This complaint coming up before us for hearing on                      01-03-12 in the presence of Sri.K. Haranadha Raju, advocate for complainant and of Sri D.Venkateswara Rao, advocate for 1^st opposite party, Sri. P. Kishore Advocate for 2^nd opposite party, 3^rd opposite party and 4^th opposite party absent and set exparty  upon perusing the material on record, after hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Member:

This complaint is filed u/s 12 of Consumer Protection Act praying to direct the opposite parties to refund the Demand Draft amount of Rs.11,030 /- in addition to the amount paid by complainant to 1^st opposite party along with the interest from date of deposit and to pay Rs.50,000/- towards compensation for the damages caused to the complainant including mental agony, besides Rs.5,000/- towards costs of the complainant.

2.   The averments of the complaint in brief are as follows:

        1^st opposite party is the distributor of TATA DOCOMO Sims.  2^nd opposite party is the distributor of the Sims all over India.  Complainant with intend to use TATA DOCOMO Sim Card with a fancy Number approached one of his friends Mr.M. Vamsi Krishna, who worked as a recovery agent in TATA DOCOMO ( Post paid).  Then the said Vamsi krishna enquired over phone to Mr. Ashok, who was working as Zonel Head and Mr. Suresh who is the team leader of 2^nd opposite party, both are C/O addresses of 1^st opposite party.  As per the enquires of Mr. VAmsi Krishna, 1^st opposite party informed him that they are having one number i.e. 8143143143  ready to issue with a condition to pay Rs.15,000/-.  It was informed by Mr.Vamsi Krishna to the complainant who is willing to take the number.  The said Vamsi Krishna telephoned and confirmed to 1^st opposite party as well as Mr. Ashok and Mr.Suresh ( 3 & 4 opposite parties) who were the employees of 2^nd opposite party.  As per the instructions of the 1^st opposite party complainant obtained Demand Draft bearing No. 004309 dated 24-11-2009 for Rs.11,030/-  at Axis Bank Tenali, in favour of TATA Tele Services, Vijayawada and on the same day handed over the said demand draft to 1^st opposite party.  In addition to that 1^st opposite party collected Rs.300/- by way of cash for which 1^st opposite party issued receipt dated 24-11-2009 and allotted SIM No. 8143143143 to the complainant.  Complainant received the said sim card along with Manual Book from 1^st opposite party and inserted it in the complainant’s cell phone and tried for using the same.  But the sim was not activated and it was not worked.  After that, the complainant approached his friend and informed the same.  The complainant also personally visited 1^st opposite party but there is no response from their end.  Till today they have not provided the said Number to the complainant.

3.     The complainant addressed the letter dated 16-03-2011 to 1^st opposite parties 1 & 2 by registered post with acknowledgment due and also issued a notices to opposite parties 3 & 4 by way of certificate of postage.   The opposite parties received and acknowledged the same.  The opposite parties got issued reply notice to complainant with false averments to escape from their liability.  Due to the said attitude of opposite parties complainant suffered a lot mentally and financially and it falls under the deficiency of service under the provisions of Consumer Protection Act.  Hence, the opposite parties are liable to compensate the complainant for the mental agony suffered by him.

1^st opposite party filed its version which is in brief is as follows:

4.     Most of the averments mentioned in complaint are incorrect and invented for the purpose of filing the present complaint.  This opposite party is authorized for distribution of TATA DOCOMO SIM Cards for post paid connections.  This opposite party has not authorized Mr.Vamsi Krishna who is said to his friend of complainant.  This opposite party is not aware as to whether M. Vamsi Krishna is a recovery agent for TATA INDICOM (Post Paid) connections are not.  It is also not correct to say that the said Vamsi Krishna had enquired over phone with this opposite party branch office about the availability of a fancy number.  This opposite party is not aware as to whether the complainant had contacted Mr.Ashok and Mr. Suresh of TATA DOCOMO  regarding availability of Number 8143143143 and requested the complainant to pay Rs.15,000/- for providing that Number.  It is not correct to that Mr.Vamsi Krishna got confirmed about the availability of number from the office of this opposite party.  This opposite party is not responsible for the actions of Vamsi Krishna.  This opposite party never insisted for payment of any money and the complainant taking a Demand Draft is only out of the information given by Mr.Vamsi Krishna and the same is his voluntary act.  Complainant never contacted this opposite party to enquire about the availability of such fancy number, though the complainant has submitted an application in the prescribed post paid customer agreement form to the office of this opposite party.  This opposite party has not presented the demand draft for realization at any time.  The demand draft was not issued in the name of this opposite party and it was taken by the complainant in the name of TATA Tele Services Limited.    The TATA Tele Service limited did not accept the Demand Draft, since the number sought for by the complainant was not available.  Neither this opposite party nor TATA Tele Services limited have never assured or promised the complainant that the number sought for by him would be allotted to him.  This opposite party has collected Rs.300/- on application for the sale of Sim Card.  But it does not mean that the number sought for by complainant would be automatically provided.  The TATA Tele Services Limited after verification of the Identity and address particulars of the customer would provide the activation, if every particular is found to be correct.  The complainant did not show any interest to get the SIM activated by seeking allotment of any other number.  Complainant and Vamsi Krishna were informed about the inability of TATA Tele Services  Limited in providing the number sought for by the complainant in November 2009 itself.  Complainant having kept quite all these sixteen months has now come up for claim by issuing legal notice dated            16-03-2011.  In the customer details form itself it was made clear that the desired numbers will be provided on availability.  As per the contention of the complainant there is a demand for payment of Rs.15,000/- for getting the desired number.  But however complainant obtained Demand Draft for Rs.11,030/- only in the name of 2^nd opposite party which should have been the basic cause for non- activation of the number to the customer.  This opposite party can only forward an application to TATA Tele Services for allotment of number, providing the activation code/waiver code and the activation of the number after address verification will be done by TATA Tele Services and this opposite party has no authority over the process.  Therefore there is no liability on this opposite party for the alleged grievance for not providing the desired number.  Hence, the complaint may be dismissed against the opposite party. 

2^nd opposite party filed its version which is in brief as follows : 

5.     Present complaint is not maintainable either in law or on facts.  The allegations made in complaint are neither true nor correct.  The complaint is not maintainable as the same is filed against the Managing Director of the company alleging that there is deficiency of service of M/s TATA Tele Services Limited, and is not responsible for the day to day affairs of the company.  Therefore he is not necessary party to the present proceedings and the complaint is liable to be dismissed for non joineder of necessary parties.  Complainant is not customer of opposite party company and he cannot file any complaint against this opposite party as there was no relationship of whatsoever nature between the parties.  Therefore the provisions of Consumer Protection Act will not apply to the facts of the present case.  Neither the company nor his agency never collected any amount as alleged by the complainant and never assured that the connection will be provided.  It was brought to the notice of the complainant that providing of fancy number is subject to availability.  Since, the number sought for by the complainant was not available the same was brought to his notice and no amount was collected from him in this regard.  Complainant got issued a legal notice with false allegations and the company has duly replied to the same.  There was no cause of action for filing the complaint.  The Hon’ble Supreme Court in a recent judgment passed in civil appeal Number 7687/2004 between General Manager, Telecom, VS M. Krishnan and another, very clearly held that the Consumer Forums have no jurisdictions to decide the issued arising under the Indian Telecom Act.  Therefore this consumer forum has no jurisdiction to adjudicate the matter.  There is no deficiency of service on the part of the opposite party and the complaint is liable to be dismissed.

6.      Opposite Parties 3 and 4 remained exparte.

7.     In support of their versions complainant and opposite parties             1 & 2 filed their respective affidavits, reiterating the same.

8.     On behalf of the complainant Exhibits A1 to A11 are marked.  On behalf of opposite parties no documents are marked.

9.      NOW THE POINTS FOR CONSIDERATION ARE :

1. Whether the complainant is a consumer with in a meaning of Consumer Protection Act.
2. Whether the complaint is liable to be dismissed for non joineder of necessary parties.
3. Whether this Court has got Jurisdiction to entertain the complaint.
4. Whether there is a deficiency of service on the part of   opposite parties
5. To what relief the complainant is entitled to.

10.   The case of the complainant is that on enquiry through his friend Mr.Vamsi Krishna about the availability of fancy number 8143143143 from 1^st opposite party he obtained the Demand Draft dated 24-11-2009 for Rs.11,030/- in favour of TATA Tele Services, Vijayawada and handed over the same to the 1^st opposite party and paid Rs.300/- to 1^st opposite party on 24-11-2009 and there upon 1^st opposite party allotted sim No. 8143143143 to the complainant and when the complainant inserted the said sim in his cell phone and tried to use the same the same was not activated and there upon complainant visited 1^st opposite party but there is no response from their end and that the opposite parties have not provided the same number to the complainant and that there by committed deficiency of service.

11.   The case of 1^st opposite party is that complainant never contacted 1^st opposite party about the availability of alleged fancy number, that the Demand Draft taken by the complainant was in the name of TATA Tele Service and that the TATA Tele Services Limited did not accept the demand draft, since, the number sought for by the complainant was not available and that it was informed to the complainant and Vamsi Krishna about the inability of TATA Tele Services Limited in providing the number sought for by the complainant in November 2009 itself and that the Demand Draft was never encashed.

12.   The case of 2^nd opposite party is that the complaint is not maintainable as the same is filed against the Managing Director of the company, that providing a fancy number is subject to the availability and as the number sought for by the complainant was not available the same was brought to his notice and no amount was collected from him in this regard and that there is no deficiency of service on the part of 2^nd opposite party.

13.    POINT NO.1 :-   Complainant paid Rs.300/- to the 1^st opposite party  under Ex.A-3 on 24-11-2009 and obtained a SIM from 1^st opposite party and submitted post paid customer agreement form (EX.A-1) to the 1^st opposite party and the same was acknowledged by the 1^st opposite party.  The complainant has also mentioned his desired Mobile NO. 8143143143 in Ex.A-1.  Complainant has also submitted Ex.A-2 customer details from along with EX.A-1 to the 1^st opposite party.  Under Serial No. 8 of Ex.A-2 it was noted as “Desired Nos” (Will be provided on availability) and against the said Serial No. alleged desired No. 8143143143 was also mentioned, and against serial No.9 the amount paid for collection Rs.300/- was also mentioned.  Ex.A-4 is the Xerox copy of Demand Draft obtained submitted by the complainant which was drawn in favour of “TATA Tele Services Limited”.  Therefore a perusal of Exs.A-1 to A-4 shows that the complainant has paid Rs.300/- as under Ex.A-3 and obtained a Sim and submitted Ex.A-1 agreement form along with Ex.A-2. Since the complainant had paid Rs.300/- stated above and obtained a Sim card from 1^st opposite party who is the distributor of TATA Tele Services, he is a consumer with in the meaning of Consumer Protection Act.  Accordingly this point is answered.

14.    POINT NO.2:-    Complainant has shown the Managing Director of TATA DOCOMO Tele Services Ltd., as 2^nd opposite party.  The Managing Director was not personally shown as a party.  Since the Managing Director was shown as a party by his Designation, the   TATA Tele Services Ltd., is liable for the actions of its employees, even though the award is passed against 2^nd opposite party.  Therefore it cannot be said that the complaint is liable to be dismissed for non-joinder of necessary parties.  Accordingly this issue is answered.

15.    POINT NO.3:- The contention of 2^nd opposite party is that this forum has no jurisdiction to entertain the complaint in view of the judgment of Apex Court in Civil Appeal 7687 of 2004 between General Manager, Telecom VS M. Krishnan wherein it was held that Consumer Forums have no jurisdiction to decide the issues arising under the Indian Telecom Act.  The above decision is not applicable to the facts of the present case since the contract to provide fancy number is not materialized and it relates to allotment of Mobile number and it does not fall within the ambit of Sec.7-B of Indian Telegraph Act.  Therefore, we opine that this Forum has got Jurisdiction to entertain the complaint.

16.    POINT NO.4:-  It is the version of 1^st opposite party that the TATA Tele Services Ltd., did not accept the demand draft since the number sought for by the complainant was not available and that 1^st opposite party has informed the same to the complainant and Mr.Vamsi Krishna in November 2009 itself.  But No evidence is placed by the 1^st opposite party to that effect that they have informed the said fact either to the complainant or Vamsi Krishna. Therefore it can be inferred safely that complainant has obtained Demand Draft for Rs.11,030/- in favour of TATA Tele Services Limited, on 24-11-2009 as evidenced by Ex.A-4 and submitted the same to 1^st opposite party along with Exs.A-1 & A-2, and that the said Demand Draft was not accepted by TATA Tele Services Limited since the number sought for by the complainant was not available.  As seen from Ex.A-11 the said Demand Draft was not encashed by TATA Tele Services Ltd.  Even though the said Demand Draft was not encashed by the TATA Tele Serves Ltd., it was not returned to the complainant.  As already stated above, the non-availability of desired number was also not informed to the complainant either by the 1^st opposite party or TATA Tele Services Limited.  Opposite Parties 3 & 4 though the employees of the TATA DOCOMO, TATA Tele Services Limited, who are shown as opposite parties by their names, are not personally liable. The company is liable for the actions of its employees. Therefore in view of the facts and circumstances of the case, we find deficiency of service on the part of opposite parties 1 & 2.  Accordingly this issue is answered.

17.    POINT NO.5:-   In view of the foregoing discussion on point NO.3 opposite parties 1 & 2 are liable to pay compensation to the complainant.  Complainant claimed compensation of Rs.50,000/- and refund of Rs.11,030/- and Rs.300/-.  The Demand Draft amount of Rs.11,030/- was not encashed by the TATA Tele Services and Rs.300/- was received by 1^st opposite party. The amount claimed towards compensation is too high and it is imaginary.  Therefore in view of the facts and circumstances of the case, we feel it just and necessary to award compensation of Rs.3,000/- to the complainant and against opposite parties 1 &2, besides awarding costs of Rs.1,000/- and for refund of Rs.300/- by 1^st opposite party.  Accordingly this point is answered.

18.    In the rest the complaint is allowed in part as indicated below:

1. Opposite parties 1&2 are hereby directed to pay      compensation of Rs.3,000/- to the complainant.

1. Opposite parties 1&2 are further directed to pay an amount of Rs.1,000/- to the complainant towards costs of the complaint.

1. Claim against opposite parties 3&4 is dismissed.

1. 1^st opposite party is further directed to refund Rs.300/- to complainant together with interest @9% p.a. from 24.11.2009 till payment.

The above order shall be complied within a period of six weeks, failing which the amount awarded in Item 1 carry interest @9% p.a. till date of realization.  .

Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 6^th day of March, 2012.

MEMBER                                  MEMBER                           PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party: NIL