SUSHIL KUMAR vs DISTRICT ENGINEER

BY this appeal under Section 15 of the Consumer Protection Act, 1986 ("the Act" herein), the unsuccessful complainant questions the legality and correctness of the order dated 29.5.1990 passed in Complaint Case No. B/42/90 by the District Forum, Bikaner. The District Forum dismissed the complaint by the impugned order. The complaint was filed praying that telephone No. 55051 which had been disconnected may be restored and compensation to the tune of Rs. 50,000/- may be awarded. The complaint was filed on 15.3.1990. The complainant was subscriber of telephone No. 5051. It was stated that formerly this telephone was in the name of the Karta (father of the complainant) deceased Shri Champalal Kothari. After the death of his father, it was changed in the name of the complainant. The complainant has alleged that he has been carrying on business in Anaj Mandi, Ganganagar Road, Bikaner and the opposite party after recovering entire charges, the telephone of the complainant was transferred in the name of a partnership firm Sethia and Co. The complainant has alleged that the complainant went to Suratgarh on learning that his aunt is ill on 23.1.1990. He remained there upto 4.2.1990. When he came on 5.2.1990 at Bikaner he wanted to phone. It was noticed that the telephone wad dead. He enquired from the munim who told him that two letters were received and after that the telephone was disconnected. Thereafter the complainant read those notices and contacted the opposite parties. But he was not heard. He submitted two reports to the opposite parties and the concerned officer. The case of the complainant is that despite submitting all the documents which were demanded by the opposite parties the telephone was not reconnected. The case of the complainant is that prior to disconnection of the telephone, no notice was given and no opportunity of hearing was afforded. In the notice it was not mentioned that how the telephone is unauthorisedly and illegally used but the telephone was disconnected wrongly. On account of that he has been suffering loss for the last one month in business. The complaint was filed for the reliefs that a direction may be given to the opposite party to restore telephone No. 55051 and to pay damages. A version of the case was filed on behalf of the opposite parties stating that the telephone was disconnected as it was not used bonafidely and used unauthorisedly. The telephone at the time of the installation was at shop No. 61 in the first floor. On receipt of the complaint from the complainant Sub-Divisional Officer (Telephones) inspected the site and after investigation it was found that the telephone has been used unauthorisedly and not bonafidely. Even thereafter investigation was done by the Accounts Officer of the Director Telecom., Jodhpur and on investigation it was revealed that it was not used bonafidely and information was given that the complainant is out of station. It was submitted that the telephone has been shifted from the first floor to ground floor and this was unauthorised shifting regarding which no information was given. During the investigation the Investigation Officer was told that the complainant has gone to Calcutta. Thereupon a message was left that on arrival, the complainant should contact the District Engineer, Bikaner. It was submitted that by letter No. P/ 5051/20, dated 17.1.1990 a notice was given to the complainant that within 7 days from that notice original documents mentioned therein may be produced but the complainant did not produce them within the time nor he submitted any report. Thereafter resort was made to Rule 421 of the Indian Telegraph Rules, 1951 ("the Rules"), on being satisfied on the basis of the record that the telephone was not used bonafidely and it was used unauthorisedly and that shifting was also unauthorised. Letter No. P/5051/21, dated 1.2.1990 for showing cause was issued and on 2.2.1990 the telephone was disconnected. According to the opposite parties sufficient time was given to the complainant. In the notice reason for disconnecting the telephone was also mentioned, and, therefore, the question payment of compensation does not arise. A certified copy of the partnership deed was asked for from the complainant vide letter No. P/5051/24, dated 5.3.1990 but he did not produce it. The uncertified copy (Photostat) of the partnership deed is only on record. Claim for compensation was denied. With the complaint, true copies of the letter dated 17.1.1990 photostat copy of the Rule 421 of the Rules, photostat copy of the letter dated 11.2.90 were submitted. The complainant submitted the affidavit which was sworn on 14.4.1990 stating amongst others that the notices dated 17.1.1990 and 1.2.1990 were not served upon him. An application was submitted on 21.4.1990 by the complainant specifying the amount of compensation as Rs. 50,000/-, A rejoinder was submitted on behalf of the complainant on 15.5.1990 reiterating what was stated in the complaint. Photostat copies of some documents namely deed of partnership, application for shifting of telephone, registration certificate and entry from the register maintained in the office of the Registrar of Firms Bikaner were submitted. Besides these documents were also submitted on 15.5.1990 on behalf of the opposite parties. The District Forum heard the arguments on 19.5.1990 and passed the impugned order as stated above.

IT may be stated that opposite party No. 1 is District Engineer, Telecom, Bikaner and opposite party No. 2 is Union of India through Secretary to the Government of India. They have been arrayed as respondents No. 1 and 2 respectively. Version of the case was filed on behalf of opposite party No. 11 only. Service was presumed sufficient on opposite party No. 2 and therefore, ex-parte proceedings were taken against it. The District Forum recorded the following findings : (i) That the notices dated 17.1.1990 and 1.2.1990 were sent, and that the complainant has himself stated in the complaint that the Munim told him that the two letters were received and thereafter telephone was disconnected. (ii) that from the confidential enquiry, it was found that Sethia and Co. has been using the telephone on the basis of the partnership deed. (iii) that the telephone was shifted from the first floor to the ground floor without permission. (iv) on the basis of these findings it came to the conclusion that the telephone was disconnected in accordance with the Rules after notice; and (v) that the opposite parties are not liable for the payment of Rs. 50,000/- as compensation and in the alternative the complainant has failed to substantiate his claim for the award of Rs. 50,000/- as compensation.

The complaint was accordingly dismissed.

We heard Mr. S.M. Mathur, Advocate for the appellant and Mr. U.D. Sharma, Advocate for the respondent and carefully examined the order under appeal in the light of the submissions made by the learned Counsel for the parties. Learned Counsel appearing for the appellant has assailed the findings of the District Forum, while Mr. U.D. Sharma has supported the order under appeal. It is established from the record that the notices dated 17.1.1990 and 1.2.1990 were sent by the registered post. There is no substance in the arguments that the notice were not received. In the complaint itself the complainant has stated as under: "PUCHNE PUR MUNIM NE BATAYA KI VIPAKSHI PATRAKAR KE DO PATRA AAYE AUR TELEPHONE KAT DIYA HAI."

THE acknowledgement receipt has been produced by the opposite parties which show that it bears signatures of Sukhram. As per the averment made in the complaint, it cannot be said that no notices were given to the complainant before disconnecting the telephone. It will be useful to refer both the letters dated 17.1.90 and 1.2.1990. Letter dated 17.1.1990 is as follows : "Notice is being given that your Bikaner Telephone number 5051 will be disconnected under Rule 421 of Indian Telegraph Rules, 1951 within 7 days of the issued of this notice. Without prejudice to the above and to the rights and privileges of the Govt. I am to state that the enquiries made reveals that the Bikaner Telephone No. 5051 has been found for unauthorised use of Telephone. Without prejudice to the above and to the rights and privileges of the Govt. I am further to state that any representation alongwith original documentary proofs viz. Partnership Deed, Firm Registration Certificate etc. within 7 days of the issued of this notice, shall be taken into consideration before taking the noticed action."

Letter dated 1.2.1990 is as follows: "Please refer to this office Notice No. P 5051/ 20, dated 17.1.1990 under which an opportunity was given to you to submit any representation alongwith original documentary proofs viz. Partnership Deed, Firm Regiatration Certificate etc. against the proposal to disconnection of your Bikaner Telephone No. 5051 due to its unauthorised use. Since then no representation has been received from you till date and hence the under- signed in exercise of the powers conferred under Indian Telegraph Rules, 1951 under Rule 421, hereby disconnect the said Bikaner telephone No. 5051 permanently with immediate effect."

It was mentioned that on investigation it was found that the telephone is unauthorisedly used and so the complainant may produce the original documents within seven days. Documents sought were certified copies of partnership deed and registration of the firm. Another notice dated 1.2.1990 was issued under Rule 421 stating that telephone No. 5051 has been disconnected permanently with immediate effect. The reason mentioned in that letter was that despite opportunity being afforded the complainant did not submit any representation alongwith the original documents/ proofs namely partnership deed, registration of Firm etc., against the proposal for disconnection of telephone No. 5051 due to its unauthorised '' used. The investigation reports have been submitted by the opposite parties. In the first report dated October 9, 1989 it is mentioned that Bikaner telephone No. 5051 is misused by Sathia and Co. on the basis of bogus partnership deed and it is originally in the name of Sushil Kumar complainant. There is another report of the District Engineer, Bikaner. It mentions that taking into consideration the report of S.D.O. (Phones), Bikaner and Director Telecom. Jodhpur and the notice served to the subscriber, and no representation from the latter, he was satisfied with the reasons mentioned and order to disconnect Bikaner telephone No. 5051 permanently due to misuse. Rule 421 of the Rules reads as follows: - "421. Disconnection of Telephones : - Where the Divisional Engineer is satisfied for reasons to be recorded in writing that is necessary to do so, he may, after giving the subscriber a notice in writing for a period which shall not except in emergent cases be less than 7 days, disconnect the telephone, and in such case, the subscriber shall be entitled refund of rent for the unexpired portion of the period for which the connection or service was given."

Rule 429 of the Rules deals with the transfer of telephone. Rule 434 deals with the Schedule of fees and charges. Section II thereof deals with shifting charges.

THERE are two Clauses (a) and (b) in regard to shifting. The complainant had shifted telephone from the first floor to the ground floor. It was shifting under Clause (b) and for shifting he was required to pay the shifting charges as mentioned therein. No permission was sought for shifting the telephone from first floor to ground floor and so shifting was unauthorised. Apart from that, the use of the telephone by Sethia and Co. was unauthorised. Thus, the telephone could be disconnected under Rule 421 of the Rules. When the telephone was rightly disconnected, the question of payment of compensation does not arise. Apart from that, the complainant has failed to substantiate his claim for the award of compensation under Sec. 14(1)(d) of the Act. Having carefully examined the order under appeal, we are of opinion that it is not possible to take a view different from the one taken by the District Forum, BIkaner. We affirm the order of the dismissal of the complaint. The appeal fails and it is hereby dismissed without any order as to costs. Appeal dismissed.