Bharat Sanchar Nigam Limited vs VIRENDRA SINGH MALHAN

THIS is an appeal against the order of District Consumer Disputes Redressal Forum-II, U.T., Chandigarh [hereinafter for short, referred to as District Forum-II], dated 22.11.2004 in Complaint Case No. 206 of 2004 : Virendra Singh Malhan v. Bharat Sanchar Nigam Ltd. and Another.

THE complainant''s case in brief is that his Telephone No. 642485 was misused by somebody to make STD calls resulting in excessive bills being sent to the complainant. In the first instance his telephone bill dated 28.3.2002 was for Rs. 55,902 and second bill dated 19.4.2002 was for Rs. 2,401, both these bills according to the complainant were excessive. THE complainant filed a written complaint dated 16.5.2002 with O.P. No. 2 for correction of the telephone bill as per actual calls made by him. It is averred by the complainant that on the first complaint of the complainant to the O.Ps. no measures were taken to stop misuse of his telephone. It is also stated that as per the details of STD calls supplied by the O.Ps. it was found that 121 STD calls, in the first bill, were shown to have been made to Telephone No. 0900331734. Even in the second bill dated 19.4.2002 16 STD calls were shown to have been made to the same telephone number whereas according to the complainant neither he nor any member of his family had made these STD calls to this telephone number. It was informed by O.P. No. 2 to the complainant that one Rahul had made these calls to the aforesaid telephone number for availing service of Psychological consultation. According to the complainant he has got no connection with said Rahul. It has been alleged by the complainant that Rahul might have taken benefit of some mechanical defect in the system of O.Ps. for which the complainant cannot be compelled to pay. It has been further alleged that the O.Ps. did not keep the telephone of the complainant under observation and only advised him to keep his telephone locked and eventually the O.Ps. disconnected his telephone number illegally and arbitrary. On these allegations this consumer complaint has been filed craving for the following reliefs against the O.Ps: (i) To direct the opposite parties to restore the telephone connection of the complainant without delay and without charging any penalty, etc. (ii) To direct the opposite parties to correct the telephone bills of the complainant by deleting the excessive calls which do not pertain to the complainant. (iii) To direct the opposite parties not to issue inflated bills, in future, to the complainant. (iv) To direct the opposite parties to pay Rs. 1,00,000 on account of mental agony and physical harassment of the complainant. (v) THE opposite parties be directed to pay Rs. 11,000 as litigation charges and misc. expenses.

The version of the O.Ps. is that the telephone number of the complainant is with dynamic locking facility and proper use of which rules out the possibility of misuse by third person except the complainant or a member of his family. It has been further stated that the bills for Rs. 55,902 and Rs. 2,401 were as per actual calls and, therefore, the complainant cannot complain of excessive billing. It has also been stated that it was the fault of the complainant that he did not lock his STD facility operative and that there was no defect in the metering equipment and it is also not a case of misuse. The O.Ps. have also stated that the complainant has not named any person, who has been allegedly misusing his telephone. It has been emphasized that since the fault lies with the complainant, no deficiency in service can be attributed to the O.Ps.

Learned District Forum-I in their analysis has observed that the main contest in the complaint related to 121 STD calls of long duration in the first bill and 16 similar calls in the second bill. Applying the ratio of I (2000) CPJ 480=2001 JRC 226, (Delhi State Commission) MTNL v. Kay Aar Apartments, wherein it was inter alia ruled that where the telephone bill was excessive, the disconnection of telephone could not be effected without notice. It was also stated therein that if the procedure for holding investigation had not been followed and when the record of the mode of investigation etc. was not produced, the District Forum was justified in drawing presumption of inference of misuse of telephone. Since in this case, no record of the exact details of mode of conduct of investigation have been placed on record, neither the affidavit of the persons, who conducted the investigation is there on the file, the learned District Forum held that it was justified in drawing presumption against the O.Ps. and holding that the telephone had been misused by the negligence or acts of omission and commission of the O.Ps. This as per the learned District Forum is a deficiency in service on the part of O.Ps. Furthermore it held that the disconnection of telephone for non-payment of bills, which are challenged as excessive, without any notice, is also a deficiency in service. Consequently, the complaint was partly allowed and the learned District Forum gave following directions: (a) To revise the two disputed bills of the complainant dated 18.3.2002 for the call period from 1.1.2002 to 28.2.2002 and the bill dated 19.4.2002 for the call period from 1.3.2002 to 31.3.2002 by deleting 121 disputed STD calls in the first bill and 16 disputed STD calls in the second bill respectively; (b) If some part payment of these two bills relating to these calls now being deleted has been made by the complainant, these shall be adjusted in the future bills; (c) After the payment of these revised bills is made by the complainant his telephone shall be restored. The O.Ps. shall pay to the complainant Rs. 500 as costs of litigation.

AGGRIEVED by this judgment of the District Forum-II, the O.Ps. have filed this appeal. The appeal was taken on board and record of the complaint case was summoned from District Forum-II. Notice was also sent to the respondent/complainant. Smt. Veena Ashwani Talwar, Advocate along with Mr. Jatin Talwar, Advocate appeared on behalf of the appellants/O.Ps. whereas Mr. Satbir Singh, Advocate represented the respondent/complainant. The learned Counsel for the appellant submitted that the learned District Forum had itself held at para 11 of the impugned order that the misuse of telephone could have been avoided had the complainant locked his STD facility. In view of this finding of learned district Forum, the impugned judgment is flawed as the complainant cannot be given advantage of his own fault and the O.Ps. be directed to rectify the bills. The learned Counsel also reiterated that the telephone in question has dynamic locking facility, code of which is known only to the subscriber and no call can be made when this facility is locked. It was further submitted that the details of all the calls made were given to the respondent and it was informed to the complainant/respondent that one Rahul had been calling from his telephone to talk to Telephone No. 0900331734. It was also reiterated that there was no defect in the metering equipment and it was suggested by the learned Counsel that it was probably the complainant himself or his son, who had made the calls and is now denying the same.

MR. Satbir Singh, Advocate defended the impugned order as being legal, just and fair. We have gone through the record of the complaint case as well as the impugned order and have heard the parties. The basic point raised by the learned Counsel for the O.Ps. is that had the STD facility of the telephone been locked the telephone could not have been misused. In this context para 7 of the complaint, Para-1 of Annexure C-2 i.e., letter of the complainant dated 1.4.2002 and para-2 of Annexure C-5 i.e., complainant''s letter dated 16.5.2002, are relevant wherein it has been specifically mentioned by the complainant that his telephone was misused from outside his premises when the telephone was in STD locked condition. It is also a fact that the STD code is in the knowledge of some personnel of the O.Ps. in addition to the subscriber. It, therefore, cannot be said with finality that a telephone, which has STD lock cannot be misused. It is also the version of the O.Ps. themselves that one Rahul, who is a student, used this telephone to call up Telephone No. 0900331734 for the disputed 121 and 16 STD calls in two bills. The O.Ps. have not been able to prove any relationship between the said Rahul and the complainant or his family members. Mere averments that the complainant or his son posed as Rahul to make calls cannot prove the point made by the O.Ps. i.e., the calls had been made by the complainant or his family members. In view of the above discussion and in the absence of mode of inquiry on record, we find that the learned District Forum was justified in drawing presumption against the O.Ps. and holding that the telephone had been misused by the negligence or acts of omission and commission of the O.Ps. We also find that para-11 of the impugned order is not really a part of the order as it appears after para-10, which actually contains directions of the learned District Forum. It is more in the form of a passing reference having been made without having any bearing on the complaint. It may also be mentioned that in para 11 the learned District Forum has given a reason for denial of compensation to the complainant. We are also of the view that the complainant cannot be punished twice for the same fault i.e., he cannot denied both the compensation as well as rectification of the bills for his alleged keeping the STD facility unlocked. In view of the ratio of the case of MTNL v. Kay Aar Apartments (supra), we find that it has also been correctly held by the learned District Forum that the O.Ps. committed deficiency in service by disconnecting the telephone of the respondent/complainant without notice while the excessive bills were under dispute. Therefore, the respondent/complainant is entitled to restoration of the telephone connection without any payment.

IN our considered view, the learned District Forum rightly given the following directions at para 10: (a) To revise the two disputed bills of the complainant dated 18.3.2002 for the call period from 1.1.2002 to 28.2.2002 and the bill dated 19.4.2002 for the call period from 1.3.2002 to 31.3.2002 by deleting 121 disputed STD calls in the first bill and 16 disputed STD calls in the second bill respectively. (b) If some part payment of these two bills relating to these calls now being deleted has been made by the complainant, these shall be adjusted in the future bills. (c) After the payment of these revised bills is made by the complainant his telephone shall be restored. The O.Ps. shall pay to the complainant Rs. 500 as costs of litigation. IN view of the foregoing discussion, we find that the impugned order is legal, just and fair and needs no interference. Consequently, the appeal is dismissed as being without merit. Copies of this order be communicated to the parties free of charges.

Appeal dismissed.