Chief General Manager vs COIN PAR - CENTRE OF INDIAN (Council Protection And Research)

THE opposite parties in O.P. 355/98 on the file of the CDRF, Thiruvananthapuram are the appellants. THEy were counter-petitioners in I.A. 174/98 moved by the complainant therein for amendment of the complaint. By the impugned order the District Forum allowed the petition.

LEARNED Counsel for the revision petitioner sought to maintain that the impugned order is faulty, firstly because the District Forum did not have inherent jurisdiction to entertain the complaint itself, therefore, the District Forum could not have entertained the application for amendment. It was then urged by the learned Counsel, there being no specific allegation as to negligence, the complaint could not be entertained. As according to the learned Counsel relief of compensation could have been granted only when the complainant suffers injury on account of the negligence of the opposite party. It was also urged that the amendment could be entertained only for events that occurred after the institution of the complaint. It is urged by the learned Counsel, the petition for amendment itself having been filed after the complaint was posted to consider as to maintainability, the petition should not have been allowed. The first respondent on the other hand urged that the complaint is maintainable before the District Forum and with due regard to the nature of the complaint there was no lack of inherent jurisdiction for the District Forum to entertain the complaint. He pointed out, there was sufficient allegation as regards negligence in the complaint and that the view expressed by the learned Counsel for the revision petitioner that only when the amendment relates to subsequent event the application can be entertained, is not sustainable. In short, according to him, the order rendered by the District Forum is not in any way opposed to any provision of law. Learned Counsel for the appellant referred us to the decision of the National Commission reported in I (1991) CPJ 479 (NC)=1991 (1) CPR 609, Madras Provincial Consumer Association v. Department of Telecommunications, in support of his contention. All that is held in that decision is "tariff rates fixed under Section 7 of the Indian Telegraph Act read with Rule 434 of the Indian Telegraph Rules are statutory in character and their reasonableness cannot be gone into by a Court nor any grievance regarding these tariff constitute any deficiency in service under the Consumer Protection Act". It also held that the rate fixed as per Section 7 of the Telegraph Act are statutory in character and the correctness of the tariff rate so fixed cannot be gone into by the Consumer Forum. Reference was also made by the learned Counsel to the decision of the National Commission in III (1993) CPJ 365 (NC)=1993 (3) CPR 198. M/s. Anand Cane Crusher v. U.P. State Electricity Board & Anr., wherein the question that arose related to the fixing of tariff under the Electricity Act; it is held, that the question involved being whether the consumer was "non continuous process consumer or continuous process consumer" being as to the tariff payable is beyond the jurisdiction of the Consumer FORA. Therefore, the learned Counsel argued, that applying the principle therein since the question involved herein also is the question being whether the complainant is liable to pay Rs. 220/- or Rs. 275/- as rental, is a question concerning tariff and, therefore, the District Forum had no jurisdiction to entertain the complaint being so District Forum could not have entertained the amendment. On the other hand the opposite party referred us to the decision of the National Commission in III (1995) CPJ 12 (NC)=1995 (2) CPR 474, District Manager, Indore Telephones v. Kailasachandra Agrawal, to maintain that the question as to whether the complainant would be liable to pay a particular rental fixed under Section 434 of the rules depends on the installed capacity of the exchange, the said question can be entertained by the Consumer FORA. The bi-monthly rental was increased as a result of the enhancement of the line capacity of the Telephone Exchange. Whereas the complainant sought to maintain that the working lines in the Exchange at Indore since is less than 3000 is not liable to pay Rs. 250/- rental, the opposite party therein maintained that the Telephone Exchange is having 3000 lines and above the bi-monthly rental per telephone was fixed at Rs. 250/-. The District Forum held that as the Exchange system at Indore has more than 30,000 lines the increase in rental was in accordance with law. It has awarded compensation to the complainant holding that the increase in the rental was made without notice to him; costs was also awarded. Appeal was preferred by the department before the State Commission it upheld the relief granted by the District Forum though on different grounds; and the department came before the National Commission in revision. The National Commission held, "thus we have to take into consideration the installed capacity of the exchange system and not merely the working connections which is a variable figure sometimes the number of telephones are connected to an Exchange are placed in safe custody and some are disconnected for non-payment of dues. Some telephones might have been sanctioned but not connected as yet. By enhancing the capacity of Telephone Exchange system the department incurs extra expenditure and that appears to be the reason why the Telecom Department has increased the bi-monthly rental for ''a telephone''. In that view it upheld the finding with respect to the enhancement of the rental then in considering whether the complainant is entitled to prior notice for the enhancement of bi-monthly rental, the National Commission held that he is not eligible for compensation. In that view the orders of the District Forum and the State Commission were set aside and the complaint was dismissed.

We see enough force in the submission by the first respondent on the basis of the aforesaid decision to the effect, if as a matter of fact such a question would also amount to fixing of tariff and, therefore, the FORA had no inherent jurisdiction to entertain the complaint itself, the National Commission could not have entertained the complaint on that ground itself. What is to be noted in this connection is, in this case also it is urged, in seeing as to whether the complainant herein would be liable to pay the enhanced tariff, the installed capacity of the exchange in question would also arise for consideration. In the circumstances we are of the view that the case that since the District Forum had no inherent jurisdiction to entertain the complaint itself, the amendment application could not have been entertained cannot be sustained.

AS regards the contention that there is no plea of negligence as is observed by the District Forum, there being a plea of negligence, an argument on the basis of lack of plea concerning negligence cannot be sustained. It cannot always be that amendment can be allowed only on the basis of subsequent events; of course subsequent events would enable a party to seek for averment so that he would avail a benefit on account of subsequent event but on that it cannot be said, on no other contingency amendment can be allowed. So long as the amendment does not alter the character of the case or seeks to introduce a new cause of action, the amendments generally can be allowed so that there could be a complete and effective adjudication of the whole dispute between the parties. Simply because the amendment application was moved when the matter came up for consideration as to maintainability, the amendment application cannot be dismissed. Having gone through the impugned order, we are of the view, that there is nothing to interfere in the impugned order, the revision fails and the same is dismissed. Revision dismissed.