BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT PUDUCHERRY
Consumer Complaint No.58/2006
Dated this the 14th day of March, 2008.
M. Kaliyaperumal S/o Manicka Mudaliar, aged about 65 yrs., having office at No.71-B,
M/s Bharat Sanchar Nigam Limited, represented by its General Manager,
… Opposite Party
THIRU A. ASOKAN, B.A., B.L.,
TMT. K.K. RITHA,
FOR THE COMPLAINANT: M/s A. Kanniappan, K. Balaji & R. Praveen Kumar, Advocates.
FOR THE OPPOSITE PARTY: Thiru M. Vinayagamurthy, Advocate.
O R D E R
(By Tmt. Selliammal, Member.)
This is a complaint u/s 12 of the Consumer Protection Act, 1986 (hereinafter called the “Act”) to direct the opposite party to withdraw the inflated telephone bills for the months of January and February, 2005, to restore the phone connection, to pay Rs.25,000/- as compensation for deficiency in service and for costs of Rs.5,000/-.
2. The case of the complainant is as follows:
The complainant submits that he availed the telephone connection No.2246741 from the opposite party for his personal use under lock and key. He used to receive the bills at an average sum of Rs.700/- or less than that every month from the date of its installation. The copy of the bills for January 2004 to December 2004 are filed by him. The complainant submits that the opposite party issued an inflated bill in No.45048270 dt.07.02.2005 for a sum of Rs.5,195 for the month of January 2005. The complainant was shocked and surprised to see this bill and so he wrote a letter to the opposite party on 16.02.2006 with copies of the bills for one year preceding the date of the disputed bill with the request to examine the inflated bill issued for January 2005, since he had not made such calls warranting the demand for such a higher amount of Rs.5,195/-. But the opposite party had neither replied nor sent the actual claim bills as demanded by the complainant. So, the complainant again sent a reminder on 08.03.2005 with the same request. But the opposite party without responding to the above said two letters, issued a demand bill No.46146944 dt.07.03.2005 for a sum of Rs.3,033/- for the month of February 2005 and also disconnected the phone without any intimation and also issued another inflated bill for Rs.3,033/- for February 2005. The opposite party’s careless and negligent act caused irreparable loss and mental agony to the complainant, as he could not use the phone for his personal use. Since there was no response at all from the opposite party, the complainant wrote a letter on 02.04.2005 to verify the genuineness of the two disputed bills and requested to issue the callwise details for the said bills and also expressed his readiness to pay for it. Only after receiving it, the opposite party sent a stereotyped reply dt.15.04.2005 stating that the January bill was reviewed and found to be correct but whispered nothing about the February 2005 bill. Since the opposite party had not issued the callwise details, the complainant sent a letter dt.20.05.2005 requesting the opposite party to issue the same within thirty days for the two disputed bills. The opposite party had charged the rents and service taxes amounting to Rs.208/- for the month of April 2005 and no reply was sent by them, the complainant again sent a reminder on 06.06.2005 to take back the instrument to avoid further claim for the rent. But the opposite party without any response continued to claim rents and service taxes at the rate of Rs.208/- p.m. for the months of May, June and July 2005. These acts of the opposite party amount to deficiency in service and caused mental agony to the complainant. Though the phone was disconnected in April 2005 and the instrument was taken back in August 2005, a bill dt.07.09.2005 for the month of August 2005 with local charges of Rs.30/- was issued to the complainant. This shows the careless and negligent act of the opposite party with intention to get unjust enrichment. The opposite party in his letter dt.15.04.2005 stated that the January 2005 bill amount of Rs.5,195/- had been reduced to Rs.3,545/- in his demand note dt.21.06.2006 without any reason. The complainant immediately on receipt of the demand note expressed his doubt about the genuineness of the inflated bills claiming a sum of Rs.7,560/- for the months of January, February and March 2005 and requested the opposite party to furnish callwise details, but the opposite party had not replied to it. On 27.07.2006 the opposite party issued a lawyer’s notice to the complainant for the recovery of a sum of Rs.7,178/- with 18% interest and disconnection of the phone without further notice. But the opposite party in their earlier demand note dt.21.06.2006 had demanded a higher amount of Rs.7,560/- for the said periods. This fact shows the deficiency of the opposite party and the opposite party is liable to compensate for his mental agony sustained by him during those periods. The opposite party for the failure to issue the callwise details for the inflated bills dt.07.02.2005, 07.03.2005 and 08.04.2005 and for the disconnection of the phone without any notice is liable to pay a sum of Rs.10,000/- as damages to the complainant, Rs.25,000/- for the deficiency in service and Rs.5,000/- as costs. They are liable to withdraw the two disputed bills and to restore the phone connection and hence the complaint.
3. In the reply version filed by the opposite party it is contended as follows:
The opposite party denies all the allegations and submits that the complaint is not maintainable either in law or on facts and is liable to be dismissed in limine. The opposite party states that the complainant is not entitled to get any relief from them as the complaint is a vexatious and frivolous one. The opposite party alleges further that the complainant had filed the complaint without disclosing the real facts with an intention to get unlawful gain from them. The opposite party admits that the complainant is a consumer and they provided him a telephone connection and its number is 2246741 at 71-B,
i) Local PCO 2244399 in the name of S. Jayanthi – Connection released on 04.07.2006 on request.
ii) STD PCO 2241604 in the name of S. Jayanthi – Connection closed on 01.07.2006 on request.
iii) Local PCO 2243961 in the name of S. Jayanthi – presently working.
iv) Local PCO 2243961 in the name Mallika – presently working.
The licence holder of PCO is oneminor Jayanthi and during the disputed period, the telephone connection bearing No.2246741 might have been utilized by the STD booth licence holder Jayanthi with the knowledge of the complainant, but the complainant never disclosed it. It is proved by document. Since there is no deficiency in service on the part of the opposite party, the complaint may be dismissed with exemplary costs.
4. To substantiate their respective cases, CWs.1 to 3 were examined and Exs.C1 to C31 were marked on the side of the complainant and whereas Exs.R1 to R5 were marked on the side of the opposite parties.
5. The points for determination are as follows:
1) Whether the complainant is a consumer entitled to file this complaint before this Forum?
2) Whether there is any deficiency in service on the part of the opposite party?
3) To what relief the parties are entitled?
6. POINT No.1:
The complainant availed a telephone connection bearing NO.2246741 from the opposite party for his personal use. It is also admitted by the opposite party that only on payment by the complainant, the opposite party had given the phone connection to him. Hence, the complainant is a consumer under the Act and he is entitled to file the complaint before this Forum.
This point is answered accordingly.
7. POINT No.2:
The complainant had availed a telephone connection from the opposite party for his personal use under lock and key and his telephone number is 2246741. The complainant submits that he used to receive the bills at an average sum of Rs.700/- or less than Rs.700/- for every month from the date of its installation. This is proved through Exs.C1 to C10 for the period from January 2004 to December 2004. Ex.C11 is the bill for the month of January 2005. The complainant alleges that the opposite party issued an inflated bill No.45048270 dt.07.02.2005 for a sum of Rs.5,195/- is proved through Ex.C12, bill for the month of January 2005. As the complainant was shocked and surprised, immediately he wrote a letter on 16.02.2005 under Ex.C13 to the opposite party with copies of the bills for one year preceding the date of the disputed bill with request to examine the disputed bills. After receiving Ex.C13, the opposite party never gave any reply nor he tried to send the actual claim bill as demanded by the complainant. So, the complainant sent a reminder Ex.C15 dt.08.03.2005 to the opposite party. But the opposite party without giving any reply issued a demand bill No.46146944 dt.07.03.2005 under Ex.C14 for a sum of Rs.3,033/- for the month of February 2005. Without any intimation the opposite party disconnected the complainant’s phone and also issued another inflated bill for Rs.3,033/- for the month of February 2005. So, the complainant sent a letter dt.08.03.2005 in Ex.C15 to the opposite party requesting them to issue the revised bill for the month of January 2005. Ex.C16 is the bill dt.07.04.2005 for the month of March 2005 amounting to Rs.962/-. But the phone was disconnected on 14.03.2005 itself. The complainant sent Ex.C17 dt.12.04.2005 to the opposite party stating about the two disputed bills and requesting them to issue the detailed list of calls statement and his willingness to pay the charges for the same. After receiving Ex.C17 only the opposite party sent a stereotyped reply dt.15.04.2005 in Ex.C18 in which it was stated that the claim bill for the month of June 2005 has been reviewed and found to be correct but nothing is said about the February 2005 bill. Ex.C19 dt.07.05.2005 is the bill for a sum of Rs.198/-. Since the opposite party had failed to furnish the callwise details and gave only a stereotyped reply, the complainant sent a letter dt.20.05.2005 under Ex.C20 to furnish the details. Ex.C21 is the letter by the complainant to the opposite party requesting them to take back the instrument to avoid further claim for the rent. But the opposite party without responding the complainant’s requisition, claimed rents and service taxes at the rate of Rs.208/- pm. for the months of May to July 2005 under Exs.C22 to 24 dt.07.06.2005, 07.07.2005 and 07.08.2005 respectively. The complainant alleges that the act of the opposite party caused mental agony and it is a deficiency in their service. The complainant contended that though the opposite party had disconnected the phone in April 2005, they had taken back the instrument in August 2005, issued a bill Ex.C25 dt.07.09.2005 for the month of August 2005 claiming a sum of Rs.30/- as local charges and this shows the careless and negligent act of the opposite party. Ex.C26 is the notice issued to the complainant by the opposite party to pay the outstanding dues and Ex.C27 is the notice with the outstanding particulars sent by the opposite party on 21.06.2001 to the complainant. Ex.C28 dt.29.06.2006 is the letter sent by the complainant expressing his doubt about the genuineness of the inflated bills claiming a sum of Rs.7,560/- for the month of January, February and March 2005 and requested them once again to furnish the callwise details. But the opposite party had not responded to it. But on 27.07.2006 the complainant issued a lawyer’s notice under Ex.C29 for the recovery of the sum of Rs.7,179/- with 18% interest with details of the disputed bills. Ex.C30 is authorization letter of Airtel. Ex.C31 is the details of mobile holders. The opposite party filed Ex.R1/agreement dt.11.10.2000, executed between one Elango and Jayanthi. Ex.R2 is the details list and is marked with the objection of the complainant as a created one. Ex.R3 is the letter by one Jayanthi to the opposite party which is also marked with the complainant’s objection. Ex.R4 also refers to the same person.
8. The complainant, during the course of the cross-examination as CW1, stated that in the same premises, i.e. in door No.71B, the PCO STD booth exists and another STD booth is also run by one Jayanthi and another shop is run by him. His phone was disconnected in March 2006 and upto the disconnection he had not used the dynamic lock and it is provided by the opposite party to all his customers. There is no necessity for him to use it as he is the one who opposite party opens and closes the shop. The complainant admits that after receiving the detailed bills from the opposite party, he never submitted his objections and also states that the opposite party issued him a reply letter on 12.04.2005 in which it was mentioned that no fault was recorded during the period of the bill disputed by him. He also states that the PCO is higher than domestic tariff and he had attested. The amount claimed by the opposite party is not correct and also denies the allegation that his landline telephone has not been misused by the PCO owner, having the shop in the same premises. He also admits that in Ex.C29 the bill after the disconnection have not been claimed and he is not liable to pay the bill.
9. CW2 had deposed that as per TRAI Rules they are maintaining only one year call records of the mobile subscribers and hence he is unable to produce the details of phone calls from 01.01.2005 to 28.02.2005. He submits that the mobile phone numbers listed in Ex.C31 are pertaining to Airtel Ltd. He states that if the consumer fails to use the particular allotted cell number for a particular period, the same number will be allotted to some other consumer. The address and other details of the consumer used the mobile phone No.9894135129 is not with them and cannot say whether that number is not allotted to any other consumer prior to 19.04.2006. But there is possibility for reallotment of the same number to the same customer provided if the card is valid. But he admits that the Rules and Regulations of TRAI is applicable to all telephone companies including the opposite party. The second mobile No.9894024164 is still under activation from 10.08.2004.
10. CW3 is a B.Sc. student who had the Airtel prepaid mobile phone in the name of his grandfather Abdul Kader. He submits that he is using the phone from the year 2004. He states that he had not attended any phone from the landline 2246741 and during January and February 2005 also he did not receive any calls from the landline. At the time of applying for the telephone connection in the name of Abdul Kadher, he was not alive. Healso alleges that he does not know the number of the phone from which he received calls on 22.03.2003.
11. The learned counsel for the opposite party during his arguments had quoted the following citations:
i) In 2005 (1) CPR 37 (NC) it was observed that “When there is a sudden spurt in telephone calls made and if it is not brought to the notice of complainant, it would be a deficiency in service” on the part of the telephone department. The complainant in the above case alleges that average bill is to be issued to him to avoid disconnection. The opposite party had not informed the complainant about the sudden spurt in telephone and thus they had failed to follow the guidelines.
ii) In 2004 (1) CPR 220 –
iii) In 2007 (3) CTC 456 it was held that “defendants not entering witness box to prove veracity of documents – No opportunity given to plaintiff to disprove veracity of documents – Adverse inference can be drawn against the defendant not entering witness box.”
iv) In 2007 (3) CTC 59 MDS also it was observed that “under sec.114 of the Evidence Act – Adverse inference can be drawn if party is not entering witness box to give evidence.” In the case on hand also the opposite party had failed to appear to give evidence to establish their case.
v) In 2007 (3) CTC 262, it was stated that “mere production and marking of a document is not sufficient to prove contents of the same – Evidence is necessary to prove contents of documents.” Though the facts of the case differ, the complainant also filed only the documents but failed to prove the contents of the documents through evidence. The same view was taken in 2007(3) SCC 163 also.
vi) The complainant also quoted the citation 2006 (2) CPR 259,
vii) The National Commission has reported in 1995 1 CPR page No.777 that “the guidelines discussed by the department are mandatory in nature and if not followed by the department it will amount to deficiency in service.” The opposite party had not followed the guidelines of the department, which are mandatory and it amounts to deficiency in their service. The opposite party argued as per their version. The opposite party alleges that the complainant never disputed any other bills except the two bills, i.e. January and February 2005.
Ex.C12 – January bill dt.07.02.2005:
Total amount claimed by the opposite party Rs.5,195/-
Amount adjusted towards the deposit Rs.1,650/-
Ex.C14 – February bill dt.09.03.2005:
Amount claimed by the opposite party Rs.3,033-00
Deduction made towards rent Rs. 102-00
10% of tax amount deducted Rs. 10.20
As per Ex.C16 – March bill dt.08.04.2005:
Amount claimed by the opposite party Rs. 982-00
Rental Rs. 180-00
Call charges Rs. 692-00
Tax Rs. 89-00
Balance Rs. 961-00
Or Rs. 962-00
Surcharge for delayed payment Rs,. 20-00
Tax Rs. 89-00
Excess as per Ex.C29 (i.e.982 – 269) Rs. 713-00
12. The opposite party also admits that they had disconnected the complainant’s phone on 14.03.2005 but by mistake, the date was wrongly mentioned as 14.02.2005 in the computer. Since they had given excessive rebate for the rent amount, they had cancelled the rent amount for the month of February 2005 also and it is due to the computer error. Hence, there is no deficiency at all on their side. Above all, the complainant had not challenged the list provided by them under Ex.C17 dt.12.04.2005. The opposite party submits that they verified and found no excess bill and no arithmetic error as alleged by the complainant. The complainant also admits that in the same premises the complainant having the phone and another PCO is having the phone. So, the PCO might have used the complainant’s phone or misused it. Call for list is not challenged by the complainant. On the date of examining the witnesses the phone was in existence. CW3’s evidence shows that the phone is obtained in the name of his grandfather Abdul Khader who was not alive. Airtel authority had failed to produce the particulars of the two numbers and had not produced the correct particulars. 2104824-BSNL – is the Will Phone number. Will Phone connection is not belonging to the opposite party. It is not landline number and it is connected only to Airtel. No landline number is mentioned. Above all, after the issuance of the three disputed bills under Exs.C12, C14 and C16, no excess bills are charged. Thus, the opposite party alleges that they had proved that the calls are made in the complainant’s phone only.
13. Upon perusal of the documents and on evidence, it is proved that in spite of the repeated demands made by the complainant to furnish callwise details for the inflated bills in Exs.C12 dt.07.02.2005, C14 dt.07.03.2005 and Ex.C16 dt.08.04.2005, the opposite party had failed to comply with the requirements of the complainant but disconnected the phone without notice which amounts to deficiency in service of the opposite party and hence they are liable to pay compensation to the complainant. It is crystal clear that in the same premises where the complainant is having his phone connection one Jayanthi is also having the STD PCO Local is proved through Exs.R1 & R3 to R5 and during the disputed period the complainant’s telephone No.2246741 was used. Hence, as per the document Ex.R2 there is no deficiency on the part of the opposite party as the complainant had to pay a sum of Rs.7,178/- as arrears to the opposite party. For the non-reply and irresponsible act of the opposite party in not rendering the detailed call list for the disputed period for the inflated bills Exs.C12, C14 and C16, the opposite party is liable to pay the compensation and costs to the complainant for their deficiency in service even though they had deducted, adjusted and revised the amount.
14. So, we are of the opinion that a bill cannot be ordered to be reduced where no fault with the meter was established and the check meter also shows the same average of calls. In Mahanagar Teelphone Nigam Ltd. v. Rajan
15. POINT No.3:
In view of the finding in Point No.2, the complainant is liable to pay Rs.7,178/- being the arrears of telephone bill, but entitled to compensation for deficiency in service on the part of the opposite party and costs of the proceedings and as regards the other reliefs the complaint is liable to be dismissed.
16. In the result, the complaint is partly allowed and partly dismissed to the effect that:
i) The opposite party is directed to pay Rs.10,000/- (Rupees ten thousand only) to the complainant as compensation towards deficiency in service;
ii) The complainant is directed to pay Rs.7,178/- (Rupees seven thousand one hundred and seventy-eight only) towards arrears of telephone bill;
iii) The opposite party shall pay Rs.2,000/- (Rupees two thousand only) to the complainant towards costs of the proceedings;
iv) The complaint stands dismissed in respect of the other reliefs.
Dated at Puducherry on this the 14th day of March, 2008.
CW1 – Kaliyaperumal (Complainant)
CW2 – Jayakumar
CW3 – A.R. Iqbal
OPPOSITE PARTY’S WITNESS: NIL
Ex.C1 – 07.03.2004 – Copy of telephone bill for January 2004.
Ex.C2 – 07.04.2004 – Copy of telephone bill for February 2004.
Ex.C3 – 07.05.2004 – Copy of Telephone bill for April 2004.
Ex.C4 – 07.06.2004 – Copy of Telephone bill for May 2004.
Ex.C5 – 07.07.2004 – Copy of Telephone bill for June 2004.
Ex.C6 – 07.08.2004 – Copy of Telephone bill for July 2004.
Ex.C7 – 07.09.2004 – Copy of Telephone bill for August 2004.
Ex.C8 – 07.10.2004 – Copy of Telephone bill for September 2004.
Ex.C9 – 07.11.2004 – Copy of Telephone bill for October 2004.
Ex.C10 – 07.12.2004 – Copy of Telephone bill for November 2004.
Ex.C11 – 07.01.2005 – Copy of Telephone bill for December 2004.
Ex.C12 – 07.02.2005 – Copy of Telephone bill for January 2005.
Ex.C13 – 16.02.2005 – Copy of letter by complainant to opposite party.
Ex.C14 – 07.03.2005 – Copy of Telephone bill for February 2005.
Ex.C15 – 08.03.2005 – Copy of letter by complainant to opposite party.
Ex.C16 – 07.04.2005 – Copy of telephone bill for March 2005.
Ex.C17 – 12.04.2005 – Copy of letter by complainant to opposite party.
Ex.C18 – 15.04.2005 – Copy of letter by opposite party to complainant.
Ex.C19 – 07.05.2005 – Copy of telephone bill for April 2005.
Ex.C20 – 20.05.2005 – Copy of letter by complainant to opposite party.
Ex.C21 – 06.06.2005 – Copy of letter by complainant to opposite party.
Ex.C22 – 07.06.2005 – Copy of telephone bill for May 2005.
Ex.C23 – 07.07.2005 – Copy of telephone bill for June 2005.
Ex.C24 – 07.08.2005 – Copy of telephone bill for July 2005.
Ex.C25 – 07.09.2005 – Copy of telephone bill for August 2005.
Ex.C26 – 21.06.2006 – Copy of demand notice by opposite party.
Ex.C27 – 21.06.2006 – Copy of demand notice by opposite party.
Ex.C28 – 29.06.2006 – Copy of letter by complainant to opposite party.
Ex.C29 – 27.07.2006 – Copy of lawyer’s notice by complainant to opposite party.
Ex.C30 – 29.03.2007 – Letter of authorization in favour of Jayakumar by opposite party.
Ex.C31 – 11.04.2007 – Reply to this Forum by opposite party with regard to details of mobile phone Nos. 9894135129 & 94940-24164.
OPPOSITE PARTY’S EXHIBIT:
Ex.R1 – 11.10.2000 – Copy of lease agreement by Ilangovan and Jayanthi.
Ex.R2 - Statement of detailed bills.
Ex.R3 – 12.10.2000 – Copy of letter by Jayanthi to SDE, Telephones,
Ex.R4 – 11.02.2002 – Copy of application cum franchise agreement between Jayanthi and BSNL.
Ex.R5 – 08.01.2001 – Copy of letter by Jayanthi to BSNL for local PCO connection.