Judgment:-

R.V. Raveendran, J.

Delay condoned. Leave granted. Heard the learned counsel. This appeal relates to a telephone subscribers grievance in regard to excess billing.

2. Appellant received a bill dated 11.7.1995 for Rs.91,621/-in regard to his telephone (No.239473 of Pattazhi, Kollam). On 28.7.1995 the appellant lodged a complaint with the first respondent alleging excess metering and/or misuse in regard to his telephone. He stated that no action had been taken in spite of his meeting the concerned Junior Engineer and complaining about the bill. He requested that the demand for the payment of the Bill may be kept `pending till enquiry into his complaint. (According to the appellant, he had earlier received another excess bill (dated 11.1.1995) for Rs.79170/-and he had orally complained about it, but paid the amount in view of an assurance of the telecom department to enquire into his complaint). The first respondent sent a reply dated 8.8.1995 informing him that the matter was being enquired into and called upon him to settle the bill, pending such enquiry. When matters stood thus, the appellant was served another bill dated 11.9.1995 for Rs.581,717/-for 403630 calls. As the amounts of bills dated 11.7.1995 and 11.9.1995 were not paid, the telephone was disconnected on 27.9.1995. The respondents also issued a notice dated 30.11.1995 demanding payment of the arrears of Rs.677,338/-by 13.12.1995. They also threatened to permanently close the telephone and recover the amount as revenue arrears, if the amount was not paid. Though appellant reiterated his request for action on his complaint, the department, by letter dated 15.3.1996 merely reiterated the demand for payment. Appellant therefore approached the High Court for relief. The High Court by order dated 26.4.1996 disposed of the petition with a direction to the Telecom department to refer the dispute to statutory arbitration under section 7B of the Telegraph Act, 1885.

3. In pursuance of the above, the department appointed the fourth respondent as Arbitrator on 1.8.1996 and referred the excess billing dispute in regard to the following three bills for arbitration:

Table

The appellant contended before the Arbitrator that the bills for 1994 would show that the number of calls made (bimonthly) were only 1580, 2860, 3310 and 13220, as per bills dated 11.5.1994, 11.7.1994, 11.9.1994 and 11.11.1994. Even in 1995, that is, for the periods 25.12.1994 to 24.2.1995 and 25.2.1995 to 24.4.1995, the number of calls were only 2800 and 4100 as per bills dated 11.3.1995 and 11.5.1995. He pointed out that the Bill dated 11.1.1995 for the period 25.10.1994 to 25.12.1994, bill dated 11.7.1995 for the period 25.4.1995 to 25.6.1995 and bill dated 11.9.1995 covering the period upto 25.8.1995 showed an unbelievably large number of calls as having been made (54300, 62270 and 403630 respectively). He attributed the unexplained spurts to some fault in the system (metering circuit) or some collusive mischief by the telephone staff in collusion with other users.

4. The telecom department contended before the Arbitrator that there were no faults or defects in the system and as the telephone was connected to an electronic exchange there was no chance of misuse or excess metering. They alleged that the appellant was a heavy caller and was probably using the telephone for international calls and unauthorized FAX facility. They submitted that there was no error in the bills.

5. The Arbitrator made an award dated 9.1.1997. After referring to the facts he concluded : "On deep analysis of the case, I found that there was no proper monitoring of the calls originated from the petitioners telephone by Telegraph Authority and I found that the appellant was eligible for rebate and by extending the benefit of doubt, I allow 40000 calls in favour of the petitioner, in the disputed bill dated 11.9.1995 issued for Rs.5,81,717/-... I do not find any justification to allow any rebate in favour of the petitioner fo