S.D.O. (T) OF NARWANA vs CH. TEK CHAND NAIN

THE Department of Tele-communication appeals against the order of the District Forum, Jind allowing the complaint preferred by the respondent.

SINCE, we are firmly of the view that this appeal is concluded in favour of the appellant -Department by the decision of this Commission in First Appeal No. 256 of 1993, District Telephone Engineer & Another v. Hari Dayal Bansal, decided on 13th of September, 1993, it becomes unnecessary to delve too deeply into the facts and the merits. It suffices to mention that the respondent was primarily aggrieved first by the bills for telephonic charges dated the 21st at November, 1991 and 11th January, 1993 on the ground that the sums of Rs. 200/- and of Rs. 424/- against each bill had already been paid and were sought to be recovered afresh. Secondly the grievance was against the bill dated the 11th of September; 1992 for & Rs. 1251/- against which a provisional bill for the sum of Rs. 358/- was issued by the Department, which was paid, but the Deptt. sought to recover the balance.

Thirdly an identical grievance was raised with regard to bill dated 11th of November, 1992 for Rs. 5734/-again on the ground that Rs. 1334/- had been issued as the provisional bill and paid, but the balance was being sought to be recovered. The relief claimed was that the provisional bills be made final and consequently adjustments be made.

ON notice being issued, the appellant-Department resolutely contested the complaint and controverted every material allegation therein. It was pointed out that the respondent enjoyed the S.T.D. facility, which was used liberally if not lavishly for both professional and private purposes. Further the firm stand was that the issuance of the provisional bills did not in any way amount to an admission of any defective metering, but was a concession afforded to the consumer till the time a thorough, investigation with regard to the disputed charges was made. Though, the complaint was contested tooth and nail, the respondent rested himself content by placing on record copies of some previous bills and receipts and did not even choose to put in his own affidavit to buttress his stand.

THE District Forum noticed that as regards the bills dated 21st of November, 1991 and 11th of January, 1993, the appellant-Department very fairly conceded that the amount, therefor had been deposited and did not press the recovery thereof at all. However, as regards the other two bills dated the 11th of September, 1992 and 11th of November, 1992, the District Forum summarily observed that they appeared to be on the higher side and the provisional bills issued by the Department must be considered as final bills. Relief was accordingly granted in the said terms. Mr. Harinder Pal Singh, the learned Counsel for the appellant had forcefully assailed the order of the District Forum as being wholly cryptic and unreasoned and based on the untenable assumption that provisional bills issued under Para 443 were an admission of faulty metering. It was pointed out that no rationale worth the name for making the provisional bills final had been given, barring a bare hunch of the District Forum that the charges, therefor were excessive. It was also pointed out that the respondent''s case suffered from the fatal flaw of being unsupported by any evidence at all. There is patent merit in the aforesaid submission. What deserves highlighting is indeed the sketchy nature of complaint in which not even a meaningful allegation of defective metering or wrong billing or any misuse by the employees of the Department was levelled far from being established. The factum of the S.T.D. having been available throughout was not disputed by Mr. T.C. Nain, who projected his case as a respondent In person. Yet again, there was a total paucity of any evidence worth the name in support of the complainant. It bears repetition that even though all the allegations in the complaint stood stoutly denied, the respondent did not even choose to put in his own affidavit to buttress his complaint. It is somewhat elementary that the burden of establishing his case, lies on the complainant and even though, the same may be somewhat light, the onus still lies on him and herein the respondent-consumer had miserably failed to discharge the same.

IN aforesaid context of virtually no evidence in support of the complaint one has to recall the facts and ratio of the order of this Commission in I (1991) CPJ 653, Executive Engineer, Operation, H.S.E.B. Hissar v. Dr. Chander Bhan. Therein after an in-depth discussion, it was concluded as under: "A case under the Act can only be decided on the basis of evidence and not de-hors thereof." The aforesaid ratio covers the matter in favour of the appellant-department and it is entitled to succeed on this score alone.

HOWEVER, altogether apart from the above, the matter is concluded in favour of the appellant by consistent view of the National Commission that the previous bills or an average thereof cannot be made a basis of scaling down the charges for a telephone which enjoys the S.T.D. facility in particular. It is unnecessary to labour the point because in the latest majority view the National Commission has reiterated its consistent stand in I (1993) CPJ. 99 (NC), Telecom District Engineer Dharamsala v. Pran Nath Mahajan, in the following terms: "We have repeatedly held that the Consumer Redressal Forums will not be legally justified in taking over the function of estimating by application of the rule of thumb the precise number of calls made unless there is adequate evidence which may be either direct or circumstantial to show that the metering equipment was defective or there has been any misuse of the particular telephone by some unauthorised person in collusion with the employees of the Department, particularly in cases where a subscriber has the S.T.D. facility - see District Manager, Telephones v. Niti Saran, I (1991) CPJ 48 (NC), Revision Petition No. 67 of 1990. Again in Telecom District Manager v. M.S. Mukherjee : Revision Petition No. 111 of 1990 we held that it was not legally permissible to take the average number of calls in the previous bills for a given period as the basis of ascertaining what should be fixed as the reasonable number of chargeable calls in the billing period. In the present case there is neither direct nor even circumstantial evidence to show that there was probability of such misuse of the telephone."

In all fairness, we must however, notice the persistent stand of Mr. T.C. Nain, respondent that as regards the bills dated 11th of September, 1992 and 11th of November, 1992, the Department had itself issued a provisional bills for telephonic charges after the respondent''s complaint. It was the persistent plea that this by itself showed defective metering or in any case the Department was bound by the said provisional bill.

The submission aforesaid has only to be notice and repelled in view of the decision of this Commission in District Telephone Engineer & Another v. Hari Dayal Bansal, (Supra). Therein, an identical argument was rejected after an in-depth consideration on the following ratio: "In the light of the above, the answer to the question posed at the outset has to be rendered in the negative. It is held that the issuance of a provisional bill by the Department under Para 434 is not at all any admission of faulty metering on its part."

THE aforesaid conclusion sets at rest the erroneous assumption of the District Forum that the provisional bills issued by the Department are to be made final. Lastly, we must also notice the repeated assertions of the respondent that the Department had issued letters dated the 2nd of June and 4th of June, 1993 to the effect that the respondent''s bills were still under investigation and consequently the balance amount after deducting the provisional bills could not yet be recovered. The lie direct to this has been given by a communication of the Department dated 20th/22nd of February, 1993 addressed to the respondent informing him that his complaint for excess billing had been thoroughly examined, but it was recorded that no justification for grant of any rebate has been found by the Competent Authority after full enquiry having been made through the concerned staff officers. Consequently, the respondent was directed to make the payment of pending bills promptly to avoid the unpleasant result of disconnection.

FOR the fore-going reasons, this appeal must succeed and we are constrained to set aside the order of the District FORum and dismiss the complaint preferred by the respondent. However, we do not burden the latter with any costs due to his consumer-status. Appeal allowed.