VIRENDRA KUMAR HANDA. vs GENERAL MANAGER, DISTRICT TELECOM

BY this appeal under Section 15 of the Consumer Protection Act, 1986 (for short "the Act" hereinafter) the complainant-appellant questions the correctness and legality of the order dated 16.6.1990 passed by the District Forum, Jaipur in Complaint Case No. 202/89 by which the complaint was dismissed. Facts leading to this appeal may briefly be noticed. The complainant-appellant is a subscriber of telephone No. 68717. He received a telephone bill dated 1.11.1988 for Rs. 3,254/- mentioning 3345 as gross local calls. After the receipt of the bill, the complainant submitted a representation to the General Manager, Telecom Department, requesting him to give a revised bill in the light of the bills received by him from 1.11.1987 to 1.9.1988. It was stated by him that he had informed the Department in regard to the misuse of his telephone by third party outside his residence. Thereupon a revised bill for Rs. 500/- was given to the complainant which was deposited by him. Thereafter a revised bill for Rs. 2,728/- was sent to the complainant mentioning that amount of 3000 calls kept under dispute. As nothing was done the complainant submitted a complaint before the District Forum, Jaipur which was registered on 1.6.1989. The complainant submitted copies of the letters and photostat copies of the bills in support of the complaint. The opposite party-respondent contested the complaint by filing version of the case dated 7.7.1989. It was stated that telephone is being used from 3.2.1983 and there was STD facility. A complaint was submitted by the complainant-appellant on 7.11.1988 in respect of the bill dated 1.11.1988. On this Rs. 2,728/- was kept under dispute and order for enquiry was made. The complainant was directed to deposit the balance of the amount of the bill. According to the opposite party the bill dated 1.11.1988 was for the period 30.8.1988 to 15.10.1988 and during this period the complainant had availed of STD facility. An enquiry was conducted in respect of the bill dated 1.11.1988 and it was found that there was no technical defect in the instrument and the complainant was informed accordingly. The complainant got the STD facility discontinued from 10.11.1988 and thereafter investigation was again made and it was noticed that thereafter the use of the telephone was less. Besides this the telephone of the complainant was kept under the observation from 16.12.1988 to 24.12.1988 and it was found that the complainant has been using it properly and at the request of the complainant, telephone number was changed. It was stated that during the period before the bill dated 1.11.1988 the complainant has been availing of the STD facility and according to the distance to which the call is made reading was recorded. It was submitted that the complainant may be directed to deposit the amount that was kept under dispute i.e. Rs. 2,728/-. The opposite party submitted order sheet of the Department dated 28.1.1989, enquiry reports of the Revenue Branch and enquiry reports JP TRI dated 13.12.1988. The complainant submitted his affidavit in support of the complaint. The opposite party respondent besides submitting the photostat copies stated hereinabove neither filed any affidavit nor produced any evidence. The District Forum heard the arguments on 14,6.1990 and passed the impugned order, as stated above, on 16.6.1990. It dismissed the complaint. Hence this appeal.

WE heard Mr. M.R. Singh vi, learned Counsel for the appellant and Mr. U.D. Sharma learned Counsel for the respondent and carefully considered the memo of appeal, order under appeal and the record. The District Forum has recorded in the order that the complainant has availed of the STD facility and that he had submitted that his telephone was misused by third person. It found that according to the investigation there was no mechanical defect in the instrument. It was of the opinion that the bill is prepared on the basis of the readings recorded in the meter and if the telephone has been misused, the Department has no concern. In view of this it dismissed the complaint. It appears that the District Forum assumed wrong facts as appears from the following in the order under appeal : The assumption made by the District Forum in respect of Rs. 3,000/- is wrong for the simple reason that the complainant-appellant has disputed the amount of Rs. 3,000/-. This is clearly borne out from the following in the complaint : "Now I have to request your honour kindly to ask the Telephone Deptt. not to send a revised bill of Rs. 3,000/-. Instead they should adjust this amountby writing off it"

The complainant has given a chart of the bills received by him from 1.11.1987 to 1.9.1988. Therein local calls never exceeded 688 and even after installation of telephone No. 60694 in the bill dated 1.3.1989 local calls mentioned are 300. It will be useful here to quote the instructions issued by the Department in case of excess meter reading complaints : "Procedure followed in Jaipur Telecom, District regarding excess meter reading complaints : 1. Excess metering complaints are received by Accounts Officer (Telephone Revenue) and these cases are sent to the Divisional Engineer concerned in individual files. 2. Divisional Engineer concerned examines the case at his level and in case no rebate is found justified by him the case is being regretted and the files are returned to the Telephone Revenue Accounts Section. Suitable reply is sent to the complainant by Telephone Revenue Accounts accordingly. 3. In case Divisional Engineer finds that some rebate is to be given the case is forwarded to the General Manager through internal Financial Advisor. 4. Cases received as per above are considered in the committee comprising General Manager as Chairman and Internal Financial Advisor and a Divisional Engineer as members. If the complaint is found to be correct, the rebate is allowed by the committee depending on the situation and in case it is not justified, the case is rejected. Appeals 1. If the subscriber is not satisfied with the decision of the Divisional Engineer he may appeal to the General Manager for reconsideration of his case. 2. Similarly the subscriber is also free to approach Chief General Manager Telecommunications in case he is not satisfied with the decision given by the General Manager. 3. Subscriber is also free to approach Telecom Commission in case he is not satisfied with the decision of the Chief General Manager Telecom. Financial Powers The various financial powers for allowing rebate in excess metering cases are given in Annexure-I. Split Bills Procedure of split bill is as per Para 434(i) and (ii) of Posts and Telegraphs Manual Volume-XIV (Extract enclosed as Annexure-II). Annexure-I Sub : Enhancement of delegated financial powers for grant of rebate of Local Calls on complaints of excess metering on telephones. The question of enhancement and rationalisation of delegated financial powers to Heads of Circles/Districts etc. in respect of grant of rebate of local call charges on excess billing complaints has been under consideration for sometime. It has now been decided in supersession of the earlier order on the subject to the various authorities as indicated below with immediate effect. Authority 1. All Head of Circles/Metro and Major Districts. 2. All Telecom Distt. Manager Area Mangers, Deputy General Managers in Metro & Major Districts and Regional Directors in Telecom Circles. 3. Deputy Area Managers in Distt. and Telecom Distt. Engineers in Telecom Circles. Extent of power delegated Rs. 40,000/- per billing period subject to a maximum of Rs. 80,000/- for 3 billing periods in a financial year, per telephone. Rs. 20,000/- per billing period subject to a maximum of Rs. 40,000/- for 3 billing periods in a financial year per telephone. Rs. 20,000/- per telephone connection for one billing period in a financial year. 2. These powers will apply equally for STD as well as non-STD stations "

Annexure II "(i) When a complaint regarding excess charge for local calls is received and such charge is found to exceed the highest one obtaining during the three preceding quarters by more than 100% at STD stations and more than 50% at non-STD stations, unless the complainant pays the bill on his own under protest or otherwise, A.O.I.R. may defer enforcement of recovery of the amount of the disputed bill till investigation of the complaint is completed, and a decision as to whether some rebate for the excess charge is justified or not, is taken. (ii) Action should be taken to cancel the disputed bill and split it up into two bills-one to include charges which are correctly payable by including the local calls charge being computed to be (Equal to the average number of calls metered during the Six Bi-Monthly period (one year) immediately preceding the disputed periods plus 10% over the average. A second bill should be prepared for the balance and marked as "part local call bill (disputed)". While the subscriber may be required to pay the first bill within 7 days of its issue, payment of the second bill may not be insisted upon)."

WE have carefully examined the chart submitted by the complainant. Enquiry and investigation were made subsequent to the bill dated 1.11.1988.Itis correct that prior to the issuance of the bill dated 1.11.1988 the complainant has been availing of the STD facility. WE do not want to express any opinion about enquiry reports submitted by the opposite party for they show that there was no mechanical defect and the meter recorded correct readings but the District Forum was considerably influenced by the fact that the complainant had asked for a revised bill to the tune of Rs. 3,000/- as is apparent from the excepted portion of the order. The complainant never considered Rs. 3,000/- as proper as has been stated in the impugned order. In fact, he has alleged that the opposite party may be directed not to send a revised bill for Rs. 3,000/- instead they should adjust this amount. As the District Forum made a wrong approach to the whole case, the order dismissing the complaint cannot be sustained. The procedure and the relevant rules in case of excess metering which resulted in inflated bills were not brought to the notice of the District Forum. The complaint is with respect to the excess metering and, therefore, the Department should have followed the instructions issued by it and the District Forum should have decided the complainant in the light of those instructions which it failed to do. In these circumstances we are left with no alternative but to send back the complaint to the District Forum for fresh decision. The District Forum shall afford an opportunity to the parties to produce evidence if they so like before it. It will be open to the parties to file affidavits if they so like and thereafter the District Forum shall decide the complaint afresh after affording an opportunity of hearing to them. The principles laid down by the National Commission in Telecom District Manager, Patna v. M/s Kalyanpur Cement Ltd. (Revision No. 44 of 1990 decided on November 8,1990) are 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 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 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. With these observations, the Revision Petition is dismissed."

The result is that the appeal is allowed and the order dated 16.7.1990 passed by the District Forum, Jaipur in Complaint Case No. 202/89 is set aside. The case is sent back to the District Forum, Jaipur to decide it afresh in accordance with law keeping in view the observations made hereinabove. Parties shall bear their own costs of this appeal. Appeal allowed.