BHARAT SANCHAR NIGAM vs RADHA KANT ROY

BOTH the appeals have been heard together as they arise out of the common order. This order shall govern both the appeals.

APPEAL No. 163/2002 has been preferred against the order dated 26.6.2002 passed by District Forum, Darbhanga in Complaint Case No. 61/2002 whereby and whereunder the appellat-O.P. (Department of Tele-communication, Darbhanga) has been directed to provide telephone connection to the complainant-respondent within 45 days and to pay a compensation of Rs. 500/- for mental and physical harassment and intereat at the rate of 8 per cent per annum on the amount deposited as per demand note from the date of its deposit. Appeal No. 101/2004 has been preferred against the order dated 21.1.2004 passed in Execution Case No. 7/2002 arising out of the above mentioned Complaint Case No. 61/2002 whereby and whereunder the appellants have been punished under Section 27 of the Consumer Protection Act for non-compliance of the order passed in the above complaint case and have been sentenced to undergo simple imprisonment for a period of one month and to pay a fine of Rs. 2,000/- and in default one week imprisonment.

The brief fact of the case is that complainant is retired Government servant and senior citizen aged about 71 years. He applied for a telephone for his residential house at village Banda, District Darbhanga and on receipt of demand note he deposited Rs. 1,000/- in the office of the appellant on 13.3.1996 for which he was granted a receipt. He was assured for early connection of the telephone but in spite of his several requests made to the department he did not get the telephone connection even on the date of hearing of the appeal. It was made clear on behalf of the appellant-Telephone Department that complainant respondent has not been provided telephone connection uptil now. The complainant filed the complaint case before the District Forum with a direction to O.P. to provide him telephone connection at the earliest and he also prayed for a damage of Rs. 5,000/- for mental and physical harassment and cost of litigation. The O.P. appellant appeared and filed written statement. From the memo of appeal it appears that appellant-Telephone Department has prayed for time before the District Forum to file detail rejoinder but his prayer was rejected and the impugned order was passed.

THE main contention of the appellant before us is that impugned order is bad both in law as well as in fact as the complainnat was not a consumer. He was only an applicant for a telephone. THEre is nothing on record to show that Telephone Department did not provide him telephone out of any grudge but because of some difficulties the telephone was not provided. However, the Telephone Department did not place before us any difficulties much the less any technical one which did not allow the Telephone Department to provide a telephone connection to the complainant even after 8 years of his application. The learned appellant''s lawyer placed reliance on the cases as detailed in the memo of appeal includng a leading case of Morgan Stainley Mutual Fund v. Kartik Das, II (1994) CPJ 7 (SC), in support of the contention that complainant comes under the category of prospective buyer and not under the category of a consumer. It was also submitted on behalf of the apellant that there was no material before the District Forum to come to the finding that there was deficiency on the part of the Telephone Department much the less against a particular officer of the department in not providing the telephone facility to the complainant. Therefore, the award of compensation of Rs. 5,000/- against the erring officer of the department is bad both in law as well as on fact.

WITH regard to Appeal No. 101/2004 it was submitted on behalf of the appellant that appeal against the order of the District Forum passed in Complaint Case No. 61/2002 was pending (Appeal No. 163/2002) before the State Commission. This fact was brought into the notice of the District Forum but in spite of that the order under Section 27 of the Consumer Protection Act has been passed against the appellant which is bad in law and is fit to be set aside. In reply the contention of the complainant-respondent is that it is admitted fact that he made application for the telephone in the year 1996 and on receipt of demand note deposited Rs. 1,000/- on 13.3.1996. There is no dispute to this fact that till date he has not been provided telephone facility. He is a senior citizen and retired Government servant. He lives mostly at Laheriasarai and his other old family members reside in the village. For want of telephone line he is not in a position to contact the family members and for going to the village he has to face a lot of mental and physical torture. It was further contended that the Telephone Department has adopted double standard and the persons of the village who had applied and made deposit later on have been provided with telephone facility and they are paying bills of the telephone. The details of their telephone numbers along with copy of the telephone bills have been annexed on behalf of the respondent to show that demand note of Smt. Gayatri Devi of village Banda the same was issued on 17.12.1999 and after deposit of the required amount she has been provided telephone connection No. 1519608. Another person of the same village Sri Yadvendu Roy got demand note on 18.10.2001 and after deposit of the money he has been provided telephone connection in the month of April, 2002. In support of the above contention respondent has filed photocopy of the demand note and telepone bill of Smt. Gayatri Devi of village Banda which shows that she was issued demand note by the Telephone Department on 17.12.1999 for Rs. 1,000/- and she was provided telephone connection and she has received bill for the month of April, 2001 for Rs. 482/-. The demand note of Sri Yadvendu Roy is dated 18.10.2001 and his telephone bill is dated 10.6.2002. The demand note of the complainant has also been brought on record which shows that it is dated 15.3.1996 and he made deposit of Rs. 1,000/- after receipt of the demand note. On pointed question from the appellant that why this discrimination has been made by the Telephone Department when two persons of the same village who made deposit much later on than the complainant have been provided telephone but the complainant has not been provided the same facility. We cannot get any satisfactory reply on behalf of the appellant. The case law referred to on behalf of the appellant does not apply with the facts of the present case because in none of the cases the fact of discrimination between the two applicants has been bain of the contention of the complainant. In the case II (2000) CPJ 582 (sic), by State Commission, Madhya Pradesh it has been held that telephone connection has not been provided to the complainant in spite of deposit of registration fee because of technical problems and therefore, the award of compensation by the District Forum was not justified. In the Appeal No. 199/2003 passed by the Sate Commission, Bihar on which reliance has been placed on behalf of the appellant it has been held that telephone connection was not provided to the complainant at the earliest because of technical difficulties and as cable pair was not available in the area and it was beyond the control of the Telephone Department. On this ground it was held that there was no deficiency on the part of the Telephone Department. As stated above the fact of this case is quite different with all the cases referred to and relied upon on behalf of the appellant. It is a clear case of discrimination between the applicants of the same village which amounts to negligence and deficiency on the part of the Telephone Department. The Telephone Department has not made any gesture before us to comply the order of the District Forum and to provide the telephone connection to the complainnat but on the other hand they are contesting the order of the District Forum like a litigant when they have got no answer to the question why other persons of the same village who had applied later on have been provided telephone connection.

IN the fact and circumstances, we are of the view that there is no merit in this appeal and acordingly the appeal is dismissed and the impugned order of the District Forum is hereby confirmed. The Telephone Department is directed to comply the order of the District Forum within two months from the date of this order includng providing telephone connection to the complainant-respondent till two months from the date of the order. The order passed in the Execution Case No. 7/2002 by the District Forum, Darbhanga dated 21.1.2004 shall remain stayed but if this order is not complied within the stipulated period the order passed in the above execution cause shall come into effect and District Forum shall be at librty to take all steps for the compliance of the order passed in the execution case. However, there shall be no order as to cost. With the above direction both the appeals are disposed of. Appeals disposed of.