Union of India vs Pratibha

THIS is a complaint against the order of District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter referred to as the District Forum) dated 8.1.2003 in Complaint Case No. 505 of 1999, Pratibha v. Union of India, through General Manager, Telecom, Telephone Department.

THE complaint in nutshell is that the complainant had telephone No. 547438 with STD facility installed in her premises i.e. House No. 1129-A, Sector 8-C, Chandigarh on 4.7.1998. From day one the dynamic locking facility on this phone did not operate and the complainant brought this to the notice of the O.P. vide three letters dated 28.8.1995, 16.9.1995 and 4.12.1995, appended as Annexures C-1 to C-3 with the complaint, but the problem was not rectified. Later on 21.3.1997 someone from the Telecom Department called to check up if this telephone was working satisfactorily and if the telephone connection had STD facility. After the complainant replied that the STD facility was available, the phone was disconnected. From this date onwards, the complainant avers that her telephone used to remain dead from 5 p.m. to 8 p.m. and suspected that the telephone was being misused during this period. Vide her letter dated 27.3.1997, the complainant apprised General Manager, Telecom, Chandigarh of the above and sought his assistance to help her. Subsequently, the complainant received her bill dated 1.7.1997 for an amount of Rs. 10,000/-. On receipt of the bill, the complainant vide Annexure C-5, intimated the O.P. that the bill received was much higher than her normal bill of Rs. 1,600/- which indicated that her telephone had been misused. She also requested investigation of the matter and rectification of the bill. THE O.P. vide Annexure C-6 gave the complainant a rebate of ISD calls amounting to Rs. 8,628/- and the complainant paid the balance amount of Rs. 1,372/-. However, vide bills dated 1.9.1997 and 1.11.1997 the complainant again received bills for Rs. 10,407/- and Rs. 7,892/- respectively. On 9.12.1997 the complainant again wrote to the O.P., vide Annexure C-16, that the bills contained charges for ISD calls whereas she had never applied for the ISD facility on her telephone. Also fearing misuse of STD facility in the absence of dynamic locking, she got the STD facility disconnected. THE O.P. was requested to look into the matter of misuse of her phone connection and was also informed that to harass her the department had disconnected her telephone. To substantiate her case of misuse of telephone, the complainant has annexed many telephone bills subsequent to disconnection of STD facility wherein her bills have ranged from Rs. 1,750/- to Rs. 418/- for one billing cycle. THE O.P. department informed the complainant vide Annexure C-18 that after investigation it has been found that the bills dated 1.9.1997 and 1.11.1997 were found to be correct. In response the complainant vide Annexure C-19 and Annexure C-20 intimated the O.P. that whereas in the bill dated 1.7.1997 rebate against ISD calls was allowed and the same had not been done in the bills dated 1.9.1997 and 1.11.1997 and requested the O.P. to look into the matter and correct the bills. THE complainant has further contended that not only the bills dated 1.9.1997 and 1.11.1997 were not rectified, the O.P. department has cancelled the rebate granted for ISD calls in the bill dated 1.7.1997 and the department is seeking payment of full amount of all the three disputed bills i.e. dated 1.7.1997, 1.9.1997 and 1.11.1997 whereas the O.P. is not entitled to charge her for ISD calls and for this deficiency in service, she prayed for bills of July, September and November, 1997 to be cancelled and payment of Rs. 20,000/- as compensation and costs of the complaint. She also prayed that the O.P. be directed not to disconnect her telephone for non-payment of the bills in dispute. The O.P. submitted that only one complaint made regarding the locking of STD facility was received by the department and on 9.10.1995 O.P. No. 1 issued instructions to provide STD Dynamic Lock Facility on the telephone. Thereafter no further complaint was received from the complainant in this regard. The O.P. also denied that telephone of the complainant remained dead from 5 p.m. to 8 p.m. every day after 21.3.1997 and that nobody from the department made any inquiry from the complainant on that day. It was also denied that the telephone of the complainant was misused by any official of the department. The O.P. also submitted that rebate on ISD calls amounting to Rs. 8,628/- was given only provisionally and on inquiry when no metering defect was found the complainant was directed to pay the full amount of bills dated 1.9.1997 and 1.11.1997 along with this provisional rebate allowed earlier. It was also submitted by the O.P. that this matter was referred to Telephone Adalat but the complainant did not attend the Adalat and hence the complainant has no case for any relief. The defence of the O.P. is that the complainant was rightly charged for the calls made from her telephone and that there is no deficiency in service on the part of the Telecom Department.

On consideration of the case by taking into account the pattern of pre 1.7.1997 and post 1.11.1997 bills, the District Forum concluded that the O.P. did not take care to provide the complainant effective STD Dynamic Lock Facility which provided occasions to some undesirable elements in the Telecom Department to misuse her telephone. The District Forum also rejected the version of the O.P. that C-16 was only a provisional bill and that amount of Rs. 8,628/- had been kept in dispute because there is no such indication given in Annexure C-6 and the withdrawal of rebate of Rs. 8,628/- was, therefore, held to be patently illegal. The District Forum also held that since the O.P. had failed to place on record any departmental instructions that any subscriber who applies for STD facility was also automatically granted ISD facility, no such instructions exist. It was, therefore, contended by the District Forum that ISD facility was not available to the complainant and that no ISD calls were made from her telephone by her or her family and that some unscrupulous official of the O.P. or somebody else with his/their connivance had made ISD calls from the telephone of the complainant. The District Forum, therefore, partially allowing the complaint ordered the O.P. to give the complainant full rebate of ISD calls in the telephone bills dated 1.7.1997, 1.9.1997 and 1.11.1997. These ISD calls if already charged were ordered to be refunded. The O.P. were also ordered to pay Rs. 3,000/- as compensation for mental and physical harassment and in addition, Rs. 500/- were allowed to the complainant as costs. It was also ordered that the O.P. shall hold an enquiry and fix responsibility for the inflated bills of the complainant dated 1.7.1997, 1.9.1997 and 1.11.1997 and recover the aforesaid amount from the delinquent official/officials in accordance with law.

AGGRIEVED by this order of District Forum, the O.P. filed this appeal. The appeal was taken on board, notice was sent to the respondent/complainant and record of the case was summoned from District Forum. Mr. G.C. Babbar, Advocate appeared on behalf of the appellant/O.P. whereas Mr. Dharam Paul Gupta, Advocate represented the respondent/complainant. Mr. G.C. Babbar, Advocate submitted that whereas complaint about non-functioning of STD Dynamic Lock Facility was made in December, 1995 there was never any dispute about any bill till the bill of 1.7.1997. He also referred to para 3 of the written statement of the O.P. wherein it has been stated that the complainant made no complaints regarding non-functioning of the STD Dynamic Lock Facility or her telephone remaining dead from 5 p.m. to 8 p.m. To substantiate his plea he highlighted that whereas Annexures C-2 and C-5 have department''s stamp of receipt no such stamp is there on any other letter attached as Annexure with the complaint. He then referring to paras 6 and 7 of the complaint submitted that the complainant had herself asked for disconnection of ISD/STD which he pleaded, indicates that the complainant had ISD facility also available on the telephone and that he had asked for it while applying for the telephone. His next submission was that the complainant has not proved misuse of her telephone by any evidence and that there is nothing on record about mal-functioning of STD Dynamic Lock Facility after December, 1995, whereas the disputed bills pertain to the period from July, 1997 to November, 1997. The learned Counsel then reiterated his argument given before District Forum that the rebate was withdrawn as there was no defect in the metering of the calls which fact, he said, has also been proved by the fact that no bills after disconnection of STD/ISD facility has been disputed. He pleaded that since Section 7-B of the Indian Telegraph Act provides for referring disputed bills to an Arbitrator, this complaint be referred to an Arbitrator and the impugned order of the District Forum be set aside.

LEARNED Counsel for the respondent in his reply highlighted that the complainant never asked for ISD facility on the telephone and, therefore, never used it. He pointed out that the O.P. despite various opportunities given, failed to put up on record any instructions/order, which say that simply on seeking STD facility, ISD facility will also be provided automatically. He explained that the complainant''s seeking disconnection of STD/ISD facility does not mean that she had asked for it in her application for telephone. The request for disconnection of ISD facility was in view of the fact that she had been charged for ISD calls. He reiterated that the complainant''s case was not defect in metering of calls but was about charging of ISD calls, a facility she had never asked for or used. Having heard the learned Counsels and perusal of record on file, we find the controversy really confines itself to the charging of ISD calls in the bills dated 1.7.1997, 1.9.1997 and 1.11.1997. It is not the case of the complainant that the bills were inflated due to wrong metering of calls and hence the argument of learned Counsel for the appellant that the complainant was bound to pay the disputed bills as there was no defect in the metering of calls, is irrelevant to the context. The O.P. has clearly failed to establish by cogent evidence that the complainant had asked for provision of ISD facility or that this facility is automatically provided when a subscriber seeks STD facility. We also find that the District Forum has rightly observed that bill at Annexure C-6 was not a provisional bill and the rebate granted therein on ISD calls was only temporary. It is quite clear from the record on file that this rebate was granted as the complainant was not due to pay these charges of ISD calls. We find that the evidence on record and arguments of the learned Counsel for the appellant/O.P. do not touch the main issue and does not establish that ISD facility was applied for or utilized by the respondent/complainant since Section 3 of the Consumer Protection Act, 1986 provides an additional remedy to the consumer. The plea of the learned Counsel for the appellant/O.P. that the case be referred to an Arbitrator as provided under Section 7B of the Indian Telegraph Act is subjected. We are, therefore, of the considered view that the appellant/O.P. cannot charge the respondent/complainant for utilizing a facility that she never applied for or provision of which is not automatic in her seeking STD facility. Charging for ISD calls in the bills dated 1.7.1997, 1.9.1997 and 1.11.1997 by the appellant/O.P. is, therefore, a deficiency in service and the District Forum is right in ordering full rebate on ISD calls charged in these bills and other related reliefs. The appeal lacks merit and is dismissed with no orders as to costs. Copies of this judgment be sent to the parties free of charge. Appeal dismissed.