VIJAY GROVER vs DISTRICT ENGINEER, TELECOMMUNICATIONS

- FIRST Appeal Nos. 393 and 408 of 1993 and cross appeals directed against the same order of the District Forum, Jind. Since these appeals are concluded by a long line of binding precedents culminating in the recent judgment of the National Commission in I (1993) CPJ 99 (NC) ''Telecom District Engineer, Dharamsala v. Pran Nath Mahajan''. It is unnecessary to advert in any great depth to the merits and this order will govern both of them.

THE common matrix of facts may be noticed from First Appeal No. 408 of 1993 D.E. T. Jind v. Dr. Vijay Grover''. THE respondent-consumer who is admittedly a subscriber of a telephone No. 2251 at Jind was aggrieved by two bills dated the 11th of March, 1991 for Rs. 2123/- and the subsequent one dated the 11th of April, 1991 for Rs. 7926/- . In the cryptic complaint, it was only alleged that the said bills were excessive and unjustified and since he had failed to deposit the billed amount, his telephone was subsequently disconnected. THE relief claimed was that both the bills be substantially scaled down and the appellant department be directed to restore the connection. On notice being issued to the Department, it resolutely defended the complaint and controverted virtually every adverse allegation therein. It was highlighted that the respondents-consumer enjoyed the S.T.D. facility which was used liberally both for his professional and private purposes. The firm stand was that the metering equipment was checked and found in perfect order and the billing was totally in accordance with the recorded consumption. It was also the case that the respondents had the locking facility and there was no possibility of any misuse of the telephone.

Despite opportunity having been given to produce evidence, the respondents rested himself content with placing on record the copies of his previous bills and some correspondence. Nevertheless, the District Forum somewhat summarily took the view that the bill dated the 11th of February, 1991 for Rs. 2123/- was neither excessive nor unjustified, but cryptically held that the subsequent bill of 11th of the April, 1991 for Rs. 7926/- should be reduced to the same amount and ordered accordingly.

MR. Arun Walia, the learned Counsel for the appellant-department had forcefully and rightly assailed the order under appeal as being against the very teeth of the long line of the binding precedents of the National Commission. It was highlighted that the respondent being a doctor had enjoyed the S.T.D. facility, which was lavishly used for professional and private purposes. It was contended that having held one of the bills as perfectly justifiable, the District Forum without more arbitrarily reduced the subsequent one without any reason to the identical amount, which could not possibly be supported. There is patent merit in the aforesaid submission. What perhaps first meets the eye is the wholly cryptic nature of the complaint. This is so manifest that the learned Counsel for the respondent Shri C.L. Katyal virtually conceded the fact with the facile explanation that the respondents being a professional doctor was unaware of the basic requirements of the pleadings and, therefore, the glaring deficiency therein be over-looked. This can hardly be so. What is significant is that admittedly in the complaint, no allegation of any defect in the metering equipment or any wrong billing was even alleged far from being established. Equally, there was not a hint of any mal-practice laid at the door of the employees of the Department. The factum of the S.T.D. having been available throughout the disputed period was not denied even by the learned Counsel for the respondent-consumer nor the fact that apparently he enjoyed the locking facility, therefore as well. Yet again there was a total paucity of any evidence worth the name in support of the complaint and even though the burden may be light, the onus lay upon the respondent-consumer which he had miserably failed to discharge.

APART from the above, the matter is concluded in favour of the appellant Department by the consistent view of the National Commission that the previous average of the billing pattern cannot be made a basis for scaling down the charges for a telephone, which enjoys the S.T.D. facility in particular. It is unnecessary to labour the point because in the latest majority view, the National Commission has reiterated its consistent stand in Telecom District Engineer, Dharamsala v. Pran Nath Mahajan'' (Supra) in the following terms :- "We have repeatedly held that the Consumer Redressal Forums will not be legally justified in taking over the function of estimating by application of the rule of thumb the precise number of calls made unless there is adequate evidence which may be either direct or circumstantial to show that the metering equipment was defective or there has been any misuse of the particular telephone by some unauthorised person in collusion with the employees of the Department, particularly in cases where a subscriber has the S.T.D. facility-see District Manager, Telephones v. Niti Saran, I (1991) CPJ 48 (NC) Revision Petition No. 67 of 1990. Again in Telecom District Manager v. M.S. Mukherjee : Revision Petition No. 111 of 1990 we held that it was not legally permissible to take the average number of calls in the previous bills for a given period as the basis of ascertaining what should be fixed as the reasonable number of chargeable calls in the billing period. In the present case there is neither direct nor even circumstantial evidence to show that there was probability of such misuse of the telephone." The aforesaid observation obviously cover the matter on all fours and conclude the appeal in favour of the appellant-department. In all fairness, we must however, notice the vehement reliance of Mr. Katyal, the learned Counsel for the respondent on the minority view of B.S. Yadav, J. in the aforesaid case (Telecom District Engineer, Dharamsala v. Pran Nath Mahajan'' (Supra). There is no gain-saying the fact that some of the observations in the same would go in the aid of the respondent, but this Commission is obviously and plainly bound by the ratio of the majority judgment and not the dissenting view.

FOR the fore-going reasons, First Appeal No. 408 of 1993 must succeed and is allowed. We are constrained to set-aside the order of the District FORum and dismiss the complaint preferred by the respondent. However, we decline to burden the latter with any costs because of his consumer-status.

IN view of the above the Cross Appeal No. 393 of 1993 preferred by the consumer seeking a further scaling down of both the bills and seeking compensation must obviously fail and is hereby dismissed also without any order as to costs. Appeal dismissed.