Sub -Divisional Officer Telecom Department vs GURBACHAN SINGH

THIS appeal has been filed by the appellants Telecommunication Department against the order of the District Forum, Una, dated 8.5.1998 whereby the appellants have been directed to refund the amount of Rs. 8,516/ - deposited by the respondent/complainant (hereinafter to be referred to as the complainant) on 23.12.1997 on account of telephone bill alongwith interest @ 12% per annum from the aforementioned date till the amount is refunded alongwith costs of Rs. 500/ -.

THE relevant brief facts which give rise to the complaint are that the complainant who is a subscriber to Telephone No. 81006 at Village Saloh, District Una, was required to pay telephone bill of Rs. 10,431 / - for the period from 16.8.1996 to 15.10.1996 for 7660 calls. According to the complainant, such a bill was highly and disproportionately excessive due to the defect in the metering system or the Exchange and that he has not made so many calls as alleged by the Telecommunication Department. As a matter of fact, according to the complainant which has not been disputed by the Telecommunication Department that his normal bi -monthly billing has been between Rs. 200/ - to Rs. 700/ - for the last 5 years. On the complaint made by the complainant to the appellants, the provisional bill for Rs. 1,915/ - was issued by the appellants and which, was deposited by the complainant pending enquiry on 9.12.1996 under protest. However, according to the enquiry held by the appellants, no defect was found by them in the metering system or telephone line and the representation of the complainant was rejected and he was asked to deposit the remaining amount which he also deposited under protest on 23.12.1997. According to the appellants, the telephone bill is not excessive, as the complainant was having STD facility and he had actually made so many calls and that further he has been informed on telephone about the heavy trend of the calls in advance. His telephone was kept under observations from 12.9.1996 to 27.9.1996, but no defect was found in the system.

THERE is no dispute that the bill issued to the complainant of Rs. 10,431/ - for the period from 16.8.1996 to 15.10.1996 has been highly excessive in comparison to the bill of Rs. 200/ - to Rs. 700/ - for the last 5 years.

THE question that requires consideration is whether the excessive telephone bill of Rs. 10,431 / - which is in dispute, is due to the defect in the metering system of the Exchange or that the complainant has actually made so many calls. This question has been considered in various decisions of the National Commission and other State Commission. In Telecom District Manager, Mahasana and Another v. Patel Shankerlal Kevalram, II (1996) CPJ 99 (NC), the National Commission has observed in paragraph -5 of the judgment that: ''The State Commission have referred to the guidelines issued by the Telecommunication Department for disposal of excess meter complaints, which also deal with advance action in case of possibility of an excess billing complaint. The action to be taken includes : (a) meter reading to be taken every fortnight, (b) identifying all subscribers whose current fortnightly readings show a sudden spurt, and (c) in case of such sudden spurt being noticed, placing the telephone line on Observation and deputing responsible staff to the subscribers premises to check up that there has been no special occasion which might have given rise to such spurts. In the present case, there was admittedly a spurt in the calls in the said period. The billing period is for two months and thus consists of four fortnights. The question which remains unanswered by the revision petitioners -Department is the reason why advance action was not taken by them, specially when according to them, the guidelines are meant to gain the confidence of the subscribers. It may be mentioned that the metering equipment remains under the possession and control of the Department and not under the control of the subscriber. In cases of dispute about the correctness of the metering equipment, therefore, the petitioner -Department should produce objective basis for providing that the metering equipment was not defective. In the light of this and the fact that the availability of STD on the said phone had not resulted in inflated calls for the periods prior to and subsequent to the period relating to the disputed bill, it becomes incumbent on the part of the petitioner -Department to substantiate and establish with evidence that the metering equipment was in fact not defective.''

IN Ajay Dubey v. General Manager, Telegraphs & Telecommunication and Others, decided by the National Commission reported as I (1995) CPJ 223 (NC), it is apparent from paragraphs 7 & 8 that Telegraphs Act, 1885 and Indian Telegraph Rules, 1951 and the Circular No. 4/59/85 -TR dated 9th April, 1986 issued by the Government of India, Ministry of Communication exhaustively deal that how the bills are to be prepared and in what manner the complaints filed by the subscriber about the excessive bills have to be dealt with. The above rules and circular also lay down that if there is abnormal use of the telephone, the Department is to serve a fortnights notice to the subscriber cautioning him about the abnormal use of the telephone.

IN Telecommunication District Manager, Bhuj Kutch v. Bharat Jyoti Transport Service, it has been observed by the Gujarat State Commission, Ahmedabad that: ''It may not be forgotten that the Department is in possession of the lines, DP boxes and metering equipments and it is, therefore, the duty of the Department to prove that there was fault either in the DP boxes, lines or metering equipment. They ought to have tested the lines making calls and recording the result of the calls and show that metering equipment had registered one call only when a calls was made. The person who had carried out the test must tender his affidavit explaining every test to inspire confidence. In the aforesaid view of the matter and particularly when the bills are only for the local calls without STD facilities and which are very much in excess of the average calls made by the complainant immediately prior to the disputed bills, it leads us to the inference that there was some defect somewhere especially when after making of the complaint the calls registered were more than 4 to 5 times than the average calls.'' The consensus of the above Authorities clearly show that in case of complaint in respect of excessive telephone bills and allegations of defect in the metering equipment, onus to prove that metering equipment is not defective lies upon the Telecommunication Department, as the metering equipment remains under the control and possession of the Telecommunication Department and not under the control of the subscriber. In order to meet allegations about the defect in the metering equipment, the Department is required to produce objective basis for proving that the metering equipment is not defective. Furthermore, they have to comply with certain instructions and circulars of the Government of India which are mandatory and which have been referred to in the authorities referred to above.

WE have taken a contrary view in Appeal No. 378 of 1993 titled as Union of India v. Hans Raj, decided on 5.6.1997 reported in II (1997) CPJ 345, which is erroneous in the light of above discussions. We as such over -rule that decision.

IN the present case, there is absolutely no dispute that the bill issued to the complainant of Rs. 10,431/ - for the period 16.8.1996 to 15.10.1996 admittedly was highly excessive, 4 -5 times more than the earlier bills issued to him even if the highest provisional bill for Rs.1,915/ - dated 1.11.1996 is taken into consideration. The question that requires consideration is whether the Telecommunication Department has discharged the onus to prove that the metering equipment or the system is not defective. The appellants have tried to substantiate that they kept the telephone of the complainant under observation from 12.9.1996 to 27.9.1996 and the complainant was reminded by the J.T.O. on telephone of the high trend of calls before 12.9.1996 i.e. on 5.9.1996. The District Forum has rightly observed that there is no evidence about the high trend of the calls during the fortnight prior to 12.9.1996 and, therefore, the question of reminding the complainant by the J.T.O. about the high trend of the calls, does not arise.

WE have looked into the evidence placed on the file by the Telecommunication Department and we find that in cross examination Shri Dhian Singh, J.T.O. has admitted that the Department has not kept the record about the information given to the complainant on telephone on 5.9.1996. It has been further stated by him that the telephone from which the information was given to the complainant was duly connected with the Computer, but that record is not available. In view of his statement in cross -examination, it can very easily be inferred that infact the complainant has never been given information about the sudden spurt in telephone calls on 5.9.1996. Further there is nothing in his affidavit dated 11.3.1998 to show as to in what manner he kept the telephone of the complainant under observation from 12.9.1996 to 27.9.1996 except this bald statement which is too vague. He has not specifically stated that he has checked the DP boxes, lines or metering equipment. He has not stated that he has tested the lines making calls and recording the result of the calls and found that metering equipment had registered one cal only when a call was made. Such an affidavit, therefore, cannot advance the case of appellants. The affidavit of S.D.O. (Telecom), Una, dated 11.3.1998 also cannot help the appellants, as he has only generally stated that no defect was found in the meter and telephone line of the complainant. At any rate, he has not tested the lines, DP boxes and metering equipment.

WE further find that there is absolutely no evidence, whatsoever, to show that the Instructions, Circulars and Acts of the Government on the subject have been complied with. There is nothing to show that meter reading has been taken every fortnight and that they have identified all the subscribers whose current fortnightly readings show a sudden spurt and in case of such sudden spurt being noticed, placing the telephone line on observation and deputing responsible staff to the subscribers premises to check up that there has been no special occasion which might have given rise to such spurt. Nowhere has it been stated either in the affidavit or otherwise in cross -examination or in the reply that responsible staff was deputed to subscribers premises to check up that there has been no special occasion which might have given rise to such spurt. Again, the Department has not sewed a fortnights notice to the subscriber cautioning him about the abnormal use of the telephone under the Government of Indias rules, circulars etc. In the light of what is discussed above, we have no hesitation to hold that since admittedly there has been sudden spurt in the calls for the billing period from 16.8.1996 to 15.10.1996, the onus lies on the Telecommunication Department to prove that the metering equipment or the system was not defective, which they have failed to establish and the excessive bill of the telephone, in question, has therefore necessarily to be set aside. The complainant, however, will have to pay the bill for the period, in dispute, which should be of reasonable amount. What should be the reasonable amount, depends upon facts and circumstances of each case. The District Forum has rightly held that amount of Rs. 8;516/ -.deposited by the complainant dated 23.12.1997 should be refunded to the complainant alongwith interest @ 12% per annum from 23.12.1997. The District Forum presumably has considered the amount of Rs. 1,915/ - raised by provisional bill by the Telecommunication Department pending enquiry against the excessive bill of Rs. 10,431/ - as reasonable and has rightly directed the appellants to refund the balance amount of Rs. 8,516/ - deposited by the complainant on 23.12.1997 alongwith interest @ 12% per annum from the aforementioned date. We are in agreement with the findings of the District Forum. No interference is called. The appeal is dismissed. Appeal dismissed.