B.C.JAIN vs DIVISIONAL ENGINEER, CALCUTTA TELEPHONES

THE Complainant carries on business in name and style M/s Jain Enterprises at 5 & 6 Fancy Lane, Calcutta-1. THE business of the petitioner/Complainant is consultancy and the sale and service of expertise and know how mainly to the foreign countries and earns about Rs. 3 lakh per year as its remuneration by way of Foreign Exchange.

THAT for the said purpose the complainant hired a telex machine bearing No. 2372 JAIN IN from the respondents Opp/Parties to manage and improve his business and paid the rental of Rs. 11573/- for the year 1991-92 in advance, but the petitioner received telex service for 56 days in the course of the said year 1991-92 : Consequently the petitioner had to suffer tremendous troubles, business loss and earnings by way of Foreign Exchange and that the petitioner had to obtain a FAX Machine simultaneously with maintaining a telex machine by investing a sum of Rs. 66000/- on that account for which he has to pay the interest on the said investment @ 20% per annum and in addition to that the petitioner has to pay the FAX charges to the tune of Rs. 15000/- per year for managing his business and that where the FAX service is not available he has to telex to those places sometimes through P & T and sometimes through central Telegraph office for which it required extra payment, total account of which is not possible to supply by the petitioner. The petitioner demanded Rs. 3,99,936/- by way of damages and/or compensation on account of his remuneration likely to lose had not he procured the FAX machine, on account of interest paid on Rs. 66000/- being the investment on the FAX Machine, Fax charges of Rs. 15000/- paid per year and on account of refund of the rental of Rs. 9736/- for the year 1991-92 for having not received the telex service of 309 days in course of the said year and also claimed Rs. 1000/- for payment on account of telex service obtained from outside for those places where FAX Services are not available and cost for the complaint etc.

That the opposite parties submitted their written statement wherein they denied the material allegations except that the telex service was not available to the complainant for 162 days in course of the year 1991-92 and granted rental rebate for those 162 days and that the Opposite Parties also made out the case that the subscriber undertakes by signing a bilateral contract that the subscriber would abide by rules and regulations of the Opp. Parties, telephone service can be terminated if there is any breach of contract/conditions and the petitioner has no fundamental right to demand Justice through Writ Petition, though the instant is not a writ one, without fulfilling his obligations under the Indian Telegraph Act and Rules; that the Opp. Parties also referring to Section 7-B of Indian Telegraph Act averred that without reference to the Arbitration the instant application is not maintainable. It was also the case of the Opposite Party that due to non-payment of a bill dt. 6.11.91 for Rs. 304/- for special call, the telex line of the petitioner was disconnected and after payment of the said bill with reconnection charges of Rs. 150/- the Telex line was restored and that the rental bill dt. 6.2.92 for Rs. 11104/- for the year 1992-93 was issued and due to nonpayment of the rental bill for 1992-93 again the telex line was disconnected on 18.4.92 as per order dt. 26.3.92 for disconnection.

THE petitioner/Complainant made several complaints against the non-function of the Telex vide Complaints No. E-17 for the period 2.5.91 to 28.7.91, L-22, for the period from 14.8.91 to 6.11.91 and C-34 for the period 16.11.91 till filing this complaint petition on 28.2.92. Petitioner also made written complaints by his letter dt. 4.9.91, 30.9.91 in support of non-availability of the Telex Service for 309 days in the year 1991-92 and the said Complaint letters have been annexed with the complaint petition. THE petitioner also annexed several documents with the petition of rejoinder in reply to the Opposition filed by the Opposite Parties namely letters No. 041328 dated 14.2.92 and No. 041327 dt. 1.2.92 of Hongkong and Shanghai Banking Corporation Ltd. as to his income for consultancy fees from August 1990 to November 1990 amounting to USD 6000.00 (Rs. 1,09,940.00) and from December, 1990 to June, 1991 amounting to USD 11002.30(Rs. 2,31,394.99) respectively by Foreign Exchange and another letter dt. 16.6.91 written by Litten Electron Devices, U.S.A. as to the problem in communicating on telex to the petitioner and consequently loss of business. It was also contended by the complainant that no notice of disconnection of the Telex Machine was ever received by him. The Petitioner also contended in his rejoinder that he received telex service for 56 days in the year 1992-93 upto the filing of the petition of rejoinder on 1.7.92 and submitted certain documents as to the non functioning of the telex for the rest period upto 1.7.92 the date of filing the rejoinder.

THAT on the basis of the allegations and counter allegations of both the parties the petitioner proposed to adduce oral evidence of Miss Sampa Banerjee, the Telex Operator of the petitioner at least to adjudicate the disputed/controversial point of non-functioning and/or non-availability of the telex service for 309 days in the year 1991-92 in view of the dispute and denial of the said fact by the Opposite Parties only accepting the non-functioning of 162 days in the said year by the Opp. Parties but the said proposal of the petitioner was resisted by the Opp. Parties. Lastly, the petitioner was directed to file an affidavit as to his contention and the Ld. Advocate of the Opp. Parties agreed to rely on such affidavit to be sworn by the petitioner. The petitioner filed an affidavit annexed with certain documents in support of non-functioning and/or non-availability of Telex Service for 309 days in the year 1991-92 and for 45 days in the year 1992-93 upto the date of swearing the affidavit, but no cogent documents are produced by the Opposite Parties to disprove the allegation of 309 days non-functioning of the Telex in the year 1991-92 except mere denial. That Mr. Pal appearing on behalf of the petitioner argued that due to gross negligence or deficiency in rendering service substantial damages should be awarded in addition to other compensations by way of refund of rental for 309 days in the year 1991-92 for which the telex service was not rendered, interest @ 20% per annum paid on fixed investment of Rs. 66,000/- for purchase FAX Machine and the FAX charges of Rs. 15,000/- paid in the year 1991-92, Telex charges availed of from outside by extra payment where FAX service is not available and also for loss of business for want of telex service and for cost of the complaint to which the petitioner is legally entitled to. In support of his argument Mr. Pal referred to a decision reported in 1992 (1) C.P.R. 680 passed by the State Commission, Gujarat, the ratio of the decision is that in case of gross negligence not a token damage but a substantial damages be awarded. The deficiency in rendering service was committed by the Opp. Party which is evident from the facts and circumstances of the case. That the petitioner denied the liability of the bill dt. 6.11.91 for Rs. 304/- but to avoid trouble paid the said bill of small amount as soon as it came to notice of the petitioner. It is admitted by the petitioner that the rental for 1992-93 has not yet been paid because of the uncertain service of the telex rendered by the Opp. Parties at the greatest inconvenience to the business and other losses caused by the Opp. Parties by supplying the said telex machine to the petitioner. Mr. Pal further argued that even if the temporary disconnections were made by the Opposite Parties the same were made without knowledge and notice of the complaint. Now it is settled law by Judicial pronouncements of different Courts in interpretation of Sections 7, 7-A and 7-B of the Telegraph Act, 1885 and the rules framed there under that notice to be given to the subscriber before disconnection of telephone and disconnection without service of such notice of the subscriber''s telephone is out and out illegal. As regards contention of Arbitration Clause U/sec. 7-B of the Telegraph Act as canvassed in the written version by the Opp. Parties it is argued that it is not necessary to go for arbitration before starting any legal proceeding. Mr. Pal in support of his argument referred to a decision reported in 1992 (1) CPR 293 passed by National Commission and the ratio of the said Decision is that a consumer may approach the Redressal Forum, without resorting to Arbitration clause in the Act or the contract.

MR. Hazra appearing on behalf of the Opposite Parties argued that though the petitioner has averred in his Affidavit that telex service was not rendered for 309 days in the year 1991-92 covering the period from 2.5.91 to 6.11.91 along with other periods of the said year as shown in the Affidavit but in the main petition there was a gap from 29.2.91 to 25.10.91 and pointed out the said irregularity with special emphasis and also pointed out from one enclosure dt. 17.4.92 indicating the disorder of the telex which according to the Ld. Advocate of the Opp. Parties was not showing the non-functioning of the telex, as such he argued that the claim of the petitioner is liable to be rejected.

MR. Pal in reply to the said contention explained that in the main petition the periods shown were covered by the complaint numbers indicated against each period but not the actual numbers of the days of non-functioning of the telex and the same was defect in expression but actually the telex service was not availed of 309 days in the year 1991-92. MR. Pal also denied the discrepancy raised by the Ld. Advocate of the Opposite Party as regards non-functioning of the Telex on 17.4.92 as the Telex message was not confirmed by the recipient of the telex. However, the dispute of non-functioning of the Telex in the year 1992-93 could not be decided until exhaustion of the 1992-93 that point would be agitated at the time of decision of deficiency in service for the year 1992-93. MR. Pal further argued that the petitioner earns most precious foreign exchange for the country and plays a very vital role in the growth of National Economy which requires special consideration for awarding damages. From the petitions submissions affidavit and materials on record before us it appears to us that there was gross negligence on the part of the Opposite Parties in rendering Telex service to the petitioner. The admission by the Opposite Party for non-functioning of the telex for 162 days in the year 1991-92 itself proves the gross negligence of the Opposite Party. Further the petitioner''s allegation for non-functioning of the Telex Machine for 309 days in the year deserves consideration in spite of minor discrepancies in the statement of complaint and the Affidavit in respect of 16 days only and even if those 16 days are given up, excluded, the non-functioning of the Telex was for 293 days in the year 1991-92 is established and such long period of non-functioning of the telex machine of the petitioner cannot happen without gross negligence of the respondents. It appears from the conduct of the Opposite Parties that instead of they being serviceful to the subscribers have become the machinery for extortion of money from the subscribers on the face of constant threat for disconnection of service line.

Now, if we look to Indian Telegraph Act 1985 Section 7 thereof gives power to the Central Government to make rules consistent with this Act for conduct of all or any telegraphs established, maintained or worked by the Government or by persons licensed under this Act and in exercise of that power the Central Government has framed rules called Indian Telegraph Rules 1951. These are statutory rules but according to our opinion there is no such rule which can reduce the liability of the Telephone Department for the damages caused to the subscriber on account of negligence of its officers or services. Therefore, there is no substance in the argument of Mr. Hazra and also has no force in the argument of Mr. Hazra that due to non-payment of the bill dt. 6.11.91 for Rs. 304/- and of the rental for Rs. 11,104/- for the year 1992-93 the telex line was disconnected and those also without any notice to the complaint though telephone authority are aware that the petitioner is entitled to refund for non-rendering the telex service for 293 days as observed earlier.

WE, therefore, are of opinion that the Complainant must be awarded not token damage but a substantial damage; we award Rs. 12,500/- as damages for petitioner''s harassment, inconvenience and suffering caused by the negligence of the respondents in addition to petitioner''s entitlement to damages for financial loss by way of interest payment of Rs. 13,200/-@ 20% per annum on fixed investment of Rs. 66,000/-for purchase of FAX Machine simultaneously with the telex machine, payment of Rs. 15,000/- made on account of FAX charges for the year 1991-92 and we also award refund of rental for Rs. 9,300/- out of Rs. 11,573/- for not rendering telex service for 293 days in the year 1991-92 thus aggregating to Rs. 50,000/-. WE do not award any damages for business loss as no substantial loss of business has been proved for having procured the FAX Machine by the Petitioner. Of course, we keep it open for the petitioner to take steps for claims and damages for non-functioning of the Telex for the year 1992-93 after conclusion of the year. The complaint petition succeeds. Accordingly the Opposite Parties under the Union of India, are directed to pay Rs. 50,000/- (Fifty thousand) after adjustment of the rental of Rs. 1 1,100/-for the year 1992-93 as per bill dated 6.2.92 i.e. Rs. 38,990/- and the payment of said rental of Rs. 11,100/- for 1992-93 is subject to finally adjustment on the basis of telex service availed of by the petitioner in that year 1992-93. The Opposite Parties shall pay the said amount of Rs. 38,900/- together with cost of Rs. 500/- within 4 weeks from the date of order. Complaint allowed with cost.