By Smt. C.S. Sulekha Beevi, President,

1. Complainant is the wife of deceased Mammi who had a land phone connection (No.422278) under opposite parties. Mammi died on 17-6-1988. As legal heir, complainant had applied in 1992 for transfer of the phone to her name. Opposite parties issued a notice dated, 07-7-2000 to pay the arrears of charges. While complainant was using the phone and remitting rent the phone was transferred by opposite parties to another person. Later complainant applied to shift the phone to her house. Again a notice dated, 14-2-2003 was issued demanding arrears. That complainant is not liable to pay any amount. Instead of transferring the phone opposite parties have allowed a third party to use the phone and amounts to deficiency in service. Hence this complaint to direct opposite parties to install the telephone with same number to the house of complainant, to cancel bill dated, 14-2-2003 and for compensation of Rs.10,000/- together with costs of Rs.2,000/-.

2. Detailed version was filed by opposite parties specifically denying the allegations in the complaint. It is submitted that the complaint is totally misconceived, ill advised and contains no truth at all. Sec.7B expressly bars the jurisdiction of the Forum to try the dispute. The complaint is barred by limitation and the repeated applications for transfer are fabricated as a guise to get over the limitation. On merits it is submitted that the connection held by Sri. Mammi was transferred to the name of the complainant on her application. That complainant has willfully suppressed the date of transfer. The pleadings are set forth in a manner to appear that for transferring the phone and for reconnection opposite parties had issued notice dated, 07-7-2000. The phone was transferred to the name of complainant on 27-4-1993. Thereafter complainant made application to keep the phone in safe custody, and the same was taken for safe custody on 05-5-1993. Even then complainant is liable to pay rent which she defaulted. Complainant did not remit the charges even after repeated notices. The phone was then disconnected on 21-8-1997 for non-payment of dues. BSNL has a right to provide phone number which is in safe custody to another and there is no bar for the same under rules and regulations. Necessary charges are being collected while under safe custody to reserve an indicator and there is no reservation of the specific phone number. On 29-6-1998 the complainant had applied for shift of the phone to her house (another address). Opposite parties issued letter to clear the dues to effect shifting. Complainant did not pay dues and the shifting was not done. Again complainant approached for shifting vide application dated, 04-6-2000. To this opposite parties replied to clear the dues. On 06-9-2000 complainant paid some amount without clearing the upto date dues. On 30-5-2001 the telephone number 422278 was provided to Sri. Sunder Babu since the complainant failed to clear the dues. That opposite party is willing to consider the application for shift of phone provided complainant clears the entire arrears. Re-connection can be effected at the earliest possible opportunity on clearing dues. Complainant is liable to pay installation charges, security deposit, and requisite charges for reconnection. Opposite parties have acted only in accordance with law and that there is no deficiency in service. That the Hon'ble High Court of Kerala has held and appreciated that the same number need not be given to the same consumer after 6 months of disconnection. In the present case, the disconnection is 6 years back. O.P.No.9010/2002 was dismissed by Hon'ble High Court with cost of Rs.2,000/- in which the prayer was to provide the same number after 6 months of disconnection. It is very clear that complainant is not interested in maintaining the phone connection. That she is not entitled to any reliefs.

3. Evidence consists of the affidavit filed by complainant and Exts.A1 to A10 marked for her. Opposite party filed counter affidavit. Ext.B1 marked for opposite parties.

4. Points for consideration:-

(i) Whether the complaint is barred by limitation.

(ii) Whether opposite parties have committed any deficiency in service.

(iii) If so, reliefs and costs.

5. Point (i):-

Opposite parties have disputed the complaint to be made within time. The opposite party has not averred on which date she first filed the application for shifting of the phone. It is seen stated that she was served with a notice dating 14-2-2003 demanding charges. Complainant disputes this amount, and prays to cancel this bill. This complaint is filed two months after this notice and hence the complaint in our view is within time. We hold that complaint is not barred by limitation.

6. Point (ii):-

At the outset we have to say that the pleadings of facts set forth in the complaint are twisted and very unclear. These are re-iterated in the affidavit. The evidence tendered through the affidavit of complainant can be appreciated only on the background of certain aspects which are narrated hereafter. On 23-9-2008 opposite party filed I.A.421/08 seeking permission to cross examine the complainant. This was allowed on the same day and complainant was directed to appear for cross examination. On 04-12-2008 counsel for complainant filed I.A.536/2008 stating that the complainant is ill, handicapped lady aged 70 years and requested to excuse her from appearing before the Forum to face cross-examination. In the affidavit filed on 23-5-2008 the age of the complainant is stated as 58 years. I.A.536/2008 was dismissed in view of the order passed in I.A.421/08 with liberty to the complainant to take necessary steps to record her evidence by issuance of a commission. On 09-2-2009 counsel for complainant reported that complainant is not interested in taking steps for recording her evidence. The complainant has thus shied away from facing the cross examination. In 1999(3)SCC 573 Vidhayadhar Vs. Manikarao & Another, the Apex Court observed at page 583 that “where a party to the suit does not appear in the witness box and state his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.” For these reasons we hold that the evidence tendered by affidavit is totally unacceptable to us. On bare perusal of the materials placed before us it is crystal clear that complainant has defaulted the charges payable to opposite party. On such score she cannot request for further services of shifting of the phone without paying the arrears. Opposite party has filed counter affidavit. It is stated that complainant had paid Rs.1,161/- on 10-9-2007 on the initiation of Revenue Recovery proceedings. This is evidenced by Ext.A10 receipt. It is stated that as per initiation of revenue recovery proceedings Rs.1,161/- + Rs.200/- was due from the complainant. Rs.200/- was the charges towards the instrument. It is submitted by opposite party that as per settlement the arrears were canceled and a fresh bill was issued on 28-8-2007 (Ext.A9) for Rs.1,161/- + Rs.200/-. Out of this complainant paid Rs.1,161/- and returned the instrument as full and final settlement. Thus the instrument was surrendered by complainant which makes it clear that she is not interested in the phone connection any more. The dispute of bill amount has been already settled. Complainant has no case that she paid charges regularly from 1993, after the phone was transferred to her name. Further she suppressed the fact of entrusting the phone for safe custody also. The complaint lacks bonafideness and complainant has not come with clean hands. Further we find no merits in the complaint.

7. In the result we dismiss the complaint. No order as to costs.

Dated this 7^th day of September, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A10

Ext.A1 : True copy of the demand note dated, 27-3-1993 from opposite party to complainant.

Ext.A2 : Photo copy of the letter dated, 07-7-2000 by first opposite party to complainant.

Ext.A3 : Photo copy of the bill for Rs.210/- dated, 11-8-2000 from opposite party to complainant.

Ext.A4 : Photo copy of the bill for Rs.308/- dated, 21-8-2001 from opposite party to complainant.

Ext.A5 : Photo copy of the bill for Rs.336/- dated, 11-4-2002 from opposite party to complainant.

Ext.A6 : Photo copy of the letter dated, 29-7-2002 from opposite party to complainant's husband.

Ext.A7 : Photo copy of the bill for Rs.336/- dated, 11-8-2002 from opposite party to complainant.

Ext.A8 : Photo copy of the letter dated, 29-7-2002 from opposite party to complainant's husband.

Ext.A9 : Photo copy of the letter dated, 28-8-2007 from opposite party to complainant's husband.

Ext.A10 : Photo copy of the receipt from opposite party to complainant's husband.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1

Ext.B1 : Photo copy of the letter dated, 22-7-1998 by first opposite party to complainant.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER