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Introduction:-
Once a status symbol, a telephone has now become a necessity.
This is
largely due to the growth of trade and commerce, industry and
urbanization in the recent decades. More and more people now
require
faster means of communication. What looked unimaginable the other
day,
three people can now hold a conference on telephone. There are
other
facilities too.
It needs,
however, to be noted that the availability of these services
wholly depends upon the efficient functioning of the telephone.
The vast majority of telephones
consumers
have one or the other problem related to the efficient functioning
of the telephone. The telephones remain dead for long periods. The
complaints are not attended to despite the subscriber crying
hoarse he sleuths of the Telephone Department badly needs lessons
in public relations, hefty bills for calls, which he has not made,
land on the hapless subscriber and, sad to say, the telephone can
be disconnected at the drop of a hat.
Whether the
consumer likes it or not, he has little choice. He faces a
Take it or
Leave it
situation. Even the law cannot help him much here, such matters
being within the domain of public policy. The average subscriber,
however, is not so much concerned about such questions of high
policy. He is more interested in day- to-day matters as inflated
bills , arbitrary disconnection etc. and finding out whether he
has a remedy as also the forum which would provide him redress.
In providing
the telecom services, the state is not discharging a sovereign
function.
It is, as observed by the Himachal Pradesh
High
Court running a public utility service in which the consumer's
satisfaction must be regarded as a matter of prime importance.
Objective
Of The Project
An average subscriber generally pays his bills regularly. If for
any
reason he defaults, he pays a surcharge for late payment. But what
if he
receives a hefty bill for calls that he has not made and which, he
believes, are excessively high. To his utter dismay, the bill also
contains a warning in red letters that if the bill is not paid by
the
prescribed date, the phone will be disconnected without any
notice. And
this threat is usually enforced. But he has no means to prove that
he
has not used his telephone to the extent indicated in the bill.
For, one
of the unique and, perhaps, the most unfortunate features of this
service is that, unlike electricity or water meters that are
installed
in the premises of the consumer, the telephone meter is installed
elsewhere away for the gaze or access of the consumer. So he has
no
means of knowing the mistake beforehand and he has to suffer for a
mistake that he has not done. In such a case, then what are the
remedies
available to such a consumer? Whether he has rights to raise his
voice
against the exorbitant bill or he has no way except to pay the
amount by
any means and get ii done away with.
The Project
Aims
to study the Deficiency in Telecom Service with a special emphasis
on excess billing as a kind of deficiency in telecom services. It
also aims at studying the evolution of the law in terms of
inclusion of the deficiency in Telecom Services under the purview
of the Consumer Protection Act, 1986.
The law is now well settled that, should there be a dispute, the
subscribers, as consumers, are within their right to seek redress
under
the Consumer Protection Act, 1986.
The purpose of this project is to do a systematic study of the
various
laws related to deficiency in telecom services and to generate
awareness
by the help of studying various case laws and the evolution of law
in
the same regard.
The purpose is also to identify and discus the areas where the
courts
and the consumer Forum have intervened to redress the grievances
the
subscribers and where they have declined to interfere.
The ultimate aim is the generation of awareness so that the common
citizens are aware of their rights and they can find the battle
against
the injustice done to them and also seek compensation for the
mental
distress and agony caused to them by the Telecom Department.
Telecom
Service And The Consumer Protection Act
Before the enactment of the Consumer Protection Act, 1986, the
subscriber could do no better than approach the High court for
redressal
of his grievances. The lower courts, would not further than order
the
department to order an arbitrator. Section 7B of The Indian
Telegraph
Act, 1885, provides for compulsory arbitration and bars their
jurisdiction. It also lays down that the arbitrator shall be
appointed
by the central government which, in practice, means the Telecom
Government. The arbitrator appointed by the department is usually,
if
not invariably, their own officer. This does not inspire
confidence in
the subscriber, an appeal
from ceaser to ceaser, he is apt to
feel.
It is for this reason that the aggrieved subscriber preferred to
move
the High court in their writ jurisdiction for redress. Moreover,
the
High Courts could also provide interim relief that is beyond the
jurisdiction of either the arbitrator or the civil courts. But now
the
Consumer Protection Act , 1986, which was enacted for the avowed
purpose
of providing cheaper and expeditious remedy to the consumers and
for
better protection of their interests, and has come handy to the
consumers.
Excess Billing
As A "Deficiency" In "Service"
The complaint under the Consumer Protection Act, 1986 can be made
in respect of only those services that suffer from any deficiency.
The term Deficiency has been defined in section 2(1)(g) of the
Act.
Deficiency
means any fault, imperfection, shortcoming or inadequacy in the
quality, nature and manner of the performance which is required to
be maintained by or under any law for the time being in force or
has been undertaken to be performed by a person in pursuance of a
contract or otherwise in relation to any service. The deficiency
may be in quality , nature or manner of performance-
1) Which is required to be maintained by or under any law for the
time
being in force.
2) Which has bee undertaken to be performed by a person in
pursuance of
a contract or otherwise in relation to any service.
Thus , the deficiency in service may occur due to the violation of
any
standards as to quality , nature and manner of performance laid
down in
any of the existing laws. Negligence in rendering the services may
also
within the ambit of the act.
The court
included telecom services under the ambit of
service
in the case of
Union of India v. Nilesh Aggarwal
the definition
of
service
expressly states that it will take in service of any description
which
is made available to potential users other than service provided
free of
charge or under the contract of personal service. The non-mention
of
telephone facility in the inclusive portion of the definition is fno
consequence in view of the very wide language written in the main
part
of the definition that takes in every form of the service.
Admittedly,
the telephone facility is not provided free of charge and hence
the last
portion of the definition which excludes service rendered free of
charge does not get attracted nor are we concerned in this case
with a
contract of personal service.
Thus , Telecom also comes under the ambit of
service
as defined
under
the Consumer Protection Act,1986. And thus , if there is a
deficiency
in this service , a person can go to the Consumer forum for relief
under
the Law.
Excess Billing
- Causes
The division Bench of Gauhati High Court has examined , in great
detail , the problem of excess billing , its causes and the remedy
available to a subscriber who becomes a victim of inflated
billing. They identified the cause of the excess billing as
follows:
a) The subscriber having used STD and not being conscious of the
extent
to which he used it.
b) A fault in the meter circuit , or some transient fault in the
system
c) Possible deliberate mischief by other subscribers in league
with the
staff of the telecom department.
Study Of
Evolution Of Law Through Different Case Laws
In Union of India v. Nilesh Aggarwal,
a complaint was made averring that here were excess charges in the
telephone bill. The Rajasthan State commission held that the
complainant who is a subscriber is a
consumer
and the telephone service provided by the telecom department is a
service
for which he pays rent and over billing of telephone is
deficiency in
service
within the meaning of the act.
The telecommunication department has issued the guidelines for
disposal
of complaints about excessive telephone bills. The guidelines lay
emphasis on advance action in case of possibility of an excess
billing
complaint. The action to be taken includes -
a) meter reading being taken every fortnight
b) identifying all subscribers whose current fortnightly readings
show a
sudden spurt
c) and in case of such spurts being noticed , placing the
telephone line
on observation and deputing responsible staff to the subscriber's
premises to check up that there has been no special occasion which
might
have given rise to such spurts.
The above guidelines are meant to gain the confidence of the
subscribers. The National Commission has also held that these
instructions are mandatory.
In Director of Agriculture v. General Manager Telephones the
complainant received the monthly bill that was extremely more than
the
previous bills. The bill was excessive and unexplained. It was
held to
be deficiency in service.
In
P.K Goel v. The General Manager, Telephone, District Jaipur
Rajasthan
State Commission , bills showed STD calls where as the complainant
had
got the facility disconnected. It was held to e deficiency in
service
and was given compensation. Same was held in.
Bhoj Raj Dalmia v.
General
Manager, Calcutta Telephones.
In
Divisional Manager, Calcutta Telephones v. Jasoda Devi Lakhotia
, a
complaint was filed against excess telephone bills. Telephone was
disconnected without notice during pendency of complaint, it was
held by
the court to be illegal.
In
Sardar Rawal Singh Bhatia v. Patna Telephones, it was held that
the
metering equipment remains under the possession of the department
and
not under the subscriber. In cases of dispute about the
correctness of
the equipment , he department should provide evidence that the
metering
equipment was not defective.
In District Telephone Engineer v, Sewa Ram , the complainant
received an
excessive phone bill that was ten times the earlier bills. No
investigation was done by the opposite party in to the complaint.
The
state commission observed that when a consumer makes a complaint
regarding excessive telephone billing, the telephone department
has to
investigate the complaint. That was not done in this case. Thus ,
there
was deficiency in service.
Regarding the complaints , it was held in
Mahanagar Telephone
Nigam Ltd.
V. West coast Industries and another , that merely sending a
stereo
type cyclostyled reply that necessary investigations have been
completed
and the associated equipment has been checked and found to be
functioning normally there cannot be said to be a proper redressal
of
such complaints.
In
General Manager Telecommunication v. G. Padmaja Rani, it was
held
that the meter reading registers must provide for the difference
being
noted. Somebody should be held personally responsible to identify
and
report all cases of spurt personally. Failure in this regard must
be
taken care of. If an excess billing complaint reveals a spurt ,
which
had not been reported , suitable educational and disciplinary
notice
should be taken of the concerned staff.
In
General Manager Calcutta Telephones v. Dr. Timir Baran
Bhattacharjee,
it was held that once the complaint has been received a very
prompt action must be taken to investigate the same. For this
purpose the prescribed officers must call for the following
details from the officers
in charge of
the exchanges concerned
a) the record of fortnightly reading in respect of preceding
bi-monthly
periods and for all the available succeeding bi-monthly periods
b) Any extract of fault card for the disputed period
c) And spurt report, action taken on the same and the result
thereof.
This will include observations in the exchange and any field
investigations if carried out.
Conclusion
Thus, we saw the evolution of law in the field of Deficiency in
Service
with respect to Telecom Services with a special emphasis on
inflated
billing. The purpose is that the citizens should not feel cheated
and
helpless when such a thing happens. He should know his rights and
must
use them against injustice done to him.
For the same purpose , the government has launched the
Jago
Grahak
Jago Abhiyaan
in order to sensitize the citizens specially the consumers of
different goods and services of their rights.
Such a move is highly appreciated and it is sincerely believed
that it
goes a long way in enlightening the citizens specially consumers.
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The
author can be reached at: jk.nliu@legalserviceindia.comm /
