GENERAL MANAGER, TELECOM, TELEPHONES DISTRICT vs AJIAB SINGH ASIS

VIDE this order, two appeals are being disposed of. Appeal No. 242/1996 has been filed by the Telephone Department whereas the other Appeal No. 16 of 1997 has been filed by the subscriber of the telephone, Ajiab Singh. These appeals have been filed against order of District Forum, Kapurthala dated April 30, 1996 vide which the complaint filed by Ajiab Singh was allowed with costs of Rs. 1,000/-and Rs. 2,500/-as compensation for inconvenience and mental torture and with further direction to the Telephone Department to issue fresh bills on the basis of average plus 130 calls per day while quashing three telephone bills dated November 1,1988 January 1, 1989 and March 1, 1989 for Rs. 12,677/-, Rs. 20,631/-and Rs. 37,069/-respectively. The case of the Telephone Department is that the bills were rightly issued for the calls made on the telephone of the subscriber. Whereas, the case of the subscriber is that the bills were highly inflated and the telephone was misused by officials of the Telephone Department or the meter was defective.

AFTER the three bills as aforesaid were issued to Ajiab Singh, the subscriber of Telephone No. 2503, subsequently changed to 2205 installed at the residence of the complainant, the same were challenged by filing representations to the Telephone Department. One of the representations was given to the Telephone Department, Jalandhar relating to the first two bills and the other relating to the third bill to G.M.T., Ambala. The Telephone Department issued a provisional bill on November 30, 1988, which was deposited. Some investigation was conducted by the Telephone Department that subsequently bill for the arrears of Rs. 66,313/-was issued, which was not paid and the Telephone was disconnected. Since 1984, nominal bills were being received and it was sudden spurt noticed when bill dated November, 1988 was issued. It is on these facts that the pleadings were put forth by the respective parties and evidence led, resulting in passing the impugned order. In Appeal No. 16 of 1997, there is an application for condoning delay in filing the appeal against the impugned order. The appellant, Ajiab Singh had contacted N.S.B., Advocate at Chandigarh for filing the appeal. The complainant was put of from time to time by the aforesaid Advocate and ultimately it was represented that the appeal had been filed. It was subsequently when it came to the knowledge of the complainant and his wife that no such appeal has been filed, the present appeal was filed by the complainant himself on January 3, 1997. It is alleged in the application that a complaint has been filed by the appellant against N.S.B., Advocate before the Bar Council of Punjab & Haryana at Chandigarh for his misconduct. Copy of the complaint has also been filed alongwith the application, which is supported by affidavit of Ajiab Singh himself. Although no reply to the application has been filed, it is otherwise, contested on behalf of the Telephone Department.

Before adverting to the facts of the case and the arguments addressed, it is considered necessary to make few observations with regard to the treatment meted out to the complainant, Ajiab Singh, who is a retired person and is of old age. It was after his retirement that he got the telephone installed at his residence which ultimately proved to be virus, attacking him after every two months when he received inflated telephone bills which are being disputed. Furthermore, he did not get treatment much less dignified at the hands of his Advocate who even on receipt of his fees paid in cash as well as by Bank draft did not file appeal on his behalf challenging the impugned order for sufficiently long time that he had to file the appeal himself and that too after he had been served notice of the appeal filed by the Telephone Department. Present is a case of proven misuse of telephone of the complainant by or with connivance of employees of the Telephone Department. It is well known that the entire Exchange as well as meters for individual subscribers remain in the custody of the Telephone Department, who even on receipt of the complaints of excessive billings choose to merely observe formality of investigating such complaint in order to reject the same. The complainant was being put to great inconvenience, harassment and mental agony for a number of years that his telephone remained disconnected illegally. He was forced to file this litigation in the old age where he was supposed to live in peace.

ONLY few facts and evidence produced is required to be noticed for the purposes of disposal of this appeal on merits. Annexure A3 is the report of the investigation conducted on receipt of the complaint from the complainant by the Telephone Department. It is also Annexure R11 as produced by the Telephone Department. At page 3 internal of this report, daily readings were made when the telephone was put under observation. Number of calls made on December 2, 1988 to December 7, 1988 are mentioned therein. On December 5, 1988 number of calls made were 340. On 6th December 10 and on 7th December, 5. Total number of calls made as per this chart upto December 7,1988 in the month of December were 500. The telephone was disconnected on December 5, 1988 as mentioned at page 2 of this report. It was restored on December 20,1988. If the telephone had been disconnected on December 5, 1988 there was no occasion for using the telephone either by the complainant or by any staff members of the Telephone Department. As to how calls were recorded having been made from the telephone of the complainant on December 6 and December 7, 1988, remains a mystry. The matter does not end here. In the Grounds of Appeal, in Para 1B complete chart has been shown with respect to the number of calls made every fortnightly. The chart starts from October 15,1988 and the last such entry is of December 15/1988. This chart gives the meter readings and the number of calls made. The last entry which is relevant for the purpose of this case is of December 15, 1988 of total calls of 1640, the meter reading being 83630 and the meter readings on November 30,1988 being 81990. As already stated above, the telephone was disconnected on December 5, 1988 by which date only 500 calls for that fortnight had been made. As to how the numbers swelled to 1640 as on December 15, 1988, is thus a mystry, which has not been solved by the Telephone Department. The only presumption from these facts is that the telephone though initially disconnected was being misused by somebody having access to the Telephone Exchange or in connivance with the employees of the Telephone Department. If during the period of observation of this very telephone, it has been noticed by the Telephone Department that somebody from their department had misused the telephone, there was no reason to discard the version given by the complainant with respect to all the bills which were challenged by him, showing sudden spurt in the meter reading. Putting the telephone under observation much after receipt of the complaint is nothing but disobedience of the instructions issued by the Department. Vide letter dated No. 4-59/85TR dated April 9,1986/-complete instructions to be followed by the Telephone Department in case of finding sudden spurt on fortnightly meter readings were prescribed. These instructions have been thoroughly considered in Appeal No. 1040/196 in "Kamaljit Kuar v. Telecom District Engineer & Anr." decided on June 5, 1997 by this Commission. It may briefly be mentioned that as per these instructions, the Telephone Department of its own, on observing a sudden spurt in the meter readings which are taken fortnightly is supposed to keep the telephone under observation by deputing a responsible officer to visit the premises of installation of the telephone to find out if there was any special occasion resulting in sudden spurt or the line was misused by someone and to fix responsibility thereof. These instructions were not followed in spirit and in the present case, even after the telephone was kept under observation and that too after its disconnection/ it was found to have been used by the employees of the Telephone Department for which action was required to be taken by the Department. It has been argued on behalf of the Telephone Department that when the matter has been finalised by the Telephone Department, as required under the provisions of the Act, or the rules, such decision is not open to attack in these proceedings. There is no merit in this contention in view of the facts as proved above that the telephone was misused by department employees.

LEARNED Counsel for the Telephone Department has referred to the decision of the National Commission in "District Manager, Patna Telephones v. Harishanker Saran Singh", 1995 (2) CPR 172 on the point that if some rebate of calls had been granted by the Telephone Department that per se is not enough to hold the bill to be illegal. No directions can be given to issue the bill on average basis. It was also held that if no evidence of defective meter or tampering with the line is produced, the bills cannot be quashed. The ratio of the decision aforesaid as such cannot be applied to the case in hand. With respect to the direction given by the District Forum to issue fresh bill on average basis of course cannot be sustained, which is being challenged by both the parties in these appeals. However, it is a case where the complainant has demonstrated that his telephone was used by the employees of the Department and all the calls were not made from his telephone. Such being the position, no importance can be attached to the investigation, resulting in any such report that the meter was found to be functioning properly and there was no defect in the line to throw away the case of the complainant. It was argued on behalf of the Telephone Department that the matter could be referred to the Arbitrator and the remedy under the Consumer Protection Act, is not available. This contention cannot be accepted. The remedy under the Consumer Protection Act is an additional remedy as mentioned under Section 3 of the Consumer Protection Act as has been held by the Supreme Court. Before the relief to be granted is formulated application for condoning delay in filing of the appeal by the complainant deserves to be disposed of. No doubt, there is inordinate delay in filing this appeal, but the appellant has explained the delay which prevented him from filing the appeal. His allegation is supported by his own affidavit that he had engaged N.S.B./Advocate and has paid his fees. For one or the other reason/the Advocate did not present the appeal although no Court fees or other expenses were required to be made in the matter of filing the appeal. In case the allegations levelled against the Ad ovate are correct, it would clearly amount to deficiency in rendering service on account of negligence act on the part of the Advocate in not filing the appeal. One of the remedial measures taken by the appellant has been noticed that he has filed the complaint against the Advocate before the Bar Council. We need not comment or advise further on this subject and leave it to the appellant if so considered, to move a complaint before the appropriate Forum. For the purposes of disposal of the present application, suffice it to say that the litigant should not be made to suffer on account of the negligent act of his Advocate. Keeping in view this principle, the application for condoning delay in filing the appeal is allowed and the delay is condoned.

IN view of the finding recorded as above that the three bills issued in this case are illegal as the telephone of the complainant was misused by the employees of the Telephone Department or with their connivance by somebody, the same deserve to be set aside. So ordered. The result would be that charging of the amount of these bills, part payment of which has already been made, is to be refunded to the complainant. So ordered. The telephone which was disconnected on account of non-payment of these bills also deserves to be restored without any charges of rental during the intervening period and without charging reconnection fee. So directed. Apart from that the complainant is to be compensated for mental agony and harassment suffered through all this period. A sum of Rs. 15,000/-is considered just compensation in this case. The Telephone Department would pay this amount to the complainant. The Telephone Department would hold enquiry in this matter and recover the amount of compensation and costs of this litigation from the defaulting official/officials. These directions are to be complied by the Telephone Department within one month from the receipt of copy of this order. The appeal of the Telephone Department is dismissed whereas that of the complainant is allowed. Order of the District Forum is modified as above. The complainant would be paid costs of litigation which are fixed at Rs. 2,000/-. Appeal No. 242/1996 dismissed. Appeal No. 16/1997 allowed with costs.