BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.343/2017

DATED ON THIS THE 16^th May, 2019

      Present:  1) Sri. C.V.Maragoor

B.Com., L.L.M., - PRESIDENT   

                     2) Sri. Devakumar.M.C.           

                                        B.E., LLB., PGDCLP   - MEMBER

Sri C.V.MARAGOOR,

President

1.          This complaint is filed by M/s MMG Constructions Ltd., Mysuru to direct the opposite party General Manager, Airtel Office, Mysuru to activate eight numbers of connections need to kept in safe custody immediately and award damages of Rs.50,000/- for deficiency in service along with cost of this proceedings.
2.          It is the case of complaint that the complainant enterprises team has applied and taken 40 numbers postpaid corporate connections and they have using since last four years.  The complainant has requested the opposite party to keep eight of the connections in safe custody and they have given eight SIM cards.  The opposite party without intimation or remainder has disconnected the eight safe custody numbers, as a result the complainant could not manage its profession and make conversation with its clients. 
3.          The complainant has requested the opposite party many times to activate the above eight numbers and when it did not respond the complainant has issued notice on 19.07.2017 calling upon the opposite party to activate those numbers.  The opposite party in spite of receiving the notice, it neither complied nor given any answer.  Hence, this complaint.
4.          The opposite party after service of notice put in appearance through its learned counsel and filed written version that the complainant has taken forty eight connections, but falsely mentioned forty numbers.  It is the case of opposite party that on the request of the complainant, the eight connections were kept in safe custody subject to the terms and conditions mentioned in the customer relationship form.  According to the Telecom Regulatory Authority of India (TRAI), the postpaid customer can avail safe custody option by paying Rs.150/- valid for 90 days.  The customers will not be able to use the numbers post disconnection however, the customer can get the same number reactivated within 15 days of grace period from the date of disconnection by paying re-activation charges of Rs.20/-. Service to the SIM card will be disconnected if there is no usage i.e. voice/video call of outgoing and incoming SMS and data session or usage of value added service or non-payment of monthly rental for postpaid connections for a continues period of 90 days. 
5.          In this case, the complainant requested the opposite party to keep the eight numbers in safe custody vide E-mail dated 25.11.2016 and they were kept in the safe custody from 27.11.2016 for 90 days and the said numbers were disconnected on 08.03.2017 after expiry of 98 days from the date on which they were kept in safe custody.  There was no request from the complainant to activate or re-activate the said numbers then they were reissued to some other subscribers.  The complainant has to apply for fresh new connections, then its request can be acceded to subject to conditions. The complainant has not sought for reactivation of the said numbers within 15 days from the date of disconnection and also made payment of reactivation charges, as such the complaint is liable to be dismissed.
6.          It is the case of opposite party that the complaint is not maintainable in view of the judgement rendered by Hon’ble Supreme Court in case of General Manager, Telecom V/s M.Krishna and another reported in 2009 AIR SCW 5631.  The next contention of opposite party is that the complainant is commercial establishment and it has taken mobile telephone facility and utilized service for commercial purpose. As such, the complainant does not fall under the definition of Consumer.  The last contention of opposite party is that the complaint is not maintainable for non-joinder of necessary party.  On the above grounds, the opposite party prays to dismiss the complaint.
7.          On behalf of complainant Smt.Ashwini, HR Manager filed affidavit in lieu of evidence.  On the same line one Siddaveer Chakki, Authorised Signatory of M/s Bharathi Airtel Ltd., filed affidavit.
8.          The learned counsel for the complainant and opposite party have submitted their written arguments and the points that would arise for determination are as under:-   

1. Whether the complainant proves that it is Consumer under the Consumer Protection Act, 1986?
2. Whether the opposite party proves that the complaint is not maintainable for not impleading M/s Bharathi Airtel Ltd.,?
3. Is complainant entitled to the reliefs sought for?
4. What order?

9.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the negative;

Point No.2 :- In the affirmative;

Point No.3 :- In the negative;

Point No.4 :- As per final order for the below

:: R E A S O N S ::

10.         Point Nos.1 to 4:- The learned counsel for the complainant urged that the opposite party without intimation or bringing to the knowledge of the complainant has disconnected the connections of eight SIM cards which were kept in safe custody.  As against this, learned counsel for the opposite party argued that the complainant has not intimated to continue the validity of said eight number connections after the expiry of 90 days and grace period of 15 days or by paying activation charges.  The opposite party has not disputed the fact that the complainant taking connections of 48 and out of them eight of the connections need to be kept in the safe custody.  The complainant admittedly is a commercial enterprises and it has taken connections of the eight which were kept in safe custody along with other 40 connections for use of its profession.  The complainant no where mentioned either in the complaint or affidavit evidence that those connections were taken and it has been running the business for livelihood.  Section 2(d) of C.P.Act, 1986 says that “any person buys  goods for consideration or heirs or avails of any services exclusively for the purpose of his livelihood, but does not includes a person who obtained such goods for resale or avails of such service for commercial purpose”.  The cause title of complaint itself indicates that it is running business under the name and style as M/s MMG Construction Ltd.,  It is not mentioned whether it is a partnership firm or company registered under the Companies Act.  The complainant has taken connection of the eight numbers from the opposite party need to kept in the safe custody for its business purpose.  Therefore, the complainant not falls under the definition of Consumer as defined under Section 2(d) of the C.P.Act.  On this score itself, the complaint is liable to be dismissed.
11.       The learned counsel for the opposite party contention is that the complaint is not maintainable before the Consumer Forum and in support of their arguments laid their hands on III (2009) CPJ 71 (Supreme Court) wherein it is held under Section 7B of Telegraph Act 1885 and Rules 413 and 433 Telephone Rules. 

“Telephone dispute – non payment of bill – jurisdiction of Consumer Forums/Courts barred – special remedy provided under Section 7B of Indian Telegraph Act – In present case telephone connection disconnected for non-payment of bill – reconnection directed by Consumer Forum – compensation with interest awarded – jurisdiction of Consumer Forum challenged – petition dismissed by High Court – Civil appeal filed – remedy under Consumer Protection Act, barred by implication – orders of Consumer Forum and High Court set aside. (ii) Interpretation of statues – special law overrides general law.”

12.      In the case on hand for non-payment of activation charges after expiry of 90 days of postpaid, all the eight connections of the complainant the opposite party has disconnected and allotted the said connections to other subscribers.  The Hon’ble Supreme Court held that in case of dispute with regard to disconnection of the service of the cellphone, the aggrieved person shall approach the Central Government for appointment of Arbitrator and decision of the Arbitrator shall become final.  In view of the decision rendered by the Hon’ble Supreme Court, the complaint is not maintainable before this Forum.
13.     The last contention of opposite party is that the complainant has not impleaded the service provider i.e. M/s Bharathi Airtel Ltd., as it engaged in the business of providing telecommunication services and other value added services in various parts of the country and operates basic telecommunication services in the State of Karnataka.  The complainant has impleaded only General Manager, Airtel Office, Mysuru. The Apex Court in Rajendra Kumar Jain V/s Radha Krishna Enterprises 2015 SCC online NCDRC 3226 held that without impleading manufacturer as a party, complaint is not maintainable.  M/s Bharathi Airtel Ltd. is service provider, as such it is necessary party to this complaint.  The complainant has not impleaded M/s Bharathi Airtel Ltd., and on this score also, the complaint is liable to be dismissed. For the forgoing discussion, we proceed to pass the following:-

:: O R D E R ::

1. The complaint filed by M/s MMG Construction Ltd., Mysuru is dismissed.
2. In the facts and circumstances of the case, parties shall bear their own costs.
3.  Furnish the copy of the order to the complainant and opposite party at free of cost.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 16^th May, 2019)