P.G.M.T. vs JAWAHAR LAL PABREJA

THIS is an appeal filed against order dated 12.12.2001 passed by the District Consumer Disputes Redressal Forum-II U.T., Chandigarh (for short hereinafter to be referred as the District Forum-II) in Complaint Case No. 100 of 2001. filed by respondent/complainant, Sh. J.L. Pabreja.

THE respondent/complainant, Sh. J.L. Pabreja is having a telephone No. 614136 and was having STD facility. In the month of August, 2000, he received the disputed bill dated 11.8.2000 for a sum of Rs. 10,025/-. THE amount of this bill was much higher than the bills which he had been receiving in the past which ranged between Rs. 175/- and Rs. 1,569/-. THE respondent apprehended the misuse of his telephone and consequently requested the appellants/O.Ps. to withdraw the STD facility so as to avoid its further use. However, the STD facility was not withdrawn. Rather a reply was sent to him by the appellants, which was quite irrelevant insofar as the request of withdrawal of STD facility was concerned. In the meantime, the respondent/complainant received another bill for a sum of Rs. 4,390/- which again was on the higher side and the complainant made representation to the appellant department which failed to pay any heed to it. THE telephone was ultimately disconnected in the third week of September, 2000. THE printouts of the calls made from the aforesaid telephone, while it was having STD facility for the period covered by the two bills showed that several STD calls were made to Hyderabad and Bangalore and that too in the peak hours. According to the complainant he had no friend or relative in either of these stations of Hyderabad or Bangalore. THE complainant/respondent, it was alleged, was a class three employee working at Chandigarh and he off and on used to contact his parents, who are staying at Sonepat. In the background of these facts, the respondent/complainant prayed that O.Ps. be directed to pay compensation @ Rs. 2,000/- p.m. for deficiency on its part and depriving him of the facility of telephone and further amount of Rs. 21,000/- on account of harassment and costs of the case. In the reply, the appellants/O.Ps. took the stand that the matter was thoroughly investigated and no mistake was found in the complaints which were rejected as per letter dated 8.2.2000. It was contended that the complainant was having dynamic locking facility and he could use the same. The complainant himself was negligent and he cannot hold the department i.e. appellant/O.Ps. responsible for that. The disconnection of the telephone took place due to non-payment of the bills aforesaid. A total sum of Rs. 16,060/- was said to be due from the complainant.

Both, the complainant as well as the O.Ps. led evidence in the shape of affidavits. The complainant filed his own affidavit while the appellants/O.Ps. filed affidavit of Smt. Indu Kochhar.

THE District Forum-II held that the complainant was having telephone installed in his house and the bills were to be paid by him from his own pocket and he could not have himself misused his own telephone by making the calls to distant places like Hyderabad and Bangalore and that too in the peak hours. It was noted that on a single day i.e. 9.5.2000 as many as 11 calls were made to Bangalore. One call at Sr. No. 7 was made at 942 hours and it lasted 399 seconds. THE next call was again made to Bangalore on the same time i.e. 942 hours and it lasted for 2 seconds. THE numbers called were different. In view of the material placed on record, the District Forum-II found that there was some defect in the metering equipment and the element of mischief was also there. Consequently, the complaint was allowed with costs of Rs. 5,000/- which included compensation for deprivation of the telephone facility to the complainant for quite a long time. It was directed that the two bills aforesaid needed to be revised by excluding the units consumed over the calls made to Bangalore and Hyderabad and revised bills be served on the complainant within one month from the receipt of the copy of the order. It was also directed that the complainant having been wrongfully deprived of the telephone facility is not liable to pay rental for the period subsequent to the disconnection of the facility, till its restoration, which be done immediately on payment, if any, due on the revised bills. The O.Ps felt aggrieved against the order passed by the District Forum-II and have filed this appeal. The notice of the appeal was served on the respondent/complainant, who put in appearance through his Counsel. Record of the complaint case was summoned from the District Forum-II.

WE have heard, Mr. G.C. Babbar, Advocate appearing for the appellants and Mr. Parbodh Mittal, Advocate for the respondent/complainant. Mr. G.C.Babbar, Advocate appearing for the appellant contended that the respondent/complainant was having dynamic locking facility regarding his telephone but did not use the same and, consequently, the complainant/respondent cannot put the blame for the two bills referred to above, being of huge amount. He pointed out that there was no defect in the system. Apart from this, Mr. G.C. Babbar, Advocate contended that there is arbitration clause regarding the disputes about the bills received by the complainant and the matter should have been referred to arbitration. The learned Counsel for the respondent/complainant, Mr. Prabodh Mittal, Advocate, on the other hand defended the impugned order passed by the District Forum-II and submitted that in the instant case, it was quite evident that the telephone of the respondent had been misused and calls were made during the rush time i.e. non-concessional period, charges were made of longer durations to the distant places like Hyderabad and Bangalore at telephone numbers where no friend and relative of the complainant resides. It was submitted by the learned Counsel for the respondent that the respondent, who is a class three Government employee would not put his telephone to misuse and incur himself liability to pay such huge amount of the bills when particularly in the preceding months he had been getting bills ranging between Rs. 175/- and Rs. 1569/-.

THE learned Counsel for the appellants, Mr. G.C. Babbar, Advocate placed reliance on the judgment of the Hon''ble National Commission reported in I (1997) CPJ 165 (NC), wherein the Hon''ble National Commission held that whenever there is an allegation of defect in the lines, apparatus and appliances, the matter is fully covered under Section 7B of the Indian Telegraph Act and disputes with regard to such bills be adjudicated through the Arbitration and District Foras are not within their jurisdiction to reduce the bills. Regarding the confusion of the time of 942 hours shown at two places in Sr. No. 7 of the printout, showing the first call made at 942 hours and lasting for 399 seconds and showing another call for Bangalore made at the same time i.e. 942 hours for duration of 2 seconds, the contention was that the District Forum-II technically misunderstood the same and reached erroneous finding. THE timings shown in the printout were described to be correct and there was no overlapping or defect. It was alleged that the time for call is given in seconds and a period of 2 seconds will not change the time. THE learned Counsel for the appellants also aired grievance regarding the compensation of Rs. 2,000/- awarded to the complainant though as per admitted facts, the complainant had not deposited the amount of the telephone bill which resulted in the disconnection of the telephone. 4. THE respondent/complainant, Mr. J.L. Pabreja filed his own affidavit wherein he stated on oath in Para 10 that he or any of his family members have nothing to do with anyone staying over there either in Hyderabad or Bangalore and he has no relative or friend or any acquaintance for that matter to whom telephone calls could be made like Hyderabad and Bangalore. He further deposed that all these calls to these places have not been made by the deponent or any of his family members as being a class three Government employee he cannot afford to make payment of such huge exorbitant bills. THE respondent/complainant was not summoned for cross-examination and we find no reasons to disbelieve his sworn testimony referred to above. 12. On behalf of the appellants/O.Ps., a short affidavit was filed by Smt. Indu Kochhar (A.O.), wherein it was deposed, inter alia, that the O.P. department had already filed written statment in the above titled case and the written statement may be read as evidence by way of affidavit and the same is not being repeated in the interest of brevity. It was further averred that the averments made in the written statement are correct and were reaffirmed and the documents mentioned in support of the case of O.Ps. may be brought on record as evidence. THE contents of the affidavit were verified to be correct to the best of knowledge. In our considered opinion, the affidavit of Smt. Indu Kochhar, cannot be treated to be an affidavit filed by way of evidence. THE written statement itself has been verified to be correct by the O.Ps. Further it is not known as to who has signed the verification clause on behalf of the O.Ps. but in any case the affidavit of Smt. Indu Kochhar cannot be treated to be evidence filed on behalf of the appellants/O.Ps. In this view of the matter, the averments made by the respondent/complainant in his affidavit cannot be disbelieved and care to be prima facie believed as evidence of the facts deposed therein. 13. THE complainant made a specific prayer in his letter dated 16.8.2000 (Annexure C-2) that STD facility may be withdrawn with immediate effect to avoid such misutilization. He was communicated by letter dated 10th October, 2000 that his case of excess metering was under process. However, nothing was communicated to him regarding the withdrawal of the STD facility. THE complainant once again wrote to the appellants on 17.8.2000 that his STD facility may be withdrawn with immediate effect i.e. today on 17.8.2000 to avoid misutilization. This letter was replied to by letter dated 31.8.2000 of the Department of Telecom Service (Annexure C-4), wherein it was mentioned that NSD/ISD facility is provided in your telephone. He was further intimated that in case dynamic STD locking code, he may inquire from the SDE Phones, Telephone Exchange Telephone No. 606666. In case of any further difficulty, he was requested to contact PRO office of Principal General Manager Telecom, Sector 18, Chandigarh on any working day from 1000 hrs. - 1200 hrs. 14. It is difficult to understand as to how the appellant department took the application dated 17.8.2000 of the respondent/complainant regarding his telephone No. 614136 as regarding the provision of NSD/ISD facility, whereas the application (Annexure C-3) dated 17.8.2000 was for withdrawal of STD facility with immediate effect. This clearly shows the careless manner in which the applications of the consumer/complainant/respondent, Sh. J.L. Pabreja regarding his request for withdrawal of STD facility of his telephone No. 614136 was dealt with by the appellants/O.Ps. 15. THE instant case is not a case where the District Forum-II has reduced the amount of payment by reassessing the bill but it is a case whereon a specific finding regarding the calls being made from the telephone of the complainant/respondent, Mr. J.L. Pabreja to Hyderabad and Bangalore were not made by the subscribers but were the instances of clear misuse of the telephone and as such the District Forum-II directed the department to exclude the charges for the calls made to such stations. This is a finding of fact regarding the misuse of the telephone in particular, for which a specific and categorical averments were made in the uncontroverted affidavit of the complainant. 16. We are, therefore, of the opinion that the District Forum-II was right in allowing the complaint and the impugned order of the District Forum-II does not call for any interference. THE appeal lacks merit and is dismissed with no orders as to costs. Copy of the order be supplied to the parties free of charges. Appeal dismissed.