CHIEF GENERAL MANAGER, BHARAT SANCHAR NIGAM LTD. vs ASHU BATTA

THIS appeal is directed against order dated 1.7.2003 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter referred to as the District Forum) in Complaint Case No. 63 of 2001, Ashu Batta v. Chief General Manager, Bharat Sanchar Nigam Limited & Ors. The relevant facts stated briefly, giving rise to this appeal are as under.

THE respondent/complainant is the Director of M/s. H&H Marketing Pvt. Ltd., Chandigarh, which is dealing with in computer hardware and software products and is also running service of some computer companies in this region. Telephone No. 647004 with STD facility was installed at the premises of the respondent which was the only telephone with STD facility installed at his residence. THE grievance of the complainant was that he did not receive his telephone bill for the period from 1.7.2000 to 31.8.2000 and in the absence of the bill, he could not make its payment. However, in the next month, he received telephone bill No. 48253109 dated 19.10.2000 (vide Annexure P-1) for the period from 1.9.2000 to 30.9.2000. THE due date for the payment of the amount of a sum of Rs. 3,444/- was upto 17.11.2000. In this bill, the arrears of the telephone bill amounting to Rs. 5,458/- were also shown. THE total amount which was thus required to be paid was Rs. 8,972/-. It is not disputed that the respondent/complainant paid the amount of Rs. 8,972/- through a cheque to make the payment of the bill for the period from 1.9.2000 to 30.9.2000 and also the arrears of telephone bill amounting to Rs. 5,458/-. This cheque was presented to the Post Master, General Post Office, Sector 17, Chandigarh who has been arrayed as O.P. No. 4 in the complaint and who was the collecting agent of the telephone bills of O.P. Nos. 1 to 3. This cheque was accepted at the counter and was sent for clearance to the banker and was cleared on 27.11.2000. However, the respondent/complainant was issued a receipt only for a sum of Rs. 3,444/-, the amount of the telephone bill for the period from 1.9.2000 to 30.9.2000 and the amount of arrears i.e. Rs. 5,458/- was not shown in this receipt and due to the non-payment of the arrears aforesaid, the telephone of the complainant was disconnected. THE disconnection remained in force for seven days causing mental pain, agony and also financial loss to the respondent who received another bill for the period from 1.10.2000 to 31.10.2000 for a sum of Rs. 2,888/-. This bill was also paid by the respondent/complainant to the Post Master, General Post Office, Sector 17, Chandigarh vide cheque which was also cleared for payment on 12.12.2000. The complainant alleged further that he approached the O.P. Nos. 1 to 3, the appellants for resolving the discrepancy and the aforesaid O.P. Nos. 1 to 3 directed the complainant to contact O.P. No. 4 - Post Master, General Post Office, Sector 17, Chandigarh. The respondent/complainant contacted O.P. No. 4 and learnt from him that the Post Office had transmitted only a sum of Rs. 3,444/- to O.P. Nos. 1 to 3 and the remaining amount of Rs. 5,458/- had not been transmitted by the Post Master aforesaid to O.P. Nos. 1 to 3 (the appellants) which led to the disconnection of the telephone though there was no fault on the part of the respondent/complainant. The complaint was filed before the District Forum wherein it was alleged that there was deficiency in service on the part of O.P. Nos. 1 to 3 as well as O.P. No. 4 and he sought compensation of a sum of Rs. 1 Lac for harassment, mental pain and agony. Further compensation of a sum of Rs. 1.5 Lacs on account of loss of business and loss of reputation and further sum of Rs. 11,000/- as costs of filing of the complaint have been sought.

The complaint case was contested by O.P. Nos. 1 to 3 who filed one set of reply and O.P. No. 4 filed a separate reply. The case of O.P. Nos. 1 to 3, the present appellants, was that the bill dated 19.10.2000 was only of a sum of Rs. 3,444/- while the details of arrear bill dated 18.9.2000 of a sum of Rs. 5,458/- were also endorsed. The respondent/complainant was required to pay only a sum of Rs. 3,444/- and he should have obtained a duplicate bill for the arrear of Rs. 5,458/- and then paid the said amount separately. Since the complainant had paid the consolidated amount of Rs. 8,972/- to the Post Master, General Post Office, Sector 17, Chandigarh (O.P. No. 4), O.P. No. 4 issued receipt only of a sum of Rs. 3,444/- and intimated this fact to O.P. Nos. 1 to 3 regarding the payment of the said bill of a sum of Rs. 3,444/- and did not remit the balance amount of Rs. 5,458/-, the arrear bill. It was in this background that the telephone of the complainant had been disconnected. O.P. No. 4 in its written statement took a similar stand as taken by O.P. Nos. 1 to 3. A plea was taken that the complainant was not a consumer insofar as O.P. No. 4 was concerned.

THE complainant as well as O.P. Nos. 1 to 3 and O.P. No. 4 filed evidence in the shape of affidavits. THE District Forum held that there was deficiency in service on the part of O.P. Nos. 1 to 3 as O.P. Nos. 1 to 3 are responsible for acts of omission and commission of their agent i.e. Post Master, General Post Office, Sector 17, Chandigarh who was working as the collection agent of the amounts of the telephone bills. THE disconnection of the telephone for a period of seven days, it was held, amounted to deficiency in service. Resultantly, the complaint was allowed and the O.P. Nos. 1 to 3 were directed to pay Rs. 10,000/- as compensation to the complainant for mental, physical harassment, agony and financial loss by rendering deficient service and directed them to pay a further sum of Rs. 3,000/- as costs of litigation. THE order was directed to be complied with within two months from the date of receipt of its certified copy. O.P. Nos. 1 to 3 felt aggrieved with the impugned order and filed this appeal in which the complainant was impleaded as respondent. The Post Master, General Post Office, Sector 17, Chandigarh was not even impleaded as a party in the memo of appeal. Notice of appeal was issued and record of the complaint case was summoned. We have heard the learned Counsel for the appellants, Mr. G.C. Babbar, Advocate and the learned Counsel for the respondent/complainant Mr. Arvind Moudgil, Advocate. We have carefully perused the impugned order and the record of the case.

AT the outset, it may be mentioned that the Post Master, General Post Office, Sector 17, Chandigarh has not been impleaded even as a proforma party in the memo of appeal. Undisputedly, the impugned order of the District Forum did not fastened liability on the Post Master, General Post Office, Sector 17, Chandigarh who had been impleaded as O.P. No. 4 in the complaint case. The facts of the case are also not much in dispute. The telephone bill (Annexure P-1), which is for a period from 1.9.2000 to 30.9.2000, was for a sum of Rs. 3,444/- to be paid on or before 17.11.2000 and in case it was not so paid then there was surcharge for delayed payment of Rs. 70/- and the amount payable after 18.11.2000 was Rs. 3,514/-. The bill aforesaid (Annexure P-1) makes a mention of "OLD BILLS NOT PAID (IF PAID INFORM DETAILS)". The bill number has been shown as 45876681 dated 18.9.2000 for a sum of Rs. 5,458/-. Thereafter, there is a mention of outstanding amount of Rs. 5,458/-. This telephone bill clearly communicated to the complainant/respondent that besides the amount of the current bill for the period from 1.9.2000 to 30.9.2000 of a sum of Rs. 3,440.00, he was shown in the records of the appellants in arrears of a sum of Rs. 5,458/-. The details of the payment were called for only in case the said amount of the said bill had been paid. It is not disputed further that a cheque for a sum of Rs. 8,902/- had been deposited at Counter No. 5 of General Post Office, Sector 17, Chandigarh whose receipt is also available on Annexure P-1 giving Receipt No. E4503, telephone No. 647004, bill dated 19.10.2000, bill amount Rs. 3,444/-, cheque No. 699988 dated 7.11.2000 drawn on OBC i.e. Oriental Bank of Commerce. This amount of Rs. 8,902/- represented the amount of the current bill of a sum of Rs. 3,444/- and the amount of Rs. 5,458/- as arrears of the bill referred to above. Annexure P-2 is the copy of the statement issued by the Oriental Bank of Commerce in respect of the amount of the respondent/complainant for the period from 1.10.2000 to 7.12.2000 which shows entry of a sum of Rs. 8,972/- in the name of the Post Master. It is dated 27.11.2000 and bears Cheque No. 699988. This amount was duly debited from account of the complainant/respondent. The same cheque number is mentioned in the endorsement made in the receipt on bill (Annexure P-1). It may be mentioned that if the O.P. No. 4-Post Master, General Post Office, Sector 17, Chandigarh accepted the cheque aforesaid for a sum of Rs. 8,972/- in respect of the bill (Annexure P-1) and acknowledged the payment of the amount of the bill i.e. Rs. 3,444/- only then, the O.P. No. 4 was required to point out to the respondent/complainant that the cheque was for a much higher sum than the amount of the bill regarding which the cheque was being presented and accepted.

IT appears that without bringing this fact to the notice of the respondent/complainant, the cheque was accepted and sent for realisation to the Oriental Bank of Commerce which gave the credit of the whole amount of Rs. 8,972/-. However, the copy of the bill (Annexure P-1) itself shows the total outstanding amount of Rs. 5,458/- besides the amount of Rs. 3,444/- and as such it cannot be validly contended by the appellants that they did not make demand of the amount of the arrear bill and further that proper procedure for the respondent/complainant was to obtain a duplicate bill in respect of the aforesaid arrears of Rs. 5,458/- and then to make the payment of that amount with their agent i.e. O.P. No. 4 - Post Master, General Post Office, Sector 17, Chandigarh. The total of the amount of the bill i.e. Rs. 3,444/- and the amount of arrears of a sum of Rs. 5,458/- comes to Rs. 8,902/-. The cheque was dated 7.11.2000 and it was encashed on 27.11.2000 vide Annexure P-2, which was a date subsequent to the due date of payment of 17.11.2000. The respondent/complainant also included the amount of surcharge for the delayed payment and the total amount due including the amount of arrears of the bill comes to Rs. 8,972/-. In this view of the matter, there is a clear case of deficiency in service rendered by the appellants as their agent i.e. O.P. No. 4 -Post Master, General Post Office, Sector 17, Chandigarh did not exercise due care and caution while issuing the receipt for a sum of Rs. 3,444/- only whereas the receipt issued should have been of a sum of Rs. 8,972/-.

IN reply to the averments made in Para 9 of the complaint regarding the deficiency in service, O.P. Nos. 1 to 3 in Para 9 of their reply stated as under : "9. That the contents of this para are wrong and denied. The complainant has rightly been advised to approach the Postal Department as they had sent the amount of Rs. 3,444/- under receipt issued by them. There is no deficiency on the part of answering respondent."

The O.P. No. 4 - Post Master, General Post Office, Sector 17, Chandigarh filed separate written statement wherein, in reply to Para 9 of the complaint, it was urged as under : "9. That the respondent No. 4 has rightly advised the complainant to approach the respondent Nos. 1 to 3, as the Postal Department has conveyed the payment of Rs. 3,444/- i.e. of the payment of the bill and not of the arrears. It was the duty of the complainant also to check and point out the mistake, if any, occurred by the Post Office immediately at the counter itself, but now passing on the blame to the respondent is unfortunate and is not to be acceptable. There is no deficiency on the part of respondent No. 4."

The O.P. Nos. 1 to 3 and O.P. No. 4 passed on the buck to the other side. According to O.P. Nos. 1 to 3, the deficiency was on the part of O.P. No. 4 - Post Master, General Post Office, Sector 17, Chandigarh, the deficiency was on the part of O.P. Nos. 1 to 3 and both have urged deficiency in service on the part of the complainant as well. The learned Counsel for the respondent also referred to Para 2 of the grounds of appeal wherein it was mentioned that "..... the Post Office, who in a rush of work and as per routine issued the receipt for the amount of the current bill". The District Forum in Para 8 of the impugned order considered these submissions made by O.P. Nos. 1 to 3 and O.P. No. 4 and after considering the same it was concluded that the deficiency in service on the part of O.Ps. is patent.

MR. G.C. Babbar, Advocate contended that it was for the respondent/complainant to have satisfied himself before leaving the counter that the receipt given to him by the Post Master, General Post Office, Sector 17, Chandigarh was a correct receipt depicting the amount of the cheque presented by him. It may be mentioned that it is undoubtedly correct that the respondent/complainant also failed to check about the amount for which the receipt had been issued and had he checked out the same before leaving counter, he could bring this fact to the notice of the concerned official who issued the receipt and could have obtained a proper receipt for the sum of Rs. 8,972/- including the amount of arrears i.e. Rs. 5,458/- but at the same time, the negligence, carelessness and resultant deficiency in service on the part of O.P. No. 4, the agent of the principals i.e. the appellants/O.P. Nos. 1 to 3 cannot be ruled out. The District Forum has duly considered this submission made by MR. G.C. Babbar, Advocate appearing on behalf of appellants/O.P. Nos. 1 to 3, in Para 9, wherein it was observed, inter alia, as under : ".....Of course the complainant has been slightly lacking in care when he left the counter of the Post Office (O.P. No. 4) without checking the receipt issued to him. But this fact by itself does not absolve the O.P. Nos. 1 to 4 because they are public servants and they have to be more vigilant and open-eyed and active in mind while rendering public service..."

The finding of the District Forum regarding deficiency in service on the part of O.P. Nos. 1 to 3/appellants is based on proper appraisal of the evidence on record and no interference in the finding is called for.

MR. G.C. Babbar, Advocate, learned Counsel for the appellant in the next place contended that the amount of compensation has no nexus to the mental and physical harassment, agony and financial loss. The District Forum has awarded a sum of Rs. 10,000/- as compensation. According to the learned Counsel for the appellants, the compensation should be based on a proper appraisal of the loss suffered by the complainant and in this regard, he cited the judgment given in the case of General Manager, Mahanagar Telephone Nigam Ltd. v. Mauli Chand Sharma, II (1995) CPJ 183 (NC). Since it is a case where the respondent/complainant was also slightly negligent and careless in not checking the receipt issued to him by O.P. No. 4 - Post Master, General Post Office, Sector 17, Chandigarh, the amount of compensation of a sum of Rs. 10,000/- for the disconnection of the telephone for seven days on the ground of non-payment appears to be on the higher side. According to us, a sum of Rs. 7,000/- would be just and proper. The costs of litigation of a sum of Rs. 3,000/- appears to be quite justified and no interference is required in the same. Resultantly, the appeal is partly allowed. While affirming the finding of deficiency in service on the part of the appellants, the amount of compensation of Rs. 10,000/- awarded by the District Forum is reduced to Rs. 7,000/-. The costs of litigation of a sum of Rs. 3,000/- is affirmed. The total liability of the appellants including the costs of litigation would be (Rs. 7,000/- + Rs. 3,000/-) Rs. 10,000/-, which shall now be paid within two months from the date of receipt of certified copy of the order, failing which interest @ 8% per annum shall be paid on the amount of Rs. 10,000/- aforesaid till its actual payment. The order of the District Forum subject to the modification to the extent mentioned above is affirmed. The costs of the appeal shall be borne by the parties themselves. Copies of this order be sent to the parties free of charge. Appeal partly allowed.