TELE COMMUNICATION DISTRICT ENGINEER vs NARESH KUMAR

THE department of Tele-communication appeals against the order of the District Forum, Jind allowing the respondent-consumer''s complaint and substantially scaling down the bill for telephonic charges. This appeal is concluded in favour of the department by a long line of precedents of the National Commission, culminating in I (1993) CPJ 99 (NC) ''Telecom District Engineer, Dharamsala v. Pran Nath Mahajan,. It, therefore, suffices to notice the facts and merits in their barest out-line.

THE respondent-consumer who admittedly is a subscriber of the telephone had even chosen to challenge the bill dated the 1st of March, 1993 for Rs. 578/- only. Equally another bill of the 1st of January, 1993 to the tune of Rs. 6092/- was the subject matter of challenge in the complaint. The appellants in resolutely defending the complaint took up the firm plea that the respondent had the S.T.D. facility throughout which had been lavishly used. It was the case that the metering equipment was impeccable and the levy was made strictly in accordance with the recorded consumption. All other allegations of the complainant were also firmly controverted.

Even though the appellants had stoutly contested the complaint, the respondent did not even choose to put in his own affidavit in support of the case. Somewhat curiously the subsequent bill for the said telephone were only placed on the record and apparently a reduction sought on that basis alone. Despite the paucity of any evidence in support of the case, the learned District Forum, summarily observed that the bill for Rs. 6092/- was on the higher side in view of the subsequent bills of the complainant. It was observed that the disputed bill dated 1st of March, 1993 for Rs. 578/- did not merit any interference, but the other bill was scaled down to an arbitrary figure of Rs. 3700/- only and compliancy was directed according.

MR. Harinder Pal Singh, learned Counsel for the appellant-department had forcefully and rightly assailed the order of the District Forum as cryptic and unreasoned and based merely on a hunch. It was contended that the subsequent bills to the disputed charges can be a totally slippery basis for scaling down an earlier bill. Reliance inevitably was placed on ''Telecom District Engineer, Dharamsala v. Pran Nath Mahajan, (Supra) Mr. J.K. Goel, learned Counsel for the respondent obviously unable to support the reliance on the subsequent bills by the District Forum attempted to explain the same on the ground that the telephone connection was apparently a new one and consequently the earlier bills either could not be submitted or were with-held. The factum of the S.T.D. was not denied, nor the fact that even the affidavit of the respondent had not been placed on the record in support of his tenuous case.

THERE is patent merit in the submissions of the learned Counsel for the appellant. What first deserves highlighting is the fact that the complaint was unsupported by any evidence worth the name at all and indeed becomes a case of no evidence. THERE was thus no foundational basis for interfering in the levying of charges. This aspect has been earlier the subject matter of decision by this Commission in I (1991) CPJ 653 ''Executive Engineer, Operation. H.S.E.B., Hisar v. Dr. Chander Bhan, wherein it was concluded as under: "In the light of the above, the answer to the question posed at the outset is rendered in the negative and it is held that a contested consumer dispute under the Act can only be decided on the basis of evidence and not de hors thereof."

The appellant-department is entitled to succeed on the aforesaid reason alone. However, altogether apart from the above, it is somewhat manifest that the decision of the District Forum is against the very teeth of the consistent view of the National Commission that the previous pattern of calling, or the average of the earlier bills would not empower the redressal agencies to scale down the charges unless a defect in the metering equipment or a misuse by the department''s employees was established. Herein the curious thing is the District Forum has not chosen to rely on the previous pattern of calling or an earlier bills for telephonic charges, but has chosen to base its on some subsequent bills after the consumer had got forward of the high telephonic charges. This has been rightly assailed on behalf of the appellant. In any case, the matter is concluded by the following observations in Telecom District Engineer. Dharamsala v. Pran Nath Mahajan (Supra): "We have repeatedly held that the Consumer Redressal Forum will not be legally justified in talking 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 unauthorized person in collusion with the employees of the Department, particularly in cases where a subscriber has the STD 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. MS. 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."

The aforesaid ratio fully covers the matter and concludes the same in favour of the appellant-department. This appeal is consequently allowed and we are constrained to set aside the order of the District Forum and dismiss the complaint preferred by the respondent. There will however be no order as to costs. Appeal allowed.