Union of India vs ASHOK KUMAR DHAND

THIS appeal has been filed by the Telephone Department. Along with the appeal, application for condoning delay in filing the same was also filed. THIS application has been contested on behalf of the respondent. Thus before deciding the appeal on merits, this application is for disposal.

THE District Forum, Sangrur passed the impugned order on October 6, 1995.''Copy-of the same was prepared and delivered to the appellant''s representative on April 12, 1996. Before the Competent Authority, the matter was put up on April 15, 1996. It was ordered that opinion regarding filing of the appeal be obtained from the Head Office and further steps to implement the order be taken from the Head Office. Telephonically message was received for filing the appeal on May 15, 1996. THEreafter, Counsel at Chandigarh was contacted. Appeal was got prepared and taken to Sangrur for signatures of the Competent Authority. Ultimately, it was filed on May 23, 1996. THE delay of 12 days occurred on account of administrative procedure. In support of the application, affidavit of Shri J.S. Jaswal, A.O. (TA) in the Office of Telecom District Manager, Sangrur was filed. In the reply filed by the respondent-complainant, allegations contained in the application for condoning delay have been refuted on the ground of being vague and lacking material explanation. Learned Counel for the appellants has relied upon the decision of the Delhi State Commission in "Delhi Development Authority v. I.S. Narula" III (1995) CPJ 333. While making reference to the decisions of the Supreme Court in "Collector of Land Acquisition v. Katiji, AIR 1987 SC 1353, "G. Ramegowda v. Spl. Land Acquisition Officer", AIR 1988 SC 897 and a Division Bench judgment of the Delhi High Court in "Union of India v. R.P. Builders," 1994 Rajdhani Law Reporter (DB) 460, a passage from R.P. Builder''s case was quoted and it was held that each and every days delay was not required to be explained as such. Such factors, which are required to be taken into consideration and were quoted in the judgment, are as under : "9. THE above decisions of the Supreme Court clearly lay down that while the State cannot be treated differently from any other litigant, the Court is "bound" to take into consideration the following factors - (i) red tapism in Government; (ii) delays in correspondence; (iii) habitual indifference of Government Officials or Government Pleaders as distinct from the usual diligence of ordinary litigants or Lawyers for private parties; (iv) collusion or negligence by Government Officials or Government Pleaders or fraud; (v) damage to public interest or to public funds or interests of the State; (vi) institutional or bureaucratic procedures as well as delays arising thereon; and (vii) need to render substantial justice on merits. It is not as if, fraud on the part of the Government officials or Pleaders has necessarily to be proved by the Government in every case."

The contention of learned Counsel for the appellants is that since the matter was to be referred to the Head Office for taking decision for filing the appeal, sometime was taken therein i.e., mere was delay of few days at the maximum for taking decision for filing the appeal, which was on account of administrative procedure. The subsequent delay has been explained of visiting Chandigarh, consulting the lawyer taking back the appeal for getting signatures of Competent Authority and then filing the appeal. In our view, the delay in the present case stands sufficiently explained. Since, the matter has to be referred to the Head Office, sometime must have been taken for the papers to reach there. From April 15,1996 when the matter was referred to the Head Office, final decision to file the appeal was taken and communicated on May 17,1996. Although it was expected of the Head Office to file the affidavit as to how the matter was dealt with, however, as day-to-day explanation was not called for the further delay having been sufficiently explained, we find it a fit case for condoning the delay. So ordered. On Merits

Ashok Kumar Dhand, the complainant is subscriber of telephone connection No. 40600 at Ahmedgarh, District Sangrur. The telephone was burnt on November 12,1992 on account of live electric wire coming over the telephone wire outside the premises of the complainant. Apart from oral complaints being made, in writing also complaint was made on November 16, 1992. Subsequently also, written complaints were filed on November 23,1992, December 15,1992 and finally on April 3,1993. The complainant is a business man, running bricklin. He suffered huge damages for non working of the telephone as he was supposed to receive and execute orders for the sale of bricks on the telephone. Thus, in the complaint, he claimed a sum of Rs. 20,000/- as compensation for non working of the telephone for the period mentioned above. In the reply filed by the Telephone Department, conflicting stand was taken. Although, it was admitted that the telephone was burnt, however, it was asserted that it was on account of the negligence of the complainant as he did not inform the Electricity Board that the live electricity wire was over the telephone line. Negligence was also attributed to the Electricity Department. The receipt of oral complaint from the complainant was denied. However, it was admitted that written complaints were received. After the parties produced their evidence on affidavits, final order was passed.

THE complainant produced copies of the complaint made by him in support of his case. Whereas no documentary evidence was produced as such by the Telephone Department except affidavit of SDE, Malerkotla. Learned Counsel for the appellant in appeal at the time of arguments, submitted two documents - one containing meter reading of the telephone in dispute and the other billing statement of the telephone in dispute from February 1991 to April, 1996. From the meter reading, it is sought to be argued as in the grounds of appeal also, some date is given for the billing period December 11, 1992 to August 1, 1993 that during this period, the telephone of the complainant was in working order and he had been paying the bills, submitted. THE fact that the telephone was burnt in November, 1992 is not seriously being disputed. In the reply filed by the Telephone Department, it has been stated that the telephone was set in order and the instrument was also changed. Accepting that initially, the telephone was repaired, does not mean per se that it was operational throughout. Had it been so, there was no occasion for the complainant in filing the complaints in writing as per details given above. THE Telephone Department when admitted having received such complaints was expected to produce material indicating action taken thereon in removing the faults and putting the telephone in working order. THE mere fact that during the disputed period, for sometime, the telephone was working, is not enough. Keeping in view this background, the billing material as contained in the grounds of appeal deserves to be noticed. Since, the telephone was burnt in November, 1992, much importance is not be given to the telephone bill dated December 11, 1992, which covers the period upto November 25, 1992. With respect to the second bill dated November 11,1992, it was from November 1992 to January 1993, Rs. 200/- were rental and Rs.24/- for the trunk calls. From the meter reading chart, it is sought to be explained that since local calls as per meter reading were 120, no charges were levied. With respect to the third bill dated April 1,1993 from January 26,1993 to March 15,1993, Rs. 40/- were charged for local calls and as per meter reading total calls were 170 and for the subsequent bill dated June 1, 1993, which covered the period March 16,1993 to May 15,1993, Rs. 24/- were charged for local calls and Rs. 13/- for trunk calls apart from the rental. As per bill reading,, local calls were 150. How Rs. 24/- for local calls were charged, has not been explained. For the subsequent period also, meter reading had been noted and from the chart produced separately, would indicate that normally on use of the telephone by the complainant, the bill ran into couple of hundreds apart from the rental of Rs. 200/-. This would clearly indicate that during the disputed period November 19, 1992 to April 19, 1993, use of the telephone was not normal and it was much on the lower side. THEre is thus justification in the stand of the complainant that though the telephone was installed but it was not regularly functioning properly that he had to make complaints after complaints. THE finding of the District Forum that there was deficiency in rendering service is therefore, affirmed. In the matter of non use of the telephone by a business man, it is very difficult to come to the conclusion as to the actual amount suffered by him or compensation to be fixed. A sum of Rs. 4,000/- only was allowed by the District Forum as compensation and we find no ground to interfere therewith.

LEARNED Counsel for the appellant has argued that the District Forum was not justified in giving direction that for the period November 16,1992 to May 17,1993, the complainant cannot be charged rent. There is some force in this contention. As far as actual calls made and charged, there cannot be any dispute that the complainant is liable to make the payment. Since, the telephone was not properly functioning, the complainant is to be compensated in the matter of rental for the aforesaid period to the extent of 50% only. While accepting the appeal, we modify the impugned order with the direction to the opposite party-appellant to pay a sum of Rs. 4,000 /- as damages, Rs. 550 /- as litigation charges before the District Forum and to refund 50% of the rental from November 16, 1992 to May 17, 1993. This amount, if not already paid, would be paid within a period of one month from today and if the order passed by the District Forum has already been complied with, the excess amount would be adjusted in the subsequent bill/bills. There will be no order as to costs in this appeal. Appeal accepted/Order modified.