DIVISIONAL ENGINEER (C.F.), CALCUTTA TELEPHONES vs R.MALATI SINHA

THIS Revision Petition has arisen out of the Order dated 12.7.1995 passed by the majority Members of the West Bengal State Commission at Calcutta upholding the Order dated 29.9.1992 passed by the District Forum, Calcutta directing the petitioner herein to restore complainant''s telephone at once and further to pay Rs. 10,000/- as compensation to the complainant for her suffering and profession loss.

THE facts lie in a very narrow compass and may be noticed. The complainant is a practising physician and was subscriber of telephone No. 290042 installed and working at her address at Park Circus Area in Calcutta. She changed her residence and made an application to the General Manager, Calcutta Telephones, for shifting of her telephone to her residence at 6 A, Garden Apartment, 25, Garihat Road, Calcutta. Telephone No. 42-8351 was provided to the complainant at said residence on 11th May, 1990. The complainant alleged that unfortunately, this shifting on 11th May, 1990 never worked and on various occasions the authorities were informed but strangely enough they did not make the telephone in working order and ultimately disconnected the telephone. The complainant filed a complaint before the District Forum praying for a direction of immediate restoration of the telephone connection and instead of ''42 ''a line on ''46'' to be allotted to the complainant and Rs. 1 lakh as compensation. On being noticed the opposite party filed its version. It was pleaded that the line was put through into service on shifting on 11th May, 1990, that as per record the complainant lodged complaint on 12th June, 1990 and the line was tested and it was found that it was right on the same date, that the second complaint was made and on testing the line was found down due to cable break down and it was restored on 3rd of August, 1990 and that rental rebate for the period of 13th June, 1990 to 3rd of August, 1990 was granted. It was further pleaded that the line was again interrupted under external interruptions from 1st September, 1990 till temporary disconnection for non-payment on 13th December, 1990 because the complainant defaulted in making the payment of bill dated 10th September, 1990 for Rs. 300/- and of bill dated 24th October, 1990 for Rs. 1,409/- which comprised of rent from 11th May, 1990 to 30th September, 1990 and the shifting charges. The complainant in the rejoinder denied her liability to pay dues as claimed by the opposite party on the ground that the said bills were baseless and liable to be cancelled as her telephone never worked from 11.5.1990. Tine District Forum after considering the respective versions came to the conclusion on the basis of the allegations and counter allegations that the complainant had suffered loss to her profession for the intermittent functioning and non-functioning of her telephone and so she was entitled to get compensation at least Rs. 10,000/-. The District Forum directed the opposite party to restore the complainant''s telephone at once and further directed to pay Rs. 10,000/-as compensation to the complainant.

THE opposite party who is the petitioner herein, in compliance with the first part of the Order of the District Forum restored the telephone to the complainant with new No. of 73-3897 but preferred an appeal before the State Commission. The State Commission dismissed the appeal by the majority Order dated 12th July, 1995.

WE have heard Mr. S.S. Sabharwal, the learned Counsel for the petitioner and have carefully gone through the records of the case as the respondent did not put in appearance either in person or through an authorised representative. It is manifest from the perusal of the order of the District Forum as well as the majority order of the State Commission that there is no finding on the crucial question whether there was any negligence on the part of the opposite party or any deficiency in service on the part of the opposite party. The order of the District Forum is bereft of any discussion on this pivotal question. The majority opinion of the State Commission also suffers from the same infirmity. The President of the State Commission rightly pointed out in the minority opinion that the order of the District Forum on the face of it appears to be bad as there is no finding whether the allegations made in the complaint are correct i.e., if the telephone was without any connection after shifting and if so, for what period or if the allegation of non-working of the telephone as made out in the complaint petition was true or if the allegations of demanding illegal gratification was true. The President of the State Commission rightly expressed that it was required to be ascertained if there was any deficiency in service from the side of the Telephone Authorities. Apart from it the quantum of compensation could only be ascertained on cogent and convincing evidence of the loss suffered by the complainant and it was for this reason that the President of the State Commission proposed to remand the case for a fresh judgment on a proper finding as pointed out in the dissenting order. The orders of the District Forum as well as the majority order of the State Commission suffer form serious irregularities and illegalities in the exercise of jurisdiction and are hereby set aside. The Revision Petition is allowed and the impugned orders of the State Commission as well as the District Forum are set aside and the case is remanded to the District Forum for a fresh decision after recording proper finding as to whether there is any negligence on the part of the opposite party or whether there is any deficiency in service on their part. The parties may be granted opportunity to substantiate their respective versions. On the facts and circumstances of the case the parties are left to bear their own costs throughout so far.