M.T.N.L. vs KAY AAR APARTMENTS

THE Mahanagar Telephone Nigam Limited (hereinafter referred to as ''the M.T.N.L.'') have filed an Appeal No. A-382/99 challenging the order of the District Forum-I dated 17.2.1999, in Complaint Case No. 972/97 - entitled Kay Aar Apartments Pvt. Ltd. v. M.T.N.L. THEreafter on 30.3.1999, Kay Aar Apartments Pvt. Ltd. (hereinafter referred to as the ''the Company'') have also filed a cross-appeal bearing No. A-383/99 against the same order. Since both the appeals arise out of a common order, we propose to dispose of the same by this common order.

BRIEFLY stated, the facts relevant for the disposal of both these appeals are, that the Company is maintaining essential like water, electricity, elevator, security etc. in a building known as ''Kaushalya'' Building bearing Municipal No. 4380, situated at 4-B, Gali Murari Lal, Ansari Road, New Delhi. The Company, for the abovesaid purpose is having its office in the same building in flat No. 4 on the ground floor. In the office of the Company one telephone No. 3288514 is installed. The Company received Bill dated 1.4.1997 for Rs. 21,326/- for the billing cycle 16.1.1997 to 15.3.1997 and another Bill dated 1.6.1997 for Rs. 15,427/- for the billing cycle 16.3.1997 to 15.5.1997. It is the case of the Company that both these bills were excessive and included charges for several overseas and out station calls which were never made from the telephone of the Company because as per the bills, the alleged calls were allegedly made from the office of the Company after 9.00 p.m. whereas the office of the Company where the Telephone in question is installed is closed and locked every day at 6.30 p.m. and the key remains with the Director of the Company. In other words, as per the case of the Company no one has access to the office of the Company where the telephone is installed after 6.30 p.m. It is also stated that the said telephone may have been tapped/hooked by some STD Booth Operator in collusion with the staff of the MTNL. It is alleged that despite numerous complaints in this regard the matter was not investigated properly by the MTNL and on the contrary the telephone of the Company was disconnected without any notice on 3.9.1997. Thereafter, the Company filed a complaint with the District Forum praying for several reliefs as enumerated below : (i) that direction be issued to the respondent to remove the ''deficiency in service'' by reconnecting the telephone No. 3288514 of the Company ; (ii) that damages of Rs. 1,000/- per day be awarded against the MTNL on account of gross deficiency in service till such time the telephone is restored by the MTNL; (iii) that the respondent MTNL be directed to rectify the bill copy annexed with the complaint and marked as Annexure-D; and (iv) that cost be also awarded to the complainant.

The MTNL took several adjournments for filing their reply/written version before the District Forum and were finally proceeded ex parte. But later on, the MTNL moved an application for setting aside the ex parte order. The same was allowed subject to cost of Rs. 250/- and consequently the MTNL filed their reply/written version as well as affidavit by way of evidence but did not contest the proceedings thereafter. In the reply/written version the MTNL stated that the impugned bills were correct and issued on the basis of calls registered in the computer. It was also denied by the MTNL that there was any collusion of its staff with some STD Booth Operator or that proper investigation was not made by it on the complaints of the Company. The MTNL also stated in their written version/reply that since the telephone in question was provided with Dynamic STD Locking facility, there was no possibility of its misuse by any external agency and also cited several decisions of the High Court in support of its abovesaid contention.

The learned District Forum, however, decided the complaint vide order dated 17.2.1999. The operative portion of the impugned order reads as under : "As a result of above discussion we hold respondent guilty of deficiency of service and issue it following directions for compliance within 60 days of receipt of copy of this order failing which appropriate action under Section 27 of Consumer Protection Act shall be taken against it : (1) To revise bill of complainant for the period 16.1.1997 to 15.3.1997 and from 16.3.1997 to 15.5.1997 from which ISD Calls and STD Calls (except last 2 calls in bill of 16.1.1993 to 15.3.1997 and 7 last calls admitted in bill of 16.3.1997 to 15.5.1997) shall be deleted and if some part payment of first bill made by complainant shall be adjusted. (2) After the payment of this revised bill is made by complainant, its telephone shall be restored. (3) Respondent will also pay to complainant Rs. 1,000/- as cost of litigation. We are not giving compensation to complainant for alleged deficiency of service because if complainant had been vigilant and locked STD facility, alleged misuse of telephone could be avoided.

FEELING aggrieved both the sides have preferred separate appeals under Section 15 of the Consumer Protection Act, 1986. The Company has come up in appeal mainly on the ground that no compensation has been awarded to it by the District Forum vide the impugned order, for the period the telephone remained disconnected. The MTNL, on the other hand, has challenged the impugned order on the grounds that the reconnection of telephone as well as the revision of bills have been ordered by the learned District Forum ignoring important facts and evidence on record. We have heard the arguments on behalf of both the parties as well as have gone through the documents/material placed on record.

WE will first take up Appeal No. 382/99 filed by MTNL. The main contention of MTNL is that since Dynamic STD Locking facility was provided in the telephone in question there was no possibility of misuse of the same as held by the Hon''ble High Court of Delhi, in the case - entitled Shri A.N. Pandey v. M.T.N.L., reported as 61 (1996) DLT 51 (DB)=IV 1995 AD Delhi 915, as well as the case - entitled S.J. Hindocha v. Madras Telephones, First Appeal No. 526/94, decided on 12.10.1994. The abovesaid two decisions are distinguishable on facts as has been aptly held by the learned District Forum in the impugned order. In the above two cases, the misuser was alleged after the STD facility had been locked in their respective phones by the subscribers, whereas in the present case, the Company has admitted that the STD was left unlocked, and as such was misused by some external agency. Though the MTNL has disputed the fact that the STD facility was left unlocked, it has not placed on record anything to the contrary. Therefore, on this point we uphold the view taken by the learned District Forum. The main contention advanced on behalf of the Company was that no notice was issued by the MTNL before disconnecting its telephone in question. In support of above contention the learned Counsel for the Company placed reliance on a number decisions, wherein it has been held that disconnection of a telephone without proper notice in writing tantamount to ''deficiency in service''. The decisions relied upon by the Company are : Dr. Devendra Mittal v. G.M., Telecom, District Faridabad & Ors., reported as II (1994) CPJ 356; V.P. Mehta v. MTNL & Anr., reported as AIR 1990 Delhi 169; J.S. Rathee v. The District Manager, Telcom, Ambala Cantt. & Ors., reported as II (1992) CPJ 564; Dalbir Singh Punia, Advocate v. SDO, AEPO, Telegraphs & Ors., reported as III (1993) CPJ 1613; Smt. M. Sabat v. Divisional Officer (Telecom) & Ors., reported as III (1992) CPR 241; The Telecom District Manager v. K. Raja Ram, I (1998) CPJ 359; Union of India & Anr. v. Sri Adusumilli Srinivasa Rao, III (1998) CPJ 157; and Santokh Singh v. Divisional Engineer Telephones, Shillong & Ors., AIR 1990 Guwahati 47. On the other hand, the learned Counsel for MTNL contended that no notice was required to be given to the Company by it before disconnection of the telephone in question under Rule 443 of the Telegraph Rules, 1951, and in support of his above contention relied on a decision of the National Commission in case - entitled The Telecom District Manager v. Dr. Bishnu Charan Mishra, First Appeal No. 250/1991, decided on 13.4.1993. In so far as the above contention of the learned Counsel for the MTNL is concerned the position is that as a matter of fact, it is clear from the language of Rule 443 itself that non-payment of bill, would mean, a bill the correctness of which is either not disputed or even if disputed the same has been found to be correct after proper investigation by the Department. Similar view has been taken by the National Commission in case - entitled Union of India v. Usha Spinning and Weaving Mills, reported as AIR 1982 Delhi 111. As per the admitted facts of the present case, the bills dated 1.4.1997 and 1.6.1997 were disputed by the Company as being excessive and complaints were lodged with the MTNL against the same and investigation was still pending when the telephone of the Company was disconnected on 3.9.1997 without any notice.

FURTHER the investigation report as conveyed to the Company by the MTNL vide letter dated 8.12.1997 was, that no fault had been found during the investigation and as such the bills were correct, whereas as per their own report placed on record no connection could be traced before the Company and the persons to whom the STD/ISD calls were made. FURTHER no affidavit of the official/officer, who had carried out the alleged investigation, was filed on behalf of the MTNL nor were any details of the said investigation furnished and placed on record. The MTNL also failed to follow the procedure as laid down in Section 5(2) to Section 5(7) of the Rules prescribed by the Telecom Board in cases of complaints for excess billing. In fact, no details of procedure followed by the MTNL in investigating the complaints of the Company were furnished. In this regard the Company relied on the decision of State Consumer Disputes Commission, Ahmedabad in case - entitled Creported as II (1993) CPJ 875, wherein it was held : "The Telephone Exchange is in the exclusive control of the Telephone Department, the lines are open which can be taped and utilised by even a petty employee of the Department. When such type of allegations are made it is duty of the Telephone Department to investigate and answer and give satisfactory evidence before the Court. Merely because there is an averment that they have made an investigation and enquiry and found everything correct is not the evidence which can have any value unless the person who had made the investigation files an affidavit or comes before the Court for a deposition. When such serious allegations are made, the Department ought to have examined the Inspector and other persons conversant who have made the enquiry and nature of enquiry and how they have arrived at the finding."

(Emphasis supplied) FURTHER, in fact, even the case itself was not properly prosecuted before the District Forum, who have recorded their observations in this regard in the impugned order. 12. Therefore, in the circumstances of the present case, when the FNMR placed on record by the MTNL, itself shows that the calls were made at very short intervals of few minutes and all through the night to various foreign countries and no adequate evidence has been produced by the MTNL on record to connect these ISD/STD calls to the Company the only logical conclusion is that the telephone line has been misused, and as such the District Forum was justified in holding that there was ''deficiency in service'' on the part of MTNL and as such, there is no occasion for us to interfere with the findings, on facts, by the learned District Forum. 13. Coming to Appeal No. A-383/99 filed by the Company, the sole grievance of the Company is that the learned District Forum did not award any compensation to it despite holding that there was ''deficiency in service'' on the part of the MTNL. In the impugned order the learned District Forum has observed that the Company is not entitled to compensation as it has not been vigilant in locking the STD facility resulting in the misuse which could have been avoided had necessary steps for locking the said facility been taken by the Company. We find no infirmity in the said findings of the learned District Forum that there has been contributory negligence on the part of the Company also. Even after receiving the alleged excessive bill dated 1.4.1997 the Company did not bother to lock the STD facility resulting in the continuance of the alleged misuser and a second exhorbitant bill. It is admitted case of the Company that the STD facility was left unlocked inadvertantly. Therefore, such gross negligence does not warrant any compensation to be granted to the Company. Therefore, in view of the above circumstances we do not find any merit in both the Appeal Nos. 382/99 and 383/99. The order of the learned District Forum dated 17.2.1999 is upheld and as a consequence both the above mentioned appeals are dismissed. There is, however, no order as to costs. Appeals dismissed.