Union of India vs DISTRICT FORUM

THIS appeal is directed against the order dated 22.8.90 passed by the District Forum, Jodhpur in Complaint Case No. 179/89 by which the complainant respondent has been made liable to pay only 1/3 of the demand of Rs. 6,880/- for local calls in respect of the bill for the period 11.5.88 to 11.7.88. The opposite parties-appellants were directed to recover only the said amount from the complainant respondent and to send the bill in respect of it within 15 days to the complainant-respondent.

THE complainant does business of tea, nuts kirana etc. as a wholesale dealer and commission agent. He is subscriber of telephone No. 81507 at Mandore Mandi. STD system was started by the Telecom Deptt. in the main mandi in 1986. On the application being invited the complainant opted for STD facility. THE complainant availed of the STD facility for some time. THEreafter he found that it was not in order. THE bills received from the Department were inflated. He submitted an application together with fee of Rs. 50/- and requested for disconnecting the STD. THE STD facility was discontinued on 18.6.87. After the discontinuance of the STD, the first bill dated 11.9.87 was received by the complainant for Rs. 2,761/-. It consisted of Rs. 2,615/- as trunk call charges Rs. 125/- as rental and Rs. 21/- for extra calls. THE amount was deposited in time. THEreafter complainant received three bills dated 11.11.87,11.1.88 and 11.3.88 for the period ending on 30.4.88 and deposited the amounts in time. THE details of the bills are contained in para 5 of the complaint. THEreafter the complainant received the bill dated 11.5.87. THE amount mentioned in the bill was Rs. 7,022/- which included Rs. 434/- as trunk call charges Rs. 160/- rental and Rs. 6,394/- for local call charges. THE complainant raised a protest and as a result of which the amount of local calls was provisionally reduced to Rs. 420/- and Rs. 5,975/- were kept in dispute. THE complainant deposited the provisional bill vide receipt No. 14641 dated 4.6.88. THEreafter another bill for the period ending on 30.6.88 dated 11.7.88 was received for Rs. 3823/-. He submitted an application and on that application Rs. 906/- were kept in dispute and he was ordered to deposit Rs. 2917/- which were deposited vide receipt No. 0264 dated 11.88. In that bill local charges were Rs. 1903/- and Rs. 906/- were kept in dispute. Subsequently a bill dated 11.9.88 for the period ending on 31.8.88 was received for Rs. 2,894/- Rs. 2,062/- in respect of local calls. Despite requests and entreaties no heed was paid by the Department. THE complainant was told that he should deposit the amount otherwise his telephone will be disconnected. THE complainant deposited the amount of the bill under protest vide receipt No. 251/31.10.88. THEreafter bill dated 11.11.88 for the period ending on 31.10.88 for Rs. 2528/- was received in which local call charges mentioned were Rs. 2162/-. THE complainant went several time to the Telecom Department. However, few days after the date for depositing the amount, the telephone connection was disconnected. As nothing was done, the complainant became disappointed, he submitted to the wishes of the Department and deposited Rs. 100/-. For reconnection vide receipt No. 111736 dated 21.3.89. This amount was also under protest. THE complainant wrote a letter. THE opposite parties appellants vide their letter dated 27.1.89 informed the complainant that the meter was checked. It was in order and so the matter was closed. THEreafter on 11.1.89 for the period ending on 31.12.88 a bill for Rs. 486/- was received in which Rs. 132/- as '' additional local call charges were mentioned. THE amount of the bill was deposited within time. Last bill-dated 11.3.88 for Rs. 1701/- was received in which Rs. 28/- were for local call charges and that amount was also deposited by the complainant. THE complainant received a letter dated 31.3.89 with a demand note dated 7.4.89. It was written therein that the disputed bills dated 11.5.88 and 11.7.88 are all right and his complaint has been dismissed. THE demand note is for Rs. 6,880/- asking him to deposit the amount without delay. THE complainant stated that the demand note issued by the opposite parties-appellants was illegal and wrong. THE complainant has stated that he has received the bills ranging from Rs. 350/- to 400/-. Instances were given in para 13 of the complaint. In para 14 of the complaint, the complainant has alleged that during the relevant months the telephone system of Mandore Mandi was in disorder and the dealers and the office bearers of the business organisations met the officers of the Department and requested him to set right the system. During those days the subscribers also received inflated bills whose STD were disconnected. THE complainant has given instances in the complaint. THE complaint was filed praying that a direction may be issued to the opposite parties not to realise Rs. 6,880/- mentioned in P-4. and order was sought that the telephone of the complainant may not be disconnected. THE excess amounts deposited in respect of bills dated 11.9.88 and 11.11.88 may be adjusted in the subsequent future bills. Rs. 5,000/- were claimed for mental tension, badly pain and financial loss. Affidavit of Jaswantraj Mehta in support of the complaint was submitted. In the first instance application under Sec. 34 of Arbitration Act, 1940 was submitted by the Accounts Officer and OIC on behalf of the opposite parties. The District Forum vide its order dated 22.8.89 dismissed the application under Sec. 34 of the Arbitration Act. Thereafter the opposite parties submitted version of the case traversing the allegations made in the complaint It was submitted that upto the time the complainant was availing STD facility, the bills were sent according to the meter reading and the complainant deposited the amount without any protest. It was stated that the bill dated 11.5.87 for telephone No. 81507 dated 11.5.88 was for Rs. 7,022/- which included Rs. 434/- as trunk call charges. Rs. 160/- as rental and outstanding Rs. 6,394/- as local call charges. The fact relating to the issuance of the provisional bills was admitted. It was submitted that in respect of the disputed amount, the Department conducted thorough investigation and it was found that there was no fault in the meter and during the fortnightly readings no material difference was noticed. The matter was enquired into by the Telephone Engineer. After that the matter was sent to the Director Telecom Department and he found that there is no question of giving any rebate in respect of the alleged inflated bills to the complainant. After exhausting the procedure provided for determining the complaint in regard to the inflated bills the complainant was asked to deposit the amount of the bill. Similar investigation was done in respect to the subsequent bills and it was found that the bills were according to the meter reading. The meter was correct and there was no fault in it, namely, no mechanic defect was found. Despite all this as the payment was not paid upto 26.11.88, the telephone was disconnected as late as on 13.3.89. The complainant deposited the amount and the telephone was restored on 21.3.89. In para 12 of the version of the case it is stated as under :

;g fd izkFkZuk i= dk in la[;k 12 xyr gksus ls vLohdkj gS tSlk fd iwoZ esa iSjk uEcj 6, 7, 8 es Hkh crk;k tk pqdk gS fd izkFkhZ dh f''kdk;r ij ekeys dh iwjh Nkuchu gksus rd vf/kd fn[kus okyh jkf''k dks fooknxzLr j[kdj Hkqxrku dk rdktk u djuk izkFkhZ dh f''kdk;r vuqlkj ehVj jhfMax dh tkap djokuk ehVj dks VsLV djokuk ykbu QkYV vkfn dh iwjh Nkuchu dj vyx-vyx Lrj ds foHkkxh; nks ofj"B vf/kdkfj;ksa }kjk rHkh rF;ksa dks en~ns utj j[krs gq;s ekeys dks fujLr djrs gq;s fuiVkuk fdlh rjg xyr ugh Fkk o pwafd NwV eatwj djus ds dksbZ dkj.k ugha curs FksA

PRELIMINARY objections were raised in the version of the case that under Sec.7(b) of the Indian Telegraph Act, 1885 there is provision for arbitration and, therefore the complaint is not maintainable and that before filing the complaint a notice under Sec. 80 CPC should have been given. In support of the version of the case, affidavit of Likayat Ali Asstt. Accounts Officer was submitted. The opposite parties submitted a chart dated 27.8.90 containing Dates, T/C bill and L/C bill for perusal. Parties did not produce any evidence before the District Forum except the documents and the affidavits referred to above. The District Forum by the impugned order dated 22.8.89 granted the relief to the complainant-respondent as stated above. We heard Mr. U.D. Sharma, learned Counsel for the appellants as nobody appeared on behalf of the respondent. Presumption of service was raised against the respondent vide order-sheet dated 30.4.91. Mr. Sharma pressed for our consideration that the District Forum has recorded the following findings which are erroneous : 1. That due to the technical fault which occurred in Mandore Mandi for some days, the STD facility became available to non STD subscribers and so telephone bills for that period have been inflated; 2. That the local calls recorded in the meter during the said period were excessive.

THE District Forum has held that the complainant-respondent is only liable to pay 1/3 of the amount of local calls of Rs. 6880/-. We have carefully considered the record and examined the order under appeal in the light of the arguments raised by the learned Counsel for the appellant We agree with the learned Counsel for the appellants that even if the STD facility became available to the non-STD subscribers, the only effect was that even the non STD subscribers could avail of the STD facility and as such STD calls made by such subscribers were metered as local calls and until and unless such a subscriber had, in fact, made STD calls, no local calls could be metered. As such the actual calls whether local or STD which had been made by a subscriber were recorded in the meter. THE District Forum should have held that during the period in question the complainant-respondent had taken advantage of the said fault and had made STD calls and the same were properly and correctly recorded in his meter. THEre is another aspect of the case. THE trunk call bill of complainant came to be reduced and of the local calls increased. This shows that the complainant instead of making trunk calls had availed of the STD facility and the said calls were correctly recorded as local calls in the telephone meter of the complainant. We find no basis as to how the District Forum had stated that 1/3 of the amount of the local calls of Rs. 6,880/- is only payable by the complainant-respondent. No material, whatsoever, has been placed on record as to the possible approximate number of calls made during the said period. THE averments made in the complaint clearly show that the complainant is a businessman. He does business in Mandore Mandi of tea, nuts, kitana etc. He is a wholesale dealer and commission agent. He should have maintained the record of the trunk calls made by him. In the absence of any material on record there was no justification for reducing the liability to 1/3 of Rs. 6,880/-. THE National Commission in Divisional Manager Telephones, Lucknow v. Madhu Enterprises Lucknow, II (1991) CPJ 579 (NC)=1991 (2) CPR 421. observed as follows: "It is the responsibility of the Tele-communication Department to ensure that the metering equipment is efficient and that there is no incorrect metering regarding the calls. Unless, therefore, it can be established that the metering equipment is defective or has been manipulated, the calls metered for a particular telephone by the Department would from the proper basis of billing. It is not open to the Consumer Forums to determine arbitrarily the maximum number of calls that ought to be metered for the purposes of billing in respect of a particular telephone number. On the other hand. In this specific case, there is also ample evidence that, on a number of occasions, the complaints regarding excessive billing of the respondent were examined and found to be unjustified and that apparently excessive number of calls billed were due to the liberal use of the STD facility by the respondent subscriber".

We may usefully refer Telecom Districts Manager Patna v. M/s. Kalyanpur Cement Co. Ltd. II (1991) CPJ 286 (NC)=1991 CSMR CAS 54. It was held as under: "There is no evidence to show that the metering equipment was defective or that it had been tampered with or manipulated so as to inflate the bills. It is also not correct to assume that there has to be a pattern of making telephone calls from a telephone; the number of telephone calls made by a subscriber can fluctuate considerably for many reasons. The subscriber in this particular case, the consumer is a commercial concern and there is every likeli hood that the telephone calls in a period of time may fluctuate widely. It may become necessary to make a fair and just determination of the calls made on the basis of the calling pattern over a period of time, only if it is established that the metering equipment is defective, or has been tampered with or manipulated, resulting in the bill being inflated. It is true that one cannot altogether rule out the possibility of such tampering or manipulation of metering equipment and the consumer must be protected against such malpractices. It is however, not open to the "Consumer Forums to base a finding of the bills having been inflated merely on the basis of the suspicion and it will be not right to assume that there was something wrong with the mechanism without evidence and without identifying the precise defect in that mechanism. We cannot go by our subjective impressions about the reasonableness or otherwise of a bill which is based on readings from a mechanical equipment".

It was held in G.M. Mahanagar Telephones Nigam Ltd. v. Gulshan Rai II (1991) CPJ 158=1991 (2) CPR 507. by the State Consumer Disputes Redressal Commission, Delhi that the District Forum reducing the number of calls on telephones with STD facilities is not sustainable when the complainant a C.A. has failed to show his load of work during the specific period. Even average number of calls cannot be the basis for reducing the calls.

THE opposite parties have definitely alleged that on the complaints made by the complainant in respect of bills in question, the meter was checked and no fault was found and it recorded correct readings. In the absence of any material on record that this was not so the plea taken by the opposite parties-appellants cannot be accepted. No direction for recovering 1/3 of the amount of Rs. 6,880/- by the complainant could be issued. THE District Forum was not right and justified in giving a direction to the opposite parties-appellants to send the bill of the complainant in accordance with the order within 15 days. For the reasons aforesaid, we are unable to sustain the order of the. District Forum. It is therefore set aside.

THE result is that the appeal is allowed and the order dated 22.8.90 passed by the District Forum, Jodhpur in Complaint Case No. 179/89 is set aside. THE complaint shall stand dismissed. As nobody has appeared to oppose the appeal, there will be no order as to costs. Appeal dismissed.