General Manager, Telecom Vs. Mrs. Janak Gupta and Others - Court Judgment

Excerpt:
consumer protection act, 1986 - section 15 - comparative citations: 2001 (2) cpc 172, 2001 (3) cpj 437k.k. srivastava, president: 1. this is an appeal filed by the general manager, telecom, sector 17, chandigarh against the order dated 1.3.1999 passed by the district consumer disputes redressal forum-ii, u.t., chandigarh (for short hereinafter referred to as the district forum-ii) vide which complaint case no. 850 of 1998 was allowed. the district forum-ii awarded consolidated costs of rs. 7,500/- including the compensation for harassment caused to the complainant and directed the appellant (opposite party no. 1) to instal telephone at the address given by the complainant in sector 26, chandigarh without compelling her to pay the arrears of the bills for the period the telephone remained illegally installed at shed no. 3126. 2. before adverting to the submissions made by the learned counsel for the appellant and respondent, we deem it appropriate to notice the relevant facts giving rise to this appeal which are as under. 3. mrs. janak gupta wife of shri om parkash gupta, r/o 6-a, officers colony, mall road, karnal filed complaint case no. 850 of 1998 against the appellant general manager, telecom, sector 17, chandigarh and impleaded respondent nos. 2 and 3 namely shri vinod gulati and shri vijay gulati, both sons of shri r.d. gulati, shed no. 3126, industrial area, phase-ii, chandigarh (ram darbar). the complainant alleged that she along with her sister mrs. sneh mittal wife of shri madan mohan mittal was the owner of industrial shed bearing no. 3126 aforesaid. a part of the said shed had been let out on rent to a firm constituted by shri vinod gulati and mrs. neelam mehta. mrs. janak gupta, the complainant had applied for installation of a telephone in the year 1991 in general category and deposited a sum of rs. 1,000/- with the appellant general manager, telecom regarding it. the appellant sent a letter bearing no. 34/genl/6308/6 dated 6.9.1995 to the complainant mrs. janak gupta at the address of shed no. 3126 aforesaid and informed her about advice note bearing no. c-026886 dated nil having been issued to the s.d.o., phones-iv regarding the new telephone connection at the said shed. the advice note was received by the complainant whose husband had by that time been posted at karnal. the complainant mrs. janak gupta sent a letter dated 6.12.1995 to the appellant general manager, telecom intimating that the telephone be not installed at shed no. 3126, industrial area, phase-ii, chandigarh and that the same be installed at premises no. 290, industrial area, phase-ii, chandigarh vide annexure c-1. the complainant categorically averred in para 3 of the complaint that she did not reside at chandigarh and in her absence, the officials of the appellant general manager, telecom placed the telephone apparatus at premises no. 290, industrial area aforesaid and it was expected that the telephone would be made operative at that place. it was further averred that the telephone apparatus remained there for months together when one day the telephone apparatus was removed by the officials of the appellant without any reason and without any intimation to the complainant. she further alleged that thereafter there was no intimation to the complainant regarding the installation of the telephone from the appellant or from the other opposite party nos. 1 and 2 who are respondent nos. 2 and 3 in this appeal. the complainant came to chandigarh on 18.1.1997 when she incidentally happened to see the new telephone directory issued by the appellant and came to know that telephone no. 654139 was installed at shed no. 3126, industrial area aforesaid against her name. the complainant paid a visit to shed no. 3126 the next day and met opposite party no. 3 who was available there. the opposite party no. 3 namely shri vijay gulati, shed no. 3126, industrial area, phase ii, chandigarh (ram darbar) told the complainant and her husband about his signing the papers in the installation of the telephone at shed no. 3126, industrial area aforesaid under the presumption that the telephone belonged to him. the telephone, it was alleged, was used by the opposite party nos. 2 and 3 and five bills dated 1.5.1996 for a sum of rs. 2,251/-, dated 1.7.1996 for a sum of rs. 500/-, dated 1.9.1996, 1.11.1996 and 1.1.1997 for identical sum of rs. 299/- each had been issued by the appellant. the total amount of these five bills was rs. 3,648/-. the complainant sent a letter dated 22.1.1997 to the appellant stating therein that the installation of the telephone at shed no. 3126, industrial area aforesaid was against her letter dated 8.12.1995 and a request was made that the said telephone be installed at kothi no. 123, sector 21, chandigarh. it was followed by letter dated 19/20.2.1997 addressed to the appellant. the copies of these letters have been annexed as annexures c-2 and c-3. the complainant learnt from the opposite party no. 3 on 19.1.1997 about the said telephone having been disconnected on 26.8.1996 on account of non-payment of the aforesaid five bills. the complainant wrote letter dated 23.5.1997, copy annexure c-4 to the appellant/opposite party no. 1 which was received by the appellant on 2.6.1997. it was alleged that the husband of the complainant had also written letters dated 5.8.1997, 15.12.1997 and 20.1.1998 to shri pritpal singh, general manager, telecom who did not take any action on the same. the complainant made an averment in para 6 that the copies of these letters written by her husband would be produced if so needed. the complainant alleged that the telephone aforesaid had been installed at shed no. 3126, industrial area, phase-ii, chandigarh against her instructions and in collusion with the officials of the general manager, telecom and respondents/opposite party nos. 2 and 3. the complainant is not liable to make the payments outstanding against the said telephone as the same was in illegal possession of respondents/opposite party nos. 2 and 3. the complainant further alleged that there is deficiency in service of very high order on the part of the appellant/opposite party no. 1 and the complainant has entitled to reinstallation of the telephone without any extra charge, non-payment of the amount of bills in question and was also liable to be compensated. consequently the complainant prayed that a direction be issued to the appellant/opposite party no. 1 not to charge the amount of the bills from her and if it so desired, it may be charged from respondent nos. 2 and 3 or their company referred to above. she has also prayed for issuance of a direction to the appellant/opposite party no. 1 to instal the telephone at kothi no. 123, sector 21, chandigarh without demanding any extra charges for installation, rental or on any other count. she claimed a sum of rs. 20,000/- as compensation for the harassment caused to her and also prayed for the award of the costs of litigation. 4. the appellant general manager, telecom filed reply to the complaint wherein it was inter alia, alleged that telephone no. 654139 was installed on 25.11.1996 after getting annexure-a of bona fide use of telephone from the complainant/subscriber i.e. mrs. janak gupta, partner in plot no. 3126, industrial area, phase-ii, chandigarh. it was contended further that the line and wire was erected at the premises no. 290, industrial area on the basis of change of address - letter received from the commercial officer inadvertantly due to rush of work as line and wire had already been erected at plot no. 3126, industrial area aforesaid and telephone had been commissioned at that place. the line and wire had been recovered after realising the mistake. it was also mentioned that a party had no connection with the plot owner of 290, industrial area and neither the statement of bona fide use was filed and signed by the party. the bills were issued as per usage of the telephone installed at shed no. 3126, industrial area, phase-ii, aforesaid. the appellant/opposite party no. 1 further contended that as per shift application for telephone no. 65139 advice note no. b-11887 dated 14.2.1997 were issued to premises no. 123, sector 21a. the aforesaid telephone was disconnected on 27.2.1997. the shift advice note was however returned back with the remarks ‘party not available on repeated visits by the s.d.o., phones iv, chandigarh. the telephone aforesaid was disconnected for non-payment of bills as per departmental rules. the aforesaid telephone no. 654139 was installed at shed no. 3126, i.a.-ii as per instructions contained in the advice note no. c-26886 dated 6.9.1995 after completing departmental formalities. it was also mentioned that after receiving shifting application from the complainant on 31.12.1998 necessary orders for shifting of telephone were issued on the same day, i.e. 31.12.1998 for sco no. 38, sector 26, chandigarh. the telephone, however, could not be shifted since the telephone was closed due to non-payment of bills. 5. the opposite party nos. 2 and 3 who are respondents in this appeal did not file any reply to the complaint case. as mentioned earlier, the district forum allowed the complaint and issued the directions and awarded compensation. the opposite party no. 1 general manager, telecom felt aggrieved against the order passed by the district forum-ii and has filed this appeal. notice of this appeal was served on the respondents. respondent no. 1 mrs. janak gupta put in appearance through her advocate miss vandana malhotra. the record of the complaint case was summoned. we have heard the learned counsel mr. g.c. babbar, advocate appearing for the appellant and mr. o.p. gupta, advocate who appeared for miss vandana malhotra, advocate. we have carefully gone through the order passed by the district forum-ii. we have also carefully perused the record of the case. 6. the complainant smt. janak gupta had initially applied for new telephone connection at shed no. 3126, industrial area, phase-ii, chandigarh. she had deposited the requisite amount of rs. 1,000/- for the telephone connection and had submitted statement for bona fide verification for provision of a new telephone in form annexure-a. a photostat copy of form annexure-a has been placed on record of the complaint case before the district forum. the complainant verified for the provisions of a new telephone as an individual, inter alia, as under : “i, smt. janak gupta staying at 3126, i/a, ph-ii have applied for a telephone connection under registration no. sec 34/genl/6308 dated nil. i affirm that the telephone is for my bona fide use. signatures.... illegible.” it was after the submission of the statement for bona fide verification in form annexure-a that advice list was issued to the s.d.o., telephones. subsequently, smt. janak gupta complainant wrote to general manager, telecom, chandigarh vide annexure c-1 dated 8.12.1995 that the new telephone be installed at premises no. 290, industrial area, phase-ii, chandigarh instead of shed no. 3126, industrial area, phase-ii, chandigarh. it was mentioned in this application, inter alia, that smt. janak gupta was carrying on her work at the place of her relative at 290, industrial area, phase-ii, chandigarh. it appears that the said telephone was installed at shed no. 3126, industrial area aforesaid by the telephone department. the complainant mrs. janak gupta wrote another application to the general manager, phones, chandigarh annexure c-2 dated 22.1.1997 mentioning therein in 2nd para as under : “on 18.1.1997 i was at chandigarh and happened to see the new telephone directory published by you. i found that telephone bearing no. 654139 has been shown against the name of the undersigned and installed at 3126, industrial area, phase-ii, chandigarh. this is against my advice. now i am residing at 123, sector 21 with my real nephew mr. arvind mittal, advocate. it is requested that the telephone no. 645139 installed at 3126, industrial area, phase-ii, chandigarh against my advice dated 6.12.1995 may be removed from there and installed at the above said premises.” here it is relevant to point out that the complainant referred to her advice as dated 6.12.1995 whereas annexure c-1 shows the date as 8.12.1995 and the same date is mentioned in letter annexure c-2 date 22.1.1997. it was mentioned in the first para of annexure c-2 by the complainant, inter alia, as under : “...i had requested vide my letter dated 8.12.1995 that the telephone be installed at my place of work at 290, industrial area, phase-ii, chandigarh. no reply to the said letter was received.” if it be accepted for a moment that the complainant had written a separate letter on 6.12.1999, different and distinct from letter dated 8.12.1995 copy annexure c-1, the same or its copy has not been placed on record. the contention of the appellant-department in para 3, inter alia, is that “party had no connection with the plot owner of 290, industrial area, phase-ii and neither the statement of bona fide use was filed and signed by the party”. there is no material placed on record by the complainant/respondent that she had complied with the requirements of submission of form in statement annexure-a regarding the verification of the bonafide use of the telephone. apart from it, the complainant herself had asked for installation of new telephone at shed no. 3126, industrial area, phase-ii aforesaid. according to para 1 of the complaint, she was the owner along with her sister mrs. sneh mittal. in para 1 of the complaint, the complainant had made the following averment : “1. that the complainant, along with her sister mrs. sneh mittal, wife of shri madan mohan mittal is the owner of industrial shed bearing no. 3126, industrial area, phase-ii, chandigarh. a part of the said shed had been lent on lease to a firm constituted by opposite party-2 and mrs. neelam mehta.” 7. the original application or its copy vide which the complainant had applied for the new telephone to be installed at shed no. 3126, industrial area aforesaid has not been placed on record of the complaint case. however, this fact is not disputed by the appellant-department that the complainant smt. janak gupta had applied for having new telephone connection at shed no. 3126, industrial area, phase-ii, chandigarh and had duly filled the form annexure-a regarding the bonafide use of the telephone. there is no material placed on record by the complainant to show that she had complied with all the requisite formalities for having the telephone connection at premises no. 290, industrial area, phase-ii, chandigarh instead of having the connection at shed no. 3126, industrial area, phase-ii, chandigarh for which she had applied and completed the requisite formalities. it is also not clear as to under what circumstances the complainant remained silent regarding the non-installation of the telephone at premises no. 290, industrial area, phase-ii, chandigarh up to 22.1.1997 right from 8.12.1995 and did not care to know about the fact that the telephone connection applied for was installed or not at the premises no. 290, industrial area, phase-ii, chandigarh. a perusal of the application annexure c-2, the relevant part of which has been quoted above, will go to show that during a visit to chandigarh on 18.1.1997 the complainant happened to come across the telephone directory and learnt about the said telephone connection having been installed at shed no. 3126, industrial area, phase-ii, chandigarh. it is also significant to note that in application dated 22.1.1997 annexure c-2, the complainant smt. janak gupta again requested for change of the place for installation of the new telephone connection applied for from shed no. 3126, industrial area, phase-ii, chandigarh to premises no. 123, sector 21, chandigarh where she was residing with her real nephew mr. arvind mittal, advocate. it is also relevant to note that during the pendency of the complaint case, the complainant smt. janak gupta again made a fresh request for shifting of the telephone from shed no. 3126, industrial area, phase-ii, chandigarh to s.c.o. no. 38, first floor, sector 26, chandigarh. it appears that the complainant herself was not quite certain about the place where she wanted the new telephone connection to be either installed or shifted from shed no. 3126, industrial area, phase-ii, chandigarh. this application for the shifting of the telephone to s.c.o. no. 38, first floor, sector 26, chandigarh was considered by the district forum-ii vide order under appeal dated 1.3.1999 and a direction was issued to the appellant-department to instal the telephone at the address given by the complainant in sector 26, chandigarh. 8. it is relevant to note that the complainant/respondent smt. janak gupta did not lead any evidence in this case before the district forum-ii inasmuch as no affidavit by way of evidence was filed nor any prayer was made to the district forum-ii by the complainant to lead her evidence. even the annexures c-1 to c-4 which are in the form of photostat copies of the letters written by her to the appellant were not proved according to law. a perusal of the zimini orders will go to show that the district forum-ii observed in order dated 21.12.1998 as under : “ms. vandana malhotra, advocate for complainant. mr. deepak monga, official of opposite party-gmt. complaint of the complainant stands verified. opposite party filed ‘annexure-a, which was submitted by complainant to the opposite party. evidence of the opposite party is not ready. be produced on 7.1.1999. counsel has handed over the application for transfer of the telephone to the official of the opposite party.” subsequently vide order dated 14.1.1999, the district forum-ii passed the following zimini order : “present : none for the complainant. mr. k.l. goel, gp alongwith mr. deepak monga, agent. opposite partys agent stated that there is no need of evidence. so, the case is adjourned to 27.1.1999 for arguments.” it appears that the arguments were heard on 3.2.1999 and the complaint case was decided vide order dated 1.3.1999. the learned counsel for the complainant/respondent smt. janak gupta contended that the reply of the appellant general manager, telecom should not be considered by the commission in as muchas the same has not been verified. he referred to the reply placed on complaint file before the district forum-ii and submitted that the same has not been verified though it is signed by the respondents and submitted through the government pleader. section 13(1)(b) of the c.p. act provides as under : “13. procedure on receipt of complaint—(1) the district forum shall, on receipt of a complaint, if it relates to any goods : (a) ...................... (b) where the opposite party on receipt of a complaint referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the district forum. the district forum shall proceed to settle the consumer dispute in the manner specified in clauses (c) to (g).” section 13, sub-section (4) of the c.p. act provides for applicability of certain provisions of code of civil procedure, 1908 (5 of 1908) while trying a suit in respect of the matters mentioned therein. it reads as under : “13(4). for the purposes of this section, the district forum shall have the same powers as are vested in a civil court under the code of civil procedure, 1908 ((5 of 1908) while trying a suit in respect of the following matters, namely : (i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath; (ii) the discovery and production of any document or other material object producible as evidence; (iii) the reception of evidence on affidavits; (iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source; (v) issuing of any commission for the examination of any witness; and (vi) any other matter which may be prescribed.” 9. it may further be pointed out that the complainant did not raise any such objection before the district forum-ii that the reply filed by the opposite party no. 1, the appellant general manager, telecom should not be considered as it has not been verified according to law but no such objection appears to have been taken. it is also relevant to mention that the learned counsel for the respondent/complainant smt. janak gupta during the course of arguments referred to the contents of the reply filed by the appellant and when his attention was drawn to this objection raised before the commission that this reply is not a proper reply according to law and was liable to be ignored, then he contended that for the purpose of appeal, it would be necessary to refer to the reply as the complainant wanted to refer to certain paragraphs of the reply regarding her complaint case. in our considered view, even if the reply being a pleading and being unverified be not taken into consideration, even then, the complainant has to stand on her own legs and prove her complaint case according to law. there is a marked difference between “the pleading” and “the proof” thereof. pleading is only an averment and the same has to be verified but the pleading has to be proved by cogent and legal evidence even ex-parte. in the instant case, the complainant did not lead any proof by way of evidence in support of her complaint case. in other words, it is a case where there was absolutely no evidence led by the complainant even to connect the photo-copies of the letter written by her to the appellant-department. the district forum-ii has not taken into consideration this important aspect. the district forum-ii has, however, noted the fact that the complaint was duly verified as against the unverified reply of the opposite party. the district forum-ii thereafter considered the averments made in the complaint as well as the averments made in the reply filed by appellant/opposite party no. 1. 10. in our considered opinion, the district forum ought to have taken into consideration the fact that a verified pleading is only a pleading in accordance with law and the same is different and distinct from the proof of the averments made in the pleading. once the district forum-ii has taken into consideration the reply filed by the appellant and the reply contending the denial of the averments made in the complaint case, the facts became disputed and the same required to be proved by evidence legally rendered by the complainant and for that matter by the appellant/opposite party no. 1. since in the instant case, the complainant has failed to lead any evidence, the district forum-ii was not justified in only considering the verified pleading as the proof of the averments contained therein. 11. we have taken into consideration the findings recorded by the district forum-ii and the material placed on record and have already referred to the material in detail in the earlier part of our judgment. once it is found that the appellant-department had installed a telephone at shed no. 3126, industrial area, phase-ii, chandigarh as per the own application of the complainant who did not care to pursue the request for the change of the place from shed no. 3126, industrial area, phase-ii, chandigarh to premises no. 290, industrial area, phase-ii, chandigarh and kept quiet for an inordinately long period up to 22.1.1997 from 8.12.1995, the appellant-department could not be held liable for rendering deficient services to the complainant. the telephone had been installed at shed no. 3126, industrial area, phase-ii, chandigarh as per the application of the complainant and the same stood registered and recorded in her name and was used at the said premises for which five bills referred to above were sent by the appellant-department which remained unpaid. it is strictly a matter inter se between the complainant and her tenants opposite party nos. 2 and 3 to settle about the payment of the amount of the bills aforesaid but the complainant cannot point out an accusing finger at the appellant for issuing the bills for the use of the said telephone. the fact remains that the amount of the five bills totalling to rs. 3,648/- has not been paid and the telephone stands dis-connected. a phone which is not functional as having been disconnected cannot be considered for being shifted or installed at the place asked for by the complainant till it is restored and the requisite formalities are completed by the complainant. mere allegations of collusion on the part of the officials of the telecom department on the one hand and the opposite party nos. 2 and 3 on the other hand regarding the installation of the telephone connection at shed no. 3126, industrial area, phase-ii, chandigarh will not by itself be taken to be the proof till the same were proved by legal evidence led and tendered by the complainant. 12. in view of the foregoing discussion, we are of the considered opinion that the district forum-ii fell into error in allowing the complaint and issuing the directions for shifting of the telephone from shed no. 3126, industrial area, phase-ii, chandigarh to the place now mentioned by the complainant in sector 26, chandigarh without compelling her to pay the amounts of the bills outstanding against the said telephone. the district forum-ii was also legally not correct in awarding composite costs of a sum of rs. 7,500/- including compensation for harassment caused to the complainant. resultantly, the appeal is appeal. the order passed by the district forum-ii, u.t., chandigarh is set aside and the complaint is dismissed. the costs shall, however, be borne by the parties themselves throughout. copies of the judgment be supplied to the parties free of charges.