MADRAS TELEPHONES vs C.V.BALAKRISHNAN

THIS is a Revision Petition against the order date 10th April, 1992 passed by the State Consumer Disputes Redressal Commission at Madras.

THE facts leading to the present petition are: The Present respondent, Mr. C.V. Balakrishnan applied for a telephone connection under Non-OYT Scheme on 15th October, 1987. His application was registered at Serial No. 3446 dated 15th October, 1987. The respondent''s turn for release of new line reached in the month on February, 1988 and a demand note for an additional amount of Rs. 1,200/- towards deposit was issued by the Telephone Department to the respondent on 19.2.1988. The respondent did not deposit the additional deposit amount because he was not in station or probably he did not receive the communication. As per Rule 6 of the Telephone Rules. "The Registration of the Telephone Connection is to be terminated, if the applicant is not ready to take the connection within 3 months from the date of sanction". Before registered notice could be sent to the respondent about the cancellation of his registration, the Department received a letter dated 31.7.1989 from the respondent. It is necessary to produce the relevant portion of that letter:

"I have booked a NOYT telephone on 15.10.1987. I understand that in MBM II Exchange, you have so far cleared registration upto 3827 as on 10.2.88. (My Registration Number is 3446 dated 15.10.87. But I have not received any intimation regarding release of telephone to me. I shall be much obliged if you could do the needful at the earliest. I shall arrange to pay the required rent amount on hearing from you. Incidentally, I request you kindly to amend my address, in your records as indicated below:"

A postscript is added at the bottom of the letter which is as follows: "Since I was not in station, I could not receive any communication, if you had already sent any in this regard." On 4.8.1989 the Department wrote to the respondent to pay Rs.1900/- as additional amount. When the respondent complied with the demand, the telephone was installed in his premises on 25.8.1989. On 7.11.1989, the respondent received a telephone bill from the Department in respect of his telephone for Rs. 2,779/-. The bill indicated the notional date of installation of the telephone as 19.5.1988 and the rental was claimed from that date. In order to avoid disconnection, the respondent paid the amount and later on protested in writing. When the Department did not heed to his protests, the respondent filed a complaint before the District Consumer Disputes Redressal Forum, Madras in which he prayed the refund of the rental for the telephone for the period prior to its actual installation.

The complaint was contested by the Department on the ground that the demand note for the additional amount dated 19.2.1988 was not complied with by the respondent and his registration for the telephone was liable to be cancelled if the demand was not met within a period of three months from the date of issue of demand note, but in the meantime, the respondent wrote the letter dated 31.7.1989 wherein he undertook to pay all the arrears of rental and on the basis of the above letter the rent was charged from him, from 19.5.1988 i.e. after the expiry of three months from 19.2.1988.

THE District Forum held that as before the disconnection notice from the Department could be issued, the respondent had given an undertaking to pay all the arrears of rental and therefore he was estopped from claiming refund. Consequently, the complaint was dismissed.

FEELING aggrieved the respondent filed an appeal before the State Commission, Madras. The State Commission held that there is nothing to disbelieve the contention of the respondent that he did not receive the communication dated 19.2.1988 as the Postal miscarriages and mis-deliveries are not uncommon in our country. It was further held that payment of rental for telephone arises only after the telephone is installed and after the subscriber is entitled to use it and remarked that the demand for any rental prior to the period it was installed appear extraordinary. About the undertaking by the respondent, it was remarked that no doubt the respondent offered to pay all the rent, but that does not render him liable to pay rent for period prior to the installation of the telephone. In the result, the appeal was allowed, the order of the District Forum was set aside and it was ordered that the Department should refund to the respondent the rent for the period from l9.5.1988 to 25,8.1989 or adjust the same in the subsequent bills. Feeling aggrieved of the order of the State Commission, the Department has now come before this Commission by means of this Revision Petition.

THE respondent was not present before us either in person or through authorised representative at the time of hearing, though he has sent his written arguments.

IT was submitted on behalf of the petitioner-Department that the State Commission had taken into consideration some order of this Commission in which award of rebate was given to subscribers whose phones had been out of order continuously for more than 7 days, but those observations are not applicable to the present case as in the present case the respondent has given an undertaking to pay all the arrears of rent and on the basis of that undertaking he has saved the cancellation of the registration of his application for a telephone connection, and therefore, he cannot back out of that undertaking. We are of opinion that the said argument has force. The first question that has to be seen is whether the letter of the respondent which has been reproduced in the beginning of this order relates to arrears of rental. The respondent has dearly stated in his fetter dated 31.7.1989 that the registration upto 3827 had been cleared as on 10th February, 1988, though his registration number was 3446. He further mentioned in that letter that he did not receive any communication regarding release of telephone and he would he much obliged to the Department to send an information at the earliest. The respondent must have realised that on the maturity of his turn the Department must have sent some notice to him and therefore he added in his letter about the non-receipt of any intimation from the Department. He has further undertaken that he would like to pay the required rent. This rent clearly refers to rent prior to the period of actual installation. The letter cannot refer to rental after installation because everybody knows that rent has to be paid the telephone is installed.

UNDER the rules the registration of the respondent was liable to be cancelled on the expiry of three months if he did not meet with the demand note. Before the Department could cancel the registration, it received the above noticed letter from the respondent and acting upon that letter orders were issued to give a telephone connection to the respondent on his paying rent from 19.5.1988. Of course this order was not communicated to the respondent but the telephone was installed at his place and the bill was sent for the rental for the period commencing from 19.5.1988. When the respondent has taken benefit by giving an undertaking he cannot now be allowed to turn around and say that he should not be charged rental prior to the date of actual installation. He is estopped from claiming any refund of the rental. For the foregoing reasons, we accept the present Revision Petition and set aside the order of the State Commission and restore that of the District Forum. We make no order as to costs. A.S. Vijayakar, Member This is a Revision Petition against the order passed by the State Commission, Tamil Nadu in Complaint Case No. 6 of 1992. 2. The intimation of his furn for telephone connection was sent on 19.2.1988 by the Telecom Department which was either not received or not replied to by the Respondent. So, his registration was automatically terminated on 19.5.1988.

But when he wrote to them on 31.7.1989 asking why no intimation was sent to him and saying he will pay the "required rent" when he gets intimation from them about his connection, he was not aware he would have to pay from 19.5.1988. So we cannot take that as an undertaking that he will pay "all the rent" as is the case made out by the Revision Petitioners, and so it is not fair to make him pay the full amount from 19.5.1988. There was no further communication from the Department after their first letter of 19.2.1988 intimating him that he can get the telephone connection as soon as he pays Rs. 1,200/- additional amount towards deposit. This also proves he was a potential user. It was taken for granted by the Department that he has agreed to pay from 19.5.1988 and they adjusted that sum in his Bills. But, they had not made it dear to the Respondent nor got this acquiescence on it. This is deficiency of service Therefore; I am in agreement with the order of the State Commission which has given relief to the consumer. The Revision Petition is accordingly dismissed with no order as to costs.