KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 354/2018
JUDGMENT DATED: 20.03.2020
(Against the Order in C.C. 174/2017 of CDRF, Malappuram)
PRESENT:
SRI.T.S.P. MOOSATH : JUDICIAL MEMBER
SRI.RANJIT. R : MEMBER
APPELLANT:
Reliance Jio Infocomm Limited, Theputtu Building, Puthiyara, Kozhikode, Kerala.
(By Advs. M/s Sheriff Associates)
Vs.
RESPONDENT:
Anwar C.P., Chungakkarante Purakkal House, Chettippadi P.O, Pin-676 319, Malappuram.
(Party in person)
JUDGMENT
SRI.RANJIT. R: MEMBER
This appeal is preferred by the opposite party against the order dated 28.02.2018 on the file of the Consumer Disputes Redressal Forum Malappuram, for short the District Forum, in C.C. No. 174/2017. The District Forum by its order directed them to pay an amount of Rs. 10,000/- to the complainant as compensation and Rs. 5,000/- as costs.
2. Case of the complainant is as follows: Complainant was having an Airtel mobile connection and he approached the opposite party to port his existing Airtel connection to Reliance Jio and the same was done by them. After porting of Airtel mobile service to Reliance Jio without change of number complainant started to use the phone. However he did not get the network connection and so he again approached the opposite party for porting out to another service provider, but the opposite party informed the complainant that porting from one service provider to another is not permitted within 3 months from the date of connection. After 3 months i.e; on 16.04.2017 complainant sent message for porting the connection and he received one port code also. But on 01.04.2017 complainant received one call from the customer care service of opposite party and enquired him about the reason for his subsequent request for porting and he informed them about the net work problem. At that time the opposite party promised the complainant that the problem will be solved within 20 days and until then the complainant can use the date and voice SMS free of cost but unfortunately complainant’s connection was disconnected on 19.04.2017. Thereafter complainant contacted the opposite party for reconnecting the mobile service but they did not do so. He could not send even port message from his phone. After repeated demands the opposite party informed the complainant that a recharge of Rs. 10/- has to be done to send the message for porting out of their service. By believing the words of the opposite party complainant had made a top up of Rs. 10/-, but even after that complainant could not send message for porting after making the above payment. The above said act of the opposite party amounts to deficiency in service and unfair trade practice. Hence this complaint was filed for getting Rs. 50,000/- for the financial loss and Rs. 25,000/- for the mental agony he suffered.
3. The opposite party filed version contending that the complainant voluntarily approached the office of the opposite party with a request to port his existing Airtel connection to Jio and the same was done by the opposite party on 11.01.2017 free of cost as it was done during their free offer period between October 2016 and April 15th 2017. Before porting, the complainant had not enquired about the service areas of the opposite party and since it is a mobile service, the complainant can use it anywhere in the country free of cost. As per the Mobile Number Portability Regulations 2009 promulgated by Telecom Authority of India (TRAI) there is restriction in porting from one service provider to another and porting is not permitted within 3 months from the date of connection/porting. This fact was duly informed to the complainant before porting. The porting out request of the complainant could not be succeeded because of the above reasons. The opposite party has acted lawfully as per TRAI Regulations. It is not true that the complainant’s connection was disconnected on 19.04.2017. On 16.04.2017 the opposite party commenced its paid offer and it is only after that the complainant admittedly had intended to port out of the opposite party’s services. The free service of the opposite party ceased from 16.04.2017 and payment has to be made for all the services. Accordingly it was informed by the customer care service of the opposite party to the complainant that a recharge of Rs. 10/- has to be done to send the message for porting out of their service. It is also true that the complainant had made a top up of Rs. 10/-, but it is not correct to say that the complainant could not send message for porting after making the above payment. Under these circumstances the opposite party is not liable to pay any amount as compensation or otherwise to the complainant as there is no deficiency of service on their part. The decision to port from his existing connection to that of the opposite party was voluntarily taken by the complainant and the opposite party had no role in it. No amount was collected from him for any of the services rendered to him and all services rendered were free of cost. The complainant is therefore not a consumer as defined under the Act and the complaint is liable to be dismissed. The opposite party has not done any wrong to the complainant and there was no deficiency of service on the part of the opposite party as alleged by the complainant. The complainant has no cause of action to file the above complaint. He has miserably failed to prove any unfair trade practices or deficiency in service on the part of the opposite party. The complainant has cleverly pretends to be an ignorant person and filed this complaint on an experimental basis in order to grab unlawful enrichment from the opposite party. The alleged mental agony and the difficulties arose to the complainant is due to his own ignorance and the opposite party is no way responsible for the same. Hence prayed for dismissal of the complaint.
4. The evidence consists of affidavit in lieu of chief filed by the complainant and the C.D produced by him which was marked as MO1. Opposite party filed affidavit in lieu of chief. No documentary evidence was produced by them.
5. The District Forum on the basis of the MO1 produced by the complainant and also considering the rival contentions found that due to the act/omission on the part of the opposite party, complainant could not port his telephone connection to another service provider, which amounts to unfair trade practice and deficiency in service on the part of the opposite party. The District Forum on the basis of this finding passed the impugned order. Aggrieved by the said order the opposite party has come up in appeal.
6. Heard the learned counsel for the appellant and the respondent who was present in person. The learned counsel for the appellant urged that the complainant voluntarily approached the opposite party with a request to port his existing Airtel connection to that of Reliance Jio on 11.01.2017 and the same was done by them free of cost since there was free offer period between October 2016 and April 15, 2017. According to them the complainant did not enquire about the servicing area of the opposite party. The complainant, on 15.04.2017 approached the opposite party for subsequent porting. The activation of the appellant’s network was done on 16.01.2017 (free period) and due to the TRAI Rules which restricts porting from the network of one service provider to another within three months from the date of activation in a particular network, they could not process the port out request submitted by the respondent/complainant on 15.04.2017 as the same has not crossed 90 days period. On 11.01.2017 the complainant had approached the appellant with a request to port his connection to that of the appellant and the complainant’s number was activated in the appellant’s network only on 16.01.2017. The donor operator (Airtel) completed his mobile number port request on 17.01.2017 only and hence the porting request made on 15.04.2017 could not be processed due to the TRAI Regulation. Further the counsel pointed out that the complainant’s mobile number at the time of activation in the appellant’s network was “Reliance Jio Happy New Year Offer 2017” which comprises of free local and STD call, free SMS, free 4G data upto 1 GB per day. This offer was closed with effect from 31.03.2017 and if the account is not recharged with the plans then available, the service to the account will be stopped and the subscriber will be getting only incoming calls and SMS. Since the complainant did not do so the free service benefit enjoyed by him ceased with effect from 16.04.2017 and the complainant was bound to recharge with his chosen tariff for availing the service subsequently. After the complimentary free service period the respondent/complainant ought to have opted any of the announced tariff plans such as Rs. 309 or Rs. 509/- together with Jio prime membership by paying Rs. 99/- to continue the same service. Every existing subscriber was given cut off date till 15.04.2017 to avail the Jio prime membership. Those subscribers not opted Jio prime membership facility have to activate a new sim with a recharge of Rs. 408/- or Rs. 608/- to avail services. However the respondent/complainant had not opted for any such plans but he straight away done top up of Rs. 10/- and expected all benefits of normal subscribers. Mere top up of Rs. 10/- will not entitle any service to the respondent/complainant as he had not chosen to be an actual subscriber after the expiry of complimentary service.
7. The complainant/respondent had admitted the above facts before this Commission. He had stated before this Commission that he availed the service of the opposite party service provider free of cost. He also admitted that he could port out from Jio service to another service provider, but according to him, it was done only after the period of 95 days. His specific case is that he had initially ported from Airtel to Jio with effect from 11.01.2017 and the request for porting out from Jio connection was made on 15.04.2017. This is within 3 months period prescribed by TRAI Regulations. Thereafter there was a delay in effecting porting.
8. Even though the appellant would state that they could not process the request submitted by the complainant to port out from Jio on 15.04.2017, as the same could be processed only after 90 days period, which according to them will start only on 17.04.2017, the appellant / opposite party in their affidavit in lieu of chief filed before the Forum, admitted that the complainant’s existing airtel connection was ported to Jio on 11.01.2017. Naturally 3 months period prescribed by the TRAI Regulation will end on 11.04.2017. So the request of the complainant on 15.04.2017 to port out is well within the TRAI Regulation. The 3 months restriction will come to an end on 11.04.2017. However according to the appellant, the complainant had approached them on 15.04.2017 with a request to port out from the service of the appellant and they could process the porting only on 16.04.2017 and the request for porting was done only on 17.04.2017. This was due to the fact that the donor operator, Airtel, initially completed his mobile number port request only on 17.01.2017 and thus the 90 days period mandated by the TRAI ended only on 17.04.2017. The above statement made by the appellant is contrary to their own statement before the District Forum. The appellant has not produced any scrap of paper/document to prove the above allegation, whereas they would swear before the Forum that the complainant’s phone was ported to Jio from Airtel with effect from 11.01.2017. Thus it is proved that there was delay in enabling the complainant for porting out from the Jio connection to another service provider. The reason for delay is not satisfactorily explained. It is a clear case of deficiency in service and unfair trade practice on the part of the opposite party.
9. In the light of the above the District Forum has found that the act/omission on the part of the appellant in not processing the request to port out from the Jio connection amounts to deficiency in service and unfair trade practice and passed the impugned order. However we find that the order of the District Forum awarding compensation of Rs. 10,000/- and Rs. 5,000/- as costs is very high and exorbitant. It has no nexus with the actual loss suffered by the complainant. We consider that an amount of Rs. 2,000/- will be a just and reasonable compensation to be awarded in the above circumstance. The cost ordered is to be reduced to Rs. 1,000/-instead of Rs. 5,000/-.
10. In the above circumstances the order of the District Forum is modified to the effect that the amount of compensation is reduced and is fixed at Rs. 2,000/- instead of Rs. 10,000/- and cost ordered by the District Forum is reduced and fixed at Rs. 1,000/- instead of Rs. 5000/-.
In the result, the appeal is partly allowed. The order of the District Forum is modified as indicated above.
The respondent/complainant can realize the amount of Rs. 3,000/- ordered as compensation and cost from the amount of Rs. 5,000/- deposited by the appellant before the CDRF, Malappuram, on filing proper application. The balance amount from the deposited amount is to be released to the appellant, on filing proper application.
Release the amount of Rs. 7,500/- to the appellant, the statutory amount deposited by them, on filing proper application.
T.S.P. MOOSATH : JUDICIAL MEMBER
RANJIT. R : MEMBER
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