TELECOM DISTRICT MANAGER, MEHASANA vs PATEL SHANKERLAL KEVALRAM

THIS Revision Petition is filed against the order dated August 26,1994 of the Gujarat State Disputes Redressal Commission confirming the order of the District Consumer Disputes Redressal Forum, Mehsana whereby the revision petitioners herein were directed to cancel their bill dated May 1,1991 for Rs. 32,616/- issued to the respondent-complainant and issue fresh bill on the basis of average calls recorded during the periods mentioned in the order of the District Forum. The revision petitioners were the opposite party (defendant) before the District Forum and appellants before the State Commission.

THE facts may be noticed briefly. The complainant carrying on business at Patan, Mehsana received a telephone bill dated May 1, 1991 for Rs. 32,616/- for 26,730 chargeable calls and rent in respect of his telephone No. 3780. According to him, the bill was excessive and he made a complaint to the opposite party on May 10, 1991 about the same. The latter issued an ad hoc bill for Rs. 2,628/- on May 17, 1991 and put the telephone under observation. As the opposite party did not find any defect in the meter or equipment, the complainant was called upon to pay the balance of the amount as per bill dated May 1, 1991. The complainant paid the bill and filed a complaint before the District Forum for deficiency of service on the part of the opposite party. It was the opposite parties'' contention that after the complaint was received by the Telephone Department, his telephone was kept under observation during which period no spurt in calls was noticed and there was no defect in the meter recording calls from the complainant''s telephone. Opposite Party further added that the telephone was having STD facility and it was likely that in the course of his business, the complainant had made the calls as recorded in the said period. When the District Forum through its order dated October 15, 1992 cancelled the disputed bill and directed the opposite party to issue fresh bill on the basis of average calls, the opposite party preferred an appeal before the State Commission. The State Commission allowed the appeal and remanded the matte to the District Forum to decide it afresh in accordance with law after giving opportunity to both the parties to adduce evidence. On appreciation of evidence before it, the District Forum by its impugned judgment took a view to the effect that bill dated May 1, 1991 was excessive in relation to the previous and subsequent bills and therefore, directed the opposite party to cancel the said bill and issue fresh bill on the basis of average calls recorded during the periods 1.7.89 to31.3.91 and 1.7.91 to 1.3.93. The opposite party again preferred an appeal before the State Commission against this order of the District Forum. The State Commission held that there was a sudden spurt during the billing period February 16 to April 15, 1991 and that while keeping the telephone under observation for about 2 weeks the guidelines of Telecommunication Department for disposal of excess metering complaints were not strictly followed. The Commission observed that there was no evidence on record to show that the Competent Officer was deputed to inspect the installation as provided in these guidelines. In the absence of satisfactory explanation from the appellant Department for the calls recorded in the billing period in question, the State Commission drew the inference that there was defect in the meter recording the calls at least during the said period and therefore, confirmed the order of the District Forum. Aggrieved by this order of the State Commission, file present Revision Petition has been filed before us by the Department.

WE have heard both sides and perused the records. There are three questions for determination namely, (i) whether there was a sudden spurt in calls in the billing period in question, (ii) whether recording meter was defective, and (iii) if defective, the basis on which the reasonable number of chargeable calls for the billing period in question should be determined. There are previous decisions of this Commission that it is not legally permissible to adopt the mode of computation on the basis of average for determining whether a particular bill is excessive or not, except in cases where there is evidence to show that there was some material defect in the metering equipment in the departmental exchange concerned. Therefore the case revolves around whether the metering equipment was defective or not.

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 subscriber''s 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 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 proving 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. For this purpose, we set aside the orders of the State Commission and District Forum and remand the case to the District Forum for de novo adjudication by affording a further opportunity to both parties to adduce any additional evidence which they may desire to place before the Forum. The Revision Petition is disposed of as above. The parties will bear their respective costs. Mr. Justice B.S. Yadav, Member I have gone through the order prepared by learned Member, Dr. (Mrs.) R. Thamarajakshi. With due respects to the learned Member, I respectfully differ from the conclusion arrived at by her. 8. I am of the opinion that no useful purpose will be served by remanding the case to the District Forum second time. The State Commission had earlier remanded the case to the District Forum. The District Forum vide its earlier order dated 15th October, 1992 and the subsequent order dated 26th March, 1993 has been held that the disputed bill dated 1st May, 1991 was excessive and directed the opposite party to cancel the said bill and issue fresh bill. The Department''s contention from the beginning has been that the telephone was kept under observation and no defect in the meter or equipment was found and thereupon the complainant was called upon to pay the balance of the amount as per bill dated 1st May, 1991. Therefore, at this stage it becomes unnecessary to ask the Department to substantiate and establish with evidence that the metering equipment was in fact not defective. By remanding the case for the above purpose, the subscriber consumer will be put to unnecessary expenses. 9. The State Commission has held that the guidelines issued by the Department for disposing of complaint about excessive telephone bills were not followed by the Department. As held by this Commission in First Appeal No. 503 of 1992, titling Ajay Dubey v. The General Manager, Telegraphs and Telecommunication and Ors. decided on 12th January, 1995=1 (1995) CPJ 203 (NC) those instructions are mandatory. Paragraph 5 of those instructions lays emphasis on advance action in case of possibility of an excess billing complaint. It provides for, (a) Meter readings being taken every fortnight; (b) Identifying all subscribers whose current fortnightly readings show a sudden spurt; and (c) in case of such sudden spurts being noticed, placing the telephone line on observation and deputing responsible staff to the subscriber''s premises to check up that there has been no special occasion which might have given rise to such spurts. If such investigation is made, subscriber will know about the spurt in his telephone calls. In that case he would either minimise the use of the telephone or would ask for barring the STD facility or would complain to the Department that somebody is misusing the telephone in collusion with the staff of the Department. It is not the case of the Department that such investigations at the place of the subscriber were made. 10. In the above circumstances, I think the right course will be that the bill in question is set aside and the Department is asked to prepare a fresh bill for the disputed period on the basis of the highest bill received during the six months preceding the date of the disputed bill and adding 10% to the amount so determined and the complainant be asked to pay that amount. The order of the District Forum as well as the State Commission are modified to that extent and the revision petition is disposed of accordingly. The parties to bear their own costs of the present proceedings.