CHIEF GENERAL MANAGER, MAHANAGAR TELEPHONE NIGAM LTD. vs SURESH BHARGAV

IN this case, we are only concerned with an important point of law raised by the Revision Petitioner-Mananagar Telephone Nigam Ltd.

THE District Forum, by its order dated 28th November, 1991 in Original-Petition No. 361 of 1992, had directed the Opposite Party MTNL to provide unmetered telephone service in respect of complaints lodged with the Supervisor (FRS) and Asstt. Engineer (FRS) in the best interest of the public. In appeal in Case No. A-9/ 92, the State Commission, Delhi by its order of 3rd July, 1993 had held that it is the duty of MTNL to register and rectify the faults in the shortest possible time, that this may happen only when the subscribers find it easy to register fault complaints without having to remain either ''in the queue'' or not being attended to at all, that it would be good service by MTNL to provide facility of unmetered telephone service in addition telephone No. 198. Therefore, the State Commission upheld the order of the District Forum and dismissed the appeal of the Revision Petitioner and directed the MTNL to make available additional unmetered telephone service in respect of telephone faults registered with Supervisor (FRS) and Asst. Engineer (FRS). The revision petitioner MTNL has attacked the order of the State Commission on the ground that the lower Forums had no jurisdiction to give such directions, that whether a charge should be levied for calls of a particular nature or not, is a matter for policy decision. It has to be decided in accordance with the Indian Telegraph Rules made by the Government of India from time to time as to which calls are to be metered and which are not to be metered. Such policy matters which pertain to the realm of subordinate legislation are outside the purview of the Consumer Redressal Forums and as such the District Forum and the State Commission could not legally give the directions which they have given to provide unmetered service in respect of complaints regarding malfunctioning of telephones.

THE revision petitioner MTNL had also pointed out that the Union of India and the Department of Telecommunications had not been impleaded as parties though they were necessary parties inasmuch as it is the Union of India which decides whether or not certain calls should be metered and what charges should be levied there for. The revision petitioner MTNL is only a license of the Telegraph authority.

SECTION 2(1)(g) of the Consumer Protection Act defines "deficiency" as under: "Deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under a law for the time being in force or has been undertaken to be performed by a person in pursuance of the contract or otherwise in relation to any service". A mere reading of the definition of the term "deficiency" in the Consumer Protection Act would show deficiency in service must involve a breach of legal or contractual obligation or deficiency in service which has been undertaken to be performed otherwise. It cannot be said that the provision of additional unmetered telephone service for purpose of registration of fault complainants is a requirement either under law or under a contract or that it is something which has been undertaken to be done by the revision petitioner MTNL. As much, it cannot be maintained that the "MTNL has been guilty of any deficiency in service" as defined in the Consumer Protection Act as it has not undertaken to provide additional unmetered fault registration service by contract or otherwise.

WE , therefore, hold that the District Forum and the State Commission, in giving the directions as set out above, had exercised jurisdiction not vested in them by law. The revision petition is allowed and the order of the State Commission and the District Forum are set aside. There is no order as to costs.