LAKSHESWAR TALUKDAR vs Union of India

THESE Cross Appeal Nos. CA 139/97 and CA 150/97 are taken up together for disposal by single order as they arise from the same impugned judgment dated 29.8.1997 of District Consumer Disputes Redressal Forum, Kamrup, (for short, District Forum) in C.P. Case No. 84/96. In the first one Shri L. Talukdar, the complainant in the original case in the District Forum is the appellant and in the second one Union of India, that is, the Telecommunication Department, and Telecom District Manager, Guwahati, who were opposite parties in the District Forum are the appellants. For our convenience we shall discuss the points raised in both the appeals together.

THE facts of the case in the complaint adjudicated by the District Forum, which are common in both the appeals before us, are as follows : Complainant Mr. L. Talukdar, Advocate, is the subscriber of Telephone No. 524398 without STD facility at Guwahati, which was in operation since 18.4.1995. THE complainant''s first grievance is that he received first bill dated 1.9.1995 for 275 calls for the period from 16.6.1995 to 15.8.1995, in which he was charged for 125 calls only after giving him benefit of 150 free calls. As alleged by the complainant this bill is excessive as he was entitled to get 300 free calls covering both the billing cycles 7/95 and 9/95 as the telephone started functioning from 18.4.1995. THE main grievance of the complainant is that he was charged for 612 and 418 calls in the third bill dated 1.1.1996 and fourth bill dated 1.3.1996 respectively whereas he claims to have never made more than 200 calls during each of the aforesaid billing cycles. He, then, lodged excess billing complaints against both the bills vide registered letters dated 13.1.1996 and 16.3.1996 as also asked the opposite parties to furnish particulars of the calls made. No reply was given to him, nor any investigation was done. Instead the opposite parties barred his telephone on 26.3.1996 from making outgoing calls. On his protest his telephone was restored on 5.4.1996. THEreafter again on 30.4.1996 his telephone was barred from making outgoing calls. As alleged by the complainant his telephone was ultimately disconnected on 18.7.1996 arbitrarily and illegally without giving any notice. The complainant lodged the complaint in the District Forum alleging deficiency of service on the part of the opposite parties Union of India and Telecome District Manager, Guwahati, for serving him excessive bills and disconnecting the telephone without notice, claiming himself as a busy Advocate in Guwahati High Court and having several other assignments he prayed in his complaint for immediate restoration of the telephone and award of total compensation of Rs. 1,00,000/- only for mental agony and professional loss suffered by him.

In their written version filed by the Senior Accounts Officer, Guwahati Phones, on behalf of the opposite parties all allegations brought by the complainant are denied. It is stated that the complainant was allowed benefit of 150 free calls in the bill dated 1.7.1995 and that he was entitled to only 150 free calls and not 300 calls in the next bill dated 1.9.1995 for the billing cycle 9/95. So far as the disconnection of the telephone is concerned, it is stated by the opposite parties that the complainant did not pay the genuine bills dated 1.7.1995, 1.1.1996, 1.3.1996, 1.9.1995 and 1.11.1996 inspite of 15 days'' disconnection notice given him by barring outgoing calls. The telephone of the complainant was disconnected by invoking the powers under Rule 443 of the Indian Telephone Rules. The opposite parties, therefore, categorically denied that the disconnection of the telephone was illegal and there was deficiency of service on their part, as alleged.

AFTER hearing both the parties and on perusal of the complaint, written statement and after evidence on record the learned District Forum delivered the impugned judgment directing the opposite parties to restore the telephone without a period of ten days without demanding reconnection charge and rentals for the period it remained disconnected. Besides, the District Forum awarded a compensation of Rs. 15,000/- only and costs of Rs. 500/- only to the complainant. We have heard learned Counsel Mr. D. Sur of the Tecommunication Department and Mr. L. Talukdar, the complainant, in person (appellant herein in Case No. CA 139/97 and respondent in Case No. CA/150/97). We have relied on the decision of National Commission reported in I (1996) CPJ 49 (NC) cited by learned Counsel Mr. D. Sur and similar other decisions of the Commission. We have gone through the Memorandum of Appeal in both the appeals, other connected papers on record apart from the complaint, written version and other evidence on record in the original case.

SO far as the complainant/subscriber''s claim of being entitled to the benefit of another 150 free calls is concerned we are inclined to agree to the finding of the District Forum that "the next bill served on him for the billing cycle 6/95 was for the period from 16.5.1995 to 15.8.1995 and not for both the billing cycles 7/95 and 9/95 as wrongly claimed by the complainant. SO in this bill he was allowed 150 free calls to which he was legally entitled". In view thereof the District Forum rightly held that there was no illegality committed by the opposite parties in granting only 150 free calls to the complainant in the bill dated 1.9.1995. However, the appellant/opposite parties No. 2 is directed to examine the matter once again and explain the position in writing to the complainant/subscriber. We do not find reasonable ground to believe that the third and fourth bills dated 1.1.1996 and 1.3.1996 for 612 and 418 calls respectively are excessive in view of the fact that the complainant-subscriber (respondent in CA 150/97) is an Advocate in the High Court with several other assignments. We are not inclined to accept his statement in the complaint as well as in the affidavit that he does not make more than 200 calls in a bimonthly period of billing cycle. Besides, the Hon''ble National Commission has laid down the norms for dealing with the excess billing complaints. It would be pertinent to quote below from the order of the National Commission in Accounts Officer, Telecom District Manager, Panaji, Goa v. Mrs. Shiela H.N. Gauneka, reported in I (1996) CPJ 49 (NC) : "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."

In Telecom District Engineer, Dharamsala v. Pran Nath Mahajan, I (1993) CPJ 99 (NC), the National Commission held : "It is a matter of public knowledge that the STD facility has after been misutilised on large scale by third parties in collusion with P. and 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 Forum 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 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 a 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."

THE above observation of the National Commission is aptly applicable in the present case. THEre is not an iota of evidence adduced by the complainant/subscriber apart from his statement, be it in the complaint itself or in the affidavit sworn by him, that in the instant case either the metering equipment is defective or there has been misuse or tampering with the telephone by the Departmental staff or by any other unauthorised person in collusion with them. Not to speak of any direct evidence there is not even any circumstantial evidence to probabilise any misuse of this particular telephone by the staff of Telecommunication Department or any collusion having been taken place in this particular case. As we have already stated above the chargeable local calls in the aforesaid bills are considered to be reasonable inspite of the complainants'' assertion of the same being excessive. Relying on the decisions of the National Commission referred to above we find no ground whatsoever in the excess billing complaints of the complainant (appellant herein in CA 139/97). In view of the aforesaid observations of National Commission, we are of the opinion that the grounds stated in the Memorandum of Appeal filed by the appellant complainant in CA 139/97 are not sustainable and hence it is needless to discuss the same at length. In any case the impugned judgment itself is being set aside by us except agreeing with the District Forum on the points of excess bills and giving benefit of 150 more free calls. We, therefore, hold that the complaint on excess bills is baseless and hence liable to be rejected.

IT is well known that the Telecommunication Authorities are empowered under Rule 443 of the Indian Telegraph Rules to disconnect telephones even without serving disconnection notice to the subscribers in case of default in payment of the dues. Telecom-munication Authorities claim that barring the outgoing calls of a defaulter subscriber itself is a notice for disconnection. In the present case complainant subscribers'' non-payment of aforesaid bills legally justifies disconnection of his telephone by invoking the provisions of Rule 443 of Indian Telegraph Rules. He cannot take the plea of non-payment due to submission of his excess billing complaints which were yet to be disposed of. He should have paid his bills in time, may be on protest, even if his complaints were pending. We wonder how the District Forum ignored the aforesaid legal provision of Indian Telephone Rules. On the facts and circumstances of the case we hold that there is no illegality in disconnecting the telephone of the complainant subscriber for default in payment of the dues against his telephone. In view thereof the appellants/opposite parties (respondents in CA 139/97) cannot be held responsible for mental agony and professional loss said to have been suffered by the complainant (appellant in CA 139/97 and respondent in C.A. 150/97). We, therefore, come to the conclusion that the appellants Union of India and Telecom District Manager, Guwahati, in C.A. 150/97 are not liable to pay any compensation (and costs whatsoever to the respondent-complainant (appellant in C.A. 139/97). This is based on our finding that the learned District Forum erred in law by holding the appellants Union of India and Telecom District Manager (respondents in CA 139/97) liable to pay compensation inspite of the fact that they have not committed any illegality by invoking Rule 443 of the Indian Telegraph Rules, which is a statutory provision. In view thereof we hold that the impugned judgment is illegal and the same is liable to be set aside. In the result, the appeal preferred by the appellants Union of India and Telecom District Manager, Guwahati, in CA 150/97 is allowed and the impugned judgment dated 29.8.1997 of the District Forum in C.P. Case No. 84/96 is set aside. For the reasons stated above the cross appeal preferred by the complainant appellant in C.A. 139/97 is dismissed as it is devoid of any merit. Consequently upon above decisions the complaint stands dismissed. In the circumstances of the case, there is no order as to costs. Appeal No. 150/97 allowed. Appeal No. 139/97 dismissed.