Order dictated by:

Sh.S.S.Panessar,President.

1.       Sh.Anand Deep  Singh complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainant is the permanent resident of H.No. 3, Ward No. 5, Tehsil Road, Near New Telephone Exchange, Malaut,  District Muktsar. At present the complainant is residing at 88-A, Singh Mansion, Rani Ka Bagh, Near Shivaji Park, Amritsar. The complainant is a peaceful and law abiding citizen of India. The complainant took one mobile SIM card of Reliance company from Gujarat vide No. 80000095. As the said number was of different digits and as such the complainant spent Rs. 2,00,000/- for purchasing the said number. The said number was purchased by the complainant about 2-5 years ago. After getting the said number, the complainant ported the said number of Reliance company to Airtel Gujarat. The complainant has been using the said mobile number from the last more than 2.5 years. All the business partners, colleagues, friends, relatives and even family members of the complainant are known to the said mobile number  . The said mobile number is the only source of the complainant to contact everybody. The complainant was using the said number in roaming for 2.5 years. After the commencement of MNP scheme and as the  complainant was mostly residing in Punjab, hence the complainant requested the Airtel company i.e. opposite parties No.1 & 2 to port the said mobile number to Airtel Punjab. The complainant  completed all the formalities for porting the said mobile number from Airtel Gujarat to Airtel Punjab as per the requirement. After seven days of the submission process the complainant came to know that the abovesaid mobile phone number of the complainant was swapped to Vodafone in the name of one person named Varun, resident of Haryana. The complainant was shocked to know about the same as he has not  applied for swapping the said number. But the complainant made a request simply to port his mobile number from Airtel Gujarat to Airtel Punjab as he was being charged in roaming. The complainant approached opposite parties No.1 & 2 and asked them that why they swapped his mobile phone in Vodafone and transferred in the name of Varun, resident of Haryana but they did not give any proper reply. The act of the opposite parties is biased. The complainant had only made request to opposite parties No.1 & 2 to port his mobile phone number from Airtel Gujarat to Airtel Punjab as he was to spend roaming charges but the opposite parties No.1 & 2 without the consent  and information  of the complainant , the phone was to be swapped to Vodafone i.e. opposite party No.3. Opposite party No.3 without making proper enquiry transferred the said mobile phone number  to Mr.Varun , resident of Haryana. Even as per the law the opposite party No.3 before  transferring the said number to other person must have verified that the previous holder made request to swap his number or not. But the opposite parties acted in a biased manner and the said act of the opposite parties shows deficiency in service on their part . As the complainant till today did not make request to swap the said mobile number, hence, till today the complainant is the consumer of opposite parties No.1 & 2 as defined under section 2 of the Consumer Protection Act. The complainant was having worthy contacts in the abovesaid sim cards. The number was only source of the complainant to contact every one. The complainant is having business of tradesman and is having so much telephonic conversations. Due to swapping  the phone number of the complainant in the name of other person the complainant has suffered a huge financial loss. The complainant is unable to contact other persons and his business partners, friends, colleagues and even his family members  due to wrongful swapping  of the mobile phone in dispute. The complainant has sought for following reliefs vide instant complaint:

1.       Opposite parties may be directed to give mobile phone No. 8000000095 to the complainant  and particularly the opposite parties No.1 & 2 may be directed to give him the said number after porting from Airtel Gujarat to  Airtel Punjab.

2.       Opposite parties may be directed to pay compensation of Rs. 50000/- for mental harassment  caused to the complainant besides cost of litigation.

Hence, this complaint.

2.       Upon notice opposite parties No.1 & 2  filed joint written version while opposite party No.3 filed a separate written version to contest the claim of the complainant.

3.       In their joint written version, opposite parties No.1 & 2 took certain preliminary objections therein inter alia that District Forum at Amritsar has no jurisdiction to entertain  and try the present complaint in view of the bar created by section 7-B of the Arbitration Act under Indian Telegraph Act ; that no cause of action has arisen to the complainant to file the present complaint, hence the complaint deserves to be dismissed ; that  opposite parties reserve the right to file such additional reply or document as may be necessary. On merits, it is for the subscriber of the connection to get the number ported in the network it wishes the same to be ported in. It is wrong to state that the answering opposite party got /could get the same converted in somebody else’s name and in some other network. The contents of the complaint are wrong and denied and the complainant may be put to strict proof of the allegations levelled in the complaint. The complainant has not suffered any mental tension, depression, monetary loss etc  . No cause of action has arisen in favour of the complainant to file the present complaint.

4.       In its separate written version, opposite party No.3 also took certain preliminary objections therein . However, those relate to the preliminary objections already taken by opposite parties No.1 & 2 in their written version, therefore, there is no gain saying in repeating those allegations for the sake of brevity . On merits, it is stated that the complainant has raised allegations against opposite parties No.1  & 2 only and the  answering opposite party has no relation whatsoever regarding  the swapping of the said mobile connection in dispute. It is again reiterated that opposite party has no information regarding any communication, if any, taking place between complainant and  answering opposite parties No.1 & 2.  The Consumer  Forum has no jurisdiction to try the complaint of commercial nature i.e. loss or profit. It is pertinent to mention over here that complainant has never approached answering opposite party  for knowing the fact &  no cause of action of any nature has been attributed against opposite party No.3 and a prayer for dismissal of the complaint with cost was made.

5.       In his bid to prove the case Sh.Jugraj Singh Bajwa,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.CW1/A, copy of clipping of the computer Ex.C-1, copy of e-mail Ex.C-2, copy of Aadhar Card of Anand Deep Singh Ex.C-3  and closed the evidence on behalf of the complainant.

6.       To rebut the aforesaid evidence Sh.K.K.Thakur,Adv.counsel for opposite party No.3 tendered into evidence affidavit of Sh.Ashutosh Kalia,DGM Legal Ex.OP3/A and closed the evidence on behalf of opposite party No.3.

7.       On the other hand Sh.Gautam Majithia,Adv.counsel for opposite parties No.1 & 2 made a statement that he does not want to lead any evidence on behalf of opposite parties No.1 & 2.

8.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of complainant as well as opposite party No.3.

9.       From the appraisal of the evidence on record, ld.counsel for the complainant has  vehemently contended that complainant purchased one mobile SIM Card of Reliance Company from  Gujarat vide No. 8000000095  about  3.5 years ago for an amount of Rs. 2,00,000/-. The complainant has been using the said mobile number since its purchased. All the business partners, colleagues, friends, relatives and even family members of the complainant contact him on that number. After getting the said number, the complainant ported  the number of Reliance Company to Airtel Gujarat.  After the commencement  of MNP scheme , the complainant has been residing  mostly in Punjab. Therefore , the complainant requested the Airtel company  i.e. opposite parties NO.1 & 2 to port the said mobile number from Airtel Gujarat to Airtel Punjab. The complainant completed all the formalities  for porting the said mobile number from Airtel Gujarat to Airtel Punjab as per the requirement . After seven days of the submission process the complainant came to know that  the abovesaid mobile phone number of the complainant was swapped to  Vodafone in the name of one person namely Varun resident of Haryana. The complainant was shocked to know about the same as he has never applied for swapping the said number  rather he made request  only to port his mobile number from Airtel Gujarat to Airtel Punjab as he was being charged for roaming. The complainant approached opposite parties No.1 & 2 and asked them as to why they have swapped his mobile phone number to Vodafone and  further transferred in the name of Varun, resident of Haryana but they did not give  any proper reply. The complainant has also never made any request to opposite parties No.1 & 2 to swap the said mobile phone number to  Vodafone i.e. opposite party No.3. The act and conduct of opposite parties No.1 & 2 amounts to deficiency in service. The complainant  has suffered a huge financial loss. The complainant became unable to contact his business partners, friends, colleagues and even his family members. The complainant has suffered a great mental tension, depression  alongwith monetary loss. The complainant printed one copy of his mobile phone status which shows that on 17.7.2015 the said mobile phone number was in the name of Ananddeep Singh i.e. complainant. Copy of the same is Ex.C-1. The complainant requested the opposite parties to port his number to  Airtel  Punjab, copy of conversation via email dated 26.7.2015 is Ex.C-2. But however, opposite parties No.1 & 2 have failed to  comply the same. TRAI had issued a direction on 16.4.2015 to all wireless telecom service providers to incorporate in their porting request form an undertaking , to be obtained from the subscriber seeking porting of his mobile number declaring that “he is  the owner of the said mobile number and in case the undertaking is found to be false, the said mobile number shall be disconnected.” However, in the case in hand while swapping the mobile phone number of the complainant to Vodafone, no such  undertaking was obtained from the complainant. All this shows that opposite parties No.1 & 2 have acted in a deficient manner and therefore, the complainant is entitled to the relief claimed for vide instant complaint.

10.     But , however, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant has been using the mobile phone bearing No.8000000095 for commercial purposes. In the complaint itself, complainant has mentioned that all his business partners etc. used to contact him on this mobile phone number. It is settled principle of law that any gadget which was  being used for  commercial purposes by the owner thereof, such person does not become consumer under section 2(i)(d) of the Consumer Protection Act. Even the complainant has nowhere stated in the complaint that the mobile hand set was being used  by him for earning his livelihood. As such, the complainant  does not fall under the explanation of section 2 of the Consumer Protection Act.

11.     Further more, instant complaint is also barred under section 7-B of the Indian Telegraph Act. This Forum has got no jurisdiction to try and entertain the present complaint. Appropriate Forum for filing the complaint by the complainant is under the provisions of section 7-B of the Indian Telegraph Act. It is pertinent to mention that as per judgement passed by the Hon’ble Supreme Court in “General Manager, Telecom  Vs. M.Krishnan and Another” Civil Appeal No. 7687 of 2004 that a complaint before the Consumer Forum is not maintainable as the special remedy under section 7-B of the Indian Telegraph Act has been provided.

12.     It is clear that act of swapping had already taken place prior to the porting  of this number  to opposite party No.3. The complainant has  himself admitted this fact that he had requested  the parental replying company Airtel Gujarat to port his number to Airtel Punjab. Infact, the opposite party No.3 received the request of porting the number in question from one Mr. Varun son of Sh.Kapoor Singh r/o near Ashok Karyana , Village Jhakhode, PO Bahadurgarh, Jhajhar, Haryana. Thereafter the complainant requested the office of opposite party No.3  to give particulars  of holder of this number  and the details were provided by the replying company to the complainant. Written version was filed by  opposite party No.3 on 6.1.2016 while the present number in question has again been ported out to Idea Cellular Ltd on 21.1.2016 by said Varun Dalal. All this shows that the complaint filed by the complainant is not maintainable. Relief sought for is not available to the complainant  in  District  Consumer  Forum. Rather the complainant could approach Civil court for getting the  complex matter decided inter-se parties . The matter involved pertains to intricate questions of law and fact wherein voluminous evidence is required for deciding the matter in controversy. A number of witnesses also require to be examined besides numerous documents. In view of law laid down in Oriental Insurance Company Ltd. Vs. Munimahesh Patel 2006(IV) CPJ page 1 (SC) , such matter can not be decided summarily by the Forum. Relevant extract of judgement supra reads as under:-

“Proceedings before the commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.”

Their lordships have further held that :-

“The nature of the proceedings before the commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate court of Law and not by the Commission.”

 The nature of the dispute, in the present complaint, is squarely covered by the law laid down by their lordships of the Hon'ble Supreme Court in the judgement supra. A similar view has been taken by the Hon'ble National Consumer Disputes Redressal Commission in 1(2004) CPJ page 101 wherein it has been held by the Hon'ble National Commission in a revision petition titled as R.D. Papers Ltd. Vs. New India Assurance Co. Ltd. & Ors. in para No.7 of the judgement which reads as under:-

“After going through the complaint and the written version, it appears to us that the complaint raises complicated questions of facts which cannot be decided by us in our summary jurisdiction. It may be though the amount in this case is in few lacs and when we are receiving complaints involving crores of rupees, but then enormous evidence would be required in the present case especially in respect of allegation of forgery made by the complainant and denied by the Insurance Company.”

13.     From the abovesaid discussion, it emerges that this complaint is not maintainable before this forum. As such instant complaint fails and the same is ordered to be dismissed . However, parties may approach the  Civil Court or other appropriate Forum for getting the matter adjudicated in accordance with law. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.