Manoj Jain vs Union of India

THIS complaint petition was filed under Section 17 of the Consumer Protection Act, 1986 by complainant Sri Manoj Jain alleging excessive and exhorbitant billing of the local calls including STD calls by the Department of Telecommunication, Guwahati, in respect of his telephone No. 33357 (new) 31258 (old) at Guwahati. Although the learned Counsel for the opposite parties, i.e., Telecommunication Department, was given sufficient time no written version or objection was filed by the opposite parties. An interim order dated 9.10.1993 was passed by this Commission after hearing both the parties. As this order was not complied with the Commission vide order dated 12.3.1994 directed the office to communite the order dated 9.10.1993 to the Telecom District Manager after receipt of the complainant''s petition under Section 27 of the C.P. Act. The complaint came up for final hearing on .

THE facts of the case may be stated briefly as follows. THE complainant''s telephone No. 33357 (new) 31258 (old) at Guwahati was installed on or after 16.7.1991. According to the complainant his average bi-monthly bill for the period of ten months upto 15.5.1992 was in the region of Rs. 792/- only and it rarely exceeded this amount. But there was a sudden spurt in the call charges in the four telephone bills for the period spreading from 16.5.1992 to 15.1.1993. Following are the demands made against these bills. THEse are the four disputed bills with exhorbitant charges which are challenged by the complainant. It is alleged by the complainant that there must have been some serious defect in the telephone system itself or there had been manipulation or tempering of the telephones either by the concerned employees of the Telecommunication Department or by anybody else in collusion with them. The complainant vehemently objected to these excessive bills as also to the disconnection of his telephone without any investigation and disposal of his repeated complaints. Annexures II, IV, V, VII, IX, X, XI, XII and XIII, are the copies of the correspondence made by the complainant with opposite parties 2 and 3 on the subject of excess billing. As stated by the complainant the opposite parties have not replied to the same, nor made any investigation. Being aggrieved at the conduct of the opposite parties and having suffered irreparable loss for disconnection of the telephone as also being burdened with the liability to pay huge amounts of the aforesaid four bills the complainant filed the present complaint before this Commission under the Consumer Protection Act.

In his complaint before this Commission the complainant has prayed for the following reliefs : (i) The damage or compensation of Rs. 25,000/- only for constant high billing, harassment and mental agony caused to the complainant due to wrongful disconnection of his telephone. (ii) Direction to the opposite parties to reconnect the telephone immediately. (iii) Direction to the opposite parties to carry out investigation into the repeated complaints of excessive and un-realistic billings dated 1.8.1992, 1.10.1992, 1.12.1994 and 1.2.1993. In fact, this complaint is within the pecuniary and territorial jurisdiction of District Forum, Kamrup. However in the interest of justice it has been decided to adjudicate the complaint by this Commission itself instead of sending it to the Forum in view of its pendency for a long time since 1993.

THE opposite parties have not filed written version of any objection. In fact there is no pleading whatsoever of the Telecommunication Department. Only on the date of final hearing the learned Counsel for the Department argued relying solely on the National Commission order in Accounts Officer, Telecom District Manager, Panaji, Goa v. Mrs. Sheela H.N. Gaunelsa, reported in I (1996) CPJ 49 (NC). He has drawn our attention to some other similar decisions of the National Commission and suffice to confine our discussion to the decision of National Commission referred to above and some observations of the Commission itself in some other cases mentioned therein. We have heard Mr. B.K. Jain, learned Counsel for the complainant and Mr. D. Sur, learned Counsel for the opposite parties. We have gone through the complaint alongwith the annexures, the order of the National Commission referred to above and the relevant provisions on "Excess Metering Complaints" as reproduced in Swamy''s Treatise on "Telephone Rules" produced before us by learned Counsel for opposite parties.

IN the instant case the aforesaid four disputed bills amounting to Rs. 36,430/-, Rs. 46,628/-, Rs. 1,22,298.20 and Rs. 35,539/- appear to be excessive. But we cannot come to a conclusion on this point ''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'', as held by the National Commission in the aforesaid case reported in I (1996) CPJ 49 (NC). IN Teleom District Engineer, Dharamsala 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 a 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 the correctness of the 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 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 persons 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. Mukherjee, Revision Petition No. III 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 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 telephones."

Let us now examine the facts and circumstances of the instant case in the light of the above observations of Hon''ble National Commission in the aforesaid cases. Apparently there is no direct evidence of the metering equipment being defective. Even if there is any defect the complainant subscriber is not in a position to detect it. So, the question of his adducing direct evidence on this point does not arise, which is why he repeatedly requested the opposite parties to investigate into the matter. Unless the Telecommunication Department itself detects the defects and disclose it the subscriber can do nothing. He is at their mercy. On perusal of the complaint and the annexures enclosed thereto we find that the complainant alleged ''either there is some malfunctioning of the meter or some foul play is being done with the telephone line of the complainant and his telephone line of the complainant and his telephone is being used in an unauthorised manner with the connivance of the employees of Telephone Department or some interested persons have been manipulating and tampering with the telephone connections thereby sending exorbitant bills to the innocent subscribers". This allegation of the complainant remains unrebutted in absence of any written version of the opposite parties and their failure to adduce any evidence whatsoever. Not to speak of investigating into the complaints the opposite parties did not care to acknowledge the letters of the complainant. They have flouted the instruction given in their Departmental Circular No. 4-59/85-TR, dated 9.4.1986 on disposal of excess metering complaints. The relevant provision is qhoted below : "6. Investigations of an excess billing complaint. 6.1 It has been noted that subscribers do not at present have a clear picture as to whom they should contact in case of suspicion of excess billing. It is necessary that in every important telephone system one or more specific officers are identified for this purpose. Suitable officers properly furnished should be provided to them to receive the subscribers and process their complaints including issue of split bill. Widest possible publicity should be given that in case of a suspicion of any excess billing, these officers are to be contacted."

It is unfortunate that inspite of such subscriber friendly Departmental circular the opposite party Nos. 2, 3 and 4 hardly did anything to attend to the complaints and get the complaint investigated in the present case. In our opinion there was deficiency of service by the opposite parties on this count. In paragraph 9 of the complaint the complainant has stated that long back he applied for disconnection of his STD facility and after getting the bill dated 1.8.1992 he reiterated his request by letter dated 4.9.1992. Although the complainant claims to have applied for disconnection of STD facility long back he has not furnished the copy of any letter/application of any date prior to 4.9.1992. We have on our record the letters dated 4.9.1992 (Annexure IX), 12.10.1992 (Annexures IV and X) and 2.11.1992 (Annexures V and XII) wherein the complainant urged opposite party Nos. 2 and 3 to disconnect the STD facility. It appears from the Annexure II, the letter dated 12.10.1992, that opposite party No. 2 made an endorsement dated 13.10.1992 directing disconnection of the STD facility. But this direction was not complied with by the subordinate staff. Inspite of repeated requests for disconnection of the STD facility no effective action has been taken by the opposite parties The opposite parties have not come forward to explain as to why this was not done. In view thereof the possibility of misusing or tampering with the complainant''s telephone by the telecommunication staff with the connivance of the superior officers cannot be ruled out. It is not unlikely that some other subscriber''s calls had been diverted to the complainant''s telephone either by the Departmental staff themselves or by some outsider in collusion with them for wrongful gain. In the first sentence of the observation of the National Commission quoted above I (1993) CPJ 99 it is stated : "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 and T staff." Such a possibility cannot be ruled out in the present case in view of the failure of the opposite parties to disconnect the STD facility inspite of repeated requests by the subscriber and serving aforesaid four bills with excessive call charges. It is true that we cannot come to any definite conclusion merely on suspicion. But in our opinion this is not a case of mere suspicion. We find that the facts and circumstances revealed by the complaint and the annexures thereto constitute the adequate circumstantial evidence ''to probabilise such collusion having taken place'' in this particular case. On the basis of the facts and circumstances of the case we are inclined to hold that there is adequate circumstantial evidence to show that there was probability of misuse of the telephone. It appears from the aforesaid observation of the National Commission that mere probability of such misuse on the basis of circumstantial evidence is sufficient and it is not necessary to prove beyond reasonable doubts by adducing direct evidence. It is not possible to have direct evidence in such cases. We have no alternative depending on circumstantial evidence only which probabilises misuse of telephone by tampering with it by the telecommunication staff themselves or by any other interested party in collusion with them.

WE do not find force in the complainant''s contention that the telephone was disconnected illegally without notice and without completion of investigation into his complaints inasmuch as there is specific provision in Rule 443 of the Indian Telegraph Rules to disconnect telephones in default of payment without notice. In view thereof it is held that the opposite parties have not committed any illegality in disconnecting the telephone without notice.

WE, therefore, come to the conclusion based on the circumstantial evidence that there has been tampering with or misuse of the complainant''s telephone by the employees of the Department. The opposite parties are held responsible for this and they are liable to take corrective measures by cancelling the four inflated bills and serving revised bills on the complainant subscriber. In our opinion the provisional bills of Rs. 5,000/- and Rs. 15,900/- are without any basis. So far as the issue of split bill in case of excess metering complaint is concerned we have come acrose the Circular No. 2-10/82-TR, dated 29.10.1984 reproduced in Swamy''s Treatise on Telephone Rules. The opposite parties should strictly follow this circular and serve split bills to the complainant subscriber. WE are not in a position to direct the opposite parties to change specific reduced amounts against the disputed bills. As observed by the National Commission reported in I (1993) CPJ 99. "The Consumer Redressal Forum will not be legally justified in taking over the function of estimating by application of rule of thumb the precise number of calls made...." The circumstantial evidence mentioned above do not lead us to make any such estimate. WE, therefore, leave the matter to opposite parties to revise the four disputed bills by reducing the call charge to whatever extent possible, if necessary applying the discretionary power of the Competent Authority in case no concrete finding based on investigation is available. WE expect that the Telecommunication Department particularly the opposite parties herein, will reduce the amounts of the disputed bills to a reasonable level in view of our finding that the complainant''s telephone was tampered with or misused by the Departmental staff themselves or by some other interested party in collusion with them. WE further direct the opposite parties to adjust the amounts already paid by him against the provisional bills in the split-bills and revised bills and to restore the complainant-subscriber''s telephone No. 33357 (new)/31258 (old) within seven days from this order on payment of the split-bills. WE do not find sufficient material on record to award any compensation, as prayed for. However, the opposite parties are directed to pay a cost of Rs. 10,000/- only to the complainant. The complaint is allowed with cost with the directions indicated above. Complaint allowed with costs.