`THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PANAJI – GOA





Present:

Smt. Sandra Vaz e Correia .. Presiding Member

Smt. Caroline Collasso .. Member.



Appeal No. 120/2007



General Manager Telecom,

Through its Sub-Divisional Engineer (legal),

Mr. Pradeep N. Raikar,

s/o late Narayan Raikar,

aged 49 years, Married,

with its office at

Bharat Sanchar Nigam Ltd.,

Sanchar Bhavan,

Patto Plaza, Panaji, Goa. … Appellant.

(Original Opposite Party)



v/s



1) Shri Uday Govind Barad,

Major age, married,



2) Smt. Vasanti Govind Barad,

Major of age, housewife,

Both r/o 600, Vasanti Niwas,

Borda, Margao, Goa.

P.C. 403602. … Respondents

(Original Complainants)







For the Appellant ..Shri K. Palekar, Advocate

None for the Respondents.













Dated:29-06-2009



ORDER



[Per Smt. Caroline Collasso, Member]



1. This order seeks to dispose off appeal against order dated 02-11-2007 passed by the District Forum, South Goa, in Complaint No.12/2002.



2. The Complainant No.1 & 2 are husband and wife respectively, both residents of Borda, Margao, Goa. The Opposite Parties are the General Manager of Bharat Sanchar Nigam Ltd., and the Department of Telecom, Panaji, Goa, respectively.



3. Briefly the case of the Complainants is that they were owners of two telephone lines an old line being no.731639 which was installed 25 years back and another new one being No.706921 which they claim was taken on advise of Opposite Party which was exclusively for use of internet and installed at his premises. The old telephone line being 731639 was officially connected to internet till September 2000 which was later disconnected on installation of new line. Since September 2000 the Complainants started getting excess telephone bills for both lines which were beyond their use. The Complainant states that because of constant follow-up with the Opposite Party on the aspect of excess billing for old line the Opposite Party had suggested installation of a new and separate line exclusively for internet use which was done by installing telephone No.706921. The Complainants however states that this was not a solution as now there was excess billing on both lines beyond their use. The Complainants claim that the average billing for old No. averaged Rs.450-550 per billing period till August 2000. Suddenly the bills ranged from Rs.2004/- period (11-07-2001 to 31-07-2001) and Rs.3594/- (period 01-08-2001 to 30-09-2001). So also for the old line the bill was Rs.3,542/- (for period 11-07-2001 to 31-07-2001). The Complainants stated that these exorbitant bills for old telephone line cannot be expected moreso, when the old line was disconnected from internet accessing. The Complainants state that their interaction and personal survey with telephone and internet users from Goa made them conclude that this excess billing is a result of faulty technology installed by the Opposite Party thus giving a way out to their departmental personnel for misusing the customer telephone line without their knowledge and loading customers with excess bills even when the telephone facility is not being used. The Complainants thus prayed for: a) Opposite Party return back the excess billed amount for the period September 2000 to date for the old telephone line 731639; and b) Opposite Party should return excess amount collected for the period July 2001 for the new telephone line 706921. Other prayers have not been granted by the District Forum and since the Complainant has not challenged the rejection in appeal, we need not go into them.



4. The Opposite Party in their written submission stated that the calls are recorded and metered based on the usage of the telephone facility and number of connectivity of the internet by the Complainant and accordingly they are charged. The Opposite Party stated that the telephone No.706921 was provided with STD facility on 11-07-2001 and the calls are recorded in the exchange based on the usage of telephone facility. The Opposite Parties’ claimed that the Complainants have utilized their internet facility extensively and thus received excess bills. The Opposite Parties claimed that the bills received are in order based on the meter reading statement received from the exchange which record the call originating from the Complainants phone. The Opposite Parties state that the complaint is misconceived and filed with ulterior motive to claim refund and compensation and prayed for dismissal.



5. Affidavit-in-evidence were filed by parties which reiterated the submissions in the complaint and written submissions were filed. Written arguments filed by the Complainant in addition noted that “as proof the Opposite Party should have produced an attested and certified copy of the Complainants telephone call records showing details of recorded calls made through each of Complainants telephone lines”. He claimed that in absence of this proof, the statements of Opposite Party that all calls are recorded and metered and charged as originating from the Complainants phones were “liable for rejection outright without any consideration”. The Opposite Party in their written arguments have raised an issue that in terms of section 7 B of the Indian Telegraph Act 1885, the said dispute has to be decided by the arbitrator appointed by the Central Government in that behalf and the Forum has no jurisdiction to entertain any dispute as regards the charging of telephone bills. In these circumstances the Court is required to direct the Opposite Party to refer the dispute to the arbitrator appointed by the Central Government.



6. The District Forum passed the impugned order directing the Opposite Party to pay to the Complainants the overall consolidated amount of Rs.10,000/- and Rs.300/- by way of costs.



7. Aggrieved by this order the Opposite Party challenged the same inter alia on the grounds that the District Forum had erred in holding that there was deficiency of service on their part; that the District Forum had exceeded their jurisdiction in as much as section 7B of the Indian Telegraph Act 1885 bars its jurisdiction to enter into the issue of correctness of quantum of bills; that there is no evidence or material on record to support the claim of respondents for damages.



8. Written arguments filed by Appellants relied on case of Hon’ble Supreme Court in the case of “Telecom District Manager, Goa & Ors. v/s V.S. Dempo & Co. & Ors.” [1996(1) Goa LT 292].



9. This judgment is no authority on the issue that the aggrieved consumer cannot approach the Consumer Fora under the provisions of the Consumer Protection Act. This judgment (supra) was deciding the point that unless the subscriber approaches the Court and the Court orders it, reference to the arbitrator cannot be made. It held that “the administrative instructions issued by the Union of India that the dispute shall be referred only when there is a reference by the Court is obviously in defiance of the language used in section 7B. The power to refer the dispute has been given by the Parliament only with a view to see that the authority acts within reasonable limits and that when the subscriber disputes the correctness of the meter reading or operation of the apparatus etc. instead of litigating in a Civil Court, it should be decided by an arbitrator under section 7B”. It finally held that the authority under the Act is enjoined to make reference under section 7B to an arbitrator without any court direction and if need be it is for the subscriber to approach the court. Needless to say the Appellant in this case did not care to appoint an arbitrator despite the Complainant bringing the fact of excess billing to his notice vide letter dated 07-11-2001. It is trite law to state that section 3 of the Consumer Protection Act lays down that the provisions of the said Act are in addition to and not in derogation of any other law for the time being in force. In other words the Consumer Protection Act gives the consumer an additional remedy besides those that may be available under other existing laws. This view has been clarified in the case of Union of India v/s Dr. B.S. Sidhu I(1992) CPJ 208 (NC) and Mahanager Telephone Nigam Ltd., v/s Ghevar Chand Samal Sonigara II(19920 CPJ 476).



10. The District Forum has given a well reasoned and detailed judgment and specifically at paras 5 queried: “why did the Opposite Party not produce the evidence giving the details about the actual available record of meter reading and actual charges levied”? Further, they held that the “very inability to produce the proper record maintained by the O.Ps is in itself deficiency in service” as defined under the Consumer Protection Act.



11. We endorse the views of the District Forum and add that the Appellants have failed to produce the best evidence which is in their possession. There is no mechanism for the Complainant to record the usage of the calls made by them. This technology is with the Appellant (BSNL) and they ought to have brought these records forward to dispute the claims made by the Complainant. Adverse interference ought to be taken for not producing these records.



ORDER



In the light of the above we see no reason to interfere with the findings of the District Forum. The appeal is dismissed. No order as to costs.



Pronounced.