S.C. VARSHNEY vs M.T.N.L.

THE present appeal is directed against the order of the District Forum-I dated the 26th November, 1997 passed in Complaint Case No. 90/96 entitled Sh. S.C. Varshney v. MTNL.

THE facts, briefly stated are, that the telephone No. 5754209 installed at the premises of the appellant is used by him mainly for his professional work as he is an Advocate by profession. THE said telephone was wrongly disconnected in March, 1995 on account of non-payment of bill payable by 6th October, 1994, which had already been paid by the appellant in September, 1994. After pursuing the matter with the Telephone Authorities, it was restored by the respondents. THEreafter, on 31.12.1996 the appellant''s telephone was again disconnected at about 1 p.m. without notice, on account of non-payment of dues. When the appellant again approached the staff of the respondent, the mistake was realised that the dues had already been paid and as such the phone was re-connected on 7.1.1996, as alleged by the appellant. It is the case of the appellant that the said telephone connection again went out of order on 8.1.1996 and was not restored till 15.1.1996 i.e. the date of filing the complaint before the District Forum. THE appellant has alleged deficiency on the part of the respondent as the said telephone was dis-connected twice for non-payment of dues, which had actually already been paid in time. Further the telephone had been dis-connected on a Sunday against the instructions of Government of India that the phones should not be dis-connected on a weekend, as the consumer is unable to contact the concerned officials. It is also alleged by the appellant that 31st December, 1995 and 1st January, 1996 were very important days for him professionally and that he suffered a lot of inconvenience in trying to get his telephone re-connected and as such has claimed Rs. 5,000/- as compensation on account of harassment and mental agony undergone by him. The respondent, in their reply/written version, stated that telephone of the appellant had been dis-connected due to the unintentional mistake and that as soon as the mistake was realised, the telephone was restored the very next day i.e. on 1.1.1996 and not on 7.1.1996 as alleged by the appellant. It was also stated by the respondent that a bill dated the 1st July, 1990 for Rs. 25/- and another bill dated the 16th September, 1994 for Rs. 1,265/- were shown to be outstanding against the telephone of the appellant, though the said payments had been duly made by the appellant in time. It was further alleged that the said unintentional mistake occurred due to the fact that the payment of the said bills was not made in the area of the exchange.

The appellant filed an affidavit in support of his complaint but the respondent did not file any affidavit by way of evidence, despite having been given an opportunity by the learned District Forum. The learned District Forum, however, dismissed the complaint of the appellant vide order dated the 26.11.1997, on the ground that no case for ''deficiency in service'' has been made out against the respondent.

AGGRIEVED by the above said order, the appellant has preferred the present appeal before us. We have heard the arguments addressed before us by the complainant on his own behalf and Mr. S. Pattjoshi, on behalf of the respondent. We have also carefully gone through the written submissions submitted by the appellant as well as other documents/material on record. The main thrust of the appellant''s argument is that the respondent did not file any affidavit in support of its averments made in its reply/written version before the District Forum and as such, the appellants case on affidavit went unrebutted and despite that, the learned District Forum proceeded to accept the version of facts as stated by the respondent and dismissed the complaint of the appellant. The appellant also referred to the following decisions of the Hon''ble Supreme Court and of the various State Commissions in support of his case. The said decisions are : (i) A decision of the Supreme Court entitled Shanker Chakravarty v. Britania Biscuits Co. Ltd., reported as SC (FLR) 70 decided on 4.5.1979; (ii) Prafull Kumar Jain v. Dr. Alok Kumar Singh, reported as I (1994) CPJ 337; (iii) Telecom District Manager v. Acharya Jagdish Chandra, reported as I (1994) CPJ 301; (iv) Premier Climate Controls Pvt Ltd. v. M. Pias and Sons, General Manager, Engineering Works, reported as I (1994) CPJ 308. (v) Garwal Mandal Vikas Nigam v. S.M. Aggarwal, reported as I (1994) CPJ 1.

HOWEVER, the facts in all these above cases are entirely different from the facts of the present case and as such are of not much help to the case of the appellant. But so far as the contention of the appellant is concerned, we feel that the same is quite justified. Section 13 of the Consumer Protection Act, 1986, (hereinafter referred to as ''the Act'') stated that decision of the Fora is to be based on evidence to be brought on record before it by both the parties. In this case, only the appellant adduced its evidence by way of affidavit and as such the case of the appellant stood proved in the absence of any rebuttal by way of evidence by the respondent. HOWEVER, since the documents placed on record by the respondent were not exhibited in evidence the same cannot be looked into by this Commission. Therefore, the learned District Forum was not justified in dismissing the complaint of the appellant by merely accepting the oral submissions of the respondent without any proof. The appellant has further pointed out that learned District Forum has passed its order on the wrong assumption that the stand taken by the appellant regarding the date of the re-connection of his phone is contradictory. As has been clarified by the appellant, his telephone was re-connected on 7.1.1996 and thereafter the same went out of order on 8.1.1996 and was not restored till 15.1.1996, the date of filing of the complaint. There does not appear to be any contradiction in the said stand taken by the appellant. It is further contended by the appellant that the bill dated 16th March, 1996 shows 85 calls from 1.1.1996 to 10.1.1996. Usually, the respondent record the meter reading fortnightly i.e. from 1st to 15th and 16th to 30-31st of a particular month. The fact that calls have been shown in the above mentioned bill for the period from 1st to 10th only, goes to show that even as per the record of the respondent the telephone of the appellant was out of order from 10th to 15th and that is why the meter of a full fortnight was not reflected even in its own bill by the respondent.

ANOTHER contention of the appellant is that the respondent had earlier also disconnected his telephone in March, 1995 for non-payment of bill dated the 16th September, 1994 for Rs. 1,265/-, though the payment of the same had been made in time. On the matter being taken-up by the appellant, with the officials of the respondent the mistake was admitted and rectified and the concerned official even put his initial and stamp on the said bill with the remarks "payment seen". Further, the said payment was also got noted in the account branch of the respondent on 16.3.1995, but despite that, the telephone of the appellant had been disconnected for non-payment of the same dues again on 31.12.1995. As such there can be no doubt that a bona fide mistake can occur only once but not twice as in the present case and as such we have no hesitation in holding that the respondent had acted in a careless and negligent manner and that the said act of the respondent, constituted ''deficiency in service'' under ''the Act''. The learned District Forum seems to have lost sight of some important facts, while rushing to dismiss the complaint of the appellant.

IN view of the above discussion, we hold that the impugned order is not liable to sustain the test of judicial scrutiny and is, therefore, set-aside. IN consequence thereof, the appeal of the appellant succeeds and the same is allowed with directions to the respondent to pay to the appellant Rs. 2,500/- as compensation for mental harassment and agony undergone by him and Rs. 1,000/- as costs of litigation. This appeal is disposed of in above terms. Appeal allowed with costs.