K.N. SAPOLIA vs J And K TELECOM CIRCLE, JAMMU

THROUGH the medium of this appeal, order dated 14.7.2004 passed by the learned Divisional Consumer Protection Forum, Jammu, (hereinafter to be referred to as the Forum) has been challenged. The Forum in terms of the impugned order has directed the respondents to pay to the appellant a sum of Rs. 5,000 as compensation for illegal disconnection of his telephone connection bearing No. 2574964. The appellant, who is an Advocate by profession, has challenged the award on the quantum of compensation, which according to him is insufficient as financial, physical and mental loss suffered by him is of more magnitude.

THE brief facts of the case are that on 15.3.1994 appellant was sanctioned Telephone Number 44964 which was subsequently changed to 574964. That he had been regularly paying the telephone bills in time. THE said telephone was installed in the office chamber of the appellant, who subsequently had no grievance for the rent claimed through bills but it was during the year 1999, when he received an inflated bill dated 11.11.1999 for an amount of Rs. 1651. THE appellant raised a dispute and on his application it was bifurcated and the Accounts Officer asked the appellant to deposit a sum of Rs. 751 in the first instance equivalent to the last bill paid by him. He again received bill dated 11.1.2000 for Rs. 1922, the genuinity of which was challenged before the respondents. On the third occasion he also received bill dated 11.3.2000 for Rs. 1634 and a complaint was made. Besides that, the Hon''ble Minister of the Telecommunications, Government of India, was also informed about the callous attitude of the respondents. As the respondents had adopted a callous attitude of sending the inflated bills so in order to save his purse, the appellant requested for a local lock facility but the same was refused. THEn he requested for the stoppage of out-going calls but that request was not accepted and on 23.3.2001, the respondents arbitrarily disconnected the connection without giving any prior notice. THE matter remained pending for a considerable time, when he received letter No. JTR-3/EMC/BSNL/574964/KW/3 dated 29.1.2002 whereby he was informed that his case has been settled and he should deposit Rs. 1,502 within 15 days from the date of the receipt of the letter. This amount of Rs. 1,502 was also deposited by the appellant in time. Despite this deposit, the Telephone connection was not restored on the plea that case was 6 months old. THE respondents were demanding Rs. 100 as reconnection charges. THEreafter, the appellant was compelled to file the complaint in the Forum on 7.5.2002 and on the direction issued by the Forum to the respondents dated 5.2.2003 the telephone was restored after making payment of Rs. 100 as had been claimed. However, it is admitted that on obtaining the interim relief from the Forum, the telephone had been partially restored on 25.7.2002 for attending incoming calls. THE learned Forum after appraisal of the evidence in the concluding portion of the impugned order has observed as under: "Though the amount of Rs. 100 has been paid but the telephone was not restored. This shows attitude of negligence and carelessness on the part of the respondent. THEre is a deficiency of service by the respondent. THE complainant remained without telephone connection for a pretty long time and definitely he has to suffer a great loss, inconvenience, mental harassment being an Advocate by profession. THE continuation of disconnection even after payment was illegal. THE complainant is entitled to compensation for the negligent act of the respondents. THE complainant is a consumer within the definition as provided under C.P. Act. From the facts and circumstances on record and while assessing the duration for which the complainant has to suffer due to the act of the respondents. THE complainant is entitled to compensation to the amount of Rs. 5000."

Through the medium of this appeal, the appellant has challenged the order of the Forum on the following grounds: (i) That he had a standing as an Advocate of thirty years at the material time and because of illegal disconnection of the telephone he has professionally suffered. (ii) That the learned Forum has fell into error in not applying its mind for awarding the compensation under different heads, i.e. inconvenience, harassment, negligence, deficiency in service, mental agony and the loss suffered by him in the discharge of his professional duties.

Heard the arguments and have gone through the record of the case.

THE appellant during the course of arguments has reiterated the grounds of the memo of appeal and has stressed that evidence led by him conclusively has proved his claims. That in view of law laid down by the Hon''ble Supreme Court the case of Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=AIR 2004 SC 2141, he is entitled to recover the said claims. He has also cited the case of M.T.N.L. v. Sat Bhushan Jain, reported in III (1999) CPJ 181, in which case the telephone of an Advocate due to disconnection had remained out of order for fifteen days and he was awarded Rs. 5,000 as compensation. THE appellant contends that his telephone remained disconnected for more than two years but he has been awarded only Rs. 5,000 as compensation which is very meagre amount. In rebuttal, Mr Ravinder Gupta, Advocate, has contended that in appeal, the Commission has to re-appraise the evidence in order to arrive at a just conclusion regarding the quantum of compensation even though, the respondent has not challenged the finding in appeal. According to him the telephone could not be fully restored because the appellant had himself made an application for barring outside calls. On his prayer being made before the Forum for full restoration, the telephone facility was restored within one week from the passing of the order dated 28.1.2003. That telephone connection had been rightly disconnected because appellant had not paid the arrears. The respondents had the authority to do so under Rule 443 of The Indian Telegraph Rules. That the compensation awarded by the Forum is just and reasonable because the status of the complainant is not relevant in awarding compensation. To support his contention, he cited the case of Mahangar Telephone Nigam Ltd. v. Raja S. Bhosale, reported in II (1993) CPJ 222 (NC).

THE Forum in the impugned order has held that the continuation of disconnection even after payment was illegal and that the appellant because of this fact had to suffer a great loss, inconvenience, mental harassment being an Advocate by profession. THE impugned order has not been challenged by the respondents but their Counsel vehementally insists that evidence requires to be re-assessed in order to hold that the appeal is meritless. On occasions it is said that consumer is a "king" or the "object of exploitation". The excessive billing started against him when he received successive alleged inflated three bills. The first bill dated 11.11.1999 was for an amount of Rs. 1,651. The second bill dated 11.1.2000 was for Rs. 1922 and third bill dated 11.3.2000 was for Rs.1,634. The appellant agitated the correctness of the first bill dated 11.11.1999 and the concerned Accounts Officer had taken cognizance and bifurcated its amount. As per his direction the appellant deposited the asked amount of Rs. 751. This dispute was still pending when two successive above stated bills were received and the appellant thereafter knocked the doors twice of the Minister of Communications, Department of Telecommunications, New Delhi, by sending complaints on 7.3.2000 and 31.5.2000, respectively. Copies of these complaints were sent to the respondents. After waiting for some time, the appellant made third complaint on 6.9.2001 to the Minister of Communications, Department of Telecommunications, a registered copy whereof was sent to respondentNo. 1 which was not acknowledged, but the office of the Minister of Communication, Department of Telecommunications, acknowledged its receipt (Annexure-J). After a gap of about 4 months the appellant received letter No. JTR-3/ EMC/ BSNL-574964/ KW/3 dated 29.1.2002 (Annexure K), addressed by respondent No. 2, whereby the appellant was informed to deposit Rs. 1,502 within fifteen days from the receipt of the letter. The appellant on 9.2.2002 with utmost alacricity deposited the amount without any demur. Without taking any notice of the complaints made on 7.3.2000 and 31.5.2000 and the above stated letter dated 29.1.2002 which was sent by respondent No. 2 himself, the Telephone which stood disconnected on 23.3.2001 was not restored on the apparent plea which was taken under Rule 443 of the Indian Telegraph Rules, 1951. From the perusal of the said rule, it transpires that rule comes into operation only when the rent or other charges in respect of the telephone service provided are not paid by the subscriber in accordance with the said rules. Rule 443 further provides that such a Telephone can be disconnected without any notice. It has to be borne in mind that the said rule comes into operation only when there is no dispute pending disposal with the authorities concerned with regard to the rent due or other charges in respect of the concerned telephone service. In the present case, the matter was under consideration before Ministry of Communications, Department of Telecommunications, New Delhi, and the disconnection of the telephone service done without taking any notice of the representations speak volumes that in this part of the country, the respondents have no respect or fear of their superiors. Even after accepting the deposit of Rs. 1,502 vide Annexure K, the Telephone was not restored on the plea that re-connection chargs of Rs. 100 were not received. Also they had no human heart to realise the practical difficulties of the appellant who was their valued consumer whose professional expertise was to some extent dependent on such facility but they ignored his application made on 26.2.2000 (Annexure C) for the restoration of the telephone connection. He has stated in his evidence that he visited the concerned office of the respondents but he was not being heard. The respondents were least realising that the income of the department depends largely upon the strength of the goodwill on their customers. Their number can only increase in case they are provided better facilities than others in this competitive world and upon autocratic attitude their number is likely to be reduced. Under service conditions they were required to hear him and redress his genuine grievances within the parameters of relevant law and the rules. Because of arbitrary and callous attitude of the respondents, the appellant was forced to approach the Forum on 7.5.2002 and with judicial intervention the facility of incoming calls was restored on 25.7.2002 and the facility of outgoing calls was also restored on 28.1.2003. On the basis of such established factual matrix the deficiency in service of the respondent is proved. Now the question remains regarding the inconvenience and damages suffered by the appellant. He has alleged in the complaint and stated in his evidence that at that time he had thirty years standing in the profession an Advocate and his professional work suffered because of non-availability of the facility of the telephone service. In his evidence, he has further stated that the outgoing call facility was restored in his favour on 5.2.2003 when the learned Forum had directed the respondents to do so vide order dated 18.1.2003. According to him, he suffered mentally, physically and monetarily at the autocratic attitude of the respondents. The appellant has also examined his son namely Mr. Vikram Sharma, an Advocate, who works in his Chamber, and he too has supported appellants'' version. Besides that, the appellant has examined his two clients namely, Ashok Chopra and Harbans Singh as witnesses. Ashok Chopra has stated that he had appointed the appellant as a Counsel in various cases pending in different Courts. That after the disconnection of Telephone service, he faced great difficulties to contact him for obtaining legal advice even on petty matters which could otherwise be obtained on telephonic conversation. He had to cover large distance by using public transport services and sometimes during a call of hartal in the Jammu city he had to transverse the distance on foot.

ON the basis of such evidence which is of impeccable nature, the question which falls for consideration and determination is: whether the claim awarded in favour of the appellant is adequate or inadequate? After going through the decision of the Apex Court rendered in the case of Ghaziabad Development Authority (supra), we have to determine whether the sufferance meted out by the appellant is due to mala fide, capricious or oppressive act of the respondents which amounts misfeasance in public office. The compensation is for vindicating the strength of law. It acts as a check on arbitrary and capricious exercise of power. What has to be awarded has to co-relate with the amount of loss or injury. The appellant in his complaint has demanded Rs. 1.50 lakh as loss suffered by him in the discharge of his professional duties, Rs. 25,000 as mental agony and hardships faced by him, Rs. 15,000 on account of denial 75 free calls per month and Rs. 10,000 as costs of litigation. In other words, the total amount claimed by him was in the sum of Rs. two lakh. The Counsel appearing for the OPs has defended the impugned order on the plea that status of the appellant is not relevant for determining the amount of claim and in support of his contention he has cited the case of Mahanagar Telephone Nigam Ltd. (supra). After going through the contents of this judgment, we find that it is not applicable to the facts of the case in hand. The facts of the cited case are that the complainant who was a former Judge of the High Court and then a practising lawyer had made a complaint for the disconnection of his telephone on the basis of disputed bill and before the complaint could be decided by the authorities of the department he filed the complaint claiming an amount of Rs. one lakh. The telephone department had immediately intimated that the disputed bill was only for Rs 4,202 and the telephone was restored. The complainant was awarded Rs. 25,000 as compensation by the State Commission. In appeal, the National Consumer Disputes Redressal Commission held that the status of a person is not of much relevance while awarding compensation but nature of grievance and resultant loss has alone to be considered. After reading the judgment between the lines nowhere it is found that status is not altogether of any relevance but the ratio decidendi is that it is not of much relevance as compared with grievance and resultant loss. In that case the complainant had no grievance about the reduced bill and the complaint was found filed in haste "without waiting for the completion of the investigation". The National Commission had reduced the amount of compensation to Rs. 500. The finding given in the case are not of binding nature so as to upset the established legal position laid down by the Apex Court consistently in various rulings that while awarding general and special damages status of the aggrieved person is always one the relevant factors. An obiter dicta found in the National Commission''s judgment is thus of no help to make the status of the appellant as an irrelevant factor. We have also considered the case of M.T.N.L. v. Sat Bhushan Jain (supra). In this case, the telephone of a lawyer consumer had remained out of order for 15 days. It was held that he had suffered professional loss and given a compensation of Rs. 5,000 by the Delhi State Consumer Disputes Redressal Commission.

IN the backdrop of the above stated facts and the discussion made thereon within the parameters of law, we accept the appeal. On facts it is established that from 23.3.2001 to 25.7.2002 the appellant was denied the total facility of Telephone facility which period expands to more than 16 months. On 25.7.2002, with the intervention of the Forum the incoming calls were restored. Subsequently, on 28.1.2003 again with the intervention of the Forum the outgoing calls were restored. This period of about six months was also a period of mental agony, inconvenience and professional suffering for him. Before filing the complaint in the Forum ( i.e. on 7.5.2002) he had been making formal requests to respondents by personally visiting their offices and he made application before respondent No. 2 (Annexure L) for the restoration of the Telephone connection even after depositing the amount of Rs. 1,502 as desired in the letter dated 9.2.2002. All these requests fell flat into the deaf ears of the respondents. For this mental and physical injury we award a claim in the amount of Rs. 20,000. During the above said period his professional work also suffered which has been established by the evidence on record. IN our view, a compensation of Rs. 30,000 (thirty thousands) is suffice to meet the ends of justice. The appellant is also awarded cost of litigation throughout in the amount of Rs 5,000. The liability of the respondents to pay the total claim of Rs. 55,000 ( Rupees fifty-five thousands) shall be joint and several which should be liquidated within two months from the date of the order, failing which interest at the rate of 9% per annum shall become payable from the date of filing the complaint in the Forum (which is 7.5.2002). The office shall return the record of the Forum and appeal be consigned to the records. Appeal allowed.