GENERAL MANAGER (WEST-II) vs NAND KISHORE KHANNA And SONS

THIS is a Revision Petition against the order of 11th November, 1993 passed by the State Commission, Maharashtra in Miscellaneous Application No. 69/93 under Sections 25 and 27 of the Consumer Protection Act. It may be mentioned at this stage that the Revision Petitioners have also filed an appeal on the 6th of December, 1993 before this Commission against the main Order dated 3rd August, 1993 passed in the case by the State Commission in O.P. No. 179/1992.

THE facts of the case are that the Respondent Complainant was a subscriber of Telephone No. 6340268. He filed a complaint in 1992 alleging excess billing in respect of the said telephone for the period 1.2.1989 to 4.3.1991 tox was alleged that there was misuse of the telephone having STD facility as a result of which the subscriber received excessive bills for telephone calls and that when subsequently the telephone became electronic on 23rd August, 1991 (and when the telephone number was also changed) the bimonthly telephone bills were reduced to half. It is relevant to mention that the telephone concerned belonged to the Kandivali Telephone Exchange under the General Manager West-II, Bombay.

The Complainant had claimed Rs. 1,15,305/- (excessive charges Rs. 81,994/- + interest Rs. 31,311/- at 21% from the date of respective payments till 30th April, 1992), in addition he claimed compensation of Rs. 50,000/-.

IT is seen from the record of the case that the State Commission passed orders on 3rd August, 1993 but the Opposite Party against whom the Order was passed was shown as M.T.N.L. Vile Parle Telephone Exchange falling in the jurisdiction of General Manager, East. By this order the State Commission directed the Opposite Party to investigate the allegations regarding misuse of telephone line by unauthorised persons making STD/ISD calls and to work out the rebate admissible to the Subscriber at the average rate on the basis of earlier bionthly bills of the new electronic telephone. IT also directed the Complainant to pay Rs. 10,000/- as compensation for the loss suffered by the Complainant and Rs. 5,000/- as costs. On 27th September 1993 the Complainant filed an application before the State Commission praying for the grant of a decree to recover the amount awarded by its order of 3rd August, 1993. In this application also the Opposite Party was shown as MTNL Vile Parle Telephone Exchange and the State Commission''s order passed on 3rd August, 1993 was shown as dated the 18th August, 1993. (Though the operative part of the order is said to have been reproduced in full but this is not so. There is abbreviation of the concluding part of this order.

ON the said application of 27th September, 1993 the State Commission issued notice under Section 27 of the Consumer Protection Act on the 2nd November, 1993 to MTNL Vile Parle Telephone Exchange and ultimately passed the order now impugned in this Revision Petition against the Vile Parle Telephone Exchange on 11th November, 1993. The Revision Petitioner has contended as under: It did not receive a copy of the final order passed in the Original Petition by the State Commission on the 3rd August, 1993. This order was addressed to MTNL, Vile Parle Telephone Exchange, Area Office, East, instead of Kandivali Telephone Exchange, Area Office, West-II. Subsequent notice dated 2nd November, 1993 issued under Section 27 of the Act as also copy of the Order of 11th November, 1993 were also not received by the proper Opposite Party (Kandivali Telephone Exchange) inasmuch as these were wrongly addressed to MTNL, Vile Parle Telephone Exchange. The Counsel for the Opposite Party before the State Commission in the proceedings under Section 27 of the Consumer Protection Act contended that the Order of 3rd August, 1993 had not been received by the Opposite Party at the appropriate office of the MTNL, Bombay and sought adjournment for inspection of records etc. and to look into the matter further. But the State Commission rejected the request for adjournment stating that "the intimation of the Order..has been sent to the Vile Parle office of MTNL by this Commission under certificate of posting". In addition the Complainant had also sent the same by registered post to General Manager, West-II Kandivali and to General Manager, MTNL, Kolaba (South Bombay). It therefore, directed the Complainant to approach the Civil Court in Bombay for the execution of the order under Section 25 and held the Revision PetitionerOpposite Party guilty under Section 27 of the Act. It fixed 3rd January 1994 as the date of hearing on the point of sentence only.

IT is the legality of this Order which has been challenged in this Revision Petition on the 17th of December, 1993. As already mentioned above the Revision petitioner has also field an appeal before this Commission on the 6th of December, 1993 against the Order under Section 17 of the Consumer Protection Act of 3rd August, 1993.

THE Revision Petitioner has contended that it had not received the order of the State Commission dated the 3rd of August, 1993 in O.P. No. 179/92 that the notice dated 2nd November, 1993 under Section 27 was received at Vile Parle Exchange but it could not take any action because the original order from the State Commission had not been received by that Exchange. THE order of 3.8.1993 has been passed erroneously against the Vile Parle Exchange whereas the complaint was filed against the Kandivali Telephone Exchange and that the Revision Petitioner here had been deniced opportunity to look into the records futher and make submissions before the State Commission. The facts on record establish clearly that there is merit in the contention of the Revision Petitioner. The State Commission has not looked into the matter as to how its order of 3rd August, 1993 came to be addressed wrongly to Vile Parle Exchange who were not arrayed as Opposite Party in the complaint. Subse-quently the proceedings under Sectionis 25/ 27 were Salso erroneously initiated against the Vile Parle Exchange possibly because in his application of 27th September, 1993 the Complainant cited opposite party as MTNL, Vile Parle Exchange.

In view of the above, the order of the State Commission under Sectionis 25/27 is setaside and this Revision Petition is allowed. We also notice that the Revision Petitioner has already made payment of the compensation awarded to the Respondent along with interest by the letter dated 24th November, 1993 without prejudice to his appeal and prayed for reimbursement of the same if it succeeds finally We direct that the Registry shall list the appeal for hearing at an early date. The payments already made by the Revision Petitioner/Appellant to the Respondent-Complainant would be subject to the orders to be passed by this Commission in the appeal. Revision petition allowed.