O.P.MAHAIAN vs GENERAL MANAGER, TELEPHONES

THREE excessive telephone bills were challenged by the complainant on the ground that during this period, the telephone mostly remained dead and the telephone was misused by the employees of the Telephone Department with connivance with others. The complainant had applied for withdrawal of STD facility and it took 4 years to disconnect the same. Contesting the complaint, the Telephone Department took up the stand that the telephone bills were rightly issued. There was no defect in the meter. The allegation of connivance was denied. STD facility could not be withdrawn on the first application as signatures of the applicant did no tally with the signatures on the official record. Subsequently, when the complainant moved another application, STD facility was promptly withdrawn within two months. On the material produced by the parties, the District Forum vide order dated July 4, 1996 partly allowed the complaint holding deficiency in rendering service on the part of the Telephone Department in not withdrawing the STD facility promptly and awarded a sum of Rs. 2500/-as compensation payable to the complainant (Rs. 2,000/-towards damages and Rs. 500/-as costs) The complainant was otherwise held to pay the entire amount of the three bills/ challenged i.e. Rs. 37,815/-. The present is an appeal filed by the complainant, challenging the aforesaid order.

ALONGWITH the appeal, an application for condoning delay in filing the same was filed, inter alia asserting that copy of the order of the District Forum was delivered to him on September 3,1996 and on October 1,1996 after he had received salary, he was to visit Chandigarh for filing the appeal that his wife suffered illness, which prevented him from visiting Chandigarh. I On October 10, 1996, he came to Chandigarh after recovery of his wife from the illness and hence he filed the appeal, resulting in delay of seven days. In support of the application, the appellant, O.P. Mahajan filed his own affidavit, Accepting the affidavit of the appellant, there is found to be sufficient reason, which prevented the appellant from filing the appeal. The application is, therefore, allowed. Since, no appeal has been filed by the Telephone Department against the impugned order, finding of the District Forum that there was deficiency in rendering service in not promptly withdrawing the STD facility and granting compensation on that account is, therefore, affirmed. The only dispute which deserves to be considered is as to how the Telephone Department was expected to deal with the different complaints alleged to have been made by the complainant. During the period in dispute that his telephone remained dead and thus, the telephone bills were excessive are to be deal with. Counsel for the parties have referred to several decisions of the National Commission on the principle governing the determination of such a dispute. A brief reference thereto is considered necessary to decide the case in hand. In 1991, matter came up for consideration before the National Commission in Telecom District Manager, Patna v. M/s. Kalyanpur Cement Ltd., II (1991) CPJ 286 (NC). It was held that merely on the basis of suspicion, the telephone bills could not be set aside, being excessive. There has to be material or evidence indicating collusion with the employees of the Telephone Department in tampering or manipulating the metering equipment that such excessive bills could be quashed. In para 4 of the judgment, it was observed as under : "There is no evidence to show that the metering equipment was defective or that it had been tampered with or manipulated so as to inflate the bills. It is also not correct to assume that there has to be pattern of making telephone calls from a telephone; the number of telephone calls made by a subscriber can fluctuate considerably for many reasons. The subscriber in this particular case, the consumer is commercial concern and there is every likelihood that the telephone calls in a period of time may fluctuate widely. It may become necessary to make a fair and just determination of the calls made on the basis of the calling pattern over a period of time, only if it is established that the metering equipment is defective, or has been tampered with or manipulated, resulting in the bill being inflated. It is true that one cannot altogether rule out the possibility of such tampering or manipulation of metering equipment and the consumer must be protected against such malpractices. It is, however, not open to the Consumer Forums to base a finding of me bills having been inflated merely on the basis of suspicion and it will be not right to assume that there was something wrong with the mechanism without evidence and without identifying the precise defect in that mechanism."

In District Manager, Telephones and Others v. Niti Saran, I (1991) CPJ 48 (NC), it was observed that the for a established under the Act will not be legally justified in estimating by application of rule of thumb, the precise number of telephone calls made and charges thereof in a particular period of time. Such a step could be taken when metering equipment is defective or there is misuse of telephone by any of the employee of the Department. In General Manager, Telecom, Jaipur v. Radhey Shyam, II (1996) CPJ 82 (NC), the National Commission remanded the case for affording an opportunity to the Telephone Department to justify its stand with respect to the inflated bills. The allegation of the complainant in that case was that his telephone remained out of order from time-to-time and the inflated bills were due to defect in the metering equipment.

KEEPING in view the ratio of the decisions referred to above, the facts of the present case need to be examined. The first application for withdrawal of STD facility was moved on March, 1, 1989 with respect to Telephone No. 45502 installed at the residence of the complainant O.P. Mahajan, an employee of Insurance Corporation. The bills in dispute were of June 1,1993, August 1, 1993 and October 1, 1993 amounting to Rs. 13,440/-, 11559/-and Rs. 8,816/-respectively. It may be stated that bi-monthly cycle is observed for sending the bills i.e. the bill, which was issued on June 1,1993 related to earlier two months. In para 4 of the complaint, it was asserted that the telephone mostly remained dead on account of ground fault, EBT fault for which he had made complaints in writing dated July 3, 1993, August 25,1993, October 22,1993, November 2, 1993 and January 4, 1994. However, the Department failed to reply any of these complaints, According to him, the aforesaid bills were due to mis-appropriation of the line of the complainant by employees of the Telephone Department. In the reply filed by the Telephone Department, it was admitted that the telephone bills aforesaid were issued but they were issued correctly. The calling pattern of the telephone was also stated from May, 1992 to September, 1993 as mentioned in para 4 of the reply. At this stage, it may be observed that no reply was furnished with respect to the different complaints made as referred to above. The rest of the reply related to withdrawal of STD facility. O.P. Mahajan, the complainant produced his two affidavits whereas no affidavit on behalf of the Telephone Department in support of the reply was filed. Some photocopies of the documents were produced on the file by the complainant as well as by the Telephone Department. One report of testing of Telephone No. 45502 was filed indicating that the metering equipment was daily checked from August 10 to August 16 and was found to be OK. Photocopies of the printouts for the month of August, 1993 were produced, indicating use of telephone in dispute for STD calls. Copy of the letter written by O.P. Mahajan was also produced by the Telephone Department, which at page 71 of the record, making reference to different complaints made from July 3 onwards up to September 7, 1993 to support the case that since the telephone remained out of order, the number of calls as indicated could not have been made for which excessive bills were issued. In the set of circumstances stated above, the stand of the complainant could not straightway be ignored, rather it required a detailed enquiry in the office of the Telephone Department, specifically giving the period during which the telephone remained out of order or dead and comparing the same with the printouts of the telephone calls to compare if during the period the telephone remained defective or out of order how come that the calls were made. Non-action of the Telephone Department on the complaints made by the complainant per se would amount to deficiency in rendering service. It is in such circumstances that the matter required re-consideration and is remanded to the District Forum for decision according to the law after affording an opportunity of leading evidence to the Telephone Department. The complainant would also get an opportunity to rebut the material that the Telephone Department may bring on the record. Such an enquiry should have been held by the Telephone Department itself. Since, the Telephone Department did not take any action that the enquiry is referred to be conducted by the District Forum. The District Forum will take an independent decision on the material to be produced by the parties, keeping in view the ratio of the decision referred to above.

FOR the reasons recorded above, this appeal is allowed, maintaining order with respect to deficiency in respect of withdrawal of the STD facility and remanded the case to the District FORum for the remaining relief with regard to excessive three telephone bills referred to above. Parties are directed to appear before the District FORum on 19th May,1996. Record of the District FORum alongwith copy of the order be sent to the District FORum promptly. Appeal allowed. ___________