M.T.N.L. vs HIRDAY NATH

THE present appeal filed by the appellant is directed against order dated 24.6.1997, passed by District Forum No. IV in Complaint Case No. 38/96/T - entitled Dr. Hirday Nath v. THE Divisional Engineer (Phones) KKD Exchange, Hargovind Enclave, Delhi & Anr.

THE facts relevant for the disposal of the present appeal briefly stated are that the respondent Dr. Hirday Nath filed a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') before the District Forum, averring that his telephone bearing No. 2216580 (new number 2146580) installed at his premises for clinical purposes, remained out of order from 5.9.1995 to 28.11.1995 (nearly 83 days) and the same was not put in order inspite of complainants on Phone No. 198 and written complaints made to the various functionaries of appellant. THE respondent, in the complaint filed by him claimed a compensation of Rs. 50,000/- for the harassment and sufferings to which he has subjected. The claim of the respondent/ complainant, in the District Forum, was resisted by the appellant/MTNL and a written statement was filed on behalf of the appellant. In the written statement, filed on behalf of the appellant, before the District Forum, the appellant denied the allegations and contended that the Telephone of the respondent/complainant was although working satisfactorily. It was also stated that a slip to the above effect, that the telephone in question was working satisfactorily, was given by the respondent/complainant to the appellant. However, neither the above said slip nor the copy of the FNMR was produced/filed before the District Forum by the appellant. The learned District Forum in the impugned order has held that in the absence of copy of FNMR or any other evidence to the effect that the telephone of the respondent/complainant was in working order during the relevant period, the allegations levelled by the respondent/complainant that his telephone remained out of order from 5.9.1995 to 28.11.1995, had gone on record unrebutted and unchallenged. It has also been observed by the learned District Forum that the complainant has brought on record ample proof to the effect that he lodged good number of complaints regarding the fault in his telephone to the various functionaries of the appellant including the Director (Vigilance). On the basis of the above material it has been held by the learned District Forum that the appellant was guilty of ''deficiency in service'' and the learned District Forum vide impugned order has directed the appellant to pay to the respondent/complainant compensation of Rs. 10,000/- and has also directed the appellant to pay a sum of Rs. 1,000/- to the respondent/complainant by way of litigation expenses.

Feeling aggrieved with the above order of the learned District Forum, the appellant has preferred the present appeal. Notice of the appeal was given to the respondent who has entered appearance.

WE have heard the learned Counsel for the appellant and the respondent at length and have also carefully gone through the documents/ material on record. During the course of arguments, the main thrust of the learned Counsel for the appellant was that during the relevant period, the telephone of the respondent/complainant was working satisfactorily. In our opinion, the above arguments, advanced by the learned Counsel for the appellant is devoid of substance because the appellant failed to produce the slip stated to have been given by the respondent/ complainant stating therein that the telephone of the respondent/complainant was working satisfactorily. Not only this, the appellant also failed to produce a copy of the FNMR. The above said two documents on which the entire case of the appellant hinges were not produced either before the District Forum or copy before this Commission at the appellate stage and, therefore, an adverse inference against the appellant has to be drawn. In our opinion, in the presence of the above facts the learned District Forum was fully justified in holding that there was ''deficiency in service'' on the part of the appellant.

AS already stated, the learned District Forum has directed the appellant to pay to the respondent/complainant a compensation of Rs. 10,000/-. During the course of arguments, the learned Counsel for the appellant submitted that in view of the decision of the Hon''ble Supreme Court in Case Consumer Unity and Trust Society, Jaipur v. The Chairman and Managing Director, Bank of Baroda, Calcutta & Anr., I (1995) CPJ 1 (SC), and the decision of the National Commission - in Case General Manager, Mahanagar Telephone Nigam Ltd. v. Mauli Chand Sharma, II (1995) CPJ 183 (NC). The District Forum was not at all justified in awarding the above amount of compensation to the respondent/complainant. In our opinion, in the given facts, the above decisions of the Hon''ble Supreme Court and that of the National Commission, in no way help the cause of the appellant. In case - Consumer Unity and Trust Society, Jaipur (supra), it has been held by the Hon''ble Supreme Court that the provisions of Section 14(1)(d) of the Act are attracted if the person from whom the damages are claimed is found to have acted negligently and such negligence must result in some loss to the person claiming damages. In the given facts, the negligence on the part of the appellant is clearly established as the telephone of the respondent/ complainant remained out of order for a long spaces 83 days inspite of complaints on Phone No. 198 and written complaints made to the various functionaries of the appellant including the Director (Vigilance). AS regards the loss the position is that the telephone in question admittedly is installed for clinical purposes at the premises of the respondent/complainant who is a Doctor by profession. The abovesaid telephone as already stated remained out of order not for a day or two but continuously for along spell of 83 days from 5.9.1995 to 28.11.1995. In the above context, it cannot be stated that the compensation awarded by the District Forum to the respondent/complainant was unjustified or excessive in any manner whatsoever. For the above reasons, the present appeal filed by the appellant, in our opinion, is devoid of substance. The same merits dismissal. Accordingly, the same is dismissed with costs. Costs quantified at Rs. 1,000/- and awarded to the respondent. Appeal dismissed with costs.