SUDERSHAN KUMAR MAHAJAN vs TELEPHONE EXCHANGE

-THIS appeal received by transfer from Punjab State Commission, under the orders of Hon''ble National Commission filed against order dated 29. 5. 2001 passed by District Consumer Disputes Redressal Forum, Jalandhar in Complaint Case No. 373-DF-2000. The contextual facts in brief are as under.

THE complaint was filed by Sh. Sudershan Kumar Mahajan in the District Forum, Jalandhar averring therein that bill for the telephone bearing No. 203497 installed at his residence was excessive for the month of September, 1997, for an amount of Rs. 13,034. It is the say of the complainant that the OPs were approached by him with a request to issue the print out of the call details. It is alleged by the complainant that matter was put off under one pretext or the other and the complainant was told that the matter will be settled within 15-20 days after the perusal of disputed bill by the SDO. It is averred that the bills for the September, 1997 to May, 1999 were received in the normal course and the complainant was expecting to get some information from the OPs with regard to settlement of the disputed bill. It is stated that a disconnection order dated 19. 5. 1999 was issued by the OPs on the ground that the bill of Rs. 13,034 stood unpaid and the phone was disconnected without any notice. The complainant has averred that he was denied any opportunity of personal hearing before disconnection nor any copy of details of the print out with call details as requested were supplied to him. It is alleged that the various representations against the excessive bill remained unheard and his phone was wrongfully disconnected and consequent to non-availability of the telephone, he was deprived him of receiving medical aid from doctors of Batra Hospital and Sharanjit Hospital for his wife who was sick at the relevant time. In the prayer clause, a compensation of Rs. 20,000 for mental tension, inconvenience and harassment has been claimed. In the written statement filed by the OPs, the preliminary objection taken is that the case being of excessive billing, requires elaborate and detailed evidence and cannot be decided by way of summary trial. It is further stated that the remedy available to the consumer under Indian Telegraph Act of which Section 7 (B) envisages arbitration for the adjudication of the dispute, if any, due to which the complaint in the Forum deserves to be dismissed. It is further stated that since the representations of the consumer have been rejected as such the complaint is not maintainable. The complaint has been alleged to be false, frivolous and vexatious and it is pleaded that same deserves to be dismissed with exemplary costs of Rs. 10,000. The next plea taken by the OP is that complainant is guilty of not making use of dynamic Code locking facility, installed to prevent any misuse having failed to make use of that, is estopped by his own acts and conduct, from filing the complaint. In reply on merits, the factum of issuance of bill for an amount of Rs. 13,047 plus Rs. 400 as surcharge has been admitted. It is stated that this was on account of calls made from telephone in question and the representation by complainant was rejected by the Competent Authority, as no ground was made out. The OPs have stated that they are under no obligation to issue any reminder to the consumer, still to avert disconnection reminders dated 10. 5. 1999, 11. 5. 1999, 13. 5. 1999, 15. 5. 1999 and 19. 5. 1999 were given. Further it is stated that no personal hearing is to be given under the law, still the complainant was explained and apprised the details of amount with the print out. It is submitted that disconnection of the telephone was on account of non-payment, thus no loss suffered or the mental harassment as alleged can be attributed to the OPs. It is stated that the complainant ought to have deposited the amount to avoid disconnection and inconvenience. The allegations of deficiency in service, negligence or unfair trade practice have been denied. It is submitted that complainant is not entitled to any relief. A prayer has been made to dismiss the complaint with costs of Rs. 10,000.

In evidence, on behalf of complainant Sh. Sudershan Kumar Mahajan has filed his evidence by way of affidavit along with Exhibits C-2 to C-11 whereas on behalf of OP Sh. Gurbachan Singh, AOTR has filed his affidavit along with Exhibits R-2 to R-7, copy of telephone advice note along with subscriber''s record card, copy of information report.

THE District Forum dismissed the complaint on the ground of not finding any merit. Aggrieved against the order of the District Forum, the present appeal has been filed pleading inter alia that the Forum erroneously dismissed the complaint by holding that the affidavit filed by appellant (brought on record vide Annexure C-1) is reiterating the facts mentioned in the complaint. It is contended by the appellant that it appears that the learned Presiding Officer and the Members have not gone through the above document. It is submitted the above findings are erroneous as the appellant has rebutted the allegations levelled by the OPs in their written statement. It is further contended by the appellant that at the time of filing the written statement, the document exhibited in evidence by the OPs were not supplied. The next submission of the appellant is that the alleged disconnection order by the OPs shows that there is no mention of the telephone No. (203497) pertaining to which the disconnection order was passed to prove that the same relates to the appellant. Hence, the disconnection order against which the complaint has been filed is not on record, however the District Forum failed to take note of the same. The next point urged in appeal is that Annexure R-3 does not make any sense as a perusal of the same shows that it cannot be imagined that the same relates to the case of respondent/complainant as it does not bear his name. It is further submitted that documents R-4 and R-5 also do not bear the name of appellant as it does not make clear whether the same relates to complainant relating to any inquiry conducted by the OPs. The appellant has stated that the Annexure R-6 is vague as nobody can come to the conclusion that the bills issued to the appellant was correct and according to the law, there is no mention of the telephone number on the print out on Annexure R-7. The appellant has contended that the plea of the respondent/op that the letter of rejection was despatched on the complainant vide communication dated 5. 5. 99 giving the last date of payment as 15. 5. 99. Further the disconnection order dated 19. 5. 99 cannot be accepted as no record of the same or copy of the same have been placed on file. On the basis of above, the appellant has contended that the impugned order is based on surmises and conjectures and not on the evidence placed on record by appellant. As per settled position reliance can be placed on the documents, only after the same are placed before the Forum and no order can be based on the documents which are not part of the record. The appellant has assailed the order of the District Forum on the ground that the learned Forum has passed the order without giving finding on the fact that whether the letters dated 10. 5. 99, 11. 5. 99, 13. 5. 99, 15. 5. 99 and 19. 5. 99, etc. have been placed on record or not. Further the Forum was wrong in its approach as it upheld the contention of the OPs that representation of the complainant with regard to the disputed bill has been rejected by the Competent Authority, though no copy of the same was placed on file proving the inquiry having been conducted by the authority or the rejection of his representation. The impugned order has also been challenged on the ground that the Forum failed to take note of the fact whether the reply to the notice issued by the appellant was given by the OPs or not. The appellant has further contended that the objection of the respondents/ops that the complaint was time barred or the matter deserves to be placed before the Arbitrator or that the complainant did not approach the OPs with regard to excessive bills, etc. , the Forum based its order on the documents not produced on record. Further the Forum also failed to take note of his submissions with regard to preliminary objections. It is contended by the appellant that the Forum failed to apply its judicial mind to the facts and law due to which prejudice has been caused to his case. A prayer has been made to accept the appeal with costs and set aside the impugned order.

THE following case law was cited in support by the Counsel for the appellant: 1. U. P. Pandey and Ors. v. Satnam Singh Chawla, I (2004) CPJ 102 (NC)=2002 (3) CON. LT 310. 2. Union of India and Another v. M/s. Budh Ram and Sons, 1997 (2) CPC 456. 3. B. S. N. L. and Anr. v. P. D. Khanduri, I (2005) CPJ 74 (NC)=2005 (1) CON. LT 272. 4 Telecom District Manager, Hoshiarpur, Punjab v. Kamaljit Kaur, II (2005) CPJ 139 (NC)=2002 (1) CON. LT 493. Adverting to the merit of the appeal, a perusal of pleadings of the parties, record of the case, impugned order and the grounds of appeal brings us to the conclusion that contention of the appellant that the District Forum has erroneously dismissed the complaint, is noted to be rejected as the District Forum in its impugned order has given due consideration to all aspects of the case. The telephone of the complainant was not disconnected in spite of the fact that the disputed amount was not paid by the complainant, though for the other telephone numbers in defaulters list (copy on record) an order for disconnection was given. A perusal of record shows that his case was duly considered and the amount shown to be due against him was found to be justified. The rejection of his representation is on the record of the District Forum vide Annexure R-6 dated 6. 2. 2001. Further the evidence placed on record vide Annexure R-7 which is the print out of the details of calls made from the telephone number of the complainant which a computerized data, a simple glance through the same shows that calls of the very long durations have been made from this telephone. The appellant/complainant having not proved anything to the contrary, his contention that calls were not made by him cannot be accepted on the face of it without any evidence. The appellant has contended that he had controverted the allegations of appellant/op by way of his affidavit cannot be accepted in the face of the fact that this document listing call details show otherwise. The appellant has further disputed the veracity of the documents brought on record by the OP vide Annexures R-4, R-5 and R-6, such pleas cannot be entertained in the summary jurisdiction of the Consumer Protection Act, hence rejected. The contention of appellant that there is no mention of his telephone number on the Annexure R-7 is noted to be rejected as it is clearly mentioned on the top of the document, details of STD calls of telephone No. 181203497. Since the print out of call details in seriatum pertaining to his telephone number as on record are ample proof that calls has been made from his number. It is pertinent to mention here that telephone of the appellant has been provided with dynamic lock facility. Other averments of the complaint have been reiterated which need not be gone in the appellate stage as the District Forum has given a thorough consideration to his case and the reasoned judgment given by the District Forum does not call for any interference in the appreciation of facts or application of law. The appeal is rejected on the ground of being devoid of merit. The impugned order is upheld, however, we refrain from imposition of any cost. The case law in support cited by the appellant is distinguished on the facts, hence not applicable to his case.

COPIES of this order be sent to the parties, free of charge. Appeal dismissed.