JUNIOR TELECOM ENGINEER, KUNKURI vs GANGA RAM SAHU

THIS appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 30.10.2003 in Complaint No. 49/1999 by District Consumer Disputes Redressal Forum, Raigarh (hereinafter called the ''District Forum'' for short) directing that the appellant shall pay to the complainant/respondent No. 1 the difference of excess charges recovered for the telephone calls made by the complainant on 26.2.1999 and 24.5.1999 and that they should also pay to the complainant, compensation of Rs. 20,000/- with interest @ 12% p.a. payable from 22.9.1999 as also Rs. 2,500/- as cost of the complaint. Certain other directions in connection with unfair trade practice adopted by the PCO/STD operator have also been given.

INDISPUTABLY respondent No. 2 is operating STD/PCO centre at Kunkuri, District Jaspur under the licence issued by the appellant Telephone department. The complainant averred that he had made certain calls from the STD/PCO Centre run by respondent No. 2 on 26.2.1999. Respondent No. 2 realised more charges towards the said calls from the complainant. The complainant, therefore, lodged a complaint with the appellant No. 1 on 27.2.1999 and copy thereof was sent to Divisional Engineer, Raigarh. The complainant further averred that despite the complaint as above, no action was taken against the STD operator/respondent No. 2. The complainant further averred that similary on 24.5.1999 excess charges again were recovered from him when he made a call from the STD/PCO centre of respondent No. 2. He, therefore, lodged a complaint with the appellant on 28.5.1999. Subsequently the complaint was followed up by a registered letter dated 29.5.1999. According to the complainant no inquiry was made by the appellants. Therefore, the complainant sent reminder letter on 17.6.1999. It was further averred that by the appellant''s letter dated on 21.6.1999, the complainant was simply intimated that inquiry was in progress. However, the result of inquiry was never communicated to the complainant. It was also averred that though the complainant pursued the matter constantly, he was not intimated as to what action was being taken by the appellant department against respondent No. 2. The complainant, therefore, approached the District Forum. The appellant though admitted that the STD/PCO Centre, Kunkuri was run by respondent No. 2 and that the excess amount as alleged by the complainant was recovered from him, by respondent No. 2. It was averred that on inquiry, it was revealed that excess charges were recovered from the complainant, on account of mechanical defect in the STD instrument. It was also averred that though respondent No. 2 on the appellant''s advice tried to refund the excess charges recovered from the complainant but he refused to accept the same. It was also averred by the appellants that letters dated 21.6.1999 was sent to the complainant intimating that the inquiry was being made. It was also averred that the matter was directed to be enquied into by Sub-Divisional Engineer, Pathalgaon who directed his Jr. Officer to make inquiry. The said Jr. Officer reported the matter to the Sub-Divisional Engineer on 29.7.1999. According to the report of the said inquiry, there was some defect in the monitor of the PCO which was got rectified by respondent No. 2 through Raj Enterprises, Bilaspur. Further averments of the appellants were that Jr. Engineer, Kunkuri, intimated the result of the said inquiry and the fact of defect in monitor to the complainant on telephone and also directed respondent No. 2 to refund excess amount realised from the complainant. However, the complainant refused to accept the excess amount. Appellant further averred that defect in Monitor was got rectified after the complaint was lodged with the appellants and that there was no default on the part of the appellants. It appears that respondent No. 2 did not file its written version of the complaint, as has also been mentioned in para 5 of the impugned order.

District Forum in the impugned order held that there was gross deficiency in service by the appellants by not taking proper action on the complaint of the complainant/respondent No. 1. Accordingly the excess amount charged from the complainant was directed to be refunded, and compensation of Rs. 2,500/- as cost was also awarded.

LEARNED Counsel for the parties were heard and record perused. Learned Counsel for appellant contended that appellants are not liable for the action on behalf of respondent No. 2. Learned Counsel in the above context referred to Section 238 of Indian Contract Act, 1872. It was submitted that appellants took prompt action to make inquiry in the complaint of the complainant/respondent No. 1 and also intimated him about it by their letter dated 21.6.1999, and also directed respondent No. 2 STD operator to refund the excess charges realised from the complainant.

AS against this, learned Counsel for complainant/respondent No. 1 submitted that there was gross deficiency in service by the appellant/respondent No. 2. It was also submitted that the complainant lodged complaint on two occasions about the excess billing and charges realised from him and continued to pursue the matter, yet the appellant did not take prompt action and did not even properly respond. It was submitted that as respondent No. 2 was the licensee of telephone department, the appellants were also liable for the deficiency in service by their agent respondent No. 2. The first objection on behalf of the appellant was that in view of Section 238 the appellant could not be held responsible for the misrepresentation or fraud committed by its agent respondent No. 2 STD operator. It would be useful to reproduce Section 238 of the Indian Contract Act which reads : Effect, on agreement of misrepresentation or fraud by agent-Misrepresentation made or frauds committed, by agents acting in the course of their business for their principals, have the same effect on agreements made by such agents as if such misrepresentations or frauds had been made or committed by the principals; but misrepresentations made, or frauds committed by agents, in matters which do not fall within their authority, do not affect their principals. It may thus be noticed that as per Section 238 of the Indian Contract Act if misrepresentation of fraud is committed by the agent acting in the course of business for their principals, will have the same effect as if such misrepresentation or fraud has been made or committed by the principal. However, it has further been provided that misrepresentation or fraud by agent in matters which do not fall within the agent''s authority would not affect the principal.

IT may be mentioned at the outset that the plea as above has not been taken by the appellant in their written version. IT is being raised for the first time in appeal. The appellants have also not pleaded that their agent respondent No. 2 played fraud or misrepresentation beyond his authority. As noticed earlier the complainant categorically averred that excess charges were realised from him by the respondent No. 2. The plea of the appellant was that it was on account of frault in the STD monitor that excess billing was made. Thus it is clear that the appellants did not plead that respondent No. 2 committed any fraud; much less such a fraud was beyond the authority given by the appellants to respondent No. 2. Therefore, the submission as above of the appellants'' learned Counsel, cannot accepted.

SO far as facts are concerned, respondent No. 2 and appellants have not categorically denied the complainant''s allegations that excess charge was recovered from complainant for the calls made by him on 26.2.1999 and 24.5.1999. According to the appellants, as already noticed, the excess billing was on account of faulty monitor. However, no material has been placed on record to show as to what was the nature of fault in the monitor and what was the cause due to which such fault occurred. Therefore, the appellant''s contention that there was fault in the monitor cannot be accepted. It may further be noticed that the complainant/respondent No. 1 had repeatedly reported the matter and followed it up by writing several letters to the appellant, yet no positive action appears to have taken by them. The appellants to do not appear to have promptly and properly responded to the complaints of the complainant. The appellants'' conduct as above, give rise to a presumption of either deplorable apathy or complicity of the appellants. The appellants have raised a plea that inquiry was conducted. However, the said inquiry report has not been placed on record. Since the complainant was aggrieved of the action of respondent No. 2, the complainant''s grievance should have been duly attended to and he should have been given prompt and proper reply. The appellants have failed to do so, as has been discussed in details by the District Forum.

In view of the above, it is clear that appellants have defaulted in taking proper steps in the complaint made by the complainant/respondent No. 1. The conduct as above of the appellants was certainly far from desirable. As a public sector undertaking they were expected to be more responsible. Therefore, the findings of the District Forum does not call for any interference.

THIS appeal has no substance. It is accordingly dismissed. Impugned order is affirmed. Appeal dismissed.