By Smt. C.S. Sulekha Beevi, President,<br /> <br /> 1. The case of the complainant is that his telephone was continuously out of order and was not rectified by opposite party even after repeated complaints. His request for rent rebate for the period during which the telephone was totally out of order was not acceded to by opposite party. Even though his telephone was dead for a long time a bill for Rs.1,805/- was issued which he challenges to be not in conformity with the use of his telephone and with the bills issued for previous months. Hence this complaint praying for Rs.50,000/- as compensation.<br /> 2. Opposite party has not filed any version. Memo was filed on behalf of opposite party by counsel Sri. P. Harikumar to the effect that this Forum has no jurisdiction. It is stated in the memo that the Hon”ble Kerala High Court vide decision in General Manager Vs. C.D.R.F. 2000(2) KLT 195 had held that the dispute regarding payment of telephone bill is to be dealt with under Sec. 7 B of the Telegraph Act which provides for remedy by arbitration. That thereafter Hon'ble High Court of Kerala in this later decision General Manager, BSNL. Vs. Krishnan KLT 2003 (1) 817 held that Consumer Forum has jurisdiction to adjudicate telecom matters. That BSNL has preferred SLP.No.18409/03 before the Hon'ble Supreme Court against this judgment. That Apex Court vide order dated, 29-11-04 has stayed the operation of the impugned order and therefore the previous decision of Hon'ble Kerala High Court in 2000(2) KLT 195 has still the sanction of law. That the complaint is therefore to be dismissed.<br /> 3. Evidence consists of the affidavit filed by complainant and opposite party. Exts.A1 marked for the complainant. No documents marked for opposite party. Either side has not adduced any oral evidence.<br /> 4. Points for consideration:-<br /> (i) Whether this forum has jurisdiction?<br /> (ii) Whether opposite party has committed deficiency in service?<br /> (iii) If so, reliefs and costs.<br /> 5. Point (i):-<br /> No version was filed by opposite party. Memo as well as I.A.No.107/07 was filed by opposite party opposite party disputing the jurisdiction of this forum to entertain the complaint and praying for stay of this case till disposal of SLP-18409/03 pending before the Hon'ble Supreme Court. According to the counsel for opposite party the decision reported in 2003 (1) KLT 817(F.B.) General Manager, Telecom., BSNL Vs. Krishnan which held that the services provided under the Indian Telegraph Act,1885 are not excluded from the ambit of Consumer Protection Act, 1986 is stayed on 29-11-2004 in SLP-18409/03. Therefore the decision rendered in 2000(2) KLT 195 General Manager Vs. CDRF. which held that Consumer Forum has no jurisdiction to entertain the complaints regarding services provided under Indian Telegraph Act is restored/revived. Since IA-107/07 is a petition disputing the jurisdiction of this forum we thought to consider this petition along with the complaint. Though in the petition it is stated that copy of the diary extract is produced in an earlier case, in fact an unclear, unreadable unattested copy was produced in an earlier case. Even after repeated directions to produce a clear/readable copy counsel for opposite party has failed to comply with the direction for one reason or the other. So we are unaware as to the contents of the diary extract. With all respects to the Honourable Apex Court and higher judiciary we proceed to discuss our view regarding the question of jurisdiction as disputed by opposite party.<br /> 6. We do not agree with the contention of counsel for opposite party for the reason that the stay if any in SLP18409/03 is applicable only to the order that is appealed against. We are of the humble view that what is stayed in SLP18409/03 on 29-11-2004 is an execution of the ultimate direction in that case and the law declared and reported in 2003(1) KLT 817 is certainly binding on us till it is held as overruled. The order in SLP 18409/03 produced before us read as under: <br /> “Delay condoned.<br /> Leave granted.<br /> Stay of the operation of the impugned order”.<br /> 7. There was no discussion or finding as to the position of law. A perusal of the order shows that it is an interim order passed till the disposal of the case. We brought to the notice of counsel for opposite party that cases against BSNL(Telephone matters) are being decided by Hon'ble National Commission as is evident from the various decisions reported in the consumer journals. This was controverted by the counsel for opposite party. He submitted that the stay in SLP 18409/03 is applicable only to the State of Kerala. District Forum being subordinate to the National Commission is bound to follow the decision rendered by Apex Commission. It was also submitted by the counsel for opposite party that by the order of stay in SLP 18409/03 the position of law rendered in 2000(2) KLT 195 is revived/restored. We find it difficult to accept this argument of the counsel for opposite party Sri.P.Harikumar. If this submission is to be accepted then courts will find it difficult to apply any reported ruling since the court will have to search and find out whether there is any stay in existence.<br /> <br /> 8. Counsel for opposite party made a submission that the cases against Telecom., BSNL can be kept in abeyance before this Forum till the final disposal of SLP 18409/03. Consumer Protection Act provides a time limit of 90 days to dispose a case. Although this time limit is not mandatory; to keep the cases pending indefinitely would be doing injustice to the complainants. Especially consumer Forum being an authority which allows parties to appear and litigate in person without the help of lawyers; it would cause much hardships to them if the cases are kept pending indefinitely.<br /> <br /> 9. With all respects to the Apex Court, and humbly submitting ourselves to the rule of 'Stare decosis' we are of the view that when a position of law is declared it is binding until it is overruled or reversed. We therefore hold that the rule laid in General Manager, Telecom., BSNL Vs. Krishnan 2003(1) KLT 817 (F.B.) is still in force and this Forum has jurisdiction to try this complaint. This point found in favour of the complainant.<br /> 10. Point (ii):-<br /> The grievance of the complainant as per the evidence tendered through the affidavit is that his telephone was totally out of order from 05-6-2006 to 17-7-06. The defect was not rectified even after making repeated complaints to opposite party. Along with the complaint he has furnished a copy of the complaint dated, 30-6-06 which was lodged before the General Manager, BSNL., Malappuram. In this letter as well as in the complaint he consistently alleges that his telephone was out of order from 05-6-06 onwards and that it has not been rectified even after repeated complaints. Complainant has also furnished the register number of the complaints made by him, which was received through the automatic complaint registration computer system. These registration numbers show that he has made complaints on 05-6-06, 10-6-06, 12-6-06 and 15-7-06. On 17-7-2006 he has preferred this complaint before the Forum due to inaction on the part of opposite party. Counter affidavit is filed by opposite party denying the fact that the telephone was faulty from 05-6-06 onwards. It is contended by opposite party that the issuance of the bill dated, 07-7-06 for Rs.1805/- itself is sufficient to prove that the telephone was not out of order. We are unable to accept this defence put forward by opposite party. Complainant alleges that the telephone was out of order for 42 days and that the bill dated, 07-7-06 for Rs.1,805/- is incorrect. Opposite party has not produced the fault card, cal wise details of the disputed bill or even fortnightly readings of the relevant period. Once the parties are aware of the facts in issue it is for them to come forward with the best available evidence to help the Forum arrive at a just conclusion. When a party has a document/evidence and fails to produce it, such party cannot take shelter under the abstract doctrine of burden of proof. During the pendency of this litigation complainant issued a letter to opposite party on 30-4-08 by registered post requesting to furnish details of the bill dated, 07-7-06. Copy of this letter is marked as Ext.A1. Till the case was taken for orders on 20-6-08. Opposite party has not issued any reply. An affidavit was filed on 20-6-08 by opposite party purported to be in reply to this letter. In the affidavit opposite party states as under:<br /> “The letter alleged to have been sent to the Accounts section was received by the office and the complainant was personally contacted and clearly told that the previous detailed bills cannot be obtained since it will be automatically removed unless or otherwise any dispute in existence in respect of a bill.<br /> The present case is not concerned with any bill and till date no bill complaint is received. Any complaint in respect of a bill received in 15 days of the issuance of bill, the details will be kept if available.<br /> In respect of the complainant, the details were available during the said period and there were no complaint of bill is received at the department or at the Consumer forum, the bills are not protected.<br /> At this point of time, or after an year of bill, it is impossible to produce the details of bill of more than a year back since those are automatically erased as per the software of the computer system installed all over India.”<br /> 11. The contention of opposite party that the present complaint was not regarding the bill issued and therefore the details of bills were not stored and hence unavailable is untenable. Complainant has challenged the correctness of the bill dated, 07-7-06. The averment in the complaint reads as under:-<br /> “5-6-2006മുതല്‍ ‍പൂര്‍ണ്ണമായി dead അായ എന്‍െറ ഫോണ്‍ വാടക (rent) ഒഴിവാക്കിത്തരണമെന്നും നഷ്ടപരിഹാരം നല്‍കണമെന്നും കാണിച്ച് ജനറല്‍ മാനേജര്‍ മലപ്പുറത്തിന് പരാതി കൊടുത്തിരുന്നു. എന്നാല്‍ ഇന്ന് വരെയും 17-7-06 പൂര്‍ണ്ണമായി dead അായ ഫോണിന് 1805 രൂപ ബില്‍ വന്നിരിക്കുന്നു. ഇത് എന്‍െറ മുന്‍ മാസത്തെ ബില്ലുകളും എന്‍െറ ഉപയോഗത്തിന്നപ്പിറത്താണ് എന്ന് ഞാന്‍ വിശ്വസിക്കുന്നു.”<br /> Notice was issued to opposite party from this Forum on 26-7-06. Even then opposite party has not cared to take the complaint into consideration and enquire about the cal wise details. It is settled position that it is the duty of the party which is in possession of a document which is considered to be helpful in doing justice to cause production of the same. If the party withholds such evidence adverse inference can be drawn against such party. Further in the present case, opposite party has not filed any version. Only a memo disputing the jurisdiction of this Forum was filed. No amount of evidence can be led into a plea which was never put forward by opposite party. Therefore the evidence if any tendered through the counter affidavit is only to be disregarded. From the above discussions we hold that complainant has established and proved that his telephone was out of order from 05-6-06 to 17-7-06 and that opposite party failed to rectify the defect even after repeated complaints. We find opposite party deficient in service. The complainant also challenges the bill for Rs.1,805/- dated, 07-7-06 to be incorrect and not in conformity with his previous bills and the use of the telephone. Telephone bills are issued bi-monthly. Though complainant alleges that the bill differs from the amount of bills of previous months there is no reliable evidence to prove the same. The period for which the bill was issued and specific evidence as to spurt if any has not been tendered by complainant. Telephone charges can depend upon even a single call. For these reasons we find that complainant has failed to establish that the bill dated, 07-7-06 for Rs.1,805/- is incorrect.<br /> 12. Point (iii):-<br /> Complainant alleges that due to the prolonged defect of the phone he and his family had to undergo much inconveniences and hardships. He contends that the information regarding B.Ed admission of a member of the family was not received at proper time due to the disruption of telephone service. That it caused loss of business and income since the members of the family used this phone for business transactions. These claims are too remote to the cause of injury and therefore to be disallowed. Complainant claims for Rs.50,000/- as compensation which according to us is highly inflated and exaggerated. Complainant has to be definitely compensated for the deficiency meted out against him. In a consumer complaint, the compensation awarded to the complainant will not only redress his grievance, but also will serve to better the quality of service rendered by the service provides. In present days telephone is no more a luxury. Defect of a telephone for such a long duration like 42 days would definitely cause much hardships and inconveniences. The telephone number is usually given by the consumer as contact number for various purposes. In our view complainant is entitled to rent rebate for the period during which his telephone was out of order. In addition a sum of Rs.2,000/- as compensation along with costs of Rs.500/- would serve justice to the complainant.<br /> 12. In the result we allow the complaint and order the following:-<br /> (i) Opposite party shall give rent rebate to the complainant for the period 05-6-06 to 17-7-06 and this amount shall be adjusted to his future bills.<br /> (ii) Opposite party shall pay a sum of Rs.2,000/- (Rupees Two thousand only) to the complainant as compensation along with costs of Rs.500/- (Rupees five hundred only)<br /> (iii) The time limit for compliance of this order is fixed as one month from the date of receipt of copy of this order.<br /> <br /> Dated this 21st day of July, 2008.<br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br /> <br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Ext.A1<br /> Ext.A1 : Application for detailed bill sent by complainant to opposite party. <br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Nil<br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br />