Punjab

Ludhiana

CC/20/368

Satinder Singh - Complainant(s)

Versus

Airtel - Opp.Party(s)

Adarsh Sharma

11 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:368 dated 22.12.2020.                                                        Date of decision: 11.04.2023.

 

1. Satinder Singh son of Jaswant Singh

2. Hardeep Kaur wife of Satinder Singh both residents of Village Khaira, Tehsil Samrala, District Ludhiana.

                                                                                       ……Complainants

 

VERSUS

1. Airtel Head Office, Unitech World Cyber Park Sector-39, Tower-A, 4th Floor Gurgaon-122001, Haryana through its Manager.

2. Bharti Airtel Limited, C-25, Industrial Area, Phase-2, Mohali-55, Punjab, through its Manager.

3. Airtel Office, Opposite Verka Milk Plant BRS Nagar, Ferozepur Road, Ludhiana through its Manager.

4. M/s. Vodafone Idea Limited Suman Tower, Plot No.18, Sector 11,  Gandhi Nagar-382011, Gujrat through its Chairman.

5. M/s. Vodafone-Idea Limited (formerly Idea Cellular Limited Punjab Circle office) C-105, Industrial Area Phase-7, Mohali, Punjab 160055 Through its Manager.

6 M/s. Idea Cellular Limited, SCO-14 Green Park Enclave, Pakhowal Road, Ludhiana Through its Manager

…...Opposite parties

 

Complaint Under Section 35 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants           :         Sh. Adarsh Sharma, Advocate.

For OP1 to OP3             :         Sh. Govind Puri, Advocate.

For OP4 to OP6             :         Sh. Harvinder Pal Singh, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that complainant No.1 was earlier subscriber of Vodafone Idea company having mobile No.9501599771 and 9872997504 and the same was obtained by complainant No.1 few years back. Complainant No.1 stated that he used the SIM till 09.11.2019 and 12.11.2019 in Vodafone Idea company and thereafter he ported both SIMs into Airtel prepaid i.e. opposite party No.1 to 3. During the porting process, the mobile No.9872997504 was got registered in the name of complainant No.2. At the time of porting process, everything was done by Vodafone-Idea on the request of complainant No.1 for initiating mobile service with Airtel prepaid and he paid all the dues to earlier mobile company Vodafone-Idea. After completion of process of porting, Airtel issued fresh prepaid cards on the same numbers  SIMs were changed into Airtel prepaid on the request of complainant No.1. The complainant used/consumed the services of Airtel prepaid mobile from 09.11.2019 to 25.04.2020 smoothly of both the SIMs. On 25.04.2020, the complainants recharged their prepaid accounts through Google pay for Rs.399/- each. Thereafter 25.04.2020, opposite party Airtel started making calls and message on 17.05.2020 that the services of the complainants shall be closed as they have not cleared dues of earlier company i.e. Vodafone-Idea whereas there was no due of the previous company as porting process cannot be done without clearing all the dues of previous company which shows that complainant No.1 had cleared all dues towards Vodafone-Idea company. The complainants further stated that on 17.05.2020, they received message from Vodafone-Idea that Rs.56.79 is outstanding and if they will not pay then their mobile number shall be permanently disconnected whereas there was no dues of previous company. The complainant paid the above said Rs.60/- and Rs.70/- for both connections under compelling circumstances on 23.05.2019 but in spite of that, both connections were not restored by the opposite parties and then complainants were further compelled to deposit more amount of Rs.57/- and Rs.68/- on 11.06.2020 just to get rid of unnecessary harassment but in spite of that both the connections were not restored by the opposite parties till 19.06.2020. The complainants further stated that everything was done during Covid-19 lockdown period due to which they suffered mentally, physically and economically loss as they were unable to use the phone for their daily routine activities/needs etc. The complainants used to approach the opposite parties but they lingered on the matter which amounts to deficiency in service and negligence on the part of the opposite parties. The complainants issued a legal notice dated 24.11.2020 through counsel Sh. Adarsh Sharma, Advocate upon the opposite parties but to no use. Hence this complaint whereby the complainants sought directions to opposite parties to pay Rs.5,00,000/- as compensation and legal charges.

2.                Upon notice, opposite party No.1 to 3 filed written statement and by taking preliminary objections, assailed the complaint on the ground of lack of maintainability of the complaint; lack of jurisdiction; suppression of material facts by the complainants; lack of cause of action to file the complaint. Opposite party No.1 to 3 stated that it is not a consumer dispute and does not fall within the ambit of the provisions of the Consumer Protection Act 1986 and is exclusively triable by a Civil Court after leading detailed evidence. The complainants have only made bald statements and have not supported their allegations with any documentary evidence which shows that they are trying their luck before this Forum in getting undue advantage from the Opposite parties. Opposite party No.1 to 3 further stated that the present complaint is not maintainable before this Commission in view of the specific remedy available to the complainants under the provisions of Section 7-B of the Indian Telegraph Act, 1885 as amended up to date, which are duly prescribed that in case of a dispute between the Telegraph Authority and the person for whose benefit the service has been provided, the same shall be determined by Arbitration and for the purpose of such determination be referred to an arbitrator appointed by the Central Government. The relevant provisions of Section 7-B are being reproduced below for the kind perusal of this Hon'ble Commission –

7-B. Arbitration of disputes.-(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section.

(2) The award of the arbitrator appointed under sub-section

(1) shall be conclusive between the parties to the dispute and shall not be questioned in any court.

Opposite party No.1 to 3 further stated that the complaint is barred by the limitation imposed by Section 7B of the Indian Telegraph Act, 1885. The Opposite Party Company is a licensed cellular service provider having been granted license by the DoT, Ministry of Communication, Govt. of India under section 4 of the Indian Telegraph Act, 1885. Union of India vide notification dated 24,05.1999 had conferred the power of telegraph authority to all the private cellular service providers, including appellants company, within the meaning of section 19B of the Indian Telegraph Act, 1885.

                   Opposite party No.1 to 3 further stated that the numbers in question i.e. 9501599771 and 9872997504 were ported to the network of the Bharti Airtel Ltd. and the same were activated in the name of Mr. Satinder Singh and Ms. Hardeep Kaur respectively. The said numbers were ported in the network of the OP no.1 to 3 on 13.11.2019 and 16.11.2019 respectively. At the time of porting out of the number it was duly made aware to the complainants that if any amount is found due and payable, the same shall be liable to be paid by the complainant. The number was ported in to Bharti Airtel Ltd. i.e. OP No.1 to 3 and subsequently it was found that the complainants had failed to make the payment of the outstanding dues to Vodafone Idea Ltd. amounting to Rs.56.79 paisa in respect of mobile bearing No.9501599771 and Rs.67.13 in respect of mobile No.9872997504. As per the request received from Vodafone Idea Ltd., the complainants were called upon by opposite party No.1 to 3 to clear the outstanding dues of Vodafone Idea Ltd. in order to avail uninterrupted service as per the Regulations on Mobile Number Portability (MNP) framed by the Telecom Regulatory Authority of India (TRAI) issued vide notification dated 23.09.2009. Copy of the Regulations namely Telecommunication Mobile Number Portability Regulations, 2009 is annexed herewith as Annexure R-1. The relevant clauses of the mentioned guidelines of TRAI are 14(4), 14(5), 15(3) and 15(4). Opposite party No.1 to 3 further stated that as per the request received from opposite party No.4 to 6 in respect of the outstanding dues and the failure on the part of the complainants to clear the said dues in spite of repeated requests and reminder in this regard, the OP No.1 to 3 were constrained to bar the service in respect of the above said mobile number on 20.05.2020. Even the complainants have admitted in their complaint that OP No.1 to 3 have made repeated calls and messages to them for clearing the outstanding dues of the Vodafone Idea Ltd. and after giving sufficient opportunity to the complainants to clear the outstanding dues, the complainants failed to do so and as such the services of the above said numbers were barred by OP No.1 to 3 on 20.05.2020 as per the Number Portability Regulations issued by the TRAI. As per the Regulations, if the request is received from the Donor Operator i.e. Vodafone Idea Ltd. then the Recipient Operator i.e. Bharti Airtel Ltd. is required to issue notice to the subscriber about the request received from the Donor Operator and the Subscriber should be called upon to produce the evidence of having settled such outstanding dues with the Donor Operator and in case such dues are not settled, the Recipient Operator i.e. Bharti Airtel Limited, in the present case, shall disconnect the mobile number of such subscriber. As such in the present case, the OP No.1 to 3 had duly followed the process as per the Regulations framed by the TRAI. Subsequently the complainants made the payment of the outstanding dues in respect of the numbers as per the averments made in the complaint on 11.06.2020. However, the said services were restored as soon as the OP No.4 to 6 confirmed the receipt of the payment from the complainants. Opposite party No.1 to 3 denied any deficiency in service or unfair trade practice on their part in disconnection of the number and subsequently restoration of the number in question by the OP No.1 to 3.

                   On merits, opposite party No.1 to 3 reiterated the crux of averments made in the preliminary objections. Opposite party No.1 to 3 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                Opposite party No.4 to 6 filed separate written statement by taking preliminary objections and assailed the complaint on the ground of maintainability; lack of jurisdiction, bad for non-joinder and mis-joinder of necessary parties; the complaint is vexatious, baseless, misconceived and an abuse of process of law. Opposite party No.4 to 6 alleged that the complainants have filed a single complaint for two different mobile numbers 9501599771 and 9872997504 which is not maintainable.  Moreover, in the present complaint also, the complainant No.1 entered into two different agreements for the subscription and porting of the two different mobile numbers separately and therefore a joint complaint filed is liable to be dismissed. Opposite party No.4 to 6 further alleged that the number 9872997504 was ported out and activated in the name of complainant No.2 with opposite parties No.1 to 3 and as such, complainant No.2 has no locus standi to file the present complaint against the opposite parties No.4 to 6 as she is not a consumer of services qua them. Opposite parties No.4 to 6 stated that the compensation claimed is not only exorbitant but an attempt to blow the issue out of proportion. Opposite party No.4 to 6 stated that complainant No.1 made a payment of Rs.140/- qua his number 9501599771 on 03.11.2019 with them in lieu of discharge of his liability for invoice dated 01.11.2019 and requested for porting out of his number from their network on 03.11.2019 itself during the billing cycle and before generation of bill dated 01.12.2019 for an amount of Rs.56.79. As per his request, the mobile No. 9501599771 of complainant No.1 was permanently disconnected and was ported out of the network of opposite party No.4 and 5 on 11.11.2019 and thereafter, bill of Rs.56.79 was generated after its porting out on pro-rata basis for the period 01.11.2019 to 10.11.2019, which was not paid by the complainants despite various reminders. Opposite party No.4 and 5/Donor Operator informed opposite party No.1 to 3/Recipient Operator about the outstanding amount of Rs.56.79 of the mobile No. 9501599771 through MNP Portal as per regulations on 25.12.2019. Opposite party No.1 to 3/Recipient Operator informed opposite party No.4 and 5/Donor Operator through the portal regarding disconnection of the mobile No. 9501599771 on 20.01.2020.

                   Opposite party No.1 to 6 further stated that complainant No.1 made payment of Rs.180/- qua his No.9872997504 on 03.11.2019 with opposite party No.4 to 6 in lieu of discharge of his liability for the invoice dated 01.11.2019 and requested for porting out his mobile number from their network during the billing cycle and before generation of the said bill dated 01.12.2019 for an amount of Rs.67.13. As per request of complainant No.1 the mobile No.9872997504 was permanently disconnected and was ported out of network of opposite party No.4 and 5 on 13.11.2019 for which the invoice dated 01.12.2019 for an amount was Rs.67.13  was generated after its porting out which was charged on pro-rata basis for the period 01.11.2019 to 12.11.2019 and the complainant did not clear the same despite various reminders. Opposite party No.4 and 5/Donor Operator informed opposite party No.1 to 3/Recipient Operator about the outstanding amount of Rs.67.13 of the mobile No.9872997504 through MNP Portal as per regulations on 25.12.2019. Opposite party No.1 to 3/Recipient Operator informed opposite party No.4 and 5/Donor Operator through the portal regarding disconnection of the mobile No.9872997504  on 20.01.2020. 

                   On merits, opposite party No.4 to 6 reiterated the crux of averments made in the preliminary objections.   Opposite party No.4 to 6 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

4.                In support of their claim, complainant No.1 tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainants also tendered documents Ex. C1 and Ex. C2 are the copies of list of port of connection, Ex. C3 is the SMS received on mobile dated 17.05.2020, Ex. C4 (Mark-A and Mark-B) are the copies of recharge receipts dated 25.04.2020, Ex. C5 and Ex. C6 are the copies of receipts of payment to Idea company dated 23.05.2020, Ex. C7 and Ex. C8 are the copies of receipt of payment to Idea company dated 11.06.2020, Ex. C9 is the copy of previous bill dated 16.08.2019, Ex. C10 and Ex. C11 are the copies of legal notice, Ex. C12 to Ex. C17 are the copies of postal receipts, Ex. C18 and ex. C19 are the copies of Aadhar card of the complainants and closed the evidence.

5.                On the other hand, counsel for opposite parties No.1 to 3 tendered affidavit Ex. RA of S. Birinder Singh Mohindru, Sr. Lead-Legal & Regulatory of M/s. Bharti Airtel Limited, circle office Chandigarh along with documents Ex. R1 is the notification dated 23.09.2009 of TRAI and closed the evidence.

                   The counsel for opposite party No.4 to 6 tendered affidavit Ex. RA1 of Sh. Manoj Madan, Authorized signatory of Vodafone Idea Limited, PUH Cluster office, Mohali along with documents i.e. Ex. OP4&5/1 and Ex. OP4&5/2 are the copies of customer application form, Ex. OP4&5/3 is the copy of order in FA/320/2017, Ex. OP4&5/4 is the copy of order in First appeal No.1492 of 2017, Ex. OP4&5/5 is the copy of invoice dated 01.11.2019, Ex. OP4&5/6 is the copy of invoice dated 01.12.2019, Ex. OP4&5/7 is the copy of snap shot, Ex. OP4&5/8  regulation dated 25.12.2019 of TRAI, Ex. OP4&5/9 is the copy of snap shot, Ex. OP4&5/10  is the copy of invoice dated 01.11.2019, Ex. OP4&5/11 is the copy of invoice dated 01.12.2019, Ex. OP4&5/12 and Ex. OP4&5/13 are the copies of the copy of snap shot, Ex. OP4&5/14 is the account statement and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written replies along with affidavits and documents produced on record by both the parties.

7.                The complainant No.1 a post paid subscriber of two mobile Nos.9501599771 and 9872997504 of opposite party No.4 to 6 opted to port out on 09.11.2019 and 12.11.2019 to Airtel prepaid connection of opposite party No.1 to 3. His request was acceded to and complainant No.1 got mobile No.9872997504 registered in name complainant No.2 while the other mobile No.9501599771 was retained by complainant No.1 himself. The complainants availed services of those prepaid numbers and lastly got the connections recharged on 25.04.2020. On 17.05.2020, the complainants received a message Ex. C3 whereby they were  called upon to pay the outstanding of Rs.56.79 towards previous mobile operator. However, due to non-payment, calls were barred on 20.05.2020. On 23.05.2020 they paid an amount of Rs.60/- and Rs.70/- vide receipts Ex. C5 and Ex. C6 to opposite party No.4 to 6. The complainants also paid amount of Rs.57/- and Rs.68/- vide receipt Ex. C7 and Ex. C8 on 11.06.2020. Their mobile numbers were finally reactivated on 19.06.2020. Now the complainants sought compensation that they have been forced to pay the aforesaid amounts during lockdown period and they were deprived of usage of these phones during that period and due to this, they have suffered physical and mental pain and sought compensation in this regard. The complainants were fully aware of the fact that they have made request for porting out during billing cycle and before generation of the bill of that particular billing cycle. It is also not the case of the complainants that at the time of making a request of porting out, they had deposited certain anticipated charges in advance and had made a request to opposite party No.4 to 6 to issue the supplementary bill in this regard. It can also be borne from the record that the complainants had ignored certain reminders in the shape of calls and messages issued by the opposite parties for payment of outstanding dues which were charged on pro-rata basis for the period from 01.11.2019 to 12.11.2019. As such, they have righty invoked the regulations on Mobile Number Portability (MNP) framed by the Telecom Regulatory Authority of India (TRAI) issued vide notification dated 23.09.2009 Ex. R1. The relevant regulations are reproduced as under:-

“14 (4) In case of non-payment of any outstanding bill issued to the subscriber after the porting request, for the services availed till the disconnection of the mobile number from the network of the Donor Operator, within such time as specified in such bill, the Donor Operator shall give a notice of not less than seven days to the subscriber, notifying him that in case of non-payment within the said notice period, the Donor Operator shall request the Recipient Operator to disconnect the ported number

14 (5) In case after expiry of such period such subscriber fails to make payments as specified in the notice, the Donor Operator shall communicate the details of such outstanding bills to the Recipient Operator through the Mobile Number Portability Service provider with an advice to take action for disconnecting the ported number.

15 (3) Where a request is made by the Donor Operator under sub- regulation (5) of regulation 14 for disconnecting the ported number, the Recipient Operator shall issue a notice to the concerned subscriber, the period of which shall be not less than seven days and not more than fifteen days, about the request received from the Donor Operator and 15 calling upon such subscriber to produce evidence of having settled such outstanding dues with the Donor Operator within such notice period and in case the subscriber produces such evidence of having settled such dues, the Recipient Operator shall not take any further action in pursuance of the notice and shall inform the Donor Operator accordingly through Mobile Number Portability Service provider.

15 (4) In case, before expiry of the period specified in the notice under sub-regulation (3), the subscriber fails to provide evidence of having settled such outstanding dues with the Donor Operator, the Recipient Operator shall disconnect the mobile number of such subscriber and inform the Mobile Number Portability Service provider forthwith about the disconnection of such mobile number and request for reversal of such mobile number to the Number Range Holder after expiry of ninety days.”

As such, there is no deficiency in service on the part of the opposite parties. Even otherwise, the complainant has failed to discharge the initial onus of deficiency in service on the part of the opposite parties. In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

“19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In view of the law laid down in the above cited law and as per facts and circumstances of the case, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

8.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

9.                Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President

Announced in Open Commission.

Dated:11.04.2023.

Gobind Ram.

 

 

Satinder Singh Vs Airtel                                                CC/20/368

Present:       Sh. Adarsh Sharma, Advocate for complainant.

                   Sh. GovindPuri, Advocate for OP1 to OP3.

                   Sh. Harvinder Pal Singh, Advocate for OP4 to OP6.

 

                    Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President

 

Announced in Open Commission.

Dated:11.04.2023.

Gobind Ram.