Union of India vs State of Himachal Pradesh

TELECOMMUNICATION Department, Telephone Exchange, Shimla through the Union of India has challenged the order of the District Forum dated 3.6.1991 through the instant appeal whereby it was held that two disputed telephone bills of the respondents were excessive and did not represent the actual calls made by the complainant during the period referred to therein. Accordingly, directions were given to cancel the two bills and instead restricted the payment thereof to the provisional bills so issued by the appellant including the rental/local calls charges.

FACTS shortly stated are that respondent Sh. R.K. Mehta is a State Town Planner residing in U.S. Club, Shimla. He was entitled to an official Telephone at his residence. Accordingly Telephone No. 6198 (S.T.D. Time barred) was installed at the aforesaid premises namely U.S. Club, Shimla. Later on account of some defects found therein the Department replaced the same by another Telephone No. 77776. The Exchange at Shimla has an electronic mode of recording the Meter reading of all the subscribers. On the basis thereof two bills were issued to the respondent. The first bill was for the payment of Rs. 12,350/- and the second bill pertains to the payment of Rs. 8,763/- for the period commencing from 26.10.1989 to 25.12.1989 and 26.12.1989 to 25.2.1990 respectively. Respondent Sh. R.K. Mehta was shocked to receive the aforesaid bills and consequently he made representation against the payment but the same were not attended to as per his version. The Department disputed the said bills mainly on the ground that respondent has actually used the S.T.D. facility and made National and International calls which accounted for higher number of local calls charged in the bills.

The District Forum found the impugned order on the perusal of evidence and accepted the grievances raised by the respondent and ultimately gave him the relief indicated above.

SH. Vijay Pandit, Advocate appearing on behalf of the appellants has voiced a grievance of the Department by submitting that the impugned order is wooden, artificial and imaginary based on conjectures and hypothetical reasonings. It is pointed out that the calling pattern which is always subject to change, was based on scientific mode of recording the Meter reading of the respondent''s Telephone. Further it is re-inforced by the submission that the respondent had made an application to change his Telephone 6198 on 7.3.1989 with the malafide intention which was converted into 77776 on which he got S.T.D. facility. He made use of it mercilessly as apparent from M.L.O.E. Chart indicating the Meter reading which had been produced during the pendancy of this appeal. According to him the respondent is liable for the payment of the aforesaid bills. During the course of the proceedings before this Commission we felt that it was absolutely essential to examine the original record pertaining to the two Telephone referred to above and the Department with Telephone Exchange at Shimla, was directed to produce the original application or any other record showing as to at whose instance and under what circumstances Telephone No. 6198 (S.T.D. barred) was converted/replaced by Telephone No. 77776. The appellant has not been able to produce any such record. It has been stated that no such application is available. In the circumstances Section 114(g) of the Evidence Act, is attracted meaning thereby that an adverse inference can be drawn against the Department in this behalf. In other words subsequent Telephone No. 77776 was not replaced at the behest of the respondent nor he ever requested the Department (appellant) for providing S.T.D. facility to him at his residence. Ordinarily subscribers are responsible for all the Trunk calls made from their telephones. However, the Department is in such cases obliged to establish that the Telephone so installed at the premises of the subscriber was with non S.T.D. or S.T.d. facility AND that such telephone was installed pursuant to the request of the subscriber in lawful manner. Once the evidence on record indicates that there has been some mischief committed by either the subscriber or Telephone Department or both, in that case of mischief is of the first party then the entire telephone bill can be recovered from the subscriber but if it is found to be due to the mistake intentionally or un-intentionally of the Department, the subscriber can not be held responsible for the payment of excess calls for which he is charged by the Department.

IN the instant case it has not been established as to how S.T.D. facility had been provided to the respondent nor there is any other evidence on record to show whether subscriber was in collusion with any official of the Department nor the Department has been able to produce any record as to at whose instance this S.T.D. facility was provide to the subscriber (Respondent) in the instant case. We have carefully examined two complaints on 18.1.1990 and 26.3.1990 respectively alleged by the respondent No. 2 (subscriber) to Accounts Officer Telephones, a representative of the appellant. We have also gone through the reply to the later complaint sent by the Accounts Officer (T.R.), Shimla-4. In pursuance of the correspondence so exchanged by the parties to the instant lis, there is no indication with respect to the providing of the S.T.D. facility. Though complainant/respondent referred to the previous bill in his earlier complaint and thus stated that the first bill in question amounting to Rs. 12,350/- seems to be erroneous, the Department did not indicate in their reply that he had been provided with S.T.D. facility and the abrupt spurt leading to the excess bills is on account of the use of such facility by making National and International calls. In that view of the matter coupled with the stand taken by the appellant regarding the use of S.T.D. facility, the subscriber, in the instant case can not be held responsible for the payment of the inflated bills. At this stage it would be pertinent to observe that respondent has also not challenged the impugned order whereby he has been made liable to pay the amount restricted to what has actually been paid by him apropos provisional bills subsequently issued to him by the appellants. The M.L.O.E. Chart shows National and International calls having been made by respondent No. 2. One National call pertains to Delhi Telephone No. 91693253 and one of the International call number is Behrien No. 00973684166. Respondent has admitted that Delhi Telephone number is belonging to his relation but in his affidavit he has categorically denied that he ever made any telephone call to Delhi from his Telephone No. 77776 by availing S.T.D. facility. Further affidavit sworn by the Department is that Mother-in-law of the son of respondent No. 2 is an employee in the ''Indian School'' to which aforesaid Behrien Telephone number pertains. Respondent through his affidavit dated 16.12.1991 had admitted that his son''s Mother-in-law is an employee of the aforesaid school but states that the marriage of the son of the respondent was only soleminized in November, 1990 only. The record shows that the dispute pertains to early period of 1990 i.e. period commencing from 26.10.1989 to 25.2.1990. So far as other International Telephone numbers shown in the M.L.O.E. concerned, Department despite having sought time to locate the addressees, has not been able to give the where- abouts or any other information. In view of this evidence too, the liability can not be foisted on respondent No. 2 solely.

THE only possibility of abrupt spurt in the use of S.T.D. facility referred to above can be on account of either mischief committed by any official of the Department or the possibility of the technical fault of the Meter or circuit of the subscriber. Reply sent to respondent No. 2 in response to his complaints rules out the possibility of any technical fault of the Meter.

MODE of investigations into the complaints made by a subscriber have been laid down in para-430 to para-445 of the Posts and Telegraphs Manual Vol.-XIV. Further guidelines have been given by the Ministry of Telecommunication in the circular dated 9.4.1986 received by all the Heads of the Department at various places including the appellant. Elaborate guidelines for the Department to see the causes of excess billing have been indicated therein too. It was the prime duty of the appellants in the instant case to see immediately on the receipt of the complaint from respondent No. 2 that whether the aforesaid Telephone was or was not with S.T.D. facility particularly when in his initial complaint respondent No. 2 had specifically stated/indicated that his maximum bill pertaining to his Telephone was to the extent of Rs. 1,000/-. The second duty cast upon the appellants (Telecom. Department) was then to check up the Meter pertaining to the subscriber''s Telephone and if it was around to be in proper working order then the other legal obligation of the Department was to check up as to whether the sudden spurt in the Meter reading was or was not by any mischief committed by some official of the Department or on account of the mischief of the subscriber. In the instant case reply sent by the appellants to the respondent No. 2 rules out the fault in the Meter. The first and the third obligation cast upon the appellants have not been discharged. Thus on that account also the subscriber can not be made to pay the excess amount of the bill in question.

From whatsoever angle dispute in question may be viewed, there appears to be no infirmity in the impugned order, thus, appeal is dismissed.

BEFORE parting with this order we express our regret that in this democratic country, we are tending to prone ourselves towards materialistic gains. Honest dealings on both sides alone is the solution to solve such menace which is increasing day by day. Unless we follow this principle we can not achieve the avowed object of this social welfare legislation to protect the interest of the consumers are also under legal as also moral obligation to remain honest in their dealings. In other words in the peculiar facts and circumstances of this case respondent No. 2 (subsciber) was also legally required to straight away intimate the Department that he was not having S.T.D. facility in his telephone. That fact would have positively facilitated the Appellants to see the cause of inflated bills from that angle. To avoid such mistakes in future we suggest the use of separate Registers, one pertaining to Telephone with S.T.D. facility and the other with Non-S.T.D. Facility and also Subscriber Cards. Similarly Bill Forms issued to the subscribers should also indicate the nature of facility i.e. with S.T.D. or Non-S.T.D. which would identify the Telephones category. This procedure if followed would beneficial to both parties i.e. the subscribers as also the Department. These suggestions in addition to the directions already given in the case of Union of India through Secretary Telecom to the Govt. of India, New Delhi and Telecom. District Engineer, Shimla v. Sh. B.S. Watni S/o. late Sh. Rasal Singh, Commandent (Trg.) Pine House, Shimla-171002, No. HP/CPC/ APP/42/91 of 1991 decided on 31st of October, 1991 are expected to be strictly followed by the Department in future. One of the directions pertaining to the issuance of information of fortnightly. Meter reading to the subscribers by the Department against due payment not only makes the former vigilant/caution qua the use of his telephone, but it also becomes a source of income to the Government at a large scale keeping in view the number of telephones in the entire country. This income can be made use of for the other developmental works. We hope that the Department would in future keep in view the above observations to protect the interest of the consumers. Announced at Shimla this 13th day of January, 1992. Appeal dismissed.