ORDER

(Per: D.K. Tyagi, Member):

This is an appeal filed by appellants under Section 15 of the Consumer Protection Act, 1986 against the order dated 03.03.1999 passed by the District Forum, Pauri Garhwal in consumer complaint No. 83 of 1998, whereby the District Forum has allowed consumer complaint and directed the opposite party-Telephone Department to pay to the complainant a sum of Rs. 1,000/- as compensation and Rs. 100/- towards litigation expenses.

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint are that the telephone No. 22453 was installed at complainant’s residence and the complainant shall regularly pay the rent and bill according to the usage.  The complainant stated that earlier he resides at Mamgain Bhawan, Vikas Marg, where he used the telephone No. 22877 of his neighbour Sh. B.B. Sain.  After transfer of Sh. B.B. Sain, the complainant applied in the office of opposite party for the change of his telephone        No. 22453 to 22877, on which the opposite party issued a demand note for a sum of Rs. 53/- to the complainant, which was paid by the complainant to the opposite party.  Despite payment of amount against demand note, the opposite party did not transfer the complainant’s telephone number.  On 07.06.1998, the complainant shifted from Mamgain Bhawan, Vikas Marg to Nautiyal Bhawan, Near Old Cinema Hall, Power House Mohalla and on 08.06.1998 he applied in the office of the opposite party for transfer of his telephone connection.  In this regard, the opposite party issued a demand note towards shifting cost for a sum of Rs. 630/- to the complainant, which was deposited by the complainant on 10.06.1998 vide receipt No. 85 in the office of the opposite party.  Despite repeated requests and calls, the opposite party did not shift the telephone connection. Ultimately, the opposite party had shifted his telephone connection on 02.08.1998 at 3:00 p.m. in the newly shifted house.  The complainant suffered mental agony due to the conduct of the opposite party for which he demanded Rs. 15,000/- as compensation and also Rs. 53/- an amount charged for the change of telephone number.

3.       The opposite party has filed written statement before the District Forum and pleaded that it was a transfer case of telephone and complainant was allotted indicator No. 22453.  Indicator No. 22877 was not vacant at Vikas Marg at that time. The complainant had deposited Rs. 53/- when indicator No. 22877 was already given to one Sh. Arvind Tiwari, Circuit House.  The complainant had changed the house and at the changed place, there was no place of installation of telephone.  The opposite party has pleaded that the connection was provided to the complainant as and when place became vacant.  The complainant is using telephone No. 22453 continuously and even after shifting of this telephone.  The opposite party has pleaded that the connection of the complainant had already shifted before receiving any summon of the District Forum. If the complainant using telephone No. 22877 of Sh. B.B. Sen, then it is a penal offence in the Telephone Act. 

4.       The District Forum, on an appreciation of the facts and circumstances of the case, allowed the consumer complaint No. 83 of 1998 vide impugned order dated 03.03.1999 in the above manner.  Aggrieved by the said order, the opposite party-appellants have filed this appeal. 

5.       Sh. M.K. Kohli, learned counsel for the appellant has appeared before this Commission.  None has appeared for respondent-Sh. B.B.S. Rawat.

6.       We have heard the learned counsel for the appellants and perused the record.

7.       Learned counsel for the appellants has submitted that the delay in shifting of telephone was due to non-availability of cable pair and the indicator of the exchange was showing full capacity where the telephone was to be shifted and, therefore, the telephone could be shifted within 2 months only from the receipt of money against the demand note.  Learned counsel has submitted that the District Forum, Pauri Garhwal without taking into consideration the submissions made by the appellants to pay Rs. 1,000/- as compensation and Rs. 100/- towards cost of the case.  The application for shifting the telephone was given on 07.06.1998 and the demand not was issued on 09.06.1998. The appellants in their written statement have submitted that in Pauri Exchange, indicator 22877 was not vacant, hence the complainant was given indicator 22453.  At the time of shifting of the telephone of the respondent-complainant, the respondent had asked for indicator 22877, which could have been allotted to him only after payment of Rs. 53/-, which is prescribed fee according to the Indian Telephone Rules for allotment of a particular indicator. The complainant did not deposit the said Rs. 53/- in time, hence, the indicator No. 22877 was allotted to one other person Sh. Arvind Tiwari.  The complainant changed his residence and asked to shift the telephone on the changed address and his telephone was shifted and was brought into working condition as soon as cable pair was available in that particular area. Before allotment of indicator No. 22453, the respondent-complainant has been using indicator No. 22877 of Sh. B.B. Sen, which is punishable offence.  The complainant had two separate cause of action, one was shifting of the telephone from one place to another and the other to allot him a particular indicator number, which he has mingled with each other in his complaint case.  Learned counsel submitted that a bare perusal of the complaint will show that the complainant did not give the details regarding applying for a particular telephone number, i.e. the date of application and the date of deposit of money etc.  The District Forum has passed the impugned order contrary to a view taken by Hon’ble National Commission that the complainant is required to produce and establish the allegations supported with documents, the actual loss suffered by him.  No material/record has been produced by the complainant and the District Forum has also not discussed in detail the quantum of actual loss suffered by the complainant. 

8.       From the perusal of the consumer complaint, paper Nos. 5 & 6 on the District Forum’s record, it is evident that the complainant applied for shifting of his allotted telephone number to Nautiyal Bhawan.  It is admitted to the complainant that his telephone connection was shifted from his previous place to the Nautiyal Bhawan on 02.08.1998, i.e. within two months of applying for shifting of telephone connection. The written statement filed by the appellants-opposite party before the District Forum, indicates that it was a transfer case and there was no vacant indicator No. 22877 at Vikas Marg, Pauri.  Therefore, indicator No. 22453 was provided to the respondent-complainant.  In the written statement, the opposite party has also submitted that the complainant had not deposited the prescribed fee of Rs. 53/- at that time and meanwhile indicator No. 22877 was given to one Sh. Arvind Tiwari at Circuit House by the Telephone Department.  It is also mentioned in the written statement that the Telephone Department had already shifted the telephone connection of the complainant-respondent at his changed place before receiving summon of the District Forum.  The District Forum, in the impugned judgment and order has discussed this point that despite demand notice and payment of prescribed fee, indicator No. 22877 was not provided to the complainant, but from the facts mentioned in the written statement, it is clear that indicator No. 22877 was not vacant at that time and before payment by the complainant-respondent to the Telephone Department, this indicator No. 22877 was already given to one Sh. Arvind Tiwari at Circuit House, Pauri.  Similarly, at the changed place, there was no vacant place for installation of shifted telephone number.  It is admitted to the complainant-respondent that the Telephone Department had shifted his telephone connection on 02.08.1998, i.e. within two months’ time.  From the facts and circumstances of the case, we are of the view that the Telephone Department had not deliberately and intentionally caused delay in shifting of the telephone as well as in providing a particular telephone number to the complainant-respondent. The Telephone Department had shifted telephone of respondent on his demand after depositing Rs. 630/- on 10.06.1998. 

9.       The District Forum has not properly considered the facts and circumstances of the case and has erred in passing the impugned judgment and order dated 03.03.1999, which is not legally tenable and is liable to be set aside.  Consequently, the appeal deserves to be allowed.

10.     For the reasons aforesaid, the appeal is allowed.  Impugned judgment and order dated 03.03.1999 passed by the District Forum, Pauri Garhwal is set aside and the consumer complaint No. 83 of 1998 is dismissed.  No order as to costs.