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Judgment
THE instant appeal has preferred against the order dated 31.1.95 passed by the learned District Forum, Bankura in P.C. No. 12 of 1994.
THE case is heard and decided ex-parte as the respondent/Telephone Authority did not appear before this Commission inspite of service of notice to it and the xerox copy of the notice alongwith original showing service upon the respondent/Telephone Authority is placed before us and kept with the record. The appeal was filed late by 70 days due to the reasons as stated in the application for condonation of delay which are quite convincing and acceptable to us. So we condone the delay and admit the appeal, in view of our order dated 10.5.95 that the appeal and the application for condonation of delay would be heard together.
The appellant as complainant lodged a complaint before the learned District Forum, Bankura challenging the two bills for cycle No. 11/93 for Rs. 23,151/- and cycle No. 1/94 for Rs. 11,396/-. The learned District Forum, Bankura in its impugned order dated 31.1.95 directed the appellant to pay Rs. 18,151/- as against bill for cycle No. 11/93 for Rs. 23,151/- and Rs. 6,396/- as against bill for cycle No. 1/94 for Rs. 11,996/- thus aggregating to Rs. 28,547/-.
IT is the contention of the appellant that the interim payment of Rs. 6,000/- against the said impugned bills as per order dated 1.2.94 was required to be adjusted from the total awarded sum of Rs. 28,547/- against the said two impugned bills for cycle No. 11/93 and 1/ 94. In absence of any clarification to that effect, the respondent/Telephone Authority demanded the sum of Rs. 28,547/- against the said two impugned bills, in addition to Rs. 6,000/- already paid as per order of the learned District Forum. It is the further contention of the appellant that his telephone has been profusely misused by the departmental employees of the Telephone Department in collusion with the outsiders, as a result of which the STD calls which are not made by the petitioner/appellant have been shown in the said impugned bills. The appellant/petitioner asked for details of the STD calls to ascertain the actual position and denied his liability for the said fictitious STD calls made through his phone by way of misuse but the Telephone authority did not supply the details of the STD calls made through the captioned Telephone No. BKU-3382 and the said actions are extreme deficiency and negligence on the part of the Telephone Authority.
IT further appears that during the years 1992-93 upto Cy. No. 1/94 the average consumption of the petitioner/appellant did not exceed Rs. 3,000/- per cycle, consequently such abrupt inflation in the telephone bills starting from cycle No. 7/93 onwards are unbelievable in the facts and circumstances of this case. Now-a-days, most of the subscribers particularly those who have got the STD connection are profusely misused by the departmental dishonest employees of the telephone department in collusion with outsiders causing such inflation in the periodical bills of the subscribers putting the liability for payment of the said inflated bills in them. The protest and objection raised by the subscribers before the Telephone Authority or such extensive misuse of the telephone in collusion with other have become cry in the wilderness at least we have no knowledge of giving any redressal to any subscriber for such extensive misuse of the telephone, resulting thereby making liable the subscriber for payment of the said inflated bills. In a number of cases, we have found that when the subscriber for the time im-memorials has had been paying the periodical /cyclic bills within certain range but all on a sudden, it involves the subscriber with an inflated bills which is 100 to 1000 times more than the normal consumption of the Subscriber breaking all the past records. In such event, we cannot remain as mere spectators of the said situation subjecting the consumer/ subscriber to an un-humanic torture and harassment at the same time causing tremendous mental pain to him and it is also not possible to refer all the cases for arbitration of the disputed bills as per provisions of Section 7B of the Indian Telegraph Act. As per provision of la w that if the subscriber voluntarily desires to refer the dispute of inflated bills to arbitration as per provisions of Section 7B of the Indian Telegraph Act, in that case, we can refer it to arbitration otherwise we cannot. Moreover as we have experienced that reference to arbitration in several cases where the Arbitrator is the departmental employee of the telephone department itself does not yield any favourable result to the consumer/subscriber.
WE, therefore, allow the complaint petition and set aside the order dated 31.1.95 in P.C. No. 12/94 passed by the learned District Forum Bankura and also quash the inflated bills for cycle Nos. 11 / 93 and 1 / 94 in excess of the amount of Rs. 3,000/- against the said two impugned bills for cycle Nos. 11/93 and 1/94. The appellant/subscriber need not pay any further amount against the said two impugned bills for cycle Nos. 11/93 and 1/94.
THUS the appeal is disposed of without any order as to the compensation and cost. Mr. Justice A.K. Bhattacharya, President-I have perused the order proposed by Dr. Kar. In this case two telephone bills have been disputed by the complainant-respondent on the ground that the same were exorbitantly inflated. The learned District Forum has, however, dismissed the claim of the complainant on the ground that he has not been able to prove that they were actually inflated and had allowed instalments to pay the entire amount. In the order proposed by Dr. Kar he has opined that sudden spurt in telephone bills of this nature is generally due to the action of the dishonest employees of the Telecommunication Department in collusion with outsiders. He has accordingly held that the bills as submitted by the Department are wrong. Dr. Kar has also held that dispute in this regard need not be referred to any Arbitrator for arbitration under Section 7B of the Indian Telegraph Act, 1885. He has accordingly settled the bills on a calculation of the maximum amount charged by the Telephone Deptt. per cycle prior to these bills.
With due respect I am of the opinion that the findings of both the lower Forum and of Dr. Kar suffer from some mistake. While it is not the onus of the complainant to prove that the excessive bill complained of by him was really excessive as he has no machinery to check it, it is equally not acceptable that the maximum amount of the bills demanded prior to the dispute should be accepted as the standard for settling the bill. It is probable that there are dishonest agencies who might have caused an inflated bill, but without proof of any prima facie nature it is not safe to accept such a proposition. Some sort of enquiry must be made to prove that the bills were really excessive.
IN this connection the case reported in I (1996) CPJ 174 (NC)=1996 CPR 19, Telecom District Engineer, Panaji v. M/s. Concha Beach Resort, decided by the National Commission may be referred to. IN the said case it has been held by the National Commission that the Redressal Forum is not justified to direct assessment of telephone bill on the basis of an average billing for past one year unless there is adequate evidence, direct or circumstantial, that metering equipment was defective or there has been tampering or misuse of a telephone by an employee of the Department. IN the aforesaid case the National Commission had referred to its earlier decision in Telecom District Manager, Dharamsala v. Pran Nath Mahajan reported in I (1993) CPJ 99 (NC) in which it was held as follows : "It is a matter of public knowledge that STD facility has often been misutilised on a large scale by third parties in collusion with P & T staff. But unless there is at least circumstantial evidence to probablise such collusion having taken place in a particular case, we cannot doubt the correctness of bills merely on the basis of suspicion. We have repeatedly held that the Consumer Redressal 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."
I respectfully agree with the above observation of the National Commission and think that without some sort of evidence dishonest hands of the employees of the Department cannot be assumed in such cases.
AS regards the efficacy of arbitration under Section 7B of the Indian Telegraph Act it may be noted that such an arbitration is a necessity where there is any dispute concerning any telegraph line or appliance or apparatus. The fact that an officer of the Telecommunication Department may be entrusted with the work of arbitration is no doubt uncomfortable and the said Department should in such case entrust the work to a really honest officer having integrity. It is expected that in such arbitration proceedings the Telecommunication Department should produce the particulars of the STD calls which may have been recorded or other facts having direct bearing on the recording of increased number of calls. In view of the position analysed above, this appeal is allowed. The order of the District Forum, Bankura, dated 31.1.95 is set aside and the case is remanded back to the lower Forum with the direction to appoint an independent Arbitrator to arbitrate the dispute as per law. The Arbitrator is to give proper opportunity to the disputing parties to prove their cases and give his award preferably within one month from the date of entering the arbitration. There will be no order for cost in this appeal. Appeal disposed of.