on different legal aspects of the instant dispute with copious citations and various interpretations of law, applicable in this matter. In discussing the law, the Appellant referred to Section 3 of the Consumer Protection Act 1986, Section 7B(1) & 7B(2) of Indian Telegraph Act and then preamble of the TRAI Act 1997 and Section 14(A), (B), (C) and Section 26 and Section 25 thereof, further referring to Notification No. F no. 303-10/2006 QOS dt. 4.5.07. The Appellant recalled that Section 7B was intended to resolve disputes between telegraph authority and any other person when the given dispute related to telephone services and billing thereof and then it was argued that Section 7B of Indian Telegraph Act had no application in this matter. The Appellant then proceeded to refer to Honble Supreme Courts judgement in 2009 (6) SC 324 General Manager, Telecom Vs. M.S. Krishnan & Another and then (1) AIR 1995 SC 1384 Thiruvalluvar Trasport Corporation Vs. Consumer Protection Council, (2) AIR 2000 SC 2008 Skypak Couriers Ltd. Vs. Viswabarathi House Building Co-operative Society, (4) AIR 1976 SC 2547 State of UP Vs. Ram Chandra Trivedi, (5) AIR 1997 SC 533 Fair Air Engineers (P) Ltd. Vs. M/s. N.K.Modi and after thorough and illuminative analysis concluded that :-
(a) The Forums under Consumer Protection Act have the jurisdiction to entertain complaints inspite of Section 7B of the Telegraph Act.
(b) The Ld. District Forum could not refer the matter for arbitration to the Arbitrator under section 7B of the Indian Telegraph Act and was required to decide the dispute by itself.
It was further submitted that the amount of compensation and litigation cost should be at least Rs. 25,000/- and that any amount directed to be paid against outstanding consumption bills should be allowed to be in at least 24 installments.
The Respondents namely BSNL/Calcutta Telephones in their WNA stated that the impugned judgement and order was misleading and contrary to provisions of law. Referring to 2009 (6) SC 324 General Manager, Telecom Vs. MS Krishnan & Another, it argued that Honble Apex Court having held that the billing dispute could not be adjudicated by a Consumer Forum, and more so, when it had not the requisite technical competence, the impugned judgement and order was unsustainable. The Respondents also stated that the order relating to restoration was also irregular and without jurisdiction and, therefore, prayed for setting aside the same.
The Respondents, however, chose not to file any separate Appeal on the judgement and order of the complaint case.
DISCUSSION A. The Respondent/Complainants telephone connection bearing no. 2554 0030 was provided with free trial offer of Broadband connection for two months in Home 250 Tariff Plan (1GB/month data) w.e.f. 27.12.05 and after expiry of trial period of two months, given broadband service was asked to be discontinued.
In July, 2007 the given Broadband service was resumed on further application and during all this period and till January, 2008 the Respondent/Complainant continued to receive his usual cyclical telephone bills, duly received and paid. It may be stated here that during all the period abovesaid, i.e. from July07 to January08 the given telephone bills sent and paid for, had no reflection of consumption/charges in respect of internet connection, borne on that telephone. Then in February, 2008 the Respondent received a telephone bill for Rs. 67,767/- which inter alia contained broadband charges for the period March06 to January08, when in fact the broadband connection was not in existence from March06 to June07. The Respondents efforts to set right the claim through communication/visits/lawyerss notice evoked no response and finally he was driven to seek redress in Consumer Forum, by which period his telephone connection was withdrawn w.e.f. 18.3.08.
There is not much dispute on the fact of the case though the Respondent could not satisfactorily explain why it kept total silence and chose not to deal with the sufferings/apparent incongruities of the Appellant. No doubt, the Respondent admitted that the broadband services being new to the system there were initial glitches but that did not answer as to why a consumer will be suddenly saddled with a claim of Rs. 67,767/- when the given consumption bill was arithmetically incorrect and contained claims for post periods when broadband connection was disconnected.
And then, to top it all with classical highhandedness of satraps of days gone by, the telephone connection was disconnected, resulting in grave sufferings to a law-abiding consumer with large and uncalled for business loss to the Appellant, and we are of course not talking of goodwill, fair business practices and institutional expectations.
In this view, we are one with the finding of the Ld. Forum below when it allowed compensation for an amount of Rs. 5,000/- to be paid by the Respondents to the Appellant/Complainant. The Appellants prayer in the Appeal for increasing the amount of compensation is thus rejected when firstly there was no quantification of compensation claimed and secondly because the amount of Rs. 5,000/- as given by the Forum below is deemed just and proper in consideration of harassment, mental agony and sufferings undergone by the Appellant/Complainant.
B. Referring to the part of the impugned judgement and order where the consumption bills of given telephone/internet connection were sought to be sent for adjudication by Ld. Arbitrator under provision 7B of Indian Telegraph Act, 1885, as amended, we have carefully gone through respective arguments and citations and more particularly, the ones (citations like AIR 2000 sc 2008 and AIR 2003 SC 1043) provided by the Appellant since those were quite revealing and in a way, illustrated the progress on an evolving concept of telephony, through myriad scientific and technological advances. However, this Commission, after due consideration of all the aforesaid citations and arguments would like to rely on AIR 2000 Kerala 250 General Manager, Telecom District, Trivandrum & others (Appellants) Vs. Consumer Disputes Redressal Forum, Trivandrum & another and 2009 CTJ 1062 (SC) General Manager, Telecom Vs. M.Krishnan & another and would proceed to agree to the stance of the Ld. Forum below in the matter of the adjudication of the disputed bills under provision 7B of Indian Telegraph Act, 1885 as amended.
This is so because the Honble Apex court in the citation aforesaid laid down the law which we are bound to follow, within the jurisdiction we have under the provisions of Consumer Protection Act, 1986 as amended, and secondly because, however, much we may want to, the technicalities of the system of metering of telephone cells and consumption of broadband are matters of technical experts and, therefore, best left to them, notwithstanding the legalities as have been discussed hereinbefore. And in such regard, there is no reason to believe that simple arithmetical errors or broadband billing for periods when there was no such connection at all would not be reckoned, which, of course, the telephone authorities (Respondents) chose not to heed to. In that view, we affirm this part of the judgement and order and would direct the Respondents to refer the disputed bills and other related complaints of disconnection to the Ld. Arbitrator under Section 7B of the Indian Telegraph Act, 1885 as amended.
The Respondent is further directed to notify the Appellant of any such steps which the complainant is required to take as provided under the law.
C. On the issue of restoration of the telephone connection the Respondents are directed to notify the Appellant as to the amount the Appellant is required to deposit, towards restoration of telephone connection only, as provided under Indian Telegraph Rules 1951, as amended, and subject to her deposit of given numbers of averaged amount of preceding non-disputed bills and reconnection charges within the requisite period, the telephone connection may be restored.
But the same is not possible for broadband restoration as the initial trial period of free of charges and thereafter all the bills for broadband were disputed.
Accordingly, the Appeal is liable to be allowed in part on contest with cost of Rs. 5,000/- to be paid by the Respondent to the Appellant.
The impugned judgement and order is affirmed in part with modification as in the order.
O R D E R The Appeal is allowed in part on contest with cost of Rs. 5,000/- (Rupees five thousand only). The impugned judgement of the Ld. Forum below is affirmed including its award of compensation of Rs. 5,000/- (Rupees five thousand only) to the Complainant/Appellant subject to the modifications that the Respondent is directed to notify the Appellant intimating the steps to be taken by her on reference to the matter to Arbitrator by the Respondents u/s 7B of Indian Telegraph Act, 1885, as provided under law and also on the issue of restoration of the telephone connection, as to the amount the Appellant is required to deposit, towards restoration of telephone connection only, as provided under Indian Telegraph Rules 1951, as amended, and subject to her deposit of given numbers of average amount of preceding non-disputed bills and reconnection charges within the requisite period, the telephone connection may be restored. But the same is not possible for broadband restoration as the initial trial period was free of charges and thereafter all the bills for broadband were disputed. The Respondents are directed to comply with the judgement of this Commission in toto within 30(thirty) days from the date of communication of the same to them, failing which cost @ Rs. 100/- (Rupees one hundred only) per day will be imposed on them for the period of default.
MEMBER MEMBER