Tripura

StateCommission

A/38/2016

The General Manager(Telephone Department), B.S.N.L - Complainant(s)

Versus

Abdul Kayam Choudhury - Opp.Party(s)

Mrs. K.Deb, Miss. N.Datta, Miss. A.Deb

04 Apr 2017

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

Case No.A.38.2016

 

 

1. The General Manager

(Telephone Department),

B.S.N.L., Agartala, West Tripura.

 

2. Accounts Officer (TR), (Telephone Department),

Computer General Bill,

BSNL, Tripura,

Kaman Chowmuhani,

Agartala, West Tripura.

 

… … … … … … Appellants/Opposite parties.

 

 

1. Abdul Kayam Choudhury,

S/o Afsur Uddin Choudhury,

Baldakhal, West Champamura,

P.S. Budhjungnagar, Khayerpur,

P.O. West Champamura,

Jirania, District - West Tripura,

 

                                                        … … … … … … Respondent/Complainant.

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Chandra Sharma,

Member,

State Commission, Tripura.

 

 

For the Appellants:                               Mrs. Kakali Deb, Adv.

For the Respondent:                         Mr. K. Dhirendra Singha, Adv.

Date of Hearing and Delivery of Judgment: 04.04.2017.

 

J U D G M E N T [O R A L]

 

 

U.B. Saha,J,

The instant appeal is filed by the appellants General Manager (Telephone Department, B.S.N.L.) and Accounts Officer (TR), (Telephone Department), Agartala  under Section 15 of the Consumers Protection Act, 1986 against the judgment dated 20.06.2016 passed by the Ld. District Consumers Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No. C.C. 100 of 2015 whereby and whereunder the Ld. District Forum partly allowed the complaint petition filed by the respondent and the appellants BSNL was directed to exempt the respondent from payment of bill from 1^st May, 2015 for night call 09.00 P.M. to 07.00 A.M and the amount already paid is to be refunded. The appellants BSNL was also directed to pay compensation of Rs.5,000/- to the respondent payable within two months, if the same is not paid, then it will carry interest @9% per annum.        

2. Heard Mrs. Kakali Deb, Ld. Counsel appearing for the appellants (hereinafter referred to as BSNL/opposite parties) as well as Mr. K. Dhirendra Singha, Ld. Counsel appearing for the respondent (hereinafter referred to as complainant/petitioner).
3. Facts of the case in short are that, the complainant Abdul Kayam Choudhury filed an application under Section 12 of the C.P. Act, 1986 alleging that the complainant applied for a connection of land phone, which was accordingly connected being Phone No.255-1451 on 17.05.2014. Thereafter, the BSNL Authority raised a bill for an amount of Rs.3,395/- including night charge in favour of him against the aforesaid land phone during the month of May, 2015. It is also alleged that the BSNL advertised through local newspaper as well as online that there will be free night call from 1^st May 2015 during the period from 09.00 pm to 07.00 am. In view of the advertisement of the BSNL, the complainant made phone calls during that period, but BSNL charged for the night calls. Complainant personally contacted with BSNL and requested the BSNL Authority to waive the claim. The matter was also taken to the Permanent Lok Adalat for settlement, but the same could not be done.
4. The opposite parties filed written statement denying the claim of the complainant. It is also contended that the complainant was availing bill plan of LL-New Annual Plan 1540 which is not a general plan of Rural and Urban areas as ascribed in circular R and C-CFA No.03/15-16 dated 10.04.2015. Subsequently, the said plan was renamed w.e.f. 17.05.2015. As per the plan, the complainant deposited Rs.1,540/- as rent for one year for the aforesaid land phone. On 14.08.2015, complainant applied for getting monthly billing system i.e. on general plan which enjoys unlimited calls during night from 09.00 pm to 07.00 am and accordingly, the facility was provided to him on and from 15.08.2016 as earlier plan, which was availed by the complainant was not covered for free calling. The bill amount of Rs.3,394/- was claimed and Rs.1,328.69/- was adjusted for shifting to new plan, thus there was no deficiency in service.
5. The complainant produced the bill against free calls during the period from 17.05.2015 to 16.05.2016 of Rs.3,395/-. Payment due date written 27.07.2016, bills of 26.09.2015, 27.07.2015, local call bills, newspaper, letters written to G.M. BSNL Telecom Division and also online advertisement by BSNL along with other bills.
6. The opposite parties on the other hand, produced the telephone bill, notice to opposite parties, circular, authorization letter, and also examined one witness, namely, Samir Kr. Pal, an authorized officer of the BSNL.     
7. On the basis of the evidence available to the District Forum, the following points were considered for determination of the disputes between the parties.

1. Whether the free calling in the night from 09.00 pm to 07.00 am was available to the petitioner during the period from 17.05.2015 to 16.05.2016?
2. Whether there was deficiency of service by the BSNL and petitioner is entitled to get compensation?

8. After going through the evidence on record, the District Forum passed the impugned judgment as stated (supra).
9. Mrs. Deb, Ld. Counsel while urging for setting aside the impugned judgment would contend that the complainant made representation for providing the facility of free calling from 09.00 pm to 07.00 am on 14.08.2015 and the said facility was provided to him w.e.f. 15.08.2016 and as the earlier period did not come within the purview of free calling, the bill was raised. She further submits that the complainant did not appear before the District Forum and did not submit any Affidavit-in-Chief and also not appeared for his cross-examination, thus the opposite parties did not get any opportunity to cross-examine the complainant though such cross-examination is the basic right of the opposite party. She also submits that from the date of connection up to 14.08.2015, the complainant was under bill plan - LL-New Annual Plan 1540 and for this reason up to 14.08.2015, he was not provided the benefit of free night call.
10. On the other hand, Mr. Shigha, Ld. Counsel appearing for the complainant submits that it is the admitted position that the complainant did not file his Affidavit-in-Chief and also not appeared for his cross-examine except submission of complaint petition along with some documents before the District Forum. He further submits that the complainant was enjoyed the unlimited free night calls from 09.00 pm to 07.00 am from his landline as per the newspaper and online advertisement and he was also not aware about the circular issued by the BSNL being the same was not published in the official gazette. He has finally contended that the Ld. District Forum did not commit any error while passing the impugned judgment.
11. We have gone through the order sheet of the Ld. District Forum, from which it appears that the complainant filed his complaint on 18.12.2015 and thereafter, the complaint petition was admitted even in absence of the complainant. On 22.01.2016, the complainant had filed his memo of appearance and Mrs. Kakali Deb, Ld. Counsel appeared on behalf of the opposite parties and filed a separate petition praying for time for filing the written statement. On 16.02.2016, complainant was present and opposite parties prayed for time for filing written statement. On 05.03.2016, 26.03.2016 and 12.04.2016, the complainant was absent though the case was fixed for evidence of complainant. On 27.04.2016, representative of the complainant appeared and prayed for time and the Ld. Advocate of the opposite parties after appearing prayed for dismissal of the complaint for want of evidence. The Ld. District Forum fixed the case on 10.02.2016 for evidence by the complainant. On 10.05.2016, the matter was taken up for evidence of complainant, but no step was taken by the complainant. Thus, the evidence of the complainant stood closed and thereafter on 20.05.2016, the opposite parties BSNL submitted the Examination-in-Chief by way of affidavit of one Samir Kumar Pal, Accounts Officer (TR), BSNL along with copy of the same to be supplied to the complainant and some documents. On 03.06.2016, the complainant was absent. Witness for opposite parties appeared and cross-examination was dispensed with as complainant was absent and thereafter the Ld. District Forum fixed the case for argument on 13.06.2016, but on that date also, no step was taken by the complainant and accordingly, the Ld. District Forum fixed the case for judgment on 20.06.2016 and on 20.06.2016, no step was taken by either of the party, but the Ld. District Forum passed the impugned judgment.
12. We have also gone through the impugned judgment, where there is no mention regarding the evidence of complainant except the complaint petition and the documents filed by him. We are unable to understand how a court can decide a dispute in absence of evidence of complainant and also when he has not appeared before the court for cross-examination by the opposite parties though the cross-examination is the basic right of the opposite parties to dispute the complaint filed by the complainant. It is also admitted position that initially the complainant was provided LL-New Annual Plan 1540, which did not cover under the unlimited free call during night hours.
13. Considering the entire facts and circumstances, we are of the opinion that the Ld. District Forum committed error while passing the impugned judgment in absence of any Affidavit-in-Chief from the complainant and also in non-appearance of him for cross-examination by the opposite parties. We are also of the opinion that a complaint filed by the complainant itself cannot be treated as an evidence. Complainant has to prove his case by filing Affidavit-in-Chief and he has also to be appeared for his cross-examination by the opposite parties. When the complainant did not adduce any evidence except filing of his complaint, then the same cannot be treated as an evidence.

In view of the above, the impugned judgment is set aside and the case is remanded back to the Ld. District Forum for deciding the case afresh by providing an opportunity to the complainant for filing his Affidavit-in-Chief and also providing opportunity to the opposite parties to cross-examine the complainant. As both the parties are present before this Commission, they are directed to appear before the Ld. District Forum on 24.04.2017 and the Ld. District Forum after appearance of the parties shall proceed to decide the matter afresh as per the observation of this Commission as mentioned herein above. In the result, the appeal is partly allowed. No order as to costs.

Office is directed to refund the statutory deposit to the opposite parties, the appellants herein, as deposited by them.            

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

 

MEMBER State Commission Tripura MEMBER State Commission Tripura PRESIDENT State Commission Tripura