MUKAND LAL GABA vs TELECOM DISTRICT MANAGER OF KARNAL

WHETHER compensation under Section 14(1)(d) can be granted to an aggrieved consumer despite the absence of specific direct testimony on the monetary quantum of the loss or injury suffered? This has come to be the kernel question herein.

THIS appeal is directed against the order of the District Forum, Karnal partly allowing the complaint. The consumer-appellant herein primarily seeks substantial compensation for Joss and injury suffered by him by the wrongful denial of the telephone facility for a period of well nigh three years. As the solitary issue herein is the quantum of compensation claimed, the facts may be noticed with relative brevity and pointed relevance thereto. The appellant, a senior citizen carries on the business of manufacturing of agricultural implements at Kunjpura Road, Karnal and apparently is a concern of some standing in this field. He is the subscriber of telephone number 2728 installed in his premises and the primal grievance raised was that in the month of February, 1989, it remained continuously out of order despite repeated verbal and written complaints to the Department. Express reference is made to the nine written complaints in this connection apart from the verbal and telephonic ones. Far from attending to the same, the respondent department however, chose to levy bills and charges for the said telephone despite the fact that it was lying dead and out of order. The appellant was compelled to deposit those charges under protest and when no redress was accorded by setting the telephone right, and demands for payment of bills were pressed, he was compelled to knock at the door of the District Forum. In terms a recurring financial loss of Rs. 2000/- per month since February 1989 was claimed. (3a). On notice being issued the respondent Department routinely denied the allegations and took up the stand that the telephone had remained non-functional only for the periods as noticed in the fault card and for some period in other months due to some under ground cable faults etc. However, it was the stand that the consumer was neither entitled to any rebate in rental charges nor for any compensation.

In support of his case, the appellant himself "stepped into the witness box as PW-1 and also produced Shri Suraj Parkash Kapoor as PW-2, Secretary, the Telephone Subscriber Association, Karnal. Reliance was placed on a mass of documentary evidence, the authenticity of which was not assailed by the respondents. In rebuttal Shri R.C. Sachdeva, Telephone Supervisor stepped into the witness box. The District Forum on a consideration of the material before it recorded the following finding : "On the own showing of the department the telephone of the consumer had remained nonfunctional for a continuous period of 12 days from 21.3.1989 to 2.4.1989 again from 23.6.1989 to 4.7.1989 and then from 9.8.1989 to 20.8.1989. It was also quite manifest from the record of meter reading Ex.A2 that the reading remained static during the period from 11.5.1989 to 25.5.1989 and again from 11.7.1989 to 25.7.1989. It was, thus, clearly a case of shortcoming and imperfection in service."

IT was further found that the telephone remained totally non-functional for a period of one month even as per the statement supplied by the opposite party. Equally, it was held that the respondent''s action in disconnecting the telephone on the 1st of September, 1989 was wholly ill-founded and baseless. On these findings, it was directed that the respondent shall give a rebate or refund of Rs.80/- out of the disputed rental a mount and the interim order of the restoration was made absolute. However, the compensation claimed by the complainant was denied on the sole ground that no specific direct evidence on the point of sufferance of damages general or special occasioned by the deficiency in service has been led. Learned Counsel for the appellant has strongly assailed the denial of compensation to the appellant despite the firm findings of facts arrived at by the District Forum in his favour. It was forcefully pointed out that the District Forum had itself found that the appellant''s telephone had first remained non-functional owing to the negligence of the respondents and further that the disconnection thereof on the 1st of September, 1989 was wholly ill-founded and baseless. The end result was that till the order of the interim reconnection on the 21st of April, 1992, the appellant was denied the undertaken facility of a telephone unjustifiably for a period of well-nigh 3 years. It was then highlighted that no challenge is laid to the fact that the telephone was in the business premises of the appellant and in the absence thereof efficient working thereof was inevitably jeopardised with consequent financial loss.

THERE is patent merit in the submission aforesaid. What may be first highlighted is the fact that the respondent department has not come up by way of appeal against the factual findings of the District Forum which have thereof achieved finality against them. It was not disputed before us that the appellant is a senior citizen carrying on the business for the manufacturing of agricultural implements and the telephone was installed for the said purpose at the premises. The District Forum held that apart from the said telephone having been rendered totally nonfunctional in February, 1989 - "It must also be noticed on record that the plea of the opposite party regarding the disconnection of the telephone on 1st of September, 1989 was quite ill-founded and baseless." Consequently, on the established findings the said telephone owing to the patent negligence of the respondent-department remained virtually non-functional from February, 1989 till the 24th of April, 1992. Far from rectifying the fault, the respondents threatned the appellant with bills and telephonic charges without providing any service worth the name. Negligence on the part of the respondent-department and a patent deficiency in the services undertaken is therefore, writ large on the record. In the complaint, an express claim of financial and business loss to the tune of Rs.2,000/- per month was claimed and pressed. It is the appellant''s stand that in order to sustain the same on the 18th of July, 1992, he had attempted to adduce the evidence of as-many as five persons on that score. However, this was opined to be unnecessary by the District Forum and the appellant therefore refrained from burdening the record. Be that as it may the only ground for negative the appellant''s right to financial redress by the District Forum despite a categorical finding of fact in his favour was that there was no direct testimony on the quantum of financial loss and therefore, no rational guess-work therefore could be made and the claim for damages was therefore remote. With respect it appears to us that the view taken by the District Forum on this point errs on the side of over-strictitude. The denial of the telephone-facility duly hired by a subscriber for the purposes of his business, would inevitably and patently lead to harassment and mental agony in the first instance and a consequential loss as well. To put it in ordinary parlance the very fact of such denial of an existing facility by disconnection in present times in a business concern would speak for itself. To put it in technical legal terms this would come well within the well known rule of res-ipsa-loquitor. Whilst any special or peculiar damages may have to be specifically established by evidence, the general damages arising patently from such a situation is a matter self-evident on the record and merits notice in the consumer jurisdiction and worthy of financial redress at the hands of the Redressal Agencies.

WE would decline to overly elaborate this issue on the basis of principle and the language of the statute because it appears to us that by now it is well- covered by binding precedents of the National Commission and a host of persuasive authorities by other State Commissions. It therefore, suffices to advert to the prominent enunciations of the law on the point. Inevitably pride of place has to be given to the National Commission''s judgment in 1991 Consumer Protection Case 302, Jai Dev Prasad Singh v. Auto Tractors Limited. The relevant observation therein merits notice in extenso : - "On the question of damages, it is, no doubt true that the complainant has not adduced any material to show the exact extent of loss suffered by him. But even in such a case, when it is abundantly clear that tangible loss must have resulted to the complainant by reason of the defective condition of tractor supplied to him and the failure on the part of the opposite party to rectify those defects which rendered the tractor unfit for use, it is only just and proper that the redressal forum constituted under the Consumer Protection Act should quantify to the best of its judgment the loss that can reasonably be estimated as having been suffered by the complainant. The State Commission has only discharged this duty vested in it when it proceeded to assess and award reasonable compensation to the complainant. The "direction issued by the State Commission that the opposite party should pay a sum of Rs. 10,000/- by way of compensation, cannot therefore, be said to be vitiated by any illegality."

WHAT has been observed above in the context of the absence of a tractor for an agriculturist would apply by way of analogy with regard to a denial of a facility to a businessman. However, the aforesaid decision does not stand alone and in the subsequent judgment in l991 (1) CPR 107, Smt. Kailash Kumari v. Prop. Sliankar & Co. the National Commission reiterated its view in the following terms : - "But in a case like the present one where it is clearly made out that the petitioner was put to a great deal of inconvenience, expense and mental suffering on account of his having been supplied a defective T.V. set and the failure on the part of the Opposite Party to set right the defects in spite of the petitioner having repeatedly made representations to the dealer and her having taken the set to the dealer for repairs on two or three occasions. It is not right to insist that the aggrieved party should adduce more concrete and specific evidence regarding the inconvenience etc. suffered by him. xx In circumstances such as those obtaining in the present case where it is practically impossible to adduce tangible evidence regarding the actual monetary equivalent of the inconvenience, mental suffering etc. caused to the petitioner, it is the duty of the concerned Redressal Forum, to assess and determine in the light of all the evidence available in the case what amount would reasonably go to compensate the petitioner for the inconvenience mental agony, etc. caused to the complainant on account of the negligence of the Opposite Party."

The aforesaid observations were inevitably followed and applied by the Rajasthan Commission in II (1992) CPJ 626, The Rajasthan State Electricity Board v. Roshan Lal Jain again in the context of denial of the electrical energy. Within this jurisdiction, a similar view has then been expressed in First Appeal Nos. 346 & 352 of 1992 (H.S.E.B. Panchkula & Ors. v. Pirthi Singh), decided on the 15th of December, 1992.

In the light of the aforesaid weight of precedents, the answer to the question posed at the very out-set has to be rendered in the affirmative. It is held that under Section 14(1)(d) compensation can be granted to an aggrieved consumer despite the absence of specific direct testimony on the monetary quantum of the loss or injury suffered.

ONCE it has been concluded as above, the appellant has an easy sailing to success. It has necessarily to be held that the District Forum''s view that because the consumer had failed to adduce direct evidence on the point of sufferance of damages general or special owing to that deficiency in service his claim of monetary compensation must be shut out, cannot be upheld. Inevitably, one has therefore, to proceed to quantify the same in terms of money against the background of the fact that the appellant had himself assessed the same @ Rs. 2,000/- per month and in the context of a non-functional telephone for nearly three years the same would work to a figure of Rs. 72,000/-. Nothing to the contrary has been brought on behalf of the respondent-department to totally repel the claim. In such a fact-situation, inevitably a broad assessment has to be arrived at which may be picturesquely described as the rule of the thumb. We are inclined to take the view that the quantum claimed by the appellant appears to be a tall one and it would amply meet the ends of justice if the same is quantified at a round figure of Rs. 10,000/- only. The appeal is therefore, allowed in the terms above and it is directed that the respondent-Department shall pay the aforesaid amount to the appellant within a period of one month from today failing which compliance would have to be enforced under Section 27 of the Act. Appeal allowed.