Union of India vs VINA JAGYASI

THIS is an appeal by the opposite parties under Section 15 of the Consumer Protection Act, 1986 (for short the ''Act'') against the order dated 10.10.1995 passed in Case No. 108/95 by the District Consumer Disputes Redressal Forum, Bhopal (for short the ''District Forum'').

FACTS giving rise to this appeal are thus : that the complainant is a subscriber of telephone No. 544868 which is installed at her residence. The complainant''s husband was also a subscriber of telephone No. 76600 installed at the place of his business. The complainant''s husband was in arrears of the telephone dues amounting to Rs. 1,94,534/-, therefore, his telephone connection was disconnected under Rule 443 of the Indian Telegraph Rules, 1951 (for short the ''Rules''). As the husband of the complainant did not make the payment, the telephone No. 544868 of the complainant was also disconnected on 26.5.1993. The complainant as well as her husband have challenged the action of the Telephone Department by separate complaints. The defence in the case in hand was that in exercise of the powers under Rule 443 the telephone was disconnected as it was in use of the husband of the complainant who was a defaulter subscriber of telephone No. 76600. The District Forum after considering the material on record held that Rule 443 does not give power to the opposite parties to disconnect the telephone of a relation of the defaulter subscriber, therefore, ordered for reconnection of telephone No. 544868 within seven days and to pay compensation of Rs. 5,000/- and costs of the proceedings of Rs. 500/-. Mr. K.K. Jain, learned Counsel for the appellants referred to the allegations in the complaints and submitted that the telephone of the complainant was also used by the husband o; the complainant in connection with his business, therefore, virtually the husband of the complainant was the user and subscriber of telephone No. 544868, as the complainant is the house-wife while her husband is the businessman. Therefore, in exercise of power conferred under Rule 443 the telephone was rightly disconnected for non-payment of the out standing huge amount of Rs. 1,94,534/-. Even if, this connection was in the individual capacity of the complainant as a subscriber, the complainant and her husband cannot be allowed to avoid the payment of public- dues. Counsel cited Indravadan Pranlal Shah v. General Manager, Ahmedabad Telephones District, Ahmedabad & Anr., AIR 1990 Gujarat 85; Zarina Begum v. General Manager, Madras Telephones in W.P. No. 13884 of 1986 decided on 25.11.1986, reported as Short Note No. (8) at page 803 of Swamy''s Treatise on Telephone Rules, IInd Edition, unreported Division Bench decision of the Delhi High Court in Civil Writ Petition No. 33/89 decided on 12.11.1990, Mrs. Rita Kumari v. Mahanagar Telephone Nigam Limited; Telecom Distt. Engineer, Bathinda & Anr. v. Ramji Das, III (1992) CPJ 24 (NC); and Ram Avtar Chaudhary v. The General Manager, District Telecommunication, 1992 (1) CPR 185 (Rajasthan State Commission).

Mr. S.W. Balchandani, learned Counsel for the respondent submitted that the telephone of the complainant subscriber is installed at her residence at Idgah Hills while her husband who is said to be a subscriber defaulter of telephone No. 76600 was installed at the place of his business situated in a different locality. The complainant''s telephone is not being used for the business purposes which is evident from the telephone bills. Moreover, for inartistic drafting of the pleadings the opposite parties cannot take advantage as the wife of a defaulter subscriber is an independent subscriber whose telephone cannot be disconnected in default of payment of telephone dues under Rule 443. Counsel cited the decisions of Madhya Pradesh High Court in the case of Chand Datta v. Union of India, 1992 (2) MPLT 523; and Mahesh Agrawal v. Union of India, 1998 (II) MPWN Note 115, and a decision of Rajasthan State Commission in Ram Avtar Chaudhary v. The General Manager District Telecommunication (supra).

FOR considering the question whether telephone of the subscriber wife can be disconnected for outstanding bills of the husband a subscriber of separate telephone, it would be appropriate to refer the definition of "subscriber" in Rule 2(pp) and Rule 443 of the Rules which we quote : "2(pp) ''Subscriber'' means a person to whom a telephone service has been provided by means of an installation under these rules or under an agreement."

"443. Default of payment.-If, on or before the due date, the rent or other charges in respect of the telephone service provided are not paid by the subscriber in accordance with these rules, or bills for charges in respect of calls (local and trunk) or phonograms or other dues from the subscriber are not duly paid by him, any telephone or telephones or any telex service rented by him may be disconnected without notice. The telephone or telephones or the telex so disconnected may, if the Telegraph Authority thinks fit, be restored, if the defaulting subscriber pays the outstanding dues and the reconnection fee together with the rental for such portion of the intervening period (during which the telephone or telex remains disconnected) as may be prescribed by the Telegraph Authority from time to time. The subscriber shall pay all the above charges within such period as may be prescribed by the Telegraph Authority from time to time."

It is not in dispute that the complainant has been provided a telephone as an independent subscriber. It is also not the case of the opposite parties that the husband of the complainant fraudulently obtained the telephone connection in the name of his wife at his residence for his own use and for the purposes of the business carried on by him at his business place, after the disconnection of his telephone No. 76600 in exercise of powers conferred under Rule 443 for default or payment of telephone dues. In the circumstances, the complainant and her husband are the subscribers of two different telephones in their individual and distinct capacities. Therefore, it cannot be contended that the doctrine of distinct personality cannot be applied to exonerate the complainant from the liability of payment of the telephone dues which are due from her husband- defaulter.

THE Madhya Pradesh High Court in Chand Datta''s case has considered the question where the telephone of the wife subscriber who was running a beauty parlour was disconnected for the non-payment of the telephone dues of her husband installed at his residence. After referring to Rule 443 in Part V of the Rules and the decisions reported in Dr. B.V. Manek v. Mahanagar Telephone Nigam Limited, AIR 1996 Bombay 53; Santokh Singh v. Divisional Engineer, Telephones, Shillong, AIR 1996 Gauhati 47; Y. Pridhvi Kumar v. THE General Manager, Telecom District, Hyderabad, AIR 1993 AP 131; and Kailash Prasad v. Chief General Manager, Orissa Telecommunication, AIR 1994 Orissa 98, observed that the term "subscriber" does not include the relation of the subscriber. Rule 443 speaks of subscriber who is a person who has been provided a telephone service, and for the purposes of taking action under Rule 443 the power cannot be exercised to disconnect the telephone of a relation having independent telephone in default of subscriber. THErefore, for the default in payment of the telephone bills of the husband the telephone service provided to the wife at Beauty Parlour was not permissible. In Mahesh Agrawats case (supra), the Madhya Pradesh High Court placing reliance on Chand Datta''s case held that the telephone of the son cannot be disconnected for the arrears of the telephone provided to his father. The decisions relied by the Counsel for the appellants have no application. In case of Mrs. Rita Kumari the telephone connection was fraudulently acquired by the defaulter subscriber in the name of the petitioner who utilised the same for its business of manufacture and export of handloom. The Delhi High Court observed that the petitioner have been a party to this fraud being so closely connected in the use of telephone for export business abroad, clearly creates the liability for the writ petitioner to make the payment of the bill raised on her. The Delhi High Court further observed that if Rule 443 of the Rules are not interpreted in the manner, the public revenue would be seriously prejudiced by the fraud practised on the Telephone Department.

THE decision of Gujarat High Court in Indravadan''s case (supra), related to the telephone disconnection of a partnership firm wherein the Gujarat High Court held that partnership firm is not a legal person. THE partners are the subscribers. When the telephone subscriber is a partnership firm all the persons constitute such firm are the owner of telephone and each one of them has rights and liabilities of a subscriber. THErefore, when such a partnership subscriber of telephone is in default in payment of telephone dues because the partnership firm has failed to pay those dues, Rule 443 of the Rules is attracted and any telephone rented to such subscriber-partner even in his individual capacity is liable to disconnection.

THE Madras High Court K. Amanullah v. Madras Telephone, in W.P. No. 13884 of 1986, decided on 12.2.1987, Justice Mohan, as he then was, in a case where the father having had the benefit of a telephone and falling in to arrears and had set up his son to apply independently, whose telephone was also disconnected observed in the facts of the case that the petitioner is not entitled to any telephone connection. The decision of the National Commission in Telecom District Engineer v. Ramji Das (supra), is in a case where, the complainant had two telephones who was in arrears of respect of one telephone. In default of payment, both telephones disconnected. The question was whether power of disconnection can be restricted. The National Commission held that the power of disconnection can not be restricted to a particular telephone of a defaulter subscriber.

Same was the question before the Rajasthan State Commission in Ram Avtar''s case,, (supra).

IN view of the above, we are of the opinion that in the present case the department illegally exercised the powers under Rule 443 of the Rules for disconnecting the telephone of the complainant-subscriber. Therefore, the District Forum rightly held that it was a case of deficiency in service and ordered for restoration of the connection and payment of compensation. In the result, the appeal fails and is dismissed with no order as to costs. A copy of this order be conveyed to parties and a copy be sent to District Forum along with the record of the case. Appeal dismissed.