DISTRICT ENGINEER TELECOM vs MANIKA MUKHERJEE

AGAINST the order dated 28.10.1991 passed by the District Forum, Ajmer in Complaint Case No. 173/91 the opposite party-appellant has filed this appeal under Section 15 of the Consumer Protection Act, 1986 ("the Act" herein). The opposite party was directed to restore Telephone No. 23429 to the complainant-respondent and also to pay Rs. 500/- as compensation to him within one month. Facts leading to this appeal briefly, put are these :

THE complainant is proprietor of M/s. Shakti Industires. Its main office is situated at 2G-8, Vaishali Nagar, Ajmer. Telephone No. 23429 was installed in the office. THE complainant has alleged that on 4.1.1991 and 20.3.1991, the opposite party sent a notice to the complainant enquiring from her whether her industry is working or not. At that time she was out of Ajmer on account of urgent work. THE notices were received by her daughter. As such complete reply could not be given. THE telephone was disconnected in April-May, 1991. She has stated that all the bills were deposited by her in time. THE complainant after tendering apology, requested for restoration of the telephone but no heed was given. She has alleged that her industry was in working condition and is still in a working condition. It was stated that the disconnection of the telephone was improper and illegal. She, therefore filed the complaint on 15.7.91 praying for the restoration of the telephone and also to award (i) Rs. 400/- (Legal expenses and typing charges and (ii) Rs. 1000 as compensation for mental agony. The version of the case was submitted on 19.10.1991. It was stated that the industry of the complainant was closed and, therefore, the telephone was correctly disconnected on 19.4.1991. As regards closure of the industry it was submitted that the employees of the Department repotted the fact of disclosure. It was pleaded that after investigation it was found that the telephone installed was against the Rules and so there is no question of restoring it.

An objection was also raised that the question whether the factory was closed or not is complicated question and as such the redressal forum has no jurisdiction to entertain the complaint and it should be dismissed.

THE complainant submitted her affidavit. Parties produced documents before the District Forum. THE District Forum heard the arguments on 26.10.1991 and passed the impugned order as stated above. Hence this appeal. THE respondent submitted reply to the appeal. We heard Mr. U.D. Sharma, learned Counsel for the appellant and Mr. Rajesh Kapoor, learned Counsel for the respondent and considered the record. Learned Counsel for the appellant argued that the proceedings in the District Forum were conducted by the President and two members but the order was signed by the President and one member. This is in violation of Section 14(2A) of the Act. The President and the Member who heard the arguments have passed the order. There is no breach of the provisions contained in Section 14(2) and (2A) of the Act. The argument is futile.

IT was next contended that the District Forum has exceeded its jurisdiction when it gave the direction for the restoration of the Telephone, for it has no power to give direction to do or to desist. IT is correct that under Section 14(1) of the Act as it existed prior to the Consumer Protection (Amendment) Ordinance, 1993 ("the Amendment Ordinance") no such direction could be given. There are various decisions of the National Commission to this effect. Section 12 of the Amendment Ordinance has amended, Section 14(1) of the Act Cl. (e) has been inserted after Cl. (d) which is as follows :- (e) To remove the defects or deficiencies in the services in question." By insertion of Clause (e) the District Forum can direct to remove defect or deficiency in service. For the removal of the deficiency in service a direction can be given for restoration of the telephone. The service suffered from deficiency and for removing the deficiency a direction can be given for restoration of the telephone. A further question arises whether the appellte Forum while hearing the appeal can invoke the newly inserted Clause (e) to Section 14(1) which was not in existence when the District Forum passed the impugned order. Appeal is a continuous of original proceedings. It is rehearing of a case by a superior Court. It is a continuation of the complaint. It exercises all these powers which are exercisable by the original Forum. It is thus clear that newly added Cl. (e) by the Amendment Ordinance to Section 14(1) of the Act for maintaining the direction can be availed of by the State Commission while hearing an appeal under Section 15 of the Act. Now, question is whether a case for restoration of telephone is made out and a direction for restoration of the telephone could be given. The complainant-respondent had already deposited rent upto July, 1991. An enquiry was conducted by the opposite party whether in the factory production is going on or not. It is clear from the first letter of the opposite party that the factory is in existence but there is no production. The second letter of the opposite party is to the effect that the factory is not in existence. This is contrary to the letter dated 15-1-1991 of the District Industry Officer Ajmer in which it is stated that the factory is in existence. The opposite party has mixed the question of existence and production. The factory may be closed but it does not mean that it is not in existence. The complainant had written letter after her return for restoration of telephone which was not heeded at all. There is no justification for the argument that as the Industrial Unit of the respondent was closed, the disconnection of the telephone on the ground of non-existence of the industrial unit was justified. The telephone of the complainant was wrongly disconnected. Disconnection of the telephone constituted deficiency in service as envisaged by Sec. 2(1)(g) of the Act. For removal of the deficiency, an order for restoration of the telephone could be passed under Sec. 14(1)(e) of the Act. A direction for restoration of ante status quo can be given for removal of the deficiency. The direction for restoration of telephone is maintained. It was contended on behalf of the appellant that award of compensation to the tune of Rs. 500/- is illegal, for no loss or injury was suffered by the complainant as the industrial unit was closed. By disconnecting the telephone, the opposite party has acted negligently, for, the telephone could not be disconnected. The complainant-respondent has claimed Rs. 1,000/- as compensation for mental agony on account of the disconnection of the telephone. In such a case no tangible evidence could be produced. There is no rule of thumb for award of compensation in such cases. In the facts and circumstances of the case, the award of Rs. 500/- as compensation cannot be characterised as unreasonable, unjust and unfair. The argument of the learned Counsel for the appellant that it is arbitrary cannot be accepted. No valid exception can be taken to the award of Rs. 500/- as compensation.

NO other point survives for consideration in this appeal.

THE appeal is devoid of force. It is accordingly dismissed. No costs. Appeal dismissed without cost. ____________