1. THIS appeal is directed against an order dated 19.9.1996 passed by District Forum, Patna, in Case No. 1295/93. By the impugned order the District Forum has directed the opposite party-appellant to issue fresh bill against disputed bills dated 15.5.1992, 15.9.1992, 15.11.1992, 15.1.1993 and 15.3.1993, on the basis of ten calls per day besides the free calls allowed to a telephone subscriber. The District Forum has further directed the opposite party-appellant to adjust the amounts paid by the complainant against bills dated 15.5.1992, 15.9.1992 and 15.11.1992 towards the fresh bills and refund the excess amount to the complainant. There is further direction for payment of Rs. 10,000/- to the complainant as compensation and for restoration of his telephone connection.
2. THE case of the complainant before the District Forum was that the bills with regard to his telephone No. 350618 (old No. 56556) were excessive and inflated and his telephone was disconnected on 5.8.1993 even when bill had been paid. On the said allegation the complainant filed complaint petition before the District Forum claiming the following reliefs :
(1) Immediate restoration of his telephone. (2) Compensation of rupees one lack plus Rs. 1,000/- per day from 5.8.1993 till the date of restoration for the loss of work and prestige and for the mental agony and humiliation caused to him. (3) Correction of inflated bills.
The opposite party-appellant filed written statement and supplementary written statement before the District Forum and contested the case. The case of the opposite party was that the telephone of the complainant had STD facility and the bill had been charged in accordance with the calls made on his telephone. The telephone of the complainant was disconnected for non-payment of outstanding due seven after registered notices dated 17.2.1993 and 14.7.1993. The telephone bills were being sent to the complainant regularly. The telephone bills dated 15.5.1992, 15.9.1992, 15.11.1992, 15.1.1993 and 15.3.1993 ad been examined by the competent person and on enquiry no defect either inside the Exchange or outside the Exchange was found and as such the case was regretted and communicated to the complainant.
Now it has to be considered if the impugned order is sustainable in law or not.
3. IT is not disputed that the complainant is telephone subscriber and his telephone number is as stated in his complaint petition. Though in the complaint petition it has been alleged that there was abrupt increase in local calls but the dates of the bills in which there was abrupt increase in local calls have not been disclosed. There is a typed chart annexed to the complaint petition in which bills dated 15.5.1992,15.9.1992 and 15.11.1992 have been side-marked. The bills dated 15.1.1993 and 15.3.1993 have not been side-marked but in the photo copy of a reminder dated 14.7.1993 annexed to the complaint petition there is mention of bills dated 15.1.1993 and 15.3.1993 also in the reminder. The reminder is with regard to non-payment of bills dated , 15.5.1992, 15.9.1992, 15.11.1992, 15.1.1993 and 15.3.1993 by the complainant. From the impugned order it appears that the bills of the aforesaid five dates were disputed bills and this is fact was not disputed by the parties at the time of hearing.
It may be pointed out that there is no affidavit in support of the allegation made in the complaint petition. There is no affidavit even with regard to the annexures to the complaint petition. Similarly there is no affidavit in support of the statements made in the written statement and supplementary written statement filed on behalf of the opposite party. It was contended on behalf of the opposite party-appellant that a bill cannot be judged on the basis of the average calls of the previous bills. It was further contended that there is neither any allegation in the complaint petition nor there is evidence to the effect that the metering equipment was defective or that there was tampering with the telephone of the complainant by the employees of the Telephone Department or by third parties. It was further contended that in absence of allegation and evidence to the said effect the District Forum was not justified in directing for revision of the disputed bills keeping in view the calls made during earlier period.
4. IN Revision No. 67 of 1990, The District Manager, Telephones & Ors. v. Niti Saran, I (1991) CPJ 48 (NC) decided on 20.12.1990 it has been held by the National Commission that to resolve dispute regarding excessive billing the Redressal Forums have been taking recourse to ascertaining the average number of calls made from the particular telephone over a period of time to see whether the bills complained against show any abnormal or marked deviation from the pattern of calling derived from the average number of calls in a particular period and in so doing the Consumer Forums are taking over the function of estimating by application of a rule of thumb the precise number of calls made and the charges therefore in a particular period of time. The National Commission has further held that the Consumer Forums, however, will not be legally justified in doing so 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 the employees of the Department. Similarly in III (1993) CPJ 335 (NC)=Revision No. 124 of 1992, Union of INdia, Secretary, Department of Telecom & Ors. v. Satya Narain Lal decided on 27.9.1993 it has been held by the National Commission that unless there is evidence to show that the metering equipment is defective or there has been tampering with the telephone connection by third parties it would not be legally correct for the Consumer Forums to determine the bills on the basis of average of the calls made during the earlier periods. The National Commission has held similarly in Revision Petition No. 44 of 1990, Telcom District Manager v. Kalyanpur Cement Limited, II (1991) CPJ 286 (NC) and Revision Petition No. 111 of 1990, Telcom District Manager v. M.S. Mukherjee. The decisions of the National Commission undoubtedly lend support to the above contentions of the learned Counsel for the appellant. Since there is neither allegation in the complaint petition nor there is evidence to the effect that the metering equipment was defective or that there was tampering with the telephone of the complainant by the employees of the Department or third party, the District Forum was not justified in treating the disputed bills as inflated and in directing for issuance of fresh (revised) bills on the basis of ten calls per day. So the direction of the District Forum for issuance of fresh revised bills and for adjusting the amounts paid by the complainants against bills dated 15.5.1992, 15.9.1992 and 15.11.1992 towards the fresh bills and for refund of the excess amount to the complainants is not sustainable in law.
From the complaint petition it would appear that the telephone of the complainant was disconnected on 5.8.1993. The disputed bills were for the period prior to 5.8,1993. In this appeal the complainant-respondent has filed counter affidavit dated 17.11.1998. In para 3 of the counter affidavit it has been stated that three bills dated 15.5.1992, 15.9.1992 and 15.11.1992 had been paid on the date of disconnection. It is not the case of the complainant either in his complaint petition or in the said counter affidavit that the remaining two bills, i.e., the bills dated 15.1.1993 and 15.3.1993 had also been paid prior to disconnection. As pointed out earlier an annexure to the complaint petition shows that the Telephone Department had given notice dated 14.7.1993 to the complainant to pay the dues by 23.7.1993 failing which the telephone was to be disconnected. Inspite of this notice when the complainant failed to pay the dues, his telephone was disconnected. So there was no deficiency in service on the part of the Telephone Department. That being so, the direction of the District Forum for payment of Rs. 10,000/- by the opposite party-appellant to the complainant as compensation was not legally justified and hence is set aside.
The telephone of the complainant was disconnected due to non-payment of dues by the complainant. Unless the complainant pays the dues and reconnection charge, the question of restoration of his telephone connection would not arise. However, it is made clear that the complainant would be entitled to restoration of his telephone connection after he pays the dues together with reconnection charge.
5. IN view of the above discussion, this appeal is allowed and the impugned order is hereby set aside. Under the circumstances of the case, there will be no order as to cost. Appeal allowed.
