Gokul Bora vs GENERAL MANAGER,KAMRUP TELECOM DISTRICT, ULUBARI

THIS is an appeal preferred by Dr. Gokul Bora, the appellant herein and complainant in the original case, against the judgments dated 14.11.1995 and 20.3.1998 of District Consumer Disputes Redressal Forum, Kamrup, (for short, District Forum) in C.P. Case Nos. 178/94 and 5/97 (Misc.) respectively. The General Manager, Kamrup Telecom District, Guwahati and another are respondents in this appeal.

THE facts of the case may be stated briefly as follows : Complainant Dr. Gokul Bora (appellant herein) filed a complaint in the District Forum with a prayer for quashing the telephone bill dated 1.3.1994 against telephone No. 546879. This is the ten bi-monthly bill with a whopping demand of Rs. 14,624/- against call charges, whereas there were no call charge at all in the previous bills dated 1.11.1992, 1.1.1993, 1.7.1993(A) 1.7.1993(B), 1.9.1993 and mere Rs. 60/-, Rs. 50/- and Rs. 2/- only in the bills dated 1.3.1993, 1.5.1993 and 1.1.1994 respectively. After hearing both the parties the District Forum disposed of the complaint by judgment dated 14.11.1995 advising the complainant to lodge a complaint with the Telecom Department for redressal of his grievances. The complainant/appellant, then, wrote to the then TDM (now General Manager), Kamrup Telecom District on two occasions requesting him to investigate the matter and intimate the results thereof. The respondents/opposite parties vide their letter dated 25.9.1997 intimated him that they had cancelled local call charges of Rs. 9,800/- out of Rs. 14,624/- of the aforesaid bill. The appellant was not intimated on what basis and after what kind of investigation the payable amount of Rs. 4,824/- was arrived at. Thereafter on April 11, 1997, the appellant filed a contempt petition before the District Forum praying for a direction to the respondents/opposite parties to furnish the result of this investigation to the Forum within a definite time-frame and reduce the call charges on the basis of the average of six previously bi-monthly bills as provided for in the Telecom Rules. This Misc. petition was dismissed by the District Forum by their judgment dated 20.3.1998 holding that the petition was infructuous and it does not fall within the purview of Section 27 of the Consumer Protection Act. Being aggrieved the complainant/appellant has filed this Appeal.

We have heard Mr. Charu Mahanta, learned authorised representative of the appellant and Mr. D. Sur, learned Counsel for the respondents. We have perused the Memorandum of Appeal and other relevant papers filed by the appellant. We have gone through the complaint, contempt petition, written statement of opposite parties, both the judgments of the District Forum and other relevant papers in the original case record. We have taken into consideration the relevant Rules, Departmental Circulars, etc. on excess metering complaints and connected matters, the photo-copies of which have been furnished to us by learned authorised representative of the appellant. Besides, we have relied on the decisions and observations of Hon''ble National Commission in their order reported in I (1996) CPJ 49 (NC), referred to by the learned Counsel for the respondents.

BEFORE going into the principles laid down by National Commission in the matter of "excess billing" complaints we would like to have a look at the impugned judgments of learned District Forum. In fact the first Judgment dated 14.11.1995 is a simple one whereby the District Forum disposed of the complaint with an advice to the complainant to lodge complaint with the appropriate authorities of Telecom Department. We do not think the appellant should have any grievance against this order. There was no direction in this order to the opposite parties (respondents herein) to do some specific act and therefore the question of contempt for non compliance does not arise at all. In the meantime the opposite parties cancelled the bill and granted a rebate of Rs. 9,800/- towards local call charges. In our opinion the District Forum rightly held in their judgment dated 20.3.1998 that the relief claimed by the complainant has become infructuous. We quote the relevant portion from Forum''s judgment dated 20.3.1998 on the contempt petition. "It has come to our notice that in the C.P.C. No. 178/94 we issued no direction to the opposite parties in disposing of the complaint. We only gave liberty to the complainant to approach the Telecom Department with a complaint for redressal of his grievance. Admittedly no direction was given to the opposite parties to complete their investigation and communicate the result of their investigation to the complainant within a definite time-frame. The question of violation of the Forum''s order by the opposite parties as such does not arise in the case. We, therefore, find that the petition does not fall under the purview of Section 27 of the C.P. Act and the same is liable to be dismissed as misconceived."

We entirely agree with this finding of the District Forum and do not find any illegality or infirmity whatsoever in the impugned judgments. In view thereof the present appeal is liable to be dismissed. However, it would be pertinent to discuss here the principle laid down by the National Commission in "excess bill" cases to which our attention has been drawn by the learned Counsel for the respondents. The decision and observations of the Commission on the subject are the settled law so far as the Consumer Forums are concerned. This Commission is, no doubt, bound by the said decisions. It would be appropriate to quote here from the order of the National Commission in Accounts Officer, Telecom District Manager, Panaji, Goa v. Mrs. Sheela H.N. Gaunehar, reported in I (1996) CPJ 49 (NC). "The District Forum has directed the petitioner to calculate the telephone bills for the period from 25.1.1992 to 25.9.1992 on the basis of average of past one year preceding 26.1.1992 and this in our view is not legally permissible. This Commission has repeatedly held that the Redressal Forums are not legally justified to do so unless there is adequate overdue evidence which may be either direct or circumstantial to show that the metering requirement was defective or there has been tampering with or misuse of telephone by the employees of the Department."

In Telecom District Engineer, Dharsmsala v. Pran Nath Mahajan, I (1993) CPJ 99 (NC), the National Commission held : "It is a matter of public knowledge that STD facility has often been misutilised on large scale by third parties in collusion with P & T staff. But unless there is at least circumstantial evidence to probabilise such collusion having taken place in a particular case, we cannot doubt correctness of bills merely on the basis of suspicion. We have repeatedly held that the Consumer Redressal Forums will not be legally justified in taking over the function of estimating by application of the rule of thumb the precise number of calls made unless there is adequate evidence which may be either direct or circumstantial to show that the metering equipment was defective or there has been any misuse of the particular telephone by some unauthorised person in collusion with the employees of the Department, particularly in cases where a subscriber has the STD facility - See District Manager, Telephones v. Niti Saran, I (1991) CPJ 48 (NC) Revision Petition No. 67 of 1999. Again in Telecom District Manager v. M.S. Mukherjee, Revision Petition No. 111 of 1990 we hold that it was not legally permissible to take the average number of calls in the previous bills for a given period as the basis of ascertaining what should be fixed on the reasonable number of chargeable calls in the billing period. In the present case there is neither direct nor even circumstantial evidence to show that there was probability of such misuse of the telephone."

IN the instant case all of a sudden a bill of whopping demand of Rs. 14,624/- was served on the appellant/complainant and subsequently when he lodged complaint with the respondents a rebate of Rs. 9,800/- was given after investigation. Appellant is rightly agitated to know on what basis the bill was reduced to Rs. 4,824/-. It appears that there is not much transparency in what has been done by the Department. IN our opinion the Telecommunication Department should give a satisfactory explanation. It may be advisable to have some independent Agency, may be within the Department or outside, to investigate such cases of excess billing, etc. to the satisfaction of all concerned. Most of the subscribers are just laymen so far as modern telecommunication technology is concerned. It is not possible for them to provide even circumstantial evidence to show that the metering equipment is defective or there has been tampering with or misuse of telephone by the employees of the Department, as required under the law laid down by the National Commission in their aforesaid orders. The consumer activists may take up the matter of creating such INvestigating Agency with the Government Be that as it may, we find that in the present case there is neither direct nor even circumstantial evidence to show that there was probability of misuse of the telephone or any defects in the metering equipment. IN view thereof there is no scope to interfere in this case by the Commission to give any relief in the matter of alleged excess billing. Relying on the decisions of the National Commission referred to above we are inclined to hold that the appellant/complainant is liable to pay the reduced amount of the alleged "excess bill" after grant of the rebate by the respondents. The aforesaid decisions of the National Commission are, no doubt, applicable in the present case. On the facts and circumstances of the case we hold that the appellant is devoid of merit and no interference from this Commission is called for. In the result, both the judgments dated 14.11.1995 and 20.3.1998 of the District Forum are upheld and the appeal is dismissed. We, however, do not pass any order as to costs. Appeal dismissed.