M.T.N.L. vs MOHINI SETHI

THE District Forum II, has decided two complaints No. 886/98 entitled Sh. Manmohan Sethi v. Mahanagar Telephone Nigam Ltd., and No. 887/98 entitled Smt. Mohini Sethi v. Mahanagar Telephone Nigam Ltd., vide a common order dated 9.6.1998. Aggrieved by the said order, MTNL (hereinafter referred to as ''the appellant''), has filed the present two appeals. Since both these appeals are interrelated, we will dispose them of together by this order.

THE facts common to both the appeals, in brief are, that telephone No. 6868081 was installed at premises No. 28, Qutab View Apartments, New Delhi, in the name of Smt. Mohini Sethi, (respondent in Appeal No. A-438/98). THE said telephone was provided with STD facility since the date of installation i.e. 28.4.1990. It is the case of Smt. Mohini Sethi, that she was abroad from 16.6.1990 to 6.11.1991, and on her return to India she found her telephone disconnected on account of non-payment of bills. She obtained a copy of the bill dated 19.9.1991 for Rs. 40,397/-. Since, the details of the calls made during the period mentioned in the bill were not provided therein, her husband, Sh. Manmohan Sethi, (respondent in Appeal No. 439/98) wrote a protest letter dated 6.12.1991, to the appellant alleging excess billing and also asking for the above mentioned details. Mrs. Mohini Sethi, was asked to pay Rs. 10,000/- by the appellant pending investigation of her complaint for excess billing, and her telephone connection was restored. But, later the appellant vide letter dated 7.4.1993, informed the respondent, Mrs. Mohini Sethi, that her above complaint had been investigated by the Excess Billing Complaint Committee (South) and no justification was found for giving her a rebate, as such she was asked to pay the full amount of the bill dated 19.9.1991. THErefore, since the respondent did not make the payment of the above bill as well as another bill dated 19.1.1993 her telephone was disconnected on 24.5.1993. THE respondent Smt. Mohini Sethi, did not pursue the matter further, and shifted to her husband''s residence at M-32, Greater Kailash Part-II, New Delhi, in April, 1992. THE telephone No. 6470822 was installed at the above address on 5.4.1992 in the name of Sh. Man Mohan Sethi. On 4.12.1997 Sh. Man Mohan Sethi received a notice from the appellant, asking him to pay the dues pertaining to telephone No. 6868.81 of his wife failing which his telephone No. 6470822 would be disconnected and on 6.1.1998, the same was actually disconnected. Sh. Man Mohan Sethi protested against the said action of the appellant, and even wrote to the Deputy General Manager, MTNL, but to no avail. THErefore, both the respondents filed complaints before the District Forum on 1.4.1998. The District Forum, issued notices of both the complaints of the respondents, to the appellants, which were received by the P.S. to the Chairman and Managing Director of the appellant on 6.4.1998. Since none appeared, on behalf of the appellants on the date of hearing fixed by the learned District Forum, they were proceeded ex parte in the proceedings, and the final orders were passed against the appellant vide order dated 9.6.1998.

Aggrieved by the said order of the District Forum, the appellant has preferred the present two appeals, challenging the impugned order on various grounds. Notice of the appeals were served on both the respondents, who put in their appearance and filed their respective replies. We have heard the arguments addressed by the Counsel for the appellant as well Sh. Man Mohan Sethi, on his own behalf and on behalf of his wife, and have also carefully gone through the documents/material on record.

THE first contention of the appellant is that the impugned order of the learned District Forum is illegal on account of the fact that the appellant was not given clear 30 days'' time to appear and contest the complaints of the respondents, in terms of Section 13 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act''). Further the appellant has relied upon a decision of the National Commission in case General Manager, Tele-communication, Coimbatore & Ors. v. Needle Industries, reported as I (1995) CPJ 71 (NC), in support of its contention. In the abovesaid case the District Forum had granted only 9 days to the opposite party and thus the facts of that case are distinguishable from the present case. As per the facts on record, the appellant was served on 6.4.1998, with the directions to appear on 4.5.1998 and as such, had clear 28 days to appear and file its written version. THErefore the above contention of the appellant would have been valid, had the appellant appeared before the District Forum and requested for more time to file its written version/reply and that request of the appellant had been rejected by the District Forum. However, in the present case, instead of seeking more time to file its reply the appellant has shown total disregard by not bothering to appear before the District Forum despite notice. We further do not accept the explanation given by the appellant for its non-appearance before the District Forum as a valid ground for their absence. It is alleged by the appellant that the notices in respect of both the complaints of the respondents, sent by the District Forum, were addressed to the CMD MTNL whereas the Chief General Manager, Delhi is the administrative and operational head of MTNL, Delhi and, therefore, the copy of the notice and enclosed complaint got misplaced. It is, however, admitted by the appellant that the CMD is the common head of both the units of the appellant at Delhi and Bombay. THErefore, in view of the above facts a notice addressed through the CMD MTNL is a valid notice to the appellant and this Commission is not concerned with the internal administrative arrangement of the appellant. As such, the first contention of the appellant has no valid ground and is liable to be rejected summarily. As regards Appeal No. A-438/98, in respect of the case of Smt. Mohini Sethi, the main contention of the appellant is that the complaint filed by Smt. Mohini Sethi was hopelessly time barred. The said contention of the appellant is not without basis, as it is an admitted fact that the bills dated 19.9.1991 and 19.1.1993 in respect of telephone No. 6868081 in the name of Mrs. Mohini Sethi were not paid by her. Further, the complaint made regarding excess billing, by the husband of the respondent was also rejected on 7.4.1993 by the appellant. The said telephone was also disconnected on 24.5.1993 and the respondent Mrs. Mohini Sethi did not pursue the matter further. The complaint before the District Forum was filed only on 1.4.1998. Thus, the cause of action arose on 24.5.1993 whereas the complaint was filed after almost five years. As per Section 24-A of the Act, the period of filing the complaint is two years from the date of cause of action. The said provision of the Act, casts a duty on the Consumer Forum or the State Commission or the National Commission not to admit a complaint, filed beyond the said period of two years unless the complainant satisfies that he had ''sufficient cause'' for not filing it earlier, within the period of limitation. In the present case neither an application for condonation of delay has been filed alongwith the complaint nor has any reason been assigned for the inordinate delay of about three years. The respondent has countered the contention of the appellant alleging that the cause of action arose on 6.1.1998 when her husband''s telephone was disconnected due to the non-payment of dues pertaining to her telephone. The said assertion is devoid of merit as the disconnection of respondent''s husband''s telephone could give rise to a cause of action qua the husband of respondent, Smt. Mohini Sethi but would not extend the period of limitation or continue the cause of action so far as her telephone is concerned, which was admittedly disconnected on 24.5.1993. Therefore, in the given circumstances we do not hesitate to hold that the complaint filed by Smt. Mohini Sethi was time barred and the learned District Forum ought to have considered this legal aspect suo motu, in view of the express provisions of Section 24-A of the Act, which was fatal to the proceedings before the District Forum at the very threshold. Smt. Mohini Sethi, therefore, was not entitled to grant of any relief. We, therefore, allow the appeal (Appeal No. A-438/98) of the appellant on the above count alone and, therefore, there is no need to advert to the other grounds of appeal, challenging that part of the impugned order, which relates to the reliefs granted to Mrs. Mohini Sethi.

IN relation to the other Appeal No. 439/98, filed by the appellant M.T.N.L., against Sh. Manmohan Sethi, the main thrust of the appellant is that there was no deficiency in service on its part, because the telephone of the respondent Shri Manmohan Sethi was disconnected under Rule 443 of the Telegraph Rules, 1951, on account of the non-payment of dues in respect of Telephone connection bearing No. 6868081 which was in the name of Mrs. Mohini Sethi, the wife of respondent Shri Manmohan Sethi. The respondent in this appeal has, however, controverted the said contention of the appellant on the ground that, as per the above mentioned Rule 443, only the Subscriber''s telephone can be disconnected due to non-payment of dues by her and not the telephone of her near relations. The provisions of the abovesaid rule came up for consideration before the Hon''ble High Court of Karnataka - in case Hotel Bheema v. Telecom District Engineering, Davangere & Anr., I (1997) CPJ 534, and the Hon''ble High Court while interpreting the abovesaid provisions held : "On a plain reading of Rule 443 of Rules, it is clear that the said rule authorises or empowers the Department to disconnect the telephone of the subscriber only, and not of any other person for the arrears of amount, if the said subscriber fails to pay the rent or other charges in respect of the services provided within the time prescribed in accordance with the Rules."

(Emphasis supplied) A similar view has been taken by the Andhra Pradesh High Court in case entitled Y. Pridhvi Kumar v. The General Manager Telecom, District Hyderabad reported as AIR 1993 Andhra Pradesh 131 : "I apprehend that I cannot accede to this contention of the learned Standing Counsel for the Central Government for the simple reason that the petitioner and his mother are having two different telephones and as citizens of India, they are entitled to be subscribers of telephones independently and merely because there is a relationship of mother and son and as the mother has defaulted in payment of amounts to the respondent, no liability can be fastened to the petitioner and neither the statute nor the rules framed thereunder empower the authorities to disconnect the telephone for the default committed by the petitioner''s mother."

THE above two decisions reinforce respondent''s assertion that the disconnection of his telephone under Rule 443, was unjustified and amounts to deficiency in service. On the other hand the appellant has also relied on two decisions of the Hon''ble High Court of Delhi in Sukh Dayal Narula v. Union of India & MTNL, CWP No. 1653/96 dated 26.9.1997 as well as Mohan Lal Tayal v. MTNL, passed in CWP No. 1220/98. However, these two decisions are distinguishable on facts, from the facts of the present case. In case Sukh Dayal Narula v. Union of India, the husband and wife whose telephones were disconnected, were staying together and their respective telephones were also installed in the same premises. Similarly in Madan Lal Tayal v. MTNL, the father and son were living and working together and the phones were also at the same premises which is not the case in the present appeal. Mrs. Mohini Sethi was living separately in 28, Qutab View Apartments, New Delhi and the phone in her name was also installed there, whereas her husband was abroad and his telephone was installed much later at M-32, Greater Kailash-II, New Delhi, i.e. entirely at different premises. In view of the above discussion, there is no doubt that there was deficiency in service, on the part of the appellant in disconnecting the phone of the respondent on account of the default of the wife. THErefore we do not find any infirmity in the order dated 9.6.1998 of the learned District Forum, so far as the same relates to the case of Sh. Man Mohan Sethi.

THE appellant has also objected to the quantum of compensation granted to the respondent and has cited a judgment of the National Commission, in a case reported as I (1995) CPJ 1 (NC), entitled Omega Packaging Pvt. Ltd. v. Central Bank of India & Ors., and of the National Commission reported as II (1995) CPJ 183 (NC), entitled General Manager, Mahanagar Telephone Nigam Ltd. v. Mauli Chand Sharma. Wherein it has been held that the compensation must be granted for actual loss suffered by the complainant as a direct result of the deficiency in service on behalf of the opposite party. In our opinion the above judgments hold good in cases where actual financial loss can be ascertained, and can also be differentiated on facts from the present appeal. THE learned District Forum has awarded Rs. 5,000/- as compensation to the respondent, not due to actual financial loss, but primarily for the mental agony and harassment suffered by him due to the unlawful disconnection of his phone by the appellant. THE respondent is a Senior Govt. Officer, and the non-availability of telephone service, in present day and time, when it has become a necessity rather than luxury, the amount of Rs. 5,000/- is not excessive. The appellant has also challenged the observation of the learned District Forum in the impugned order, regarding fixing of responsibility of the concerned official/officer who has disconnected the phone of the respondent and has cited the case of Kerala SCRDC in Post Master, Kumarakom Post Office & Ors. v. P.R. Ayyappana Pillay, I (1995) CPJ 104. We are in agreement with the appellant and feel that the facts of the case do not warrant the fixing of responsibility of a particular officer/official, as the action taken by the appellant was under a wrong interpretation of Rule 443 of the Telegraph Rules. The above observations of the learned District Forum are, therefore, directed to be expunged.

In view of the above discussion, the Appeal No. 438/98 entitled MTNL v. Smt. Mohini Sethi, is allowed and the impugned order of the learned District Forum in so far as the same relates to relief granted to Smt. Mohini Sethi, is set aside. However, the part of the impugned order relating to the case of Sh. Man Mohan Sethi is upheld and in consequence thereof Appeal No. 439/98 entitled MTNL v. Shri Manmohan Sethi, is dismissed. There is no order as to costs. Ordered accordingly.