BHARAT SANCHAR NIGAM LTD. vs RAMESHWAR PRASAD

THIS revision petition has been filed by Bharat Sanchar Nigam Ltd. (BSNL) - opposite party (OP) before the District Forum challenging the order of Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal (for short State Commission'') dated 15.4.2008 vide which order of dismissal of the complaint by the District Forum, Satna has been reversed by the State Commission and complainant''s telephone bill of Rs. 1,74,876 has been quashed with liberty with the petitioner to raise fresh bill showing the previous meter reading at 48301 as on 1.4.2003 and last meter reading at 1,28,361 as on 31.10.2005. The Commission has further ordered the payment of the bill raised, in instalments of Rs. 1000 p.m. and further directed the petitioner not to levy any surcharge for late payment nor impose any penalty or interest. A cost of Rs. 1,000 was also imposed holding that the petitioner was responsible for the entire litigation.

GRIEVANCE of the respondent/complainant before the District Forum was that he had two telephone connections; one telephone No. 205550 was a domestic connection for personal/private use and the other telephone No. 265646 to be used as PCO. He made regular payment of the telephone bills upto Aug., 2005. Bill for October, 2005 in respect of domestic connection 265550, however, was not received and, therefore, he informed the petitioner in writing about it. The petitioner thereafter sent him a bill dated 4.11.2005 for Rs. 1,66,286 which the complainant claims to have received on 6.2.2006 but in the meantime, the petitioner without any notice disconnected the telephone connection, thus forcing him to approach the District Forum. The District Forum after analysing the evidence produced by the parties and after hearing the Counsel, dismissed the complaint. The State Commission on appeal by the complainant, set aside the order of dismissal passed by the District Forum and quashed the telephone bill in the terms stated earlier.

AGGRIEVED by this order of State Commission dated 15.4.2008 that the opposite party - BSNL have filed this revision petition. Learned Counsel for the petitioner is present and has been heard.

NEITHER the respondent/complainant appeared in person nor has his Counsel appeared. It may be stated that vide our order dated 13.8.2008, the petitioner was directed to remit a sum of Rs. 20,000 to the respondent/complainant by demand draft so as to facilitate his appearance/defence and the case was listed for 25.11.2008. Subsequently, when the Counsel for the petitioner confirmed on 25.11.2008 that a sum of Rs. 20,000 had already been sent but no one had appeared on behalf of the respondent/complainant, the matter was adjourned for final hearing for 25.2.2009. No body has appeared on behalf of the respondent/complainant again and we proceed to dispose of the matter on the basis of written arguments sent by the respondent/complainant.

LEARNED Counsel for the petitioner has contended that while the complainant had never raised, any dispute with regard to the Opening Meter Reading OMR'' being 00'' on 1.4.2003 neither in his complaint nor before the District Forum, it was not open for the State Commission to question the same, specially in the background of the contention of the petitioner that there was some problem/snag in the computer because of which the telephone calls made were not being recorded in the system. The State Commission has gravely erred in not appreciating this fact and has arbitrarily held that there was no convincing reason as to how the subsequent OMR'' reflected the figure of 48301 unit. The fact that out of the nineteen bills (Annex. 5/1 to Annex.5/19) four bills (Annex.5/2 to Annex. 5/5) reflected the OMR'' at 00'' while the other bills reflected the defective reading of 48301 as the OMR'' uniformly goes to prove that there was a defect in the computer which had failed to record the readings on the basis of actual use of telephone. He has further contended that the complainant was taking advantage of the erroneous no call'' telephone bills and used, the telephone connection in question as STD, PCO and has pocketed amount recovered from the call makers. The District Forum has compared the usage of telephone No. 265646 which was sanctioned for STD, PCO and the domestic telephone connection in question 205550 and has found that there has been a drastic reduction in the usage of STD, PCO connection during all these months and has correctly held that the complainant has mis used the facility for a period of 31 months. Contending that the complainant kept mum for over two years in receiving the bill only for the telephone rentals and not for any calls made by him goes to show that he was only taking advantage of the mistake of the computer".

THE Counsel further submits that while the petitioner has provided the complete details of the telephone calls made during this period on which there is no effective denial and evidence to refute the same, it was wrong on part of the State Commission to quash the telephone bill. The present day system of recording of telephone calls made are very scientific, impersonal, automatic and record complete details such as the time at which called, to which number was the call made and duration of the call. The District Forum examined these details and other evidence and had rightly held that the bill represented the amount due on the basis of actual usage.

THE State Commission, the Counsel contends has further erred in allowing relief of 48301 by mistake stated by computer as OMR''. Authorizing payment in monthly instalments of Rs. 1,000 would mean that it would take more than 10 years for the petitioner to recover the amount which would be a gross injustice. The State Commission ought to have appreciated that the complainant who has with mala fide intention grossly misused the facility deserved no sympathy and petitioner would be entitled to recover the dues with surcharge/penalty.

WE have perused the written arguments submitted by the respondent/complainant. It has been contended therein that the petitioner claimed only rent of telephone from February, 2003 to September, 2005 and he cannot be blamed for their fault of not claiming the call charges in time. According to him, reading by faulty meter amounted to deficiency in service. The award passed by the State Commission according to him is just and proper and needs no interference.

ON perusal of the evidence on record, we find that the only lapse on part of the petitioner was that they were not able to detect the technical problem/flaw in the computer which kept on generating the bill only for telephone rentals and the actual telephone calls were missed out and that too for a period of continuous 31 months. However, the respondent/complainant has deliberately not reported the matter to the petitioner and cleverly taken advantage thereof by using the said telephone for the purpose of STD, PCO which is clearly proved from the fact that during the said period, the actual STD, PCO connection had recorded a drastic fall in its usage. The State Commission has failed to appreciate the contention raised by the petitioner that there was some technical problem with the computer. It misdirected its attention to the recording of 48301 as OMR'' while failing to appreciate that in a number of entries in the following months the OMR'' reflected 00'' entries. Obviously, there was some technical snag in the computer. Under the circumstances, the State Commission was not justified in directing the petitioner/opposite party to give the benefit of 48301 calls more so when the complainant had not disputed/objected to the OMR'' being 00'' in his complaint. The State Commission also grossly erred in ordering the payment at monthly instalments of Rs. 1,000 p.m. which, will take more than a decade for the complainant to pay and for the petitioner to recover. It is totally unjustified in the background of the fact that the complainant has pocketed the money realized from the call makers. Thus, viewed from any angle the order passed by the State Commission is totally unjustified and, therefore, unsustainable. We, therefore, set aside the order of the State Commission and dismiss the complaint. However, considering that the petitioner had not detected the technical flaw in their system for a period over two years, it will be in the interest of justice if the complainant is allowed to deposit the amount of Rs. 1,74,876 within a period of six months in equated monthly instalments. Under the facts and circumstances of the case, parties are left to bear their own cost of litigation.