KANAK VERMA vs Mahanagar Telephone Nigam Ltd.

THE present appeal, filed by the appellant under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') is directed against order dated 20.5.2001, passed by District Forum-III, Janakpuri, New Delhi in Complaint Case No. 43/2001 - entitled Mrs. Kanak Verma v. Mahanagar Telephone Nigam Ltd. & Anr.

THE facts, relevant for the disposal of the present appeal, briefly stated are that the appellant Mrs. Kanak Verma, a subscriber of telephone connection bearing No. 5134005 installed at her residence at CD-24F, DDA Flats, Hari Nagar, New Delhi, had filed a complaint before the District Forum under Section 12 of the Act averring therein that she had been receiving bills in respect of the above said telephone connection for the last 4 years for an amount of Rs. 2,000/- to Rs. 3,000/- only. It was stated that she had received two bills both dated 9.10.2001 in respect of the above said telephone, amounting to Rs. 20,177/- and Rs. 25,295/- for the period from 1.9.2000 to 30.9.2000 and from 1.10.2000 to 31.10.2000. It was stated that the above said two bills in respect of the above said telephone connection were too excessive. It was stated that the appellant lodged a complaint with the respondent requesting for an inquiry/investigation in the whole matter. It was stated that the appellant received a stereotyped reply from the respondent stating that no fault/error could be found with the meter and, therefore, no rebate could be given to the appellant. Alleging deficiency in service and unfair trade practice on the part of the respondents, it was prayed by the appellant that in the bills for the period from 1.9.2000 to 30.9.2000 and for the period from 1.10.2000 to 31.10.2000 both dated 9.10.2000, the number of calls be reduced. THE appellant had also claimed compensation of Rs. 25,000/- for mental agony and harassment caused together with Rs. 2,500/- towards reimbursement of cost incurred on sending registered letters, making telephone calls and personal visits to the office of the respondents. THE appellant had also claimed legal expenses to the extent of Rs. 5,000/-. The claim of the appellant in the District Forum was resisted by the respondents. In the reply/written version filed on behalf of the respondents it was stated that on receipt of representation from the end of the appellant, a thorough investigation was made and the allegations were found to be baseless. Along with the reply/written version, the respondents had also filed a copy of the investigation reports. It was stated that the telephone connection in question was having STD facility with dynamic control. It was stated that code number in respect of the STD facility was known to the appellant only and, therefore, nobody else could have misused the telephone in question. It was stated that the investigation conducted by the respondent revealed that the appellant had two unmarried sons, aged 23 years and 21 years, working as hardware/software engineers in private sector. It was stated that the complaint filed by the appellant was without any substance and deserved to be dismissed.

The learned District Forum vide impugned order has held that there was no deficiency in service on the part of the respondents and on the basis of the above finding has passed the impugned order rejecting the complaint filed by the appellant.

FEELING aggrieved, the appellant has preferred the present appeal under Section 15 of the Act. We have heard the learned Counsel for the appellant at length on the question of admission of present appeal and have also carefully gone through the documents/material on record. On the basis of the material on record it is not in dispute that the telephone connection in question is having STD facility with dynamic control. The grievance of the appellant in the complaint filed by her before the District Forum in nutshell was that the bills dated 9.10.2001 for Rs. 20,177/- and for Rs. 25,295/- in respect of the above said telephone were highly inflated. As regards the question of inflated bills the position is that this very question came up for consideration before the Hon''ble National Commission - in case Telecom District Manager, Patna v. M/s. Kalyanpur Cement Ltd., reported as II (1991) CPJ 286 (NC)=1986-95 Consumer 878 (NS), and the National Commission, in the above said decision, has observed : "However, before we part with this case we must observe that we feel disturbed by the fact that the orders of the District Forum and the State Commission in this case are based on the conclusion that the Bill in question was highly inflated and this finding was based on an examination of the previous bills in respect of the particular telephone concerned. As the State Commission observed in its order ''an analysis of all the bills filed in this case would give an impression that the Bill in question could not be correct as it was against the calling pattern of the complainant-respondent. The previous bills show that the respondent was in the habit of making restrained calls and this is why the bill rarely exceeded Rs. 1,000/-. So the State Commission concluded that the District Forum seemed to be correct in holding that the bill in question was not drawn up correctly, that either it was inflated or there was something wrong in the mechanism. There is no evidence to show that the metering equipment was defective or that it had been tampered with or manipulated as so to inflate the bills. It is also not correct to assume that there has to be a pattern of making telephone calls from a telephone; the number of telephone calls made by a subscriber can fluctuate considerably for many reasons. The subscriber in this particular case, the consumer is a commercial concern and there is every likelihood that the telephone calls in a period of time may fluctuate widely. It may become necessary to make a fair and just determination of the calls made on the basis of the calling pattern over a period of time, only if it is established that the metering equipment is defective, or has been tampered with or manipulated, resulting in the bill being inflated. It is true that one cannot altogether rule out the possibility of such tampering or manipulation of metering equipment and the consumer must be protected against such malpractices. It is, however, not open to the Consumer Forums to base a finding of the bills having been inflated merely on the basis of suspicion and it will be right not to assume that there was something wrong with the mechanism without evidence and without identifying the precise defect in that mechanism. We cannot go by our subjective impressions about the reasonableness or otherwise of a bill which is based on readings from a mechanical equipment."

(Emphasis supplied)

IN case The District Manager, Telephones & Ors. v. Niti Saran, reported as I (1991) CPJ 48 (NC)=1986-95 Consumer 793 (NS), the Hon''ble National Commission, placing reliance on its earlier decision in case Telecom District Manager, Patna (supra), while expressing its concern over the manner in which the Redressal Agencies, established under the Act, had been disposing of complaints from consumers regarding inflated bills, issued by the Telephone Department, has held : "Before, however, we part with this order we would like to express our disquiet over the manner in which the consumer disputes Redressal Forums have been disposing of the complaints from consumers regarding inflated bills issued by the Telephone Department. Whenever the consumer (telephone subscribers) raise questions about excessive billing which, according to them, are not commensurate with the calls actually made, the Telephone Department rebuts the suggestion of inflated billing on the ground that the metering equipment was not faulty and that there is no misuse of the Telephones by the officials of the Department. To resolve such disputes the Redressal Forums have been taking recourse to ascertaining the average number of calls made from the particular telephone over a period of time to see whether the bills complained against show any abnormal or marked deviation from the pattern of calling derived from the average number of calls in a particular period. Thus, in this case the State Commission observed that ''after a considerable thought we have decided average number of calls made on the particular telephone for about two years immediately preceding the period for which excessive bill is received may be determined. If the excessive billing is about 25% above the normal average user that should be considered as normal. But any rise beyond that should be taken notice of and should be treated as on merits on the facts of each case. These observations would mean that the Consumer Forums are taking over the function of estimating by application of a rule of thumb the precise number of calls made and the charges, therefore in a particular period of time. Consumer Redressal Forums, however, will not be legally justified in doing so 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 minuse of the particular telephone by the employees of the Department. particularly in cases where a subscriber has the STD facility there is every possibility of large variations in the calling pattern for various conceivable reasons."

(Emphasis supplied) In a subsequent decision, in case Telecom District Manager, Patna v. M.S. Mukherjee, reported as 1986-95 Consumer 1179 (NS), the Hon''ble National Commission, placing reliance on its earlier decisions in case Telecom District Manager, Patna (supra), and District Manager, Telephones (supra), has held in clear-cut terms that it is not legally permissible to adopt the mode of computation on the basis of average for determining whether a particular bill is excessive or not, except in cases where there is satisfactory evidence to show that there was some material defect in the metering equipment in the departmental exchange concerned. In case Telecom District Engineer, Dharamsala v. Pran Nath Mahajan, reported as I (1993) CPJ 99 (NC), the Hon''ble National Commission, per majority decision, has held : "It is a matter of public knowledge that STD facility has often been misutilised on a large scale by third parties in collusion with the P&T staff. But unless there is at least circumstancial evidence to probabilise 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 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 unauthorized 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 1990. Again in Telecom District Manager v. M.S. Mukerjee, Revision Petition No. 111 of 1990, we held 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 as the reasonable number of chargeable calls in the billing period."

(Emphasis supplied)

IN case Telecom District Manager, Panaji v. M/s. Concha Beach Resort, Calangute Breach, Goa, reported as 1986-95 Consumer 2906 (NS), placing reliance on its earlier decision in case Telecom District Engineer, Dharamsala (supra), the Hon''ble National Commission has held : "The District Forum has directed the opposite party to bill the complainant with regard to disputed bills on the basis of average billed for the past one year immediately preceding the disputed bills and to refund the excess, if any, paid by the complainant and this direction has been upheld by the State Commission. This is not legally permissible. This Commission has repeatedly held that the Redressal Forums are not legally justified to do so unless there is adequate evidence which may be either direct or circumstantial to show that the metering equipment was defective or there has been tampering with or misuse of telephone by the employees of the Department.

(Emphasis supplied)

THE above decisions of the Hon''ble Apex Commission virtually clinch the matter finally because the telephone connection in question in the present case had STD with dynamic locking facility. Not only this, the representation/complaint made by the appellant with regard to inflated bills was thoroughly investigated by the concerned functionaries of the respondent MTNL and nothing unusual was observed. THEre is no adequate evidence, either direct or circumstantial, to establish the fact that the metering equipment in question was defective or there had been tampering with or misuse of the telephone in question in connivance with the employees of the respondent MTNL. THE order being impugned in the present proceedings is a well reasoned order. THE same suffers from no infirmity so as to call for any interference by this Commission in exercise of its appellate powers. In view of the position explained above, the present appeal filed by the appellant, is devoid of substance. The same deserves to be dismissed. Accordingly, the same is dismissed in limini with no order as to costs. Appeal dismissed.