DIVISIONAL ENGINEER vs HARIKISHAN BHATTAD

THIS is a Revision Petition against the common order dated 30th May, 1994 passed by the Consumer Disputes Redressal Commission, Tamil Nadu (for short the State Commission) in Appeal Nos. 460 and 461 both of 1993 which arose out of the common order dated 8th June, 1993 passed by the Consumer Disputes Redressal Forum, Madras in O.P. Nos. 983/92 and 43/93. By the impugned order the State Commission confirmed the order passed by the District Forum against the opposite parties who were appellants before the State Commission and one revision petitioners. The complaints had been filed by the present respondent Harikishan Bhattad. In this revision petition we are concerned only with the order of the State Commission concerning Appeal No. 460/93. It has arisen out of the order passed by the District Forum in O.P. No. 983 of 1992.

ACCORDING to the complainant he is subscriber in respect of telephone No. 443398 and was regularly paying the charges covered by the bills issued by the Telecom Department. Earlier the telephone was not having STD facility. On the request of the complainant-subscriber it was provided on 22nd May, 1992. While requesting for STD facility the complainant had also requested to furnish him a computerised statement of the calls along with the bill. The complainant received a bill dated 7th July, 1992 for a sum of Rs. 10,228.90. He applied to the Telecom Department to give him computerised statement of the calls. The Department replied that the matter has been referred to the Superintendent, Madras Telephones. When the complainant did not receive any further communication he got issued a Lawyer''s notice to the Department on 10th August, 1992 and also requested not to resort to any drastic action of disconnection before settling the said dispute. The notice was served on the Department on the same dated i.e. 10th August, 1992. Inspite of the complainant''s request to furnish him the details of the calls made by him those were not furnished to him. In fact there was no response from the Telecom Department. However, the Department disconnected the telephone of the complainant on 12th August, 1992. The case of the complainant is that on account of illegal disconnection he has been subjected to harassment and also suffered mental and physical agony as well as financial loss and the said action of the opposite party amounted to deficiency in service. He, therefore, claimed Rs. 10,000/-as compensation plus restoration of the telephone. This was the subject matter of O.P No. 983/92. While the said O.P. was pending before the District Forum, the complainant received another bill dated 7th September, 1992 for Rs. 12,760/- with the direction to pay the bill before 21st September, 1992. The complainant was threatened with the disconnection of his other working telephone. According to the complainant the said bill dated 7th September, 1992 was incorrect and inspite of his request he was not supplied the details of the calls made by him. He made the same grievance and prayer which he made in the earlier complaint and also alleged that without resorting to arbitration proceedings under Section 7B of the Telegraph Act (for short the Act) the Department was not entitled to disconnect his telephone and, therefore, it amounted to deficiency in service. This was the subject matter of the Second Original Petition No. 43/93 filed before the District Forum.

BOTH the complaints were countenanced by the Telecom Department. The allegations of the complainant were denied. It was, however, admitted that the complainant had asked for the details of the calls. As there was no such facility in Mambalam Telephone Exchange, therefore, the computerised details of the calls could not be furnished. As the complainant had failed to pay the amount of the bill dated 7th July, 1992 his telephone was disconnected on 12th August, 1992. About the second bill dated 7th September, 1992 for Rs. 12,760/-, it was pleaded that it was proper as there was no excess recording of the calls. The Department prayed that the complainant was not entitled to any relief in either of the complaints.

THE District Forum found that the disconnection of the telephone No. 443398 of the complainant without resorting to arbitration proceedings as provided under Section 7B of the Indian Telegraph Act amounted to deficiency in service and directed opposite party to pay compensation of Rs. 10,000/- in each of the complaints i.e. Rs. 20,000/- in all with interest at the rate of 18% from the date of the complaints till restoration of the telephone. Feeling aggrieved against that order the opposite parties i.e. the present Revision Petitioners filed appeals before the State Commission. Relying upon Orissa Vegetable Oil Complex Ltd. v. Union of India, AIR 1990 Orissa 51, the State Commission held that the disconnection of the telephone without referring to an Arbitrator as laid down under Section 7B of the Act amounts to gross deficiency in service. The State Commission, however, found that award of Rs. 10,000/- as compensation in Complaint Case No. 983/92 by the District Forum was on the higher side. The said amount was reduced to Rs. 5,000/- which amount was considered fair and reasonable. It may be mentioned here that in that complaint the District Forum had not directed the restoration of telephone on the ground that such relief could not be given under Section 14 of the Consumer Protection Act, as it then stood. However, in view of the amendment in the Consumer Protection Act in 1993 the State Commission held that as the appeal was continuation of the original petition the Appellate Authority could invoke Clause (e) to Section 14(1) of the above Act while granting relief. The State Commission, therefore, directed the opposite parties to refer the dispute to arbitration and pending arbitration to restore the telephone connection within 15 days of the date of order.

IN respect of O.P. No. 43/93 on the file of the District Forum, which was the subject matter of Appeal No. 461 /93 the State Commission set aside the order of the District Forum regarding the award of compensation of Rs. 10,000/-on the ground that another liability could not be imposed on the opposite parties for the same disconnection as it would amount to double jeopardy. However, the order of the District Forum was maintained regarding referring the dispute regarding the amount of the bill dated 7th September, 1992 to arbitration. As noticed earlier in the present revision petition the opposite parties are only challenging the order passed by the State Commission in Appeal No. 460/93. It may be mentioned here that about the threat given to the complainant with respect to the disconnection of his other working telephone No. 442828 for non-payment of the bill dated 7th September, 1992 is already a subject matter of suit. The complainant has filed a suit for injunction and seems to have obtained an order* restraining the Department from disconnecting the said other telephone.

WE have heard the learned Counsel for the revision petitioners as well as the respondent who appeared in person and gone through the record. In the present case the only question that arises for consideration is whether arbitration under Section 7B of the Act should have preceded before the Department disconnected the telephone on the ground of non-payment of the bill dated 7th July, 1992 alleged to be excessive. As noticed above, the State Commission has relied upon the case of Orissa Vegetable Oil Complex Ltd. (supra) wherein Bench of Orissa High Court has remarked that the dispute regarding false metering and excess billing is one covered under Section 7B of the Act and it is no longer in controversy as a similar view was taken in Union of India v. Usha Spinning and Weaving Mills Ltd., AIR 1982 Delhi 111. It was further remarked in that case that Section 7B makes a compulsory provision that in the event any dispute arises inter alia regarding the telephone, the Telegraph Authority and the person for whose benefit the telephone apparatus has been provided, it shall be determined by arbitration and shall be referred to an arbitrator appointed by the Central Government either generally or for that specific dispute and therefore, it will follow that once a dispute exists between the subscriber and the department regarding the demand, the dispute cannot be received except by way of arbitration in the manner provided for under the above section. It was further held that a necessary conclusion followed that a demand raised against the subscriber under the bill, if protested, does not achieve finality and cannot be said to be binding upon the latter unless the same has been adjudicated by an Arbitrator whose award on the question has been granted a finality under the provisions of the section. It was also remarked that the demand raised under the bill against the subscriber cannot be said to be due from him if he has raised a protest against the same and the dues have not been finally determined by the Arbitrator and in such an event the only amount which would be due against the subscriber is the amount which is admitted by him as his dues and the rest of it which is disputed must be determined by the Arbitrator and only on failure to pay the dues as determined by the Arbitrator on demand being raised the powers under the Rules (i.e. Rule 443) can be invoked to effect disconnection. The Orissa High Court also relied upon the case titled PS. Anthappan v. District Manager, Telephones, and A.I.R. 1980 Ker. 210. We are of opinion that the cases relied upon by the State Commission are not applicable to the present case. Before proceeding further we may reproduce here Section 7B of the Act which reads as follows: "7B Arbitration of disputes:� (1) Except as otherwise expressly provided in this Act if any dispute concerning any telegraph line, appliance or apparatus arises between the Telegraph Authority and the person for whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall; for the purposes of such determination be referred to an Arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section. (2) the award of the Arbitrator appointed under Sub-section (1) shall be conclusive between the parties to the disputes and shall not be questioned in any Court."

It has to be noticed that the said provision only applies if any dispute concerning telegraph line, appliance or apparatus arises between the Telegraph Authority and the subscriber. It is not disputed that a telephone appliance or apparatus falls within the definition of the expression "telegraph" as given in Section 3(1) of the Act. In other words it is beyond pale of controversy that Section 7B of the Act would be attracted to a dispute concerning any telephone line, appliance or apparatus.

THE question, therefore, to be seen is whether a dispute raised by the subscriber about the excessive bill falls within the nature of disputes narrated in Section 7B of the said Act. In the Usha Spinning''s case (supra), the respondent-subscriber has made a representation to the Telecom Department in regard to the exorbitant number of calls registered on their telephone, and inter alia urged that the steep rise in the number of calls was contributable to misuse of telephone lines by Line and other staff of the Telephone Department. The subscriber moved an application under Section 20 of the Arbitration Act praying that the dispute between the parties fell within the ambit of Section 7B of the Indian Telegraph Act, 1885 as amended from time to time which provided for statutory arbitration in respect of disputes concerning any telegraph line, appliance or apparatus arising between the Telegraph Authority and the persons for whose benefit the line, appliance or apparatus is or has been provided. The application was resisted by the Union of India. They refuted that the Line staff of the Telecom Department had misused the telephone resulting in the escalation of the amount of the bill. On the other hand, they asserted that the bill had been issued on the basis of the calls recorded in the associated Meter and it was apparently due to the excessive use of the STD facility available on the said telephone. It was further contended by them that any default in payment of the bill entails disconnection of the telephone concerned under Section 443 of the Indian Telegraph Rules and as such the dispute in question does not fall within the domain of Section 7B of the Act. The aforesaid contention of the Union of India was spurned by the Subordinate Judge as being untenable and he directed that the dispute between the parties be referred to the statutory arbitration in terms of Section 7B of the Act. Union of India filed appeal before the Delhi High Court. The Delhi High Court remarked: "On its plain language the expression any dispute concerning any telegraph line, appliance or apparatus'' is of wide amplitude and will take within its sweep all kinds of disputes which relate to the functioning and working of any telegraph line, apparatus or appliance. In the instance case, the contention of the respondent-Company is that threat of disconnection on the part of Telephone Department is illegal inasmuch as it is founded on an inflated bill due to misuse of telephone by the Line and other staff of the Department. Surely, it is not the same thing as saying that the telephone bill is exorbitant due to faulty meter reading or incorrect records maintained by the Telephone Department. The respondent-Company has made a specific averment that the higher number of calls registered on the aforesaid telephone is due to malfunctioning of the telephone line as a result of misuser by the staff of the Telephone Department. No doubt, non-payment of telephone bill entails disconnection under Rule 443 of the Telephone Rules but the said Rule pre-suppose that the bill raised by the Telephone Department is correct being based on proper functioning of the telephone apparatus or the line. But the moment the correctness of the bill is challenged on the ground of the malfunctioning or misuser of the lines, surely a dispute concerning the telegraph line, apparatus or appliance within the meaning of Section 7B will spring up."

The appeal filed by the Union of India was dismissed.

FROM the above, it is clear that where the subscriber merely complains about the exorbitant bill meaning thereby that he complains only about faulty reading of meter, it only involves question as to whether the meter has been correctly and honestly read and the readings had been correctly and honestly noted down. Such dispute does not fall within the purview of Section 7B. In the present case, the subscriber-complainant did not complain any misuse of the line or defect in the meter. He only complained about the excessive bill and called for the details of the calls made from his telephone. Thus he did not raise a dispute falling under Section 7B of the Telegraph Act. As noticed above, the Orissa High Court upon whose judgment the State Commission has also relied upon Anthappan''s case (supra), in which case it was held that reference to arbitration under Section 7B of the Indian Telegraph Act must precede the disconnection and not follow it. For once the telephone is disconnected; there is very little practical purpose to be served by arbitration. The facts in the Kerala case were entirely different. In that case the subscriber''s telephone was disconnected by the Department on the ground that he had allowed another person to use the telephone while he had himself shifted from the premises where the telephone was installed. Action was taken under Rules 421 read with 429. Thus in that case the dispute was clearly with regard to the misuse of apparatus and it squarely fell under Section 7B. As noticed above, the present dispute does not fall under Section 7B and, therefore, the arbitration need not have preceded the disconnection of the telephone of the complainant under Rule 443 of the Indian Telegraph Rules. In the light of the above discussion, we hold that the State Commission has exercised its jurisdiction with material irregularity while confirming the order of the District Forum asking the Department to initiate arbitration proceedings under Section 7B of the Act and ordering reconnection of the telephone and payment of compensation. Consequently, we set aside the orders of the District Forum passed in O.P. No. 983/92 and of the State Commission in Appeal No. 460/93 and dismiss the said complaint. In the circumstance of this case we make no order as to costs.