National Consumer Disputes Redressal
Telecom Distt. Engineer, Dharamsala vs Pran Nath Mahajan on 2 November, 1992
JUDGMENT Y. Krishaan, J.
(1) District Forum, Shimla (Himachal Pradesh) passed an order in Complaint No. 18/90 Pran Nath Mahajan Vs. Telecom District Engineer, Dharamsala and Another on 9.1.1991. The complainant before the District Forum had alleged that the bill for the period from 16th November, 1988 to 15th January, 1989, issued on 1st of February, 1989 for Rs. 3,086.00 was excessive. On his representation of the 6th of February, 1989 the Telecom District Engineer split the bill: Rs. 1.494.00 was required to be paid immediately and the balance Rs. l,592.00 was treated as under dispute to be investigated. On 7th March, 1990 the District Telephone Engineer rejected the subscribers complaint of excessive billing and required him to deposit the balance amount. In June 1990, the District Forum directed the General Manager, H.P. Circle of P & T to review this bill. The General Manager, after review, came to the conclusion that there was no error in billing.
(2) Before the District Forum, the Appellant Telecom District Engineer submitted that the complaint regarding excessive billing had been investigated in detail at different levels and the meter had been kept under observation and thereafter he came to the conclusion that there was no over-billing. The Appeallant further pointed outthat the telephone has Std facility which explains the increase in number of local calls during the period under dispute and therefore, the complainant's representation was rejected.
(3) The District Forum reviewed the fortnightly meter reading chart from 15th of July, 1968 to 15th of July, 1989 and also from 15th of July, 1989 to 15th of July, 1990 and found that it was only in one lone fortnight i.e. from 15th December to 30th December, 1988 that there was an abrupt and abnormally excessive spurt in local calls made. In no other fortnight, either preceding or succeeding thereto there was such an abnormal rise in the calls made except in the two fortnights in January, 1990. The increase in the number of local calls in the latter fortnights has been properly explained. In other fortnights in the one year period from 15th July, 1988 to 15th July, 1989 the number of local calls ranged between a minimum of 100 and a maximum of 720 or an average of 400 or so whereas the number of calls shown in the disputed period of December, 1989, was 2,490. The District Forum, therefore, come to the conclusion that the respondent-Telecom District Engineer had failed to satisfactorily explain the grossly excessive number of calls registered in disputed fortnight of December, 1988. It was held that the department has failed to disdose the material on which it had relied in dealing with the representation of the complainant about excessive billing and held that the rejection order passed by the Telecom Distt. Engineer was arbitrary and whimsical. It concluded "in the absence of any satisfactory explanation for the abrupt and abnormally excessive spurt in the local calls, and without ruling out fully and completely the chances of mechanical factors as are admitted a few of the possible causes by the Posts and Telegraphs Manual itself, we are afraid we cannot uphold the right of the respondents to recover from the complainant the amount of Rs. 1.592.00 presently held under dispute." The District Forum, therefore, canceled the demand to this extent.
(4) The respondent before the District Forum-the Telecom District Engineer went in appeal against the Order of the District Forum to the Himachal Pradesh State Commission. By the time State Commission became seized of this appeal, two of the learned memebrs of the District Forum became members of the State Commission. Consequently, the President of the State Commission moved this National Commission for appropriate action. In view of the facts mentioned above, this Commission withdrew this case from the State Commission, Himachal Pradesh and decided to hear the same itself.
(5) After hearing the parties and perusing the records, we find that no defect in the metering equipment has been alleged or proved. In fact, the department kept the meter under observation while dealing with the complaint about excessive billing in the disputed bill (6) In the absence of any evidence of defect in the meter, the only possibilities are: either unauthorised use of the telephone having Std facility by third parties in collusion with the Telecom staff or long distance calls having been made which under the Std facility are recorded as local calls. In the absence of any evidence of the meter being defective and in fact the meter having been found to be in order after it had been kept under observation, the appellant-Telecom District Engineer could not possibly attribute the abrupt and abnormally excessive spurt in the local calls to mechanical factors.
(7) It is a matter of public knowledge that Std facility has often been mis-utilised on a large scale by third parites in collusion with the P&T staff. But unless there is at least circumstantial evidence to probabilise such collusion having taken place in a particular case, we cannot doubt the correctness of bills merely on the basis of suspicion. 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 Std facility-see District Manager, Telephone Vs. Niti Saran Revision Petition No. 67 of 1990. Again in Telecom District Manager Vs. M.S. Mukherjee: Revision Petition No. Ill 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.
(8) Keeping in view the facts of this case and the decision of this Commission on the question of excessive billing we hold that the District Forum was in error in striking out Rs.1,592.00 from the bill for the period from 26.11.1988 to 15.11.1989 as due to mechanical factors. The order of the District Forum is set aside and the appeal is allowed. There is no order as to costs.
B.S. Yadav, J.
(9) I have gone through the order written by my Brother Member Shri Y. Krishan. I respectfully differ from the conclusion arrived at by him.
(10) I need not narrate the facts as those are already given in detail in the order of the Hon'ble Member. The dispute raised by the subscriber was in respect of the bill issued on 1st February, 1989 for Rs. 3,086.00 for the period from 15th November, 1988 to 15th January, 1989. That period comprises the readings of four fortnights which are as follows: (i) 15th Novemebr, 1988 to : 410 30th November; 1988 (ii) 1st December, 1988 to : 220 15th December, 1988 (iii) 16th December, 1988 to : 2490 30th December, 1988 (iv) 31st December, 1988 to : 150 15th January, 1989 It is to be noticed that the spurt in the calls was in the particular fortnight beginning from 16th December, 1988. This excess meter reading comes to more than 600% of the maximum reading for a fortnight in that billing period. The department had also produced the billing chart for the whole year commencing from 15.7.1988 to 15.1.1989 i.e. for six billing cycles each of two months. Earlier the number of maximum calls were in the billing cycle from 15th September, 1988 to 15th November, 1988 and it was 1340. In the disputed cycle the total meter reading was 3260 i.e. more than 200% of the maximum calls in any billing cycle during that year.
(11) When the subscriber protested about the excessive calls, his meter was kept under observation (perhaps without the knowledge of the subscriber) from 1.3.1989 to 15.3.1989 and in that period the totals calls were 83.
(12) The department further investigated the matter and issued a certificate which is at page 24 of the paper book and it reads as follows: "CERTIFIEDthat there was no special occasion like marriage ceremony etc. at subs. premises of T.N. 2489 during the period from 16.12.1988 to 15.2.1989. However, the meter was checked up and kept under observation for 15 days but no fault was found in its functioning."
Consequently the complaint of the subscriber was rejected on the ground that the meter was found faultless.
(13) The question that arises is that whether any relief can be given to the subscriber in these circumstances. The subscriber has no access to the exchange or to the records of the department. On investigation the department has failed to establish that there was any special occasion in the fortnight in question for the subscriber to make the excessive calls from this telephone which has Std facility.
(14) It is common knowledge that there are frequent complaints about excessive billing and many cases of this kind have come before this Commission in appeal as well as in revision. The facts of one case that came before us in Revision Petition No. 57 of 1992 titled ChiefGeneral Manager & Anr. Vs. Shri Sharad Tyagi require particular mention. In that case the department had issued two bills, one for Rs. 19,859.00 and another one for Rs.22,144.00 dated 1.10.1990 and 17.12.1990 respectively. The subscriber filed a complaint before the District Consumer Forum about the excess billing. The department filed a reply alleging "Reports of both the cases have been received from Telephone Exchange. Nothing abnormal causing excess metering found in the Technical report". The District Forum after considering the previous bills of the subscriber extending over a period of one year came to the conclusion that in that period maximum calls were 7181 for one billing cycle and the average calls were about 6000 and thus there was a sudden spurt in the two billing cycles in question and this increase of 200% did not appear to be due to general increase in business as it was found impossible that there would be sudden increase in business to the extent to 200%. After considering the evidence, each of the disputed period bill was reduced to Rs. 8,000.00 and the subscriber was ordered to pay Rs. 16,000.00 in all for the disputed bills within 7 days. It was also ordered that in case of failure to deposit the amount of Rs. 16,000.00 along with rent within 7 days, the complaint would stand dismissed. The department did not file any appeal against that order. It cannot be said that the department was not vigilant. The subscriber could not deposit that amount within that period though he laid the fault at the doors of the department. The department filed an application before the District Forum alleging that as the amount had not been deposited by the subscriber, the complaint shall be deemed to be dismissed. In spite of the contention of the complainant that the amount was not accepted by the department within that period, the District Forum found itself helpless in giving relief to the complainant and ordered that the complaint shall stand dismissed. The complainant filed appeal before the date the deposit was made by the complainant and the delay was condoned. Feeling aggrieved against that order the department came before this Commission in revision which was dismissed. The narration offacts, show that though the total amount of both the bills in dispute was over Rs. 42.000.00 but the department was prepared to accept the amount of Rs. 16,000.00 fixed by the District Forum in spite of its contention that there was no fault in the metering system. However, when there was some delay in depositing the amount, the department took steps to recover the full amount thought it had not filed any appeal against the order of the District Forum. Considering these facts, it can be safely concluded that in that case the department indirectly accepted that there was some fault in their system of working.
(15) In his rejoinder to the reply filed by the respondent in this appeal, the appellant has stated that the complainant is a businessman i.e. contractor of State quarry and wine etc. There is nothing on the file to khow that in the fortnight in question the complainant had to use his Std facilities quite often in connection with his business.
(16) The Telecom department has issued instructions under the title "Addenda to Excess Metering Complaints". Relevant portion reads as follows:- "2.When a complaint regarding excess charge for local calls is received and such charge is found to exceed the highest one obtaining during the sue proceeding bimonthly bills 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, Aotr may defer enforcement of recovery of the amount of the disputed bill till investigations of the complaint is completed and a decision as to whether some rebate for the excess charge is justified or not is taken. 3. Action would be taken to cancel the disputed bill and split it up into two bills one to include charges which are correctly payable by the subscriber including local calls, local call charges being computed to be equal to the average number of calls metered during the six bimonthly periods (one year) immediately proceeding the disputed period plus 10% ov6r the average. A second bill would be prepared for the balance and .marked an "Part local bill (disputed)". While the subscriber may be required to pay the first bill within 7days of its issue, the payment of the second bill may not be insisted upon. 4. On completion of investigation of complaint if the second bill is still found to be payable it may be asked to be paid by the party within 15 days from the date of intimation to the party to this effect by regd. post. Disconnection may be enforced in the event of non payment after observing due formalities, Investigation contemplated does not mean that only meter should be checked. Other enquiries have to be made and in the present case some were made and thereafter the certificate reproduced above was issued. No enquiry appears to have been made if any malpractices are occurring in that particular exchange, etc. Hence, I am of the opinion that in the present case no investigation worth the name was made."
(17) My Brother in his order has himself observed that it is a matter of public knowledge that Std facility is being mis-utilised on a large scale by third parties in collusion with unscrupulous P&T Staff but unless there is evidence to show such collusion in a particular case no attack can be made to the correctness of the bills merely on the basis of suspicion. When it is a matter of common knowledge, particularly to the knowledge of this Commission where there are large number of such cases, question of mere suspicion does not arise. It becomes a reality that the telephones having Std facilities are being mis-utilised by third parties in collusion with the staff of the P&T. As noticed earlier, poor subscriber has no means to know such collusion nor lie has access to the meter to find out if it is faulty. The department should devise some means to record which telephone numbers have been called from a particular telephone and whether the subscriber has any connection with those called telephone numbers. Till then we should accept the statement of the subscriber, made on oath, that he did not make such large number of calls or there was no special occasion to do so.
(18) In the statement of objects and reasons while enacting the Consumer Protection Act, 1986 it has been inter alia mentioned that the Act seeks to promote and protect and the right of the consumers such as right to be heard and to be assured that consumer's interest receive consideration at appropriate Forums. In case the entire burden of proving that the excess billing is incorrect, a subscriber (consumer) cannot get any relief from the various Fora constituted under the Act. When we find out a certain pattern in the calling by a person extending over a period of one full year that evidence is sufficient to show that excessive billing in a particular billing cycle is due to the complicity of the employees of the P&T staff with third parties or there is some fault in the meter.
(19) In the light of the above discussions, I am of the opinion that the present appeal is liable to be dismissed particularly in view of the certificate issued by the department. No order as to costs.