National Consumer Disputes Redressal
Indira Kartha & Ors vs Mathew Samuel Kalarickal & Anr on 21 November, 2001
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 280 OF 1992 Mrs. Indira Kartha & Ors. .. Complainants Vs. Dr. Mathew Samuel Kalarickal & Anr. .. Opposite Parties BEFORE: HONBLE MR. JUSTICE D.P. WADHWA, PRESIDENT HONBLE MR. JUSTICE J.K. MEHRA, MEMBER. MRS. RAJYALAKSHMI RAO, MEMBER. MR. B.K. TAIMNI, MEMBER New technique (stent implantation) used for angioplasty operation. Does not amount to deficiency. For the complainant : Mr. John Joseph and Mr.T.G.N. Nair, Advocate For the opposite party No.1 : Mr. C.S. Lodha and Mr. C. Manishankar, Advocates For the opposite party No.2 : Mr. A.S. Chandrasekharan and Ms. Surekha Raman, Advocates. For M/s. K.J. John & Co., Advocates. ORDER
Dated the 21st November, 2001 PER JUSTICE D.P. WADHWA, J. (PRESIDENT) Imputing medical negligence on the part of Dr. Mathew Samuel Kalarickal, a Cardiologist, first opposite party, the three complainants being the widow (Indira Kartha) and two children ( Anitha and Arun) of K.N.R. Kartha (Kartha), have filed this complaint claiming compensation on account of death of Kartha amounting to over Rs.71.00 lakhs. Second opposite party is the Apollo Hospital Enterprises Ltd.
(Hospital) where Dr. Mathew works as consultant. Complainants have alleged that Dr. Mathew is the employee of the Hospital. But both Dr. Mathew and Hospital say that Dr. Mathew is not an employee but is only a consultant. Dr. Mathew has also stated that he did not charge any fee. Hospital has charged expenses from Kartha for his treatment. There is nothing on the record to show as to what is the arrangement between the Hospital and Dr. Mathew. As a matter of fact during the course of arguments the plea that Dr. Mathew was only a consultant and has charged no fee and thus was not liable is not addressed. Neither the Hospital said anything to contend that he is not liable, if complainants win their case. But the complainants have failed to show that there was any negligence on the part of Dr. Mathew as facts, which are detailed hereinafter, would show. Complainants in support of their case have examined Indira Kartha, widow of Kartha and Dr. M.R. Girinath, a Cardio Thoracic Surgeon as PW 2.
Dr. Mathew appeared as his own witness. In support of his case he filed affidavits of Dr. Sudhansu S. Bhattacharyya, Dr. K.R. Shetty, Dr. B.K. Goyal, Dr. S.C. Munsi, Dr. Kirti Punamiya and Dr. K. Venugopal. But these affidavits cannot be read in evidence since these doctors had not appeared for their cross-examination during the course of proceedings.
Grievance of the complainants is that Dr. Mathew by his negligent act caused the death of Kartha as Kartha was subjected to an operation for heart ailment which was not warranted at all. It is alleged that the operation was done just to satiate the greed for fame of Dr. Mathew and the benefits which might accrue to him as a result of such fame. At the time of the operation Kartha was aged 51 years.
He was a chain smoker. He was an heart patient having two hart attacks earlier, one in 1988 and second in 1991. Dr. Mathew , it is alleged, advised angioplasty and used technique called stent implantation technique which resulted in the death of Kartha. It is stated that Kartha was made to agree to undergo coronary angioplasty despite different expert opinion given by Dr. Girinath. Kartha was under the treatment of Dr. K. Venugopal in Alleppey in Kerala who referred the patient to Dr. Mathew of the Hospital with the diagnosis of post infarction angina. Angiography was conducted in the Hospital by Dr. Mathew on 13.9.91 which showed triple vessel heart disease with severe blocks and inadequate left ventricular function with an ejection fraction of 11% (Normally it could be from 55 to 75%). It was a critical condition. Dr. Mathew had different choices : (i) coronary artery by pass grafting (by pass surgery), (ii) angioplasty and (iii) medical management. Case history of Kartha was referred to Dr. Girinath, Cardio Thoracic Surgeon. Dr. Girinath was of the view that considering the age of the Kartha some immediate intervention was necessary.
It was decided to perform angioplasty which also carried some risk. But in the case of by pass surgery risk was very high.
Kartha was told of all these options. He was advised to consult his Cardiologist Dr. K. Venugopal. After taking the opinion of Dr. Venugopal, Kartha opted for angioplasty. He was admitted to Hospital on 27.10.1991 and posted for angioplasty on 1.11.91. Kartha had severely impaired left ventricle function. He was informed that procedure will be carried with heart lung machine support (Cardio-Pulmonary Support). Dr. Mathew has alleged that Kartha was also informed that a device called intra-coronary stent was available as a stand by. According to Dr. Mathew procedure was carried under local anesthesia and angioplasty was successfully done in right coronary artery. However, angioplasty of the left anterior descending artery had a sub-optimal result. In view of the threatened acute closure of the artery, Kartha had to be treated either with an intra-coronary stent placement or an emergency by-pass surgery. In view of the high risk involved, Kartha did not wish to undergo by-pass surgery and instead opted for stent implantation. After obtaining his verbal consent Dr. Mathew says, he went ahead for stent implantation and a repeat angiogram was taken which showed good results with no residual narrowing. This according to Mathew was life saving procedure. As to what this procedure is all about we may refer to the statement of Dr. Girinath. Dr. Girinath is with the Apollo Hospital since 1984. He is Chief Cardiovascular Surgeon and has done 15000 open heart surgeries of which more than 10500 have been coronary by-pass operation. According to Dr. Girinath risk of coronary by-pass surgery in the case of very complicated case would be as high as 10 to 15% . He explains the procedure as under;
Coronary artery disease causes blockages in coronary arteries which cuts off blood circulation to parts of the heart. This is called Heart Attack.
When a patient comes to us with evidence of coronary artery disease the only test that can tell us what we should precisely do in an individual patient is to do a coronary angiogram. In this test the cardiologist passes a thin plastic tube directly into the opening of the coronary artery and then injects a dye which is opaque to X-rays. This outlines the coronary artery and precisely tells us where the blocks are, how severe the blockages are and how important is to intervene either by angioplasty or by by-pass surgery. Our decisions are based on the patients condition and we correlate the patients history, his physical signs, and his angiogram and if we feel that the patient is likely to have a heart attack if left alone on medicines we suggest either surgery or angioplasty. This is generally a joint decision taken by the Cardiologist and the Cardio Surgeon. Angioplasty is the technique that has been developed in the last 15 years. After doing the angiography and precisely localising the block the Cardiologist passes a thin wire across the block and around this wire he passes a balloon Cathter. After making sure that the balloon is in the right position, the balloon is inflated under pressure and maintained inflated for a sufficient length of time to dilate the blockages. The blockages is caused not only by fat but also fibrous tissue and clacium deposits. In the old days when we used to do balloon angioplasty some times following the angioplasty the vessel used to collapse and if this patient is not immediately operated upon he could end up with a heart attack or even death. This is why the new device what is called stent was developed. Basically the stent is an expandable lattice work of metal which is placed around the balloon and deployed at the site of the dilation and keeps the vessel open after the balloon angioplasty. This device has revolutinised angioplasty and not only brought down the rate of immediate failure but also has reduced the incidence of late restenosis. It gets incorporated into the wall of the artery and as it is made of inert material it does not cause problem. It is true to say angioplasty used to have a recurrence of rate of 20 to 25%. But with the usage of stents the incidence of restenosis has been brought down to well below 20%.
Chronology of events leading to death of Kartha could now be stated. Kartha was an heart patient having suffered two heart attacks. He was under the treatment of Dr. K. Venogopal, a Cardiologist attached to Government Medical College Alleppey, Kerala. Kartha was 51 years of age and was a chronic smoker. Dr. Venugopal referred Kartha to Dr. Mathew of the second opposite party-Hospital. Kartha was admitted in the Hospital on 12.9.1991 as indoor patient. Kartha was given various treatment by Dr. Mathew including angiography. Kartha was discharged from the Hospital on 14.9.91 and was advised to meet Dr. Mathew on 16.9.1991. On this day Kartha was informed he was suffering from triple vessel coronary artery disease and that same should be cleared as early as possible through by-pass surgery or angioplasty. Dr. Mathew recommended angioplasty explaining that it did not involve the rigours of a by-pass surgery.
Dr. Mathew suggested Kartha to take the opinion of Dr. Girinath. He was referred to Dr. Girinath along with his medical records and film roll of the angiography. It is alleged by the complainants that Dr. Girinath after examining the case history advised Kartha to continue with medicines only and not to opt for any operation. It is stated that Dr. Mathew was told of the opinion of Dr. Girinath. Dr. Mathew still advised that angioplasty would be the best course. Kartha agreed to the proposal of Dr. Mathew for surgery. Operation was scheduled for the last week of October, 1991. Kartha got admitted for the second time on 27.10.1991. Dr. Mathew visited him on 31.10.91 and had discussion with him.
Kartha was told that Dr. Mathew was going to use heart lung machine for the operation as the same would give more relief to the patient during the operation. It is alleged that during this discussion Dr. Mathew never revealed that he was going to use a new technique called stent implantation technique. Complainants then refer to a news item appearing in the Indian Express dated 22.11.1991 where Dr. Mathew appears to have given an interview explaining the advantage of coronary stent implantation. On the morning of 1.11.91 angioplasty was done. Operation was performed in the presence of some other renowned specialist doctors and the whole operation was videographed. These specialists doctors were from Australia, Bangladesh and Bombay.
After the operation Kartha was removed to the intensive care unit.
It is now the case of the complainants that when in the evening at about 8.00 PM on 1.11.91 first complainant visited Kartha in intensive care unit she found that he was in great pain and his bandage and bed sheet were soaked with blood. She reported the matter to duty doctor who told her that the blood discharge was from the wound caused as a result of connecting the heart lung machine to the left groin artery of the patient. The duty doctor adjusted the thumper at the wound. At about 11.00 PM on the same day when first complainant again visited Kartha he still had in pain on his groin and felt numbness on the left leg and was not able to move the left leg. Again when she informed the duty doctor, she was told that Kartha would be examined the next day. On 2.11.1991 first complainant was told that an emergency operation was needed by Kartha and she was asked to sign certain paper. This operation was carried out for the stoppage of bleeding. It is alleged that this emergency operation was necessitated due to carelessness in punching the artery on the left groin for connecting the heart lung machine.. Since the pain and numbness on the left leg persisted Dr. Sreedharan, a Neurologist of the Neurology Department and Mr. Shiva from Physiotherapy Department examined Kartha on 3.11.1991. It is alleged that first complainant was told by Dr. Sreedharan and Mr. Shiva that there was some damage to the thigh muscle which should be corrected through physiotherapy and that this damage to thigh muscle and consequent numbness could be the result of excessive pressure given by the thumper at the wound. On 8.11.1991 Kartha was removed from the ICU. Some exercises were given to him by Mr. Shiva, physiotherapist and Kartha was made to stand for the first time after the operation. At that time it was noticed that Kartha had bed sore on back side just above the buttocks. Treatment was given for the bed sore and since it did not heal it is stated that Kartha had to undergo plastic surgery for this purpose on 18.11.1991. First complainant says that it was only on 18.11.1991 when Dr. Mathew called her into his room where she was informed that a new technique of angioplasty called stent implantation technique had been used in the case of Kartha.
Bed sore did not heal and Kartha remained in Hospital till 25.11.1991. On this day at about 6.30 AM Kartha went to toilet. He sat on the closet. After cleaning when Kartha tried to stand up then all of a sudden he collapsed.
First complainant shouted for help. Kartha was removed to ICU where he died. Death certificate issued by the Hospital indicated the cause of death as sudden cardiac death. It is alleged that first complainant did not want to have post-mortem being done on Kartha. The dead body of the Kartha was then taken to Alleppey. Various contentions have been raised by the complainants questioning the very advisability of angioplasty being performed on Kartha and particularly the use of technique of coronary stent implantation. It was stated that it was against the advice given by Dr. Girinath and was done only for the personal fame of Dr. Mathew. Then negligence is alleged in the post operative care of Kartha ultimately leading to his death. Complainants are not sure as to the cause of death. It is stated when Dr. Girinath advised treatment of medicines only which advice was made known to Dr. Mathew, he should not have gone for angioplasty. Then it is stated if death of Kartha is anything other than the angioplasty using the stent implantation technique, it could be due to the wound created at the left groin to introduce cardio pulmonary cannulae to assist in the angioplasty which had necessitated an emergency operation on the very next day. It is also alleged that stent implantation was done without the consent of Kartha.
All these allegations have been denied by Dr. Mathew and Hospital. Dr. Girinath was produced as a witness by the complainants but he does not at all support the version of the complainants. Because of two heart attacks, heart muscle of Kartha was severely damaged. Front as well as the lower portion of the heart was contracting poorly. He had triple vessel disease of major arteries. He had severe blockages. He had critical blocks in two of three arteries and total block in third artery. The two critical blocks made his life at great risk because if either had collapsed, Kartha would not have survived. Dr. Girinath in his statement said that LV (left ventricular) was so severely damaged that Kartha was unlikely to survive more than three months without any intervention. By intervention he meant angioplasty.
In these circumstances, it appears to us that angioplasty was not only warranted but was essential for survival of Kartha. Angioplasty was embarked upon by Dr. Mathew only after Kartha had consultation with his doctor at Alleppey and Kartha was not hurried through to undergo angioplasty. Dr. Girinath had also advised that instead of by-pass surgery angioplasty would be better.
Dr. Girinath in his deposition does not at all support the case of the complainants that he had advised only medication and not to opt for any operation.
First complainant in her statement said that she did not know whether Kartha opted for implantation of stent instead of by-pass surgery. She said it was only on 18.11.1991 that she came to know of implantation of stent in her husbands body in the course of angioplasty. Dr. Mathew in his statement refuted the allegations that stent implantation was without the consent and knowledge of Kartha . He said that a day before the angioplsty he had explained everything to Kartha and took his informed consent. In his consent for angioplsty Kartha had agreed that that could be done under cardio pulmonary and stand by-stent. In view of the categorical statement of Dr. Mathew and the written consent given by Kartha it could not be said that anything was done without the consent of Kartha. Dr. Mathew in his statement has claimed that when first artery was treated that was absolutely fine but when he came to his left artery he faced a problem. He said he informed Kartha at that time as well that he would have to use stent implantation and that though all arrangements were there for by-pass surgery, that could have been of great risk to the life of Kartha. At that stage there was no alternative except to go for stent implantation. We may again refer to the statement of Dr. Girinath where he corroborates Dr. Mathew. He says:
Stent implantation technique has revolutionised angioplasty and has greatly improved the safety of Angioplasty and the technique is quite standardised and simple. There is a possibility that the Balloon Cathetre or stent implanted may not dilate the blockages in the artery. But that was not the case in this specific incidence. During Angioplasty Procedure the Surgical team provides back up. So we are in constant touch with the Angioplasty team. In this particular case after the balloon angioplasty it was observed that every time the balloon was taken out the LAD vessel was collapsing so Dr. Mathews Assistant rang me up from the laboratory stating that they were going to stabilise the vessel with a stent and if that did not work we would have to do immediate by-pass surgery.
We kept an operation threatre vacant and ready and to the patients good luck the stent worked well and he was therefore, saved from an immediate and emergency bye-pass surgery which could have been extremely risky. The only way to establish the cause of death would have been a post-mortem examination. Since that was not done I can only conjuncture this patient had a very badly damaged ventricles and patients with damaged ventricles are prone to malignant rhythm disturbances and this can result in cardiac arrest. The other possibility is that the artery which was not dilated and which was critically blocked and was to have been dilated in a second stage may have blocked spontaneously and produce a heart attack.
Dr. Girinath was quite specific that it was absolutely necessary to implant stent in the case of Kartha and that if stent was not implanted Kartha would have needed immediate surgery. According to Girinath decision to implant the stent was correct. He said that he had seen the film relating to implantation of stent and the vessels were nicely dilated and that implantation of stent was successful. Dr. Girinath further states:
If the decision to implant the stent was not made and surgery was resorted to the risk from the surgery would have been much higher especially in an emergency situation. It could have resulted in the death of the patient. His coronary circulation was so severely compromised that even occlusion of one artery would have resulted in death. After seeing the Angioplasty Film I am of the opinion that it was a good result from angioplasty. It is not correct to say that I stated to the deceased patient that the treatment could be continued with medicines only. In my opinion letter dated 16.9.91 I have stated I feel that the L.V is so severely damaged and that this patient is unlikely to survive more than three months without any intervention. By the term any intervention I meant Angioplasty.
Puncture site bleeding is not uncommon. But in this case they used percutaneous CPS cannulae, which are much bigger than standard Cardiac Cathetres and because of this bleeding is more common. Usage of CPS in Karthas case did improve the safety of the procedure. If bleeding did not stop at the arterial puncture site even after applying pressure the only option left is to do surgical arterial repair.
If the patient is obese and if he is not allowed to move then occasionally he develops bed sore. We do not find anything wrong in the course adopted by Dr. Mathew. Dr. Mathew also controverted the allegation of the complainants that death could be due to the wound created on the left groin to introduce cardio pulmonary support cannulae. There is no evidence led by complainants to support this version or to demonstrate even any casual connection between the angioplasty and the wound on the left groin. We find proper treatment was given to Kartha. Proper care was bestowed upon Kartha before and after operation. He was treated for bleeding caused on account of bigger arterial puncture. We agree with Dr. Mathew that puncture site bleeding is not uncommon and that puncture site was repaired surgically and Kartha was recovering. It was imperative that Kartha after operation was made to lie flat without being able to actively move his leg. Despite proper nursing care, bed sore created could not be avaoided and after slough excision and wound dressing he was recovering normally. Dr. Mathew has drawn our attention to treatise HURTS THE HEART (Volume 1, Tenth Edition) to contend that sudden death is a well known and very common cause of death in patients with severe left ventricular dysfunction. We have been referred to various text books and medical journals by Dr. Mathew in support of his submissions. We do not think it is necessary to refer to those in view of the evidence on record. Complainants have not been able to produce any expert evidence in support of their allegations, nor have they referred to any standard book on medicines. It has been said that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not neligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. The medical practioner is not an insurer and so cannot be blamed every time if something goes wrong. Indeed, it is widely acknowledged that in medicine, in particular, things can go wrong in the treatment of a patient even with the very best available care.
As far as medical men are concerned there is always a possibility of a claim for medical negligence by dissatisfied patient. There is duty to exercise reasonable care breach of which makes a doctor liable for damages. If he acted in accordance with well established practice he would not be liable. There is nothing on record of any expert taking a contrary opinion of the diagnosis and treatment by Dr. Mathew. Rather Dr. Girinath fully supports Dr. Mathew. No responsible doctor can ever guarantee outcome of the treatment.
It has been alleged that the method adopted by Dr. Mathew was untried and Kartha was used as a guinea pig. There is certainly the need to prove new ideas effective and safe before adopting them and patient should not be subjected to untried methods of treatment unless the traditional approach has proved ineffective and the anticipated benefits are justified by the risks. It has been amply proved in the statement of Dr. Mathew and Dr. Girinath that method tried by Dr. Mathew was not an innovative treatment used for the first time and benefit to be gained by Kartha was certainly justified by the treatment adopted by Dr. Mathew. Court has to be careful and cannot return a finding of negligence on the ground that medical men did not comply with the existing common practice as that would stifle the innovation. We are of the view that the decision embarked on the treatment was justified and was taken with the informed consent of Kartha. Court has to be careful not to impute negligence simply because something has gone wrong.
It is not the case of the complainant that there has been any error of diagnosis.
Nor competence of Dr. Mathew has been questioned. Burden of proving that Dr. Mathew was negligent rests with the complainant and it is not for Dr. Mathew to show that he was not negligent. In the present case no inference of negligence can be drawn from the facts and circumstances. The Latin principle res ipsa loquitur (the thing speaks for itself) does not apply. What happened to Kartha i.e. sudden death by cardiac arrest is not which is something abnormal considering his state of health.
Treatment undertaken by Dr. Mathew was not of any experimental nature and he was not venturing into unknown where the result was unforeseeable. Dr. Mathew exercised proper skill and bestowed his best attention and care for the treatment of Kartha. It is only unfortunate that Kartha died but for that Dr. Mathew cannot be blamed.
Since no negligence has been established this complaint fails and is dismissed. We however leave the parties to bear their own costs. .J. (D.P. WADHWA) PRESIDENT ..J. (J.K. MEHRA) MEMBER .
(RAJYALAKSHMI RAO) MEMBER ..
( B.K. TAIMNI) MEMBER NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1177 OF 1997 (From the order dated 5.6.1997 in appeal No.1040/99 of the State Commission, Punjab, Chandigarh) Telecom District Manager, Department of Telecommunication, Hoshiarpur, Punjab .. Petitioner Vs. Kamaljit Kaur, Principal, Jiwan Jot Senior Model School, Saroop Nagar, Hoshiarpur, Punjab ..
Respondent BEFORE:
HONBLE MR.
JUSTICE D.P. WADHWA, PRESIDENT HONBLE MR.
JUSTICE J.K. MEHRA, MEMBER.
MR. B.K. TAIMNI, MEMBER Request by complaintant to disconnect STD facility - Not disconnected. Huge bill received - effect.
For the petitioner : Mr. M.M. Sudan, Advocate For the respondent : Mr. N.K. Jain, Advocate ORDER Dated the 19th November, 2001 PER JUSTICE D.P. WADHWA, (PRESIDENT).
This petition is by the Department of Telecommunication against the order dated 5.6.97 of the Punjab State Consumer Disputes Redressal Commission allowing the appeal of the Respondent-complainant, a subscriber of the telephone. District Forum on a complaint filed by the respondent against excessive telephone bill, had dismissed the same.
Respondent was principal of a school. She applied for a telephone which was provided to her house and on her request extension was provided in the school. A letter was sent to the Department on 23.10.93 on behalf of the respondent requesting for disconnection of the STD facility in the telephone. No action was taken by the Telecommunication Department on this request. Respondent used to receive normal bills in the range of a few hundred. She in January, 1994 received a bill for Rs.2,12,460/-. This bill was for a period of three months. She represented the Telecommunication Department and on her request she was allowed to pay Rs.2338/- only which amount she deposited. However, subsequently arrears were claimed and for non-payment thereof telephone was disconnected on 27.1.1994. In March, 1994 yet another bill was received by the respondent for an amount of Rs.55,300/-. Both these bills respondent challenged before the District Forum. As noticed above, her complaint was dismissed by the District Forum.
Aggrieved, she filed appeal before the State Commission. State Commission has noticed that there was no justification for the Telecommunication Department not to act on the letter dated 23.10.1993 sent on behalf of the respondent to disconnect the STD facility. State Commission said, in our view rightly, that in action on behalf of the Telecommunication Department in not acting on the request of the respondent was itself deficiency in service. It was contended on behalf of the Telecommunication Department that on checking meter was found to be in order and the bills were thus rightly issued. In support of its submission Telecommunication Department also brought on record the print out of the telephone calls made during the period in question. State Commission has pointed out that when there was sudden spurt in the telephone meter Telecommunication Department did not take any action and check the same and find out the cause of such spurt. It was noticed that for the period from 1.12.1993 to 31.12.1993 telephone was continuously being used for making international calls indicating fortnightly spurts. It was incumbent upon the Telecommunication Department to observe the metering instrument and the line to find out if the telephone was in fact being misused with the connivance of its officials or somebody else or it was genuinely being used by the subscriber. This action department was required to take in terms of the instructions issued in that regard. This was not done. State Commission referred in detail the instructions issued on the subject and quoted extensive from the Swamys Treatise on Telephone Rules, Second Edition-1993 at page 416. It is contended that these instructions are not binding on the Telecommunication Department and these are merely guidelines.
This is rather spacious argument to make. Then its submission that exchange was modern C-Dot exchange which was automatic and there were continuous check facilities existing therein which itself keep on monitoring that no excess metering case occurred. Perhaps the argument is that there cannot be any fault in a modern C-Dot exchange. We cannot fall for such an argument however moderen equipment may be. It has to be shown that it was properly maintained. The instructions which have been mentioned in the order of the State Commission may also be quoted. These are published in the Swmays Treatise on Telephone Rules incorporating orders upto April, 1999. Instructions regarding excessive billing are contained in letter No.4-59/85-TR dated 9.4.1986:
The matter has been considered by the Telecom Board. The Board has desired the following strategy to be adopted in this regard in supersession of all the earlier orders on the subject:
3. Objective of action The objectives of action in this regard are basically -
(i) if possible, avoid giving rise to complaints of excess billing.
(ii) if possible, identify the possibility of such excess billing complaint and take preparatory steps for investigation and handling of complaints, should they eventually be made.
(iii) acknowledge the complaint promptly on its receipt.
If there is a reasonable doubt that the complaint is genuine provide temporary relief by way of a split bill pending consideration of the complaint.
(iv) quick investigation of the complaint and final decision.
(v) if the complaint is found to be genuine with a reasonable doubt that there has been some departmental default, provide permanent relief by way of rebate.
(vi) in case the complaint is not found justified, give a courteous reply with every attempt to convince the subscriber that nothing wrong has been found in the bill.
4. Avoding excess billing complaints 4.1 In general, excess billing complaints arise from telephones having STD facility. They arise because of-
(a) the subscriber, his family, friends and employees having used STD and not being conscious of the extent to which they have used it or
(b) a fault in the metering circuit, or some transient fault in the system, and
(c) possible deliberate mischief by other subscribers in league with our staff. 4.2 As far as 4.1(a) is concerned, we can convince the subscriber only through suitable observations/discussions.
4.3 We have to be vigilant about 4.1(b) and ensure that as far as possible, metering circuits are tested and kept in proper order. 4.4 In regard to 4.1 (c ) we must ensure that all possible points at which such mischielf can take place are suitably guarded. DPs must be locked. Access to unauthorized persons to sensitive areas in the Exchanges should be avoided and in case of any suspicion about a particular member of the staff, suitable action must be taken.
5. Advance action in case of possibility of an excess billing complaint 5.1 Detailed instructions have been issued separately in regard to watching the meter readings of various subscribers and action to be taken on them. 5.2 These broadly consist of -
(a) Meter readings being taken every fortnight;
(b) Identifying all subscribers whose current fortnightly readings show a sudden spurt; and
(c) In case of such sudden spurts being noticed, placing the telephone line on observation and deputing responsible staff to the subscribers premises to check up that there has been no special occasion which might have given rise to such spurts. 5.3 In order to establish the Departments credibility and to satisfactorily investigate complaints about excess billing, it is necessary that these steps are taken conscientiously. It appears that in many stations, while meter readings are being taken regularly every fortnight, the difference is not being struck and all cases of spurts are not being brought out.
5.4 In all cases, the meter readings registers must provide for the difference being noted. Somebody should be held personally responsible to identify and report all cases of spurts to the officer-in-charge. Failure in this regard must be taken notice of. If an excess billing complaint reveals a spurt, which had not been reported, suitable educational and disciplinary notice should be taken of the concerned staff. 5.5 As far as possible all telephone lines showing a sudden spurt should be put on observation. For this purpose immediate steps must be taken to provide suitable observation equipment in all exchanges having STD facilities, so that once a spurt is noticed, the line is actually put on observation. 5.6 In case of sudden spurts being noticed, a suitable officer should be deputed to inspect the installations as well as to ensure that there was no special occasion, which could have given rise to a genuine spurt. 5.7 In this connection, it has been noted that very often the subscribers have been complaining that during a particular period of spurt, the premises had, in fact been locked since they were away. The official deputed to the subscribers premises should take particular note of such facts and bring to the notice of the authorities concerned, since this can be useful in tracing the possibility of malpractices.
5.8 If all the above steps are taken, the investigations into an excess billing complaint should become easier and the Department should be in a better position to explain the position to the subscriber.
6. Investigations of an excess billing complaint 6.1 It has been noted that subscribers do not . have a clear picture as to whom they should contact in a case of a suspicion of excess billing. It is necessary that in every important telephone system one or more specific officers are identified for this purpose. Suitable offices properly furnished should be provided to them to receive the subscribers and process their complaints including issue of split bill. Widest possible publicity should be given that in case of a suspicious of any excess billing, these officers are to be contacted. 6.2 It will be useful to give suitable guidelines to the subscribers in regard to the information to be given by them in support of their excess billing complaints. 6.3 The excess billing complaint must be acknowledged immediately on its receipt. This should be done by every officer, who receives the excess billing complaint. It is possible that the subscriber may address the higher authorities than prescribed in accordance with para 6.1 above. In such cases, such authorities while acknowledging the complaint should indicate that the complaint has been forwarded to the prescribed officer in this regard and to request the subscriber to further contact him only. 6.4 Once the complaint has been received very prompt action must be taken to investigate the same. For this purpose the prescribed officers must call for the following details from the officers-in-charge of exchanges concerned:-
(a) the record of fortnightly reading in respect of 6 preceding bi-monthly periods and for all the available succeeding bi-monthly periods;
(b) an extract of fault card for the disputed period; and
(c) spurt report, action taken on the same and the result thereof. This will include (a) observations in the Exchange and
(b) any field investigations if carried out.
6.5 In this connection, it has been decided that no field investigation is called for to determine whether there was any occasion for a special spurt after a complaint has been received. This should have been made if justified, immediately after the spurt was noticed in the fortnightly readings. It has been noticed that no useful purpose is served by undertaking such investigations after an excess billing complaint has been received. 6.6 The Exchanges should be requested to submit the reports in this regard within the prescribed period - maximum 15 days. Suitable forms have already been designed for this purpose. These may be modified if considered necessary. On receipt of these reports, the prescribed officers must evaluate all the evidence and make a suitable recommendation to the officer in whose competence the application lies. The powers of various officers for grant of rebates have been prescribed in this Office Letter No.2-3/83-TR, dated 21.3.1986. 6.7 It is possible that the excess bill exceeds the previous bi-monthly bills by substantial amounts. In such cases, temporary relief to the subscriber by way of issuing a split bill may be justified. As already prescribed a split bill may issued if the bi-monthly bill for local call charges exceeds double the maximum amount of the previous six bi-monthly bills for local call charges. The split bill for local call charges should be limited to the average of local calls billed in the preceding six bi-monthly periods plus 10% thereof and should be issued with a clear statement that this is purely provisional bill pending further investigation into the excess billing complaint and if after investigation the Department comes to the conclusion that the original bill is justified, the subscriber will have to pay the full bill or as may be determined by the competent authority. 6.8 The prescribed officer should obtain the orders of the competent authority as soon as possible, if necessary by submitting the cases personally. In any case, the cases must be disposed of within 2 months from the date of receipt of the complaint.
7. Guidelines for decisions and conveying the same. 7.1 In all cases in which the investigations reveal that-
(a) there has been significant spurt in a particular period;
(b) in case of a spurt, there had been some special occasion which might have given rise to a genuine spurt; and
(c) the observations indicate genuine STD calls having been made from the subscribers number, no rebate may be granted and the and the complainant may be suitably informed with due courtesy explaining briefly the investigations carried out and the results thereof. 7.2 On the other hand, if it is found that there had been, in fact, a spurt for reasons unknown or there is a reasonable doubt as to the possible faults on the metering circuit or the subscribers equipment or a reasonable doubt exists about the possibility of some mischief, the competent officer may grant suitable rebate.
7.3 In every case, the final reply should go to the complainant within a maximum period of 2 months from the date of receipt of the complaint.
7.4 To give credibility to the investigations in the Department, individual typed replies should go to the subscribers, giving very briefly the investigations carried out, the results thereof and the reasons for the final decision.
8. *** *** ***
9. It is requested that immediate action be taken on the above lines. To recapitulate, proper arrangements may be enforced for-
(a) taking fortnightly readings, identifying spurts and following them up;
(b) identifying one or more officers, who will receive excess billing complaints from the subscribers and giving proper publicity in this regard. Such officers must be housed in readily accessible, properly furnished offices; and
(c) establishing a proper procedure for handling excess billing complaints; and
(d) prompt disposal with individual replies. It has not been suggested that the instructions referred to by the State Commission have in any way been diluted or withdrawn when it is a C-Dot exchange. These instructions are for the benefit of the consumers of the telephone and have to be followed. These cannot be brushed aside by levelling them as guidelines and acting in contravention thereof. It cannot be disputed that petitioner has not acted in terms of the instructions.
We are therefore of the view that the State Commission was right in quashing the two telephone bills for Rs.2,12,460/- and Rs.55,300/- and giving direction for restoration of the telephone. As noted above, respondent did deposit the amount of Rs.2,338/- which amount was allowed to be paid by receiving the first complaint of excessive telephone bill. This petition is therefore dismissed with costs which we assess at Rs.1,000/-. .J. (D.P. WADHWA) PRESIDENT ..J. (J.K. MEHRA) MEMBER ..
( B.K. TAIMNI) MEMBER