KERALA STATE CONSUMER DISPUTES EDRESSAL COMMISSION,VAZHUTHACADU, THIRUVANANTHAPURAM APPEAL NO.327/2000 JUDGMENT DATED: 5.10.07 Appeal filed against the order passed by the CDRF, Kasargod in OP.No.101/1999 PRESENT JUSTICE T.M.HASSAN PILLAI : PRESIDENT SMT.A.RADHA : MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER 1. Junior Telecom Officer, :Appellants Telephone Exchange, Chittarikkal.P.O., Chittarikkal. 2. General Manager, Telecom District. 3. The Accounts Officer, Telecom(-TR), Kasargodu. (By Adv.Smt.K.J.Thresia ) Vs. Philip.J Peringallur, :Respondent S/o John, R/at Thottanchal, Palavayal.P.O.,Cherupuzha(via), Kasargodu. JUDGMENT SRI.S.CHANDRAMOHAN NAIR : MEMBER The order dated 19.1.2000 in OP.101/99 of the CDRF, Kasargod is being assailed by the opposite parties in this appeal. 2. The brief facts of the case which are necessary for the disposal of the appeal are as follows: 3. The complainant, a subscriber of the opposite parties alleges that his telephone bearing No.723157 became out of order in July 1998 and though he had made complaint about it that was of no use and hence a written complaint was given on 3.9.98 and the technician who came to repair the same, told the complainant that the wire had become defective and had to be changed and he would come within 2 days and replace the defective wire. The complainant’s further case is that though he was paying rental charges upto 30.4.99 the telephone connection was not set right and even after the registered notice on 5.12.98 asking for carrying out the repairs and refund of rental charges, nothing was done by the opposite parties and hence the complaint was filed before the forum for getting directions to refund Rs.914/- being the rental charges from July 1998 to April 99 and compensation of Rs.4500/- for the mental pain loss etc suffered by the complainant. 4. In the version filed by the 3rd opposite party it is stated that the telephone was under disconnection for the period from 10.7.98 to 14.7.98. The line was rectified on 14.7.98 and the telephone instrument was also changed. But the telephone was under disconnection for non-payment of the bill dated 1.10.98 and as this fact was purposefully suppressed by the complainant, the opposite parties prayed for dismissal of the complaint. 5. The complainant, on getting the copy of version filed a replication stating that the opposite party had disconnected the telephone illegally and that they were collecting rental charges and as such prayed for reconnection. To the replication the opposite party filed a rejoinder submitting that the telephone was under disconnection from 2.11.98 as the last date for the payment of the bill dated 1.10.98 was 2.11.98 and that the complainant had paid the bills only on 25.11.98 and if he had informed the fact of remittance of bill and applied for reconnection, the same would have been given. 6. Complainant had filed affidavit and had been cross examined as PW1. Exhibits P1 to P12 were marked. The Junior Telecom Officer who is the 1st opposite party had been examined as DW1 and Exts.R1 to R6 were marked. 7. Accepting the case of the complainant the forum below has passed the impugned order directing the opposite parties to restore the telephone of the complainant in working condition within 15 days form the date of receipt of the copy of the order failing which complainant would be entitled to compensation at the rate of Rs.100/- per day from that date onwards till line thus restored. The opposite parties were further directed to pay a sum of Rs.4500/- together with another sum of Rs.500/- towards cost of proceedings to be paid within 2 months from the date of receipt of a copy of order with a still further direction to give rebate regarding rental for the period from non-functioning of the telephone till it is restored and to adjust the rent paid during the above period towards future rentals of the complainant. 8. The counsel for the appellants vehemently argued before us that there was no deficiency on the part of the opposite parties as the telephone connection of the complainant was disconnected on 2.11.98 for non-payment of the bill dated 1.10.98 and if the fact of remittance had been informed with an application for restoration of connection the same would haven been given immediately. It is also contended that as the service was not closed permanently it was natural that the rental bills would be sent to the consumer which he had to pay. It is also argued by the learned counsel that opposite party had rectified the faults on 14.7.98 and the telephone was in service till 2.11.98 on which date it was disconnected for non payment of bill dated 1.10.98 which was perfectly legal and justifiable. 9. The order of the forum in its entirety has been attacked by the counsel and we also find some force in the arguments of the counsel that the telephone connection was repaired and faults cured on 14.7.98 and the telephone was disconnected only on 2.11.98 as it is discernible from records that the complainant had made calls over the telephone from 15.7.98 to 1.8.98 (15 calls) and though only two calls are recorded, the phone was in use during the period from 1.8.98 to 1.9.98 . It is also seen that from 1.9.98 to 15.9.98 seven calls were recorded and in such a circumstance the arguments of the learned counsel that the phone was repaired on 14.7.98 and the same was disconnected only on 2.11.98 have to be believed by us. The disconnection on 2.11.98 can be rightly justified as per rule 169(1) of P & Manuel Vol XIV and as per para 443 of the Indian Telephone rules. More over as pointed out by the learned counsel, the Hon’ble National commission has also held that disconnection without notice is justifiable in cases of non payment of bills(General Manager Telephones Vs. D.K.Sigh – 1995(2)CPR 510.N.C) 10. The other questions to be answered by us are whether the complainant is eligible for restoration of the connection consequent to his remitting the bill on 25.11.98 and liable for payment of rentals during the period of disconnection. The learned counsel argued that on payment of the bill, the complainant ought to have applied for restoration as per rules. Rule 169(1) is relied on by the counsel where in it is stated that the request for restoration by the party should be treated as a request for new telephone connection. However this part of Rule 169(1) is not applicable in the present case as the request is necessary only when the phone is treated as permanently closed for non payment of bills for more than 6 months. Rule 169(1) says. “ If the telephone dues are not paid by the subscriber or before the due date, his telephone it disconnected and it will normally be restored on the payment of full amount of the dues with the reconnection fee as prescribed in para 66 in P &T Manual volume XII. The subscriber is alos liable to pay the rent for the period the telephone remained disconnected. If the dues referred to above are not paid within six months from the date of disconnection, the connection should be treated as permanently closed and will not be restored. Thereafter the request of theparty for restoration should be treated as a request for a new telephone connection. These instructions will apply both to flat and Measured Rate items of charging the rentals”. In the present case the complainant had remitted the bill on 25.11.98(ie after a period of 23 days from disconnection) and our anxious consideration is whether a request for reconnection is necessary in such a circumstance. The learned counsel argued that a request is necessary as the telephone was physically disconnected on 2.11.98 and the consumer was also aware of the disconnection and he should have brought the fact of disconnection to the notice of the opposite parties as soon as the remittance was made on 25.11.98. We do not find it possible for us to accept such a contention of the counsel for the appellant. If the phone was disconnected for non payment of a particular bill, the same is liable to be restored on payment of the bills if remitted within 6 months as only nonpayment within 6 months entitles the opposite parties to treat the connection as permanently closed and a request for reconnection is mandatory and hence the opposite parties are liable to restore the telephone connection to the complainant as ordered by the forum below which is upheld by us. The question of payment of rental charges and the rebate payable are also brought to our consideration by the learned counsel for the appellants. As the subscriber is liable to pay the rent during the period of disconnection (See rule 169(1) the orders of the forum below directing the opposite parties to give rebate for the period of non functioning of the phone and adjusting the same in future bills are all done without jurisdiction and we find that such directions cannot be upheld and we do so accordingly. The directions of the forum below in ordering payment of compensation @ Rs.100/- per day and payment of another sum of Rs.4500/- are also opposed by the learned counsel for the appellant. It is argued that the forum has passed the above directions without any basis as the complainant has not proved any loss or damage consequent to the disconnection. We also find no evidence in support of the claim for compensation or for the payment of Rs.4500/-. Apart from the pleadings “the petitioner estimates the loss for non working of the telephone from July 98 to till this date as Rs.4500/-(500 x 9)”, no other piece of evidence is forthcoming to substantiate the loss suffered by the complainant. As pleading is not evidence we are not in a position to uphold the order awarding compensation @ Rs.100/- per day and payment of Rs.4500/- to the complainant. The Hon’ble supreme court in consumers Unity & Trust Siciety Jaipur v The Chairman & Managing Director, Bank of Baroda (reported in National Commission and supreme Court on Consumer cases (pages 1546 to 1548) has held that only if loss or injury is caused to the person claiming damages by the negligence of the person from whom compensation is claimed, compensation can be awarded. In the case on hand the complainant has not proved that any loss or injury was caused to him due to the delay in restoring the connection and hence the above directions of the forum are upset by us. However the award of costs of Rs.500/- is upheld in the facts and circumstances of the case. With the above modifications the appeal is allowed setting aside the order in OP.101/99 of the CDRF, Kasargod. There will be no order as to costs. JUSTICE T.M.HASSAN PILLAI : PRESIDENT SMT.A.RADHA : MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER | 
