GENERAL MANAGER, TELECOM DISTRICT, COLLAM vs M.A.Rasheed

THESE appeals are directed against the common order dated 7.8.1998 passed by the District Forum, Kollam in OP (Q) 422/97 and 561/97. The facts leading to the present appeals are : The complainant M.A. Rasheed is having a telephone connection No. 792091 at his residence under Thevalakkara Telephone Exchange and the average bi-monthly bill was about Rs. 250/-. For the period from 26.3.1997 and 25.5.1997 there was a sudden spurt in the charge for the metered calls and the bill amount was Rs. 25,064/-. Though the complainant sent a petition to the opposite party, and accounts officer, Kollam in time, they have not taken any action to investigate the matter. Hence he filed OP (Q) 422/97 before the District Forum, Quilon and during the pendency of this petition another bill was issued by OP dated 11.8.1997 for a sum of Rs. 14,043/- for the period from 26.5.1997 to 25.7.1997. Consequently, he filed a second complaint before the District Forum numbered as 561/97. The complainant alleges that he has not made such number of calls and prayed to quash bills.

THE opposite party admitted that the complainant is a subscriber of the Telephone Department and the two disputed bills were issued by them, but resisted the complaint on the ground that the printout shows that telephone of complainant is used extensively for making STD and ISD calls for long duration; therefore, the bills issued are correct and subscriber is liable to pay the bill amount. Hence prayed for dismissal of both complaints. The District Forum by its impugned order held to the effect that the opposite party has committed deficiency of service, and as relief to complainant, directed the department to issue a fresh bill on the basis of the average of 6 previous bi-monthly bills except the disputed bills and add 10% and Rs. 100/- as costs.

The undisputed facts of the case are that the complainant is having a telephone with No. 792091 at his residence, and the opposite party issued two different bills for Rs. 25,064/- for the period from 26.3.1997 to 25.5.1997 and for Rs. 14,043/- from 26.5.1997 to 25.7.1997. It is also not disputed that the complainant filed a petition to the opposite party on 18.6.1997. It is also clear, on perusal of the records that certain enquiries were made by the opposite party.

THE complainant alleged following deficiencies in the complaint : (1) THE Telephone at his residence was installed in 1985 and the average bi-monthly bill for the said phone was Rs. 250/- except on two occasions i.e. for the periods of alleged bills. (2) THE opposite parties has neither taken necessary steps when the sudden spurt was noted nor acted upon the complaint filed by the complainant regarding the spurt in the first bill. (3) If the Telephone Authorities investigated then and there, when a sudden spurt was found for the fortnight ending 25.4.1997, the repetition of the spurt in the subsequent period, at least, would have been avoided. (4) Also alleged that some third person with the consent and connivance of the Telecom staff have misused the telephone facility of the complainant by unscrupulous method for making calls abroad.

In reply, the opposite party General Manager, Telecom District, Quilon filed a preliminary objection and averred that- (1) This complaint is not maintainable and it shall be determined by arbitration under Section 7(b) of Indian Telegraph Act. (2) On receipt of the complaint regarding bill dated 11.6.1997 investigation was made and the bill issued is correct. (3) The District Forum has no jurisdiction to entertain the petition in the light of the decisions of Supreme Court in AIR 1996 SC 1545 and 1996(1) Supreme Court 215.

WE heard Counsels for both parties and perused the records of the cases. The learned Counsel for the appellant has vehemently reiterated the submissions made before the District Forum and strongly challenged the maintainability of the complaints. Having regard to the materials placed on record and submissions made by the learned Counsels for the parties, the points that arise for our consideration are : (1) Whether there is any deficiency on the part of the opposite party ? (2) Whether the District Forum has jurisdiction to entertain the complaints and if it is answered in the affirmative whether the order quashing the bills is legal ? Point No. 1 It is admitted by the opposite party that the complainant is a subscriber of Telephone No. 792091 and two bills for Rs. 25,064/- for the period from 26.3.1997 to 25.5.1997 and for Rs. 14,043/- for 26.5.1997 to 25.7.1997 were issued to him. The opposite party also admitted that the spurt occurred on 10.5.1997 and on 25.4.1997 and received the complaint from the complainant on 18.6.1997. (R.W. 1) opposite party contends that they have examined the D.P. Box, internal and external circuits of the telephone, phone was put under observation, an officer made the investigation properly in accordance with Department Rules and the decisions of National Commission. Hence we perused the lower Court records.

R1 Report shows that the field enquiry was done on 11.7.1997, months after the spurt, and this report refers to OP No. 422/97 which clearly shows that the report was prepared in the light of the above mentioned OP. On a detailed reading of R1 report, it is clear that the Report does not mention that the complainant''s telephone was put under observation as per guidelines (Memorandum No. 4-59/85-TR dated 9.4.1986). In addition to the above, perusal of R1 report shows many anomalies and instances of negligence on the part of opposite party. Report nowhere states that there is no possibility for tampering whereas it states that tampering from the lineside and from the inside of the exchange is "very difficult". On the other hand R.W. 1 states repairing work by opening D.P. Box is entrusted to Section lineman and admits that by opening the D.P. Box telephone calls could be made by tapping. In other words it shows that Section lineman or any person with the consent or connivance of the lineman could make telephone calls by tapping. The importance of this aspect-possibility of tapping by opening D.P. Box has to be viewed in the light of the statement of R.W. 1 in his deposition that D.P. Box was locked and he has not opened it. He also states that whether any looping was made from the D.P. Box could be ascertained only by opening it. But there is no valid explanation why the D.P. Box was not opened and verified. In such circumstance the only presumption is that officers, knowing very well that looping was made from the D.P. Box with the connivance or consent of the concerned officer and purposefully to hide the fact of tapping or looping, avoided the opening of D.P. Box, otherwise it would have been a different story.

THE above mentioned points, alongwith the fact that the complainant was using the telephone from 1985 onwards and except on these two occasions his average bill amount was Rs. 250/- create a reasonable doubt about the correctness or genuineness of these two bills. In the light of the above discussion we are of the opinion that the conclusion arrived at by the District Forum that the Telecom Authorities have not strictly followed the guidelines issued by the Telecommunication Department to find out the real cause of spurt and hence there is deficiency of service on the part of the authorities, is not infirm. Point No. 2 Next question is the jurisdiction of the District Forum in quashing the bills instead of referring to arbitration as per Section 7(B) of the Indian Telegraph Act.

In answer to this contention the learned Counsel for respondent/complainant relied on the decision of the National Commission in Telecom District Manager & Anr. v. Patel Shanker Lal Kevalram, II (1996) CPJ 99 (NC)=1996 (2) CPR (59). Wherein Dr. (Mrs.) Tamarajakshi, learned Member delivering the majority opinion stated as follows. "There are previous decisions of this Commission that it is not legally permissible to adopt the mode of computation on the basis of average for determining whether a particular bill is excessive or not, except in cases where there is evidence to show that there was some material defect in the metering equipment in the departmental exchange concerned". In the above mentioned case the National Commission, also considered guidelines of the Telcommunication Dept. which also deal with advance action in case of possibility of an excess billing compaint and held that "in cases of dispute about the correctness of the metering equipment, therefore, the petitioner Department should produce objective - basis for proving that metering equipment was not defective". (Emphasis supplied). Then the next question is burden of proof. The National Commission in Telecom District Manager, Mehasana & Anr. v. Shri Patel Shankarlal Kevalram, II (1996) CPJ 99 (NC)=1998 N.C.J. P. 640, has clearly laid down on whom the burden lies in the following undoubtful words : "It may be mentioned that the metering equipment remains under the possession and control of the Department and not under the control of the subscriber. In cases of dispute about the correctness of the metering equipment, therefore, the petitioner Department should produce objective basis for proving that the metering equipment was not defective".

IN the light of the above discussion on a finding that the burden of proof lies on the opposite party/appellant the remaining question before this Commission is whether the opposite party discharged their duty properly or not. The District Forum found that when spurt happened the departmental officers have not acted as per the circular of identifying the subscriber, keeping the telephone line under observation, keeping a responsible staff to subscribers premises to check up reason for spurt, and even though the complaint was given by the complainant on 18.6.1997, no steps were taken immediately and only in July a field enquiry was conducted. It is also found that prompt action immediately on detection of the first spurt on 25.4.1997 would have avoided at least the second spurt. On perusal of the records it is also seen that D.P. Box was not opened and verified to find out whether there was any looping or tampering. As regards the defects in the metering equipments, R.W. 2 Sub-Divisional Engineer, Vigilance in his deposition states that he has examined the metering equipment and there was no fault; but he admits that he has not recorded the fact of examination of the meter. In other words there is no records to show that anybody has examined the metering equipment to assess whether the equipment was defective or not except the deposition of R.W. 1, who himself admits in his deposition that he is not technically qualified to examine telephone equipments.

IN the light of what is discussed above, we have no hesitation to hold that the burden to prove that the metering equipment was not defective, since lies on the Telecommunication department, which they have failed to establish, the appeals of the opposite party cannot be accepted. In such a situation in consonance with the majority decision of the National Commission in Telecom District Manager & Anr. v. Patel Shanker Lal Kevalram (supra), the mode of computation on the basis of average as is directed by the District Forum in the impugned order is not infirm. Hence we are of opinion that there is no legal infirmity in the order passed by the learned District Forum, which is detailed and well-reasoned one and deserves to be upheld.

IN conclusion, we uphold the view taken by the District Forum and both appeals are dismissed. Both the parties are left to bear their costs before this Commission. Appeals dismissed.