DISTRICT ENGINEER, TELECOMMUNICATIONS vs BHAVANGAR GRAHAK SURAKSHA MANDAL

THE District Engineer, Telecommunications, Bhavnagar being aggrieved by the judgment and order of the Bhavnagar District Forum dated July 5, 1991 in C.D.R. Case No. 14 of 1991 has filed this appeal. THE respondent-complainant is a voluantry CONSUMER association and on behalf of the subscribers of telephones had filed a complaint before the Bhavnagar District Forum, contending that the telephone subscribers were consumers within the definition of Consumer Protection Act and the opposite party i.e. the Telecommunication Department was under legal obligation to render them proper services. THE Telephone Department is taking rental and trunk call charges and S.T.D. call charges from the subscribers for providing telephone services.

THAT the publication of telephone directory is one of the essential and necessary services to the subscribers because unless subscriber knows the new telephone numbers he will not be able to dial that number and in order to get the numbers he has to necessarily dial telephone enquiry for which he has to pay one telephone call charges and on account of non-publication of such directories big amounts of revenue might have been received by the opposite party. The Department, according to the complainant was supposed to publish directory every year and not publishing such directories since 1988 amounts to deficiency in services within the meaning of the Act. The complainant had, therefore, claimed damages of Rs. 101/- per CONSUMER and Rs. 1,001/- as cost. The learned Judge after hearing the parties has passed an order directing the opposite party to pay the token compensation of Re. 1/- to each consumer of Bhavnagar Division for non-supply of telephone directory for the year 1990 and to pay Rs. 100/- as cost.

The opposite party who has filed this appeal has contended that the appellant could not show any legal right to have a directory published every year though the appellant has admitted that so far the Bhavnagar area is concerned they are following a practice of publishing a directory every alternate year. The reason for not publishing the directory given by the Department is that there were new subscribers and several subscribers were barring STD facilities which necessitates the change of numbers and, therefore, the Department has not published the directory in 1990.

NOW it cannot be disputed that under Rule 452 the Department is under legal obligation to supply a telephone directory free of cost to each subscriber. That means that the supply of directory free of cost is one of the components of service which the Department is supposed to render for the telephone rent and other charges levied from the subscribers. As stated earlier, the non-publication of directory every year augments the revenue of the Telephone Department because in order to know the numbers given to the new subscribers the old subscriber has to spend about Re. 1/- as local call charges. That there are new subscribers or change in numbers is not a good reason because these types of reasons will be always there available to them since there are big queues of potential subscribers and every year there will be hundreds and thousands of new subscribers. If these are the reasons taken, the directory cannot be published till all the subscribers are given new telephones. We, therefore, do not find any merit in the contention advanced by the Department. 5a. The next contention raised by the learned advocate appearing on behalf of the appellant was that there are more 20000 subscribers and the complainant-association has prayed for Rs. 101/- as compensation to each subscriber and, therefore, the compensation demanded by the Association would be more than Rs. 1,00,000/- and, therefore, the District Forum had no jurisdiction to entertain and decide the complaint. This contention has also no merits in-asmuch as this objection regarding the pecuniary jurisdiction of the District Forum has not been raised in the written statement. The provisions of Civil Procedure Act, Section 21 being relevant is reproduced as under: "21(2) No objection as to competence of the Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and, in all cases where the issues are settled, at or before such settlement and unless it has been a consequent failure of justice."

In the instant case, neither the objection was taken in the written statement nor at the time of argument and the question of failure of justice has not arisen because the District Forum has awarded Re. 1/- to each of the consumer and, therefore, the total amount of compensation will not exceed Rs. 20,000/- to 25,000/-. We, therefore, reject this contention of the learned advocate.

NOW the question arises as to whether the District Forum can pass orders to pay Re. 1/- as compensation to each and every consumer in such complaints in view of the provisions of Section 2(i)(c) r/w Sec. 14. Here, no doubt, under Section 12 of the Act the recognised consumer Association has a right to make a complaint both for goods and services on behalf of the concerned consumers whether concerned consumer is a member of such an association or not. But the question arises is that whether such association can file a complaint for indefinite number of consumers or a consumer at large who are subscribers of telephones. In such a case what relief can be given is also to be considered. This is a complaint for unspecified number of subscribers of telephones by the association. In this respect a reference may be made to a decision given by the National Commission in the case of Society of Civil Rights v. Union of India reported in I (1991) CPJ 199 (NC)=1991 (2) CPR 276. In this case the complainant-society filed a complaint before the National Commission to the effect that Telephone Engineers of the Telephone Organisation had launched work-to-rule agitation which lasted for 7 days and as a result of that agitation the telephone network throughout the country was badly disrupted affecting local calls, STD, Trunk call and other services. The society therefore, claimed that the reduction in rental for the period when the system remained disrupted should be granted. That payment of punitive compensation to the consumers for the loss and injuries caused to them as the result for the negligence of the respondents in not keeping the communication system in order during the said period etc. Considering the definition of complainant, complaint and consumer the COMMISSION observed that under Section 2(1)(d)(ii) consumer must be one who hires a service for consideration. In other words, to be a consumer the nexus of hiring of services must be established. In that case the complainant could satisfy the definition of complainant under Section 2(1)(d) but docs not establish that the complaint has been filed by consumer as defined in the Act. The complaint has been filed on behalf of an unspecified number of users of telephone services. The scheme of the Act requires a specified identifiable consumer of consumers to file complaints as complainant consumers alone can receive the reliefs which may be granted under the Act. To this extent the complaint does not conform to the provisions of the Act. That the complaint having been filed on behalf of unspecified number of users of telephone service and the scheme of the Act requires a specified identifiable consumer of consumers to file a complaint and the complainant consumer alone can receive the relief which may be granted under the Act. To that extent the complaint did not conform to the provisions of the Act. In the instant case also there are unspecified and unidentifiable number of consumers and the complainant association is not filing the complaint for a particular person. Therefore it is not possible to grant relief to unspecified consumers which the District Forum granted which to our opinion does not come within the purview of Section 14. Such an order cannot be executed and the District Forum had directed the Telephone Department to give compensation of Re. 1/- to each subscriber is also an order which is not contemplated under the provisions of Section 14.

MR. Yagnik, learned Advocate appearing on behalf the respondent has argued that atleast the voluntary association is a subscriber of telephone and it should be granted the relief because the association has also suffered the damages on account of non-publication of the directory.

THE Telephone Department is a monopoly concern and is a State within the meaning of Article 12 of the Constitution. THE State should'' always be prepared to render efficient services because there is no alternate, that the consumer is expected to accept whatever services that is rendered by the Telephone Department. Considering these facts and circumstances we are of the opinion that if the Telephone Department neglects to render essential services which it is obliged to do under the provisions of Rule 452 by giving free directory so that the subscriber can use his telephone with regard to new subscribers also and Telephone Department having failed to publish the directory even within 2 years according to its own averments, the Department is, responsible atleast to the complainant subscriber for damages. Unfortunately the Department is not able to produce the departmental instructions with regard to the publication of directory. We have, therefore, to presume that it should at least be published every year unless the law otherwise directs. It was expected from the Department to assist the COMMISSION and produce the relevant instructions on this behalf. But as usual the Department appears to take things with case. A consumer is not supposed to have these inter-departmental instructions with him. We are, therefore, of the opinion that the token damages shall have to be awarded to the Voluntary Association. The consumer association had to fight for the rights of the consumers of Bhavnagar and had to spent money for collecting information and engaging advocates etc. To undertake these, it shall require money and we are of the opinion that proper cost should be awarded irrespective of the amount of damages given to it. We, therefore, direct that the cost of Rs. 1000/- for each Court shall be given to the complainant association. ORDER The appeal is partly allowed. The order of the District Forum, Bhavnagar to the extent that a token damage of Re. 1/- be given to every subscriber is set aside. The appellant will pay Re. 1/- as token damage to the respondent and cost of this appeal as well as the cost in the District Forum. The cost is quantified at Rs. 1,000/- in appeal and Rs, 1,000/- in complaint. The order of the District Forum with regard to cost of Rs. 100/- is set aside. The appellant shall pay these damages and costs within 4 weeks from today. Appeal partly allowed.