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2005 DIGILAW 512 (HP)

BHARAT SANCHAR NIGAM LTD v. SUMIT MEHRA

2005-12-30

A.K.GOEL, PREM CHAUHAN

body2005
ORDER Arun Kumar Goel, J. (Retd.) (President) :- Arguments in this case were heard at Dharamshala on 20.12.2005 and order was reserved to be communicated to the parties. 2. Appellant is aggrieved from the order dated 17.7.2004 whereby it has been burdened with Rs. 5,000/- as compensation for causing mental harassment and torture to the respondent. This amount has been ordered to be deposited with the Forum with 30 days from the receipt of copy of the order. 3. In nutshell, the case set out by the respondent in his complaint under Section 12 of the Consumer Protection Act, 1986 was that he is holding a telephone connection DMA 226934. He has paid up to date bills, despite that telephone has been disconnected. Appellant had no right to have done so. It was disconnected on 15.11.2003 arbitrarily with mala fide intention without assigning any reason and no registered notice was even sent to him. Respondent was also not informed as required under billing schedule, thus authorities have overridden the same. When put to notice, appellant by way of preliminary objection pleaded that complaint was not maintainable, as the relief demanded has already been given because telephone was restored as and when it received information of deposit of outstanding amount. Issuance of bill in the sum of Rs. 1502/- to the respondent for the period 16.10.2003 to 31.10.2003 was admitted. It may be appropriate to notice here that when the appellant received information of deposit of outstanding amount, its date had not been mentioned, while pleading the restoration of the telephone. Whereas in the notice dated 24.11.2003 as well as in the complaint and rejoinder, payment is pleaded on 15.11.2003. This question of fact has not been specifically controverted by the appellant. We do not know why and for what reason this omission is there. As such, we have no hesitation in coming to the conclusion that it is purposeful, intentional and not bona fide. 4. When reference is made to the affidavits filed on behalf of the parties, facts detailed by both the sides in their pleadings in proceedings before the Forum below have been reiterated in the affidavits. District Forum below in the face of these facts have burdened the appellant with the aforesaid amount. 5. Alongwith appeal, MA. 4. When reference is made to the affidavits filed on behalf of the parties, facts detailed by both the sides in their pleadings in proceedings before the Forum below have been reiterated in the affidavits. District Forum below in the face of these facts have burdened the appellant with the aforesaid amount. 5. Alongwith appeal, MA. No. 574/2004 has been filed for leading additional evidence, wherein it is proposed to allow the appellant to place on record Annexure-A-2, a copy of the Subscriber Record Card (SRC) as on May, 2004. A perusal of the application does not justify the filing of the same. With a view to allow additional evidence, Mr. Sharma placed reliance on a decision of the National Commission in the case of Khivraj Motors v. V. Chandra babu and another, 2002 CPJ 94 (NC). Since there is no specific provision in the Consumer Protection Act, 1986 and the rules framed thereunder, therefore, we can safely advert to the broader principles governing application for leading additional evidence under ordinary law of the land. These are, that the party after exercising due diligence was not in knowledge of additional evidence proposed to be produced; secondly that the authority below whose order was challenged in appeal, as in the present case, refused permission to a litigant like the appellant to produce such additional evidence; and lastly the appellate authority itself needs the same for just adjudication of the case. 6. In our opinion averments made in the application do not satisfy first two tests and so far we are concerned, we do not need additional evidence, as according to us, there is enough material for proper adjudication of the case. In this behalf, an alternative prayer was made by Mr. Sharma learned Counsel for the appellant that after restoration of telephone on passing of the interim order by the District Forum below, respondent has stopped payment of his current bills in respect of Telephone No. DMA-226934. 7. We may clarify in this behalf, that neither interim order directed such non-payment by respondent nor it precluded the appellant to have dealt with the respondent if this is the correct/factual position. In this view of the matter, we find no ground to allow this application. 7. We may clarify in this behalf, that neither interim order directed such non-payment by respondent nor it precluded the appellant to have dealt with the respondent if this is the correct/factual position. In this view of the matter, we find no ground to allow this application. Thus reliance placed on the decision of the National Commission in the case of Khivraj Motors (supra) is concerned, for the view that we have taken regarding consideration of the application for additional evidence, this decision is of no consequence for the appellant. 8. Two other pleas were urged by Mr. Sharma on behalf of the appellant in support of this appeal. These are that the respondent is a franchisee of his client and thus was not a consumer, and his telephone could legitimately be disconnected under Rule 443 of Indian Telegraph Rules, 1885. Therefore, authorities under the Consumer Protection Act, 1986 lack inherent jurisdiction to have gone into the complaint. Other plea urged was that the respondent was having STD PCO under Telephone No. 226934 under franchisee license located in B. Mehra Hotel and another telephone No. 225108 in the name of Bihari Lal Mehra his grandfather and running at the residence, had become defaulter to the tune of Rs. 6,199/-, as such under Rule 443 of Indian Telegraph Rules, 1885, telephone disconnection of STD PCO No. 226934 was lawful. With a view to advance this plea, he placed reliance on a decision of the National Commission in the case of The Accounts Officer, O/O Telecom District Engineer, Bankura (WB) v. M/s. Krishna Trading Co., 1999 National Commission Judgments 230 and The Genera/ Manager, Madras Telephones and others v. R. Kanan, 1994(1) CPJ 14 (NC). During hearing of the appeal, it was not disputed that the bill of Rs. 6,199/- has been settled between the parties for Rs. 4,699/- as such nothing was payable. 9. We would have certainly examined this submission of Mr. Ratish Sharrna provided any foundation was laid during the course of proceedings before the Forum below. We have briefly referred to the complaint, its reply as also the affidavits filed by the parties by way of evidence in the complaint. There is not a word said about what was urged during the course of hearing of this appeal and what is set out in the grounds of appeal. Respondent cannot be allowed to be taken by surprise abruptly. There is not a word said about what was urged during the course of hearing of this appeal and what is set out in the grounds of appeal. Respondent cannot be allowed to be taken by surprise abruptly. He is supposed to meet the case as pleaded by the appellant. Why we should allow Mr. Ratish Sharma to urge something that was not pleaded muchless proved, in proceedings before the Forum below by his clients, could not be explained by the learned Counsel. In this view of the matter, both these decisions as well as another decision relied upon by Mr. Ratish Sharma of this Commission in Appeal No. 294/1999 in the case of T.D.M. Mandi and others v. Smt. Kanta Devi, decided on 7.12.2000, are wholly inapplicable. 10. At the risk of repetition we may observe that simple case of the respondent is, that he has paid the bill for the period 16.10.2003 to 31.10.2003 on 15.11.2003. This bill was dated 5.11.2003. Its due date for payment was 17.11.2003. This is also established on record. Disconnection in these circumstances could not have been resorted to and the stand of the appellant that after having come to know regarding payment of outstanding amount telephone connection of the respondent was resorted is of no consequence. How Rule 443 is being invoked by the appellants, there is no foundation laid by the respondents. Thus we find no merit in this appeal. 11. We may clarify in the context of non-payment of outstanding bills, (if any), after restoration of the telephone connection on the basis of interim order passed by the District Forum below, respondent is duty bound to clear all outstanding bills in respect of Telephone No. DMA-226934. In case he has not done the needful, he is directed to clear those within 15 days of the receipt of the certified copy of this order by him, failing which, appellant will be free to deal with him for non payment of such outstanding telephone dues (if not already cleared till that date), qua his telephone connection No. DMA-226934 at Dharamshala. This is in addition to the respondents cleaning current bills raised against him by the appellant for use of this telephone connection from time to time as per law. 12. No other point was urged. 13. This is in addition to the respondents cleaning current bills raised against him by the appellant for use of this telephone connection from time to time as per law. 12. No other point was urged. 13. In view of the aforesaid discussion and subject to the observations made in para 9 of this order, this appeal is dismissed being devoid of any merit. All interim orders passed from time to time shall stand vacated forthwith. Office is directed to send certified copy of this order to the parties free of cost as per rules.