Legal Service India - Deficiency in Telephone Services With a Special Emphasis on Over Billing
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Deficiency in Telephone Services With a Special Emphasis on Over Billing

Written by: B.Jyoti Kiran & Anoliba Mani - IV Year Student, NLIU
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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.

The author can be reached at: jk.nliu@legalserviceindia.com / Print This Article

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