BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH,                                                                                                    MANGALORE

Dated this the 3^rd December 2016

PRESENT

SRI.VISHWESHWARA BHAT D   : HONBLE PRESIDENT

SRI. T.C. RAJASHEKAR                 : HONBLE MEMBER

ORDER IN

C.C.No.104/2013

(Admitted on 04.04.2013)

Mr. Abdulla,

S/o T.A. Abdulla Rehman,

Aged 28 years,

R/at Kadeeja House,

S.L Mathais Road,

Ralnir, Mangalore.

                                               ….. COMPLAINANT

(Advocate for the Complainant: Sri VK)

VERSUS

1. The Chairman,

    Bharti Airtel Limited,

    (A Bharti Enterprises)

    Bharti Crescent, 1 Nelson Mandela Road,

    Vasant Kunj, Phase II,

    New Delhi  110 070.

2. Bharti Airtel Limited,

   Enterprise (Corporate) Team,

    Prestige Technology Park,

    Jupiter (2A) Block,

    Sarjapur Marathhalli Ring Road,

    Kadabeesanahalli Village,

    Varthur Hobli, Bangalore  560080.

3. Airtel Relationship  Centre,

    M/s Desha Management,

    Paradigm Plaza,

    A B Shetty Circle,

    Pandeshwara, Mangalore.

                                                   ….........OPPOSITE PARTIES

(Advocate for the Opposite Parties No.1 & No.2: Sri. BJM)

(Opposite Parties No.3: Ex parte)

ORDER DELIVERED BY HON’BLE MEMBER

SRI. T.C. RAJASHEKAR:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain relief opposite party to pay Rs.25,000/ towards the physical strain and mental agony suffered and pay a sum of Rs.5,000/ towards cost of this petition.

     2.  In support of the above complainant Mr. Abdulla affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked as Ex.C1 to C2 detailed in the annexure here below.  On behalf of the opposite party Mr. Jayanth M.C (Rw1) Branch Manager also filed affidavit evidence and answered the interrogatories served on him and produced documents.

The brief facts of the case are as under:

     On perusal of the complaint and the version of the Opposite parties we conceived the dispute as the one related to the issuance of the mobile number for servicing by the Opposite parties but not activated for using. The complainant alleges that he had purchased a SIM card from the Opposite parties and the mobile number was allotted with SIM card which is stated to be special number by collecting Rs.1750/  But later it is not activated on the ground that the number allotted was a fancy number and the price of the number is Rs.25000/ . The number will be activated only if the said Rs. 25000/ is paid and hence deficiency of service from the Opposite parties. The Opposite parties contested on the ground that the Number chosen by the complainant is a fancy number which costs Rs.25000/. By just subscribing to mobile sim one is not entitled for activation of number given and the complainant has not paid the fancy value of Rs. 25000/ hence the activation will be done only after payment. These being the facts we considered the following 

POINTS FOR ADJUDICATION:

         On close scrutiny of the documents and evidences before us the admitted facts are the complainant had applied for a mobile connection with the opposite parties and through the application no 531258 the complainant has been allotted with the SIM card and the mobile number allotted is 9900080008. It is also admitted that the complainant had paid Rs.499/ for the connection and submitted the required documents for activation of the number allotted. But it is denied that the complainant had paid the price of Rs 25000/ when the Opposite party  demanded for the Number allotted. It is also denied that just because of subscribing to connection the complainant is entitled for the fancy Number. Opposite party admits that the said Number originally allotted to the complainant is not activated for the complainant but the Number 9900080008 originally allotted to the complainant is now allotted to some other subscriber who has paid the charges prescribed by the Opposite party.

        The Opposite party denied having jurisdiction to this Forum to entertain the complaint on the ground that As per Sec 7b of the Telecom Act the jurisdiction is barred. Now we consider the following points for adjudication of this dispute.

1. Whether the complainant is a consumer and this Forum have jurisdiction to decide the dispute under Consumer Protection Act 1986?
2. Whether the complainant proved the deficiency in service from the part of the Opposite parties?
3. Whether the complainant is entitled for the relief prayed for?
4. What order?

On considering the facts of law and the evidence adduced by the rival parties and after hearing the parties we answered the above points as under.

1. In the affirmative.
2. In the affirmative.
3. In the affirmative.
4. As per order delivered.

REASON

POINT NO 1: The complainant produced the carbonized copy of CUSTOMER RELATION FORM (EX C1). It shows the complainant herein subscribed for the mobile connection with the Opposite party and the opposite party allotted the Number 9900080008 with a SIM card No 4500040197740936 after payment made which is not in dispute. So there established the relation of consumer and the service provider between the complainant and the Opposite party. The Opposite party contends that this Forum have no jurisdiction to entertain the complaint on the ground that there is bar under the section 7 B of the Indian telegraph Act. The relief available is under the arbitration procedure as per above Act. The Opposite party relied on the Honorable Apex court decision in Civil Appeal no 7687/2004 Dt 01.09.2009 between the General manager Telcom V. M. Krishna and others and contended that as held in the above judgement any dispute concerning any telegraph line, appliances, or operates shall be determined by the arbitrators. The dispute in the instant case is  concerned with the deficiency in service and the unfair trade practice. The complaint case is the number is allotted and sim card delivered after taking money and later not activated the Sim with Number which was allotted to him and deficiency in service and also after  Sim with Number  being allotted after taking consideration demanded more money which is unfair trade practice. It is now deep routed established principle that the Consumer Protection Act 1986 is an additional remedy under Sec 3 of the Act and the same has been elaborately discussed by Honorable Apex court in Secretary, Thirumurugan Cooperative Agricultural Credit Society (supra).  And later in plethora of Judgements. We made it an occasion to have a glance on the judgement cited by the Opposite party.   The dispute in that case was regarding non-payment of telephone bill for the telephone connection provided to the respondent No. 1 and for the said non-payment of the bill the telephone connection was disconnected. We did not find any match.  Our Honorable Delhi High court in Date of Decision: 06.02.2012 W.P.(C) 8285/2010 & C.M.No.21319/2010 JK MITTAL versus UNION OF INDIA & ORS  have gone further and held that the Bharathi Airtel  (the second respondent in the petition) Company is a licensee under sect. 4 of the Indian telegraph Act  and not an authority as contemplated in the Act and the section 7 B cannot be applied. So we are of the opinion that this Forum have jurisdiction to decide the dispute and answered the point no 1 in the affirmative.

POINT NO 2: The complainant produced the EX C1 to establish that he has subscribed for the mobile telephone connection and the Opposite party has allotted the SIM card and the Number 9900080008 for the Sim sold and delivered. The Ex C1 also shows the amount of Rs. 499/ (written in corbon) is paid and apart an amount of Rs. 1250+500 is marked in blue ink on the carbonized copy of the  EX C1. It is cleared the complainant had paid the amount at the time of taking delivery of the Sim card with the Number 9900080008. It is also admitted fact that after issuing the SIM card and allotting the number after taking payment the Opposite party has not activated the connection. Primafacie there is deficiency in service. It is also true that the Opposite party demanded an extra payment of Rs. 25000/ on the pretext of saying the number is Fancy number and values more. Once the opposite party sold the sim to complainant and collected the money, it cannot be permitted to turn round and say it is a fancy number and value is more.  Hence opposite party cannot be permitted to resile than the undertaking to active the sim demanding higher amount by refusing to provide the promised activation connection to complainant amounts to unfair trade practice. Now it is Opposite party burden to prove there is no deficiency of service and unfair trade practice. The Opposite party parties only contention in assailing the complainant case is The Number is Fancy Number which values Rs. 25000/ and the complainant not paid the said amount. This contention is frivolous and unwarranted. Whatever the price and the quality or special value to be declared before selling as contemplated by all the Act pertaining to contract of sale and so also under the consumer protection Act which the Opposite party herein has not done. The price or the value is not intimated to the complainant as ₹ 25000/ or the Number has Fancy value before the sale concluded. Only the Opposite party has to do is activate the connection after it is being sold for valid consideration declared prior to sale. As per EX C1it is stated in the portion : FOR AIRTEL USE ONLY in clause 47 the number Allotted as 9900080008 and in Clause 48 is the declaration which states I/we hereby confirm to have met the customer and duly verified the photograph, signature,all details on the formand documents given in the relationship form with their respective originals ...further I/WE undertake and confirm that the form is completely and correctly filled and that the activation of the connection /SIM card is done only after verification that all necessary documents are in order so as per this declaration it is clear that the activation shall be done once the documents given is in order. The Opposite party cannot raise any issue related to the payment. The opposite party utterly failed in proving that there is no deficiency in service or no unfair trade practice. Hence in our opinion the complainant proved beyond doubt there is deficiency in service and unfair trade practice by negligence and hence we answered the point no 2 in the affirmative.

POINT NO 3: As per above discussion the Opposite party illegally not connected and activated the complainant s Sim card with the Number 9900080008 on demanding extra payment of Rs. 25000/ and he is liable for deficiency in service and the unfair trade practice. The complainant proved with documentary evidence the deficiency in service. In our opinion the complainant is entitled to get allotted Sim card with the Number 9900080008 and activated. In alternative the opposite party may pay Rs. 25000/ with interest at 9% per annum as damages for not allotting the chosen number. As we find the negligence and unfair trade practice glaring on the side of the opposite party we consider an amount of Rs. 20000/ as compensation for mental agony and hardship. The complainant is entitled to an amount of  Rs.5000/ towards litigation expenses. Hence the point no 3 in the affirmative.

POINT NO 4: In the light of the above discussion and the adjudication the points we pass the following

ORDER

     The complaint is allowed. The Opposite party shall re-allot the Sim card with the Number 9900080008 and activate it, in alternative pay an amount of Rs. 25000/  with an interest at 9 % from the date of complaint till the date of payment as damages and Rs. 20000/ towards compensation for mental agony  and hardship and Rs. 5000/ as litigation expenses within 30 days from the date of copy of this order received.

     Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 11 directly typed by member revised and pronounced in the open court on this the 3^rd December 2016)

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Abdulla

Documents marked on behalf of the Complainant:

Ex C1: Customer Relationship Form with payment details

Ex C2 (a) to (f): Correspondence letters with opposite party and Reply 6 in No s

Witnesses examined on behalf of the Opposite Party:

RW1:  Mr. Jayanth M.C, Officer legal

Documents produced on behalf of the Opposite Party:

 Nil 

Dated:  03.12.2016                             MEMBER