CHIEF GENERAL MANAGER, TELECOM And ANOTHER-s vs LALITHA K SARALAYA KALASANKA

THIS appeal, by the opposite party, is directed against the order dated. 19.4.1994, passed by the District Forum, D.K. District, Mangalore, in Complaint No. COM/540/93, directing the opposite party to issue the revised bill in place of bill dated 1.1.1993 disclosing the chargeable calls made during the period from 16.12.1992 to 15.2.1993, as 860 calls, and to refund the excess amount .collected to the complainant with interest thereon. The facts, briefly stated, are as follows: 1. The complainant is a subscriber of telephone bearing No. MR 26475 installed in her office at Mangalore. It has got an STD facility. The complainant received a bill dated 1.1.1993 for the bi-monthly period from 16.10.1992 to 15.12.1992 for chargeable calls of 5530. It is the case of the complainant that this bill is highly excessive and inflated as average number of calls made from this telephone during the bimonthly period of one year prior to the period of the said bill was only 782. The complainant disputing the said bill filed a complaint with the opposite party. On receipt of the said complaint, pending investigation, a provisional bill for Rs. 1,165/- was issued by the opposite party. The complainant received for the subsequent period as well a highly inflated bill for a sum of Rs. 1,470/- showing the chargeable calls as 1,386. The complainant disputed this bill as well and filed a complaint with the opposite party. The opposite party, by its fetter dated 27.8.1993, informed the complainant that the investigation revealed that the telephone of the complainant and its connected equipments were found to be fault-free and in that view her both the complaints came to be rejected. The complainant, thereafter filed this complaint seeking to quash bath bills and collect the bill for the chargeable calls of 782 only.

THE opposite party filed the version and averred that the investigation held on the complaints of the complainant revealed that the indoor and outdoor-equipments were functioning in a. fault-free condition and there was no fault of any nature which could have caused excess meter reading and so the opposite party sought the complaint to be dismissed. During enquiry, the complainant filed her affidavit and got Ex. C-1 to C-19 marked in evidence. The opposite party did not produce any evidence.

The District Forum appreciating this material placed on recored by the parties held that telephone bi-monthly bill dated 1.1.1993, Ex-C-2 Is highly excessive and inflated and in that view quashed the said bill and directed the opposite party-the appellant to revise the bill disclosing the chargeable calls as 860 calls only and to refund the excess amount collected with interest thereon to the complainant The District Forum did not find the subsequent bill dated 1.3.1995, Ex.C-13, as inflated and highly excessive and in that view rejected the complaint of, the complainant in that regard.

WE have called for the records and received. WE have also heard the Learned Counsel for the appellant and the representative of the respondent. WE have perused the material on record. The telephone in question of the complainant is installed in her office at Mangalore. It is not disputed that it has the S.T.D. facility. The complainant has neither averred in the complaint nor given the evidence that there was any malfunctioning of the meter of the telephone or any misuse of the telephone by the telephone employees. The complainant has not placed any material on record either direct or circumstantial to show that the metering equipment was defective or there has been misuse of the telephone by the employees of the Department. The District Forum, in the absence of any such material, adopted the mode of computation on the basis of average and held that the bill dated 1.1.1993, that is Ex. C2, is highly excessive and inflated bill. The District Forum in this regard, at para 11 of its order observed thus:

" 11 IN the absence of any other mode by which the probable number of calls that might have been made from the telephone of the complainant during the bi-monthly period of the impugned bill at Ex. C-2, dated 1.1.1993, can be arrived at, we are of the view that the same has to be determined on the basis of the average of local calls mentioned in the six bi-monthly bills plus 10% thereof which comes to 860 calls." The mode of commutation, adopted by the District Forum is dearly erroneous and unsustainable. The National Commission, while considering such an aspect of .the matter in Telecom District Manager, Patna v. M.S. Mukherjee, repoted in Volume II (1992) CPJ page 498 (NC), held thus : "IN the judgments rendered by this Commission in Telecom District Manager, Patna v. Kalyanpur Cement Limited (Revision Petition No. 44 of 1990) and in District Manager, Telephones v. Niti Sarin (Revision Petition No. 67 of 1990) reported in 1991 CPJ 48 we have held that it is not legally permissible to adopt this mode of computation on the basis of average for determining whether a particular bill is excessive or not, except in cases where there is satisfactory evidence to show that there was some material defect in the metering equipment in the departmental exchange concerned."

This Commission also, relying on the judgment of the National Commission, while considering such an aspect of the matter in General Manager, Telecom v. V.V. Eswaran, reported in Volume II (1992) CPJ page 667, held thus: "When a subscriber complains about the excess billing, he has to prove by adequate evidence which may be either direct or circumstantial that the metering equipment was defective or there has been any misuse of the particular telephone by the employees of the department particularly in a case where the subscriber has the STD facility."

THIS is the view taken by the Haryana State Commission as well. The Haryana State Commission, in Department of Telecommunication, Jind v. Vinod Kumar Goyal, reported in Volume II (1992) CPJ page 720, held at para 7 of its order, thus : "7. There is patent merit In the contention raiser on: behalf of the appellant-department. A consistent precedent of the National Commission has now frowned on interference on telephone charges on the ground of averages on the pattern of calling and the theory of highest number of calls. Reference in this connection may be made to I (1991) CPJ 48 (NC), the District Manager, Telephones & Others v. Niti Saran, II (1991) CPJ 286, Telephone District Manager, Patna v. Kalyanpur Cement Industry and II (1991) CPJ 579 (NC), Divisional Manager Telephones v. Madhu Enterprises, Lucknow."

HAVING regard to these principles laid down by the National Commission, the view taken by the District Forum is clearly patently erroneous. The representative of the respondent referred to the decision of our High Court in PJ. Bagilghaya v. General Manager, Telephonies and Another, reported in 1991 (1) KLJ page 325 and submitted that such a mode of computation of the chargeable calls on the basis of average is permissible. We are constrained to observe that no such principle has been laiddown in the said decision. Having regard to these facts and in the circumstances of the case, we are of the view that the finding recorded by the District Forum is unsustainable in law. ORDER IN THE RESULT, therefore, this appeal is allowed and the order of the District Forum, D.K. District, Mangalore, recorded on 19.4.1994, in Complaint No. COM/540/93 is set aside and the complaint is dismissed. The parties are directed to bear and pay their own costs in this appeal. Appeal allowed.