D.O.F. 16.07.2008

                                                                                  D.O.O. 08.02.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:   Sri. K. Gopalan                                     :        President

                Smt. K.P. Preethakumari                     :         Member

                Smt. M.D. Jessy                                   :        Member

Dated this the 8^th day of February, 2011.

C.C.No.165/2008

Sadaruddin Panakkat,

S/o.  Moosakutty,

‘Citadal’, Thilleri through his P.A. Holder            :         Complainant

P. Sirajuddin, S/o.  Moosakutty,

‘Citadal’, Thilleri,  Kannur.                                                    

(Rep. by Adv. M. Rameshkumar) 

1.  M/s. Hutchisson Essar Cellular Ltd.,

     X1-5115, 2^nd Floor, Ashis Building,

     Shanmugham Road, Cochin – 682 031.

2. M/s. Hutchisson Essar Cellular Ltd.,               :         Opposite Parties

    5^th Floor, K.V.R. Tower,

    Opposite  Mahatma Mandiram,

    Kannur.

(Rep. by Adv. B.P. Saseendran)                    

O R D E R

Sri. K. Gopalan, President.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to terminate the unauthorized SIM card service provided to Mr. Santhosh and to pay an amount of ` 1,00,000 as compensation together with the cost of this proceedings.

          The brief facts of the complainant’s case are as follows :  Complainant took a prepaid Hutch connection from 2^nd opposite party on 28.07.2006 paying the requisite fee of ` 3,300 by obtaining the receipt.  The SIM card was charged on 29.07.2006 for a period of one year.  After registration the complainant used the service till the end of August, 2006. Thereafter complainant went to Dubai and kept the SIM card in his personal custody. When complainant returned it was found that the SIM card was not in operation and on trying for call the message received was that ‘registration failed’.   He then lodged complaint before 2^nd opposite party.  The Area Sales Manager of 2^nd opposite party sent a reply to complainant saying that SIM card by mistake was allotted to somebody else. The record on data basis maintained by 1^st opposite party indicate that complainant is the subscriber.   However 2^nd opposite party issued later another SIM card on temporary basis for the use of complainant.  Thereafter on 18.06.2007 the original SIM card has become active and this gave back the temporary SIM card to 2^nd opposite party.  Complainant put to extreme difficulty during the period of holding temporary SIM.  When the same was used by the wife of the complainant on 19.07.2007 she received message that the ‘registration failed’.  Complaint was lodged before 2^nd opposite party on 21.07.2007 and SIM card again became active afterwards.  But surprisingly many calls were received asking for one Mr. Santhosh.  It is revealed by Santhosh himself that this prepaid card was subscribed by him on April/May, 2007 and he has been using it thereafter.  It is wonder to understand that the SIM card was transferred to another person while the subscription of complainant is in existence.  The complainant’s SIM card ceased to function since 24.07.2007.  On complaint 2^nd opposite party assured that the matter would be amicably settled.  On 24.07.2007 when the complainant called this number from Dubai it was the alleged             Mr. Santhosh, who attended the call.  It is true that opposite party entertained more than one subscriber at a time for one SIM card.  The complainant’s subscription is in force till 10.07.2007.  The opposite party’s action of transferring the SIM card of complainant to another person during the subsistence of complainant subscription is illegal, breach of contract and unfair trade practice.  It violates the rules of Telecom Regulatory Authority of India (TRAI). As a result of opposite party’s deficiency in service complainant has suffered much mental agony and great inconvenience.   It is greatly affected the reputation of the complainant.  Opposite party instead of settling the matter asked the complainant to surrender the SIM card stating that it is common.  Complainant thereafter sent legal notice but opposite parties did not reply the same.  Hence this complaint.

          Pursuant to the notice 1^st opposite party entered appearance and filed version in the form of objection.  4^th opposite party subsequently appeared and filed version separately.  3^rd opposite party set exparte.   2^nd opposite party has not filed separate version.

          The brief facts of the version filed by 1^st opposite party are as follows :  This opposite party provided normal acceptable standard of service to its subscribers.  The mobile No.9846691915 has been subscribed by one Mr. Santhosh K.T. since 29.07.2006 the date of activation.  It is operated till date.  The allegation with respect to the issuance of temporary SIM card and finding the original SIM card activated and returned the temporary SIM card lacks clarity.  Details as to temporary SIM card and the number allotted is not stated no where in the complaint the original mobile No or the temporary No. were mentioned.  At no point of time the connection was provided to the complainant.  The connection has not been activated in the name of Santhosh on April/May, 2007. The connection is even now active in the name of Santhosh.  Complainant statement as to the date of deactivation as on 10.07.2007 and 24.07.2007 is inconsistent.  Complaint lacks bonafides.  Hence to dismiss the complaint.

          4^th opposite party, the prepaid distributor of Hutch mobile connection filed version separately, the brief content of which is as follows :  Subsequent to obtaining connection on 28.07.2006 4^th opposite party abandoned the distributionship of Hutch and connected telecom services.  The price of one year validity card is ` 3,300 and price of Hutch card is ` 199.  The lawyer notice was sent and the complaint was filed on expiry of validity period of the said card.  The connection obtained by the complainant was used till August, 2006.  So complainant has no cause of action against 4^th opposite party and the 4^th opposite party has not entrusted in other service other than distribution of the said cards.  The documents produced by the complainant are not showing the mobile number of the complainant.  The alleged deficiency in service is connected with the telecom service provider and nothing to do with the distribution of the SIM card and validity coupons.  Complainant has no case that he has approached 4^th opposite party for service.  Complainant’s case is that of hardware and software problem over which 4^th opposite party has no control.  Hence to dismiss the complaint.  Upon the above pleadings the following issues have been taken for consideration.

1.        Whether there is any deficiency in service on the part of the opposite parties?

2.        Whether complainant is entitled for any remedy as prayed in the complaint?

3.        Relief and cost.

The evidence consists of Ext.A1 to A8 and Ext.B1.  No oral evidence adduced by parties.

Issues 1 to 3:

          The case of the complainant is that he took a prepaid mobile connection with a validity of one year from 2^nd opposite party after making a payment of ` 3,300.  After some months he found that his SIM card is not functioning.  He received the message that the registration failed.  When complaint was made, the Manager of 2^nd opposite party replied that by mistake the SIM card number of the complainant was given to somebody else. On complaint opposite party issued another SIM card on temporary basis.  The original SIM card again became active on 18.06.2007 and the temporary card returned.  It was again defunct showing message that the registration failed.  Complaint was again lodged on 21.07.2007 and the SIM card became active.   But he received many calls asking for one Mr.Santhosh.  It revealed that the prepaid card was subscribed by Santhosh himself on April/May, 2007 and he has been using it thereafter.   Entertaining more than one subscriber at a time for one SIM card is a matter of unfair trade practice. 

          Opposite party denied allegations of the complainant and contended that at no point of time the connection was provided to the complainant.  But it can be seen that Ext.A1 service bill and Ext.A2 service bill are documents issued by 4^th opposite party showing that complainant has purchased a prepaid Hutch connection.  Ext.A1 and A2 reveals that they are the prepaid distributor of  M/s. Hutch.  1^st and 2^nd opposite party did not deny the document Ext.A1 and A2.  1^st opposite party contended that at no point of time connection was given to complainant.  But nothing has stated about Ext.A1 & A2, which is quite evident that complainant purchased a prepaid Hutch connection of 1^st and 2^nd opposite party from 4^th opposite party.  Complainant produced Ext.A7 SIM card of Hutch bearing the number 8991460606024432469.  Complainant did not challenged this document.  The contention of 1^st opposite party that no connection has been given to complainant has no footing with respect to Ext.A7.  The SIM card number alone proves that complainant obtained a connection of the Hutch Company from 4^th opposite party.  1^st opposite party did not say anything about SIM card produced by the complainant.

          Moreover Ext.A3 lawyer notice sent by complainant was totally ignored by opposite parties.  No replying of legal notice is certainly a deficiency in service on the part of opposite parties.  1^st and 2^nd opposite party being a reputed Institution if kept mum when they received a legal notice with serious allegation that can only be considered as something wrong if there is no reasoning for the same.  It can very well be presumed that there is unfair trade practice on the part of 1^st and 2^nd opposite parties.  

          In the light of the above discussion we find that there is unfair trade practice on the part of 1^st and 2^nd opposite party and they are liable for compensation.  Taking into account the seriousness of the offence we are under the impression that the opposite parties are liable to pay an amount of ` 25,000 as compensation and ` 500 as cost of this proceedings.  Hence issues No.1 to 3 are found in favour of complainant.

          In the result the complaint is allowed directing 1^st and 2^nd opposite parties to pay an amount of ` 25,000 (Rupees Twenty Five Thousand only) as compensation together with ` 500 (Rupees Five Hundred only) as cost of this litigation within one month from the date of this order failing which the complainant is entitled to execute the order as per the provisions of Consumer Protection Act.

                          Sd/-                      Sd/-                     Sd/-

President              Member                Member

APPENDIX

Exhibits for the Complainant

A1. Service bill dated 29.07.2006.           

A2. Copy of the one year validity coupon dated 28.07.2006.          

A3. Copy of Lawyer notice dated 20.08.2007.         

A4(a). Acknowledgement card of 1^st OP.

A4(b). Acknowledgement card of 2^nd OP.

A5.  Brochure of Hutch prepaid.

A6.  SIM card cover of Hutch prepaid.

A7. SIM card No.8991460606024432469.

A8. Copy of passport.

Exhibits for the opposite party

B1.  Prepaid application form of Santhosh.

Witness examined for the complainant

Nil

Witness examined for opposite party

Nil

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT