TELECOM DISTRICT MANAGER vs AGARWAL INDUSTRIES

THE present appeal is filed by the Telecom District Manager, Jalgaon against the Judgment and Order dated 12. 3. 1999, passed by the District Consumer Forum, Jalgaon in Complaint No. 95/1997.

THE respondent/complainant''s case before the Forum is that, he was having telephone connection No. 25456, having S. T. D. and I. S. D. facility. He challenged the bill dated 22. 10. 1997 for the period 16. 8. 1997 to 15. 10. 1997 amounting to Rs. 1,40,041. According to him, bill in question was excessive bills including late fees. He prayed for reduction of the disputed bill up to Rs. 10,500 on the basis of the previous average billing. The present appellant appeared before the Forum and resisted the claim. It is contended that, on receipt of the complaint regarding excessive meter reading for the disputed period, the complaint was investigated. It is contended that, no fault was found in the meter or other metering equipments and there was no justification to give any rebate. It is contended that, the telephone was having S. T. D. and I. S. D. facility and the respondent being industrialist made excessive use. According to appellant, the bill issued was correct as per the S. T. D. and I. S. D. calls registered in the meter. It is also contended that, they have intimated to the Respondents and called upon him to pay bill of Rs. 1,42,041 and also informed that, if the amount is not paid till 18. 11. 1997 phone will be disconnected without any notice or intimation. It is also contended that, as the respondent did not pay the amount of bill, telephone was disconnected. It is also contended that the telephone was kept under observation from 19. 9. 1997 to 23. 9. 1997. During that period 7475 calls were metered, which shows heavy use of S. T. D. and I. S. D. facility.

The Forum below after hearing the parties and going through the papers referred the matter to Arbitrator under Section 7-B of the Indian Telegraph Act for completion of the inquiry within 6 months after receipt of the order. The Forum also directed the appellant to give provisional bill against the bill of Rs. 1,40,041 dated 16. 8. 1997 to 15. 10. 1997 and directed not to disconnect the phone.

BEING aggrieved by the said Judgment and Order, the Telecom Manager came in Appeal. The notices were issued to the appellant as well as respondent. Learned Counsel Mr. V. N. Upadhye appeared on behalf of the appellant. None for the respondent. We heard the learned Counsel Mr. Upadhye for the appellant.

THE learned Counsel submitted that, the Respondent had complained about exorbitant bill. The appellant had investigated the complaint about exorbitant bill and it is found that there was no fault in the meter or metering equipments. It was also pointed out that telephone was having S. T. D. and I. S. D. facility. The learned Counsel also submitted that the telephone was kept under observation from 19. 9. 1997 to 23. 9. 1997 and during that period 7475 calls were metered by the respondent. The learned Counsel submitted that the Forum below ought not to have referred the matter under Section 7-B of the Indian Telegraph Act. The learned Counsel submitted that, when there is a dispute of faulty reading of meter resulting exorbitant bill, case does not fall within purview of Section 7 (b) of the Indian Telegraph Act. The learned Counsel in that respect relied on the Judgment in case of Divisional Engineer and Anr. v. Harikishan Bhattad, II (1996) CPJ 11 (NC ). We perused the papers and gave our anxious thoughts to the arguments advanced by the learned Counsel and also to the rulings cited by him. It is apparent from the record that after receipt of the complaint regarding excessive billing for the period 16. 8. 1997 to 15. 10. 1997, amounting to Rs. 1,40,041. The appellant had investigated the complaint in detail and it was found in the investigation that no fault was found in the meter or metering equipments, which would justify any rebate. It has also come on record that the telephone was having S. T. D. and I. S. D. facility and the respondent made excessive use of S. T. D. and I. S. D. facility. It has come on record that the telephone was kept under observation from 19. 9. 1997 to 23. 9. 1997 and during this 4 days 7475 calls were metered, which shows heavy use of the S. T. D. facility. In Telecom District Manager, Panaji v. Mrs. Liberata Fernandes, III (1995) CPJ 35 (NC), it is held that adjudicating authority under the Consumer Protection Act cannot adopt method of average for determining whether disputed bill was excessive or not. It is illegal on the part of the adjudicating authority under the Consumer Protection Act to adopt average of the number of calls made by the consumer during any break period prior to the billing period in dispute for determining, whether the disputed bill was excessive or not.

IN Harikishan Bhattad''s case, the Hon''ble National Commission has held that, "that where the subscriber merely complaints about the exorbitant bill meaning thereby that he complains only about faulty reading of meter, it only involves question as to whether the meter has been correctly and honestly read and the readings had been correctly and honestly noted down. Such dispute does not fall within the purview of Section 7b. In the present case, the subscriber complainant did not complain any misuse of the line or defect in the meter. He only complained about the excessive bill and called for the details of the calls made from his telephone. Thus he did not raise a dispute falling under Section 7b of the Telegraph Act. As noticed above, the Orissa High Court upon whose judgment the State Commission has also relied upon Anthappan''s case (supra) in which case it was held that reference to arbitration under Section 7-B of the Indian Telegraph Act must precede the disconnection and not follow it. For once the telephone is disconnected there is very little practical purpose to be served by arbitration. The facts in the Kerala case were entirely different. In that case the subscriber''s telephone was disconnected by the Department on the ground that he had allowed another person to use the telephone while he had himself shifted from the premises where the telephone was installed. Action was taken under Rule 421 read with Rule 429. Thus in that case the dispute was clearly with regard to the misuse of apparatus and it squarely fell under Section 7b. As noticed above, the present dispute does not fall under Section 7b and therefore the arbitration need not have preceded the disconnection of the telephone of the complainant under Rule 443 of the Indian Telegraph Rules. In the light of the above discussion, we hold that the State Commission has exercised its jurisdiction with material irregularity while confirming the order of the District Forum asking the Department to initiate arbitration proceedings under Section 7b of the Act and ordering reconnection of the telephone and payment of compensation. "

IN the instant case, the complainant had filed the complaint for excessive bill dated 22. 10. 1997, as compared to average of his previous bills. He had not complained any misuse of the line. We have mentioned that it is found in the investigation that no fault was found either in the meter or other metering equipments. As per the ratio in Harikishan Bhattad''s case, such dispute does not fall within the purview of Section 7b of the Act and therefore the Forum ought not to have referred the matter for arbitration under Section 7b of the Indian Telegraph Act. The Order of the Forum is required to be interfered. We pass the following order: ORDER (1) Appeal is allowed. (2) The impugned order dated 12. 3. 1999 passed by the District Consumer Forum, Jalgaon in Complaint Case No. 95/1997 is hereby quashed and set aside and the Complaint No. 95/1997 stands dismissed. In the circumstances the parties to bear their own costs. (3) Copies of the order be supplied to the parties. Appeal allowed.