Union of India vs MANDVI MERCHANTS ASSOCIATION

THESE two appeals involving common questions are directed against the judgments and orders dated August 13, 1993 passed by the District Consumer Disputes Redressal Forum, Kachchh at Bhuj (District Forum for short) in Complaints Nos. 174 and 179 of 1992 whereby the appellants were directed to recover the charges of STD/PCO provided to the respondent at Mandvi on the basis of meter readings recorded at Mandvi and to refund the excess amount of bills if the same are prepared on the basis of meter readings recorded at Bhuj.

THE respondent is a franchise/licence holder of STD/PCO at Mandvi. According to the respondent calls made from its STD/PCO at Mandvi were recorded in the meters installed at Mandvi and Bhuj. THE meter installed at Bhuj recorded more calls than the meter installed at Mandvi. THE appellants, however, prepared bills on the basis of readings of meter installed at Bhuj. THE respondent, therefore, filed complaints being Complaints Nos. 174 and 179 of 1992 seeking direction against the appellants to prepare telephone bills as per the readings recorded in the meter installed at Mandvi. THE complaint was resisted by the appellants mainly on the ground that calls made from STD/PCO of the respondent at Mandvi were recorded in the meter installed at Bhuj and the bills for the calls were to be prepared on the basis of readings in the meter at Bhuj. THE meter at Mandvi was installed by the respondent alongwith other equipments and this meter was installed for the convenience of the users of STD/PCO of the respondent. THE appellants had no control over the meter installed at Mandvi and it was possible to stop functioning of that meter or to tamper with that meter. Since the STD facility was given to the respondent from Bhuj, reading in the meter installed at Bhuj could only be taken into consideration for the purpose of preparing the bills. The District Forum by its impugned judgments and orders held to the effect that there was no agreement between the appellants and respondent under which it was agreed to prepare bills on the basis of readings of the meter installed at Bhuj. The respondent was charging customers or users of STD/PCO at Mandvi on the basis of the readings in the meter installed at Mandvi. Therefore, if the meter installed at Bhuj records more calls, it would mean that the calls which were not made were recorded. In the view of the District Forum, appellants were required to prepare the bills on the basis of the readings in the meter installed at Mandvi. In this view of the matter it gave direction to the appellants to prepare the bills on the basis of meter readings recorded at Mandvi and to refund excess amount of bills prepared on the basis of meter reading at Bhuj.

The main contention which is raised by the learned Advocate for the appellants is that the respondent is not a consumer and, therefore, complaints made by it before the District Forum were not maintainable. This contention was not raised before me District Forum but no objection was raised against raising of this contention at this appellate stage by the respondent. In support of the contention, the learned Advocate for the appellants relied upon the decision of the National Consumer Disputes Redressal Commission in The General Manager Telephones & Ors. v. R. Kannan, I (1994) CPJ 14 (NC). the learned Advocate for the respondent supported the judgment of the District Forum.

IN the case of General Manager, Madras Telephones referred to above. National Commission has held that a franchise holder is only a licensee of the grantor of the franchise for operating in that case the STD/PCO and collecting the call charges on behalf of the franchiser. It is the franchise holder who is rendering service to the grantor of the franchise inasmuch as he runs and maintains STD/PCO relieving the Telecom Department of the responsibility for providing and maintaining Public Call Offices. The franchise holder performs two functions; (a) establishes and runs a Public Call Office; and (b) collects the call charges on behalf of the department. For rendering these services to the franchiser, the franchise holder gets a commission. The mere fact that the franchise holder has been described as the hirer of the PCO does not make him a person who renders service to the Telecom Department. Consequently the fact that he has been described as hirer in the agreement would not mean that he is rendering a service to the telecom department for consideration. A franchise holder renders service to those who use the Public Call Office which is performed by the Telecom Department directly wherever there is no franchiser to manage a Public Call Office. Consequently, it is erroneous to hold in that case that the franchise holder, who is maintaining and running a STD/PCO office is a consumer vis-a-vis the Telecom Department. Taking this view the National Commission allowed the Revision Petition of the General Manager, Madras Telephones, set aside the order of the State Commission and dismissed the complaint. This decision of the National Commission is directly against the respondents. As in the case before the National Commission, the respondent is a franchise holder or licensee of the grantor of licence for operating STD/PCO and collecting call charges on behalf of franchiser. It is the respondent who is rendering service to the appellants, grantor of franchise inasmuch as it runs and maintains STD/PCO relieving the Telecom Department of the responsibility of providing and maintaining public call office at Mandvi. Therefore, as held by National Commission, the respondent is not a consumer vis-a-vis the appellants. Its complaints before the District Forum, therefore, were not maintainable. On that ground alone these appeals must succeed. We, therefore, do not consider it necessary to go into the merits of the other contentions which were raised before the District Forum.

THE result, therefore, is that both the appeals succeed and the impugned judgments and orders of the District Forum in Complaints Nos. 174 and 179 of 1992 filed by the respondent are set aside. Both the said complaints filed by the respondent shall stand dismissed. However, in the facts and circumstances of the case, there will be no order as to costs. Appeal allowed without costs.