Karnataka

Gadag

CC/165/2010

Ramesh R Naikar - Complainant(s)

Versus

Bharati Airtel and another - Opp.Party(s)

S.B.Malashetty

10 Dec 2010

ORDER

Judgment by Smt.G.Shyamala, Member:

         Complainant filed by the complaint U/s 12 of the C.P. Act, 1986.

2.    Brief facts of the case are as under;

 

           The Complainant in his Complaint has stated that he has purchased Sim Card on dated: 23.11.2009 from 2^nd Respondent by paying Rs.30=00 and its number is 9900378305. The Sim Card purchased by Complainant was not properly worked for a period of 5 months and ultimately from 28.04.2010, the outgoing calls were barred. Then the Complainant has contacted the Customer Care Executive then as per their advice, he has submitted the records demanded by Customer Care. However, the Sim Card was not worked properly. But, on the other hand from dated: 13.05.2010 even the incoming calls were also barred. Since the Complainant has furnished his mobile phone to his friend and relatives, hence due to barring and incoming and outgoing calls of his Sim Card, the Complainant was unable to contact his friends and relatives. Therefore, the Complainant after issuance of notice filed this case and prayed for proper compensation and cost.

 

3.      The Respondent No.1 has filed his objection as under:

The Complaint is not maintainable in the eye of Law. The Complainant is not a subscriber of the mobile bearing No. 9900378305. Infact the said number was activated in the name of one Sri. Md. Rafik A Kumbar. Hence, there is no relationship of Consumer and Service Provider between the Complainant and Respondent No.1. Further, without prejudice to the other averments of the Complaint, the present dispute raised by the Complainant is not maintainable before the Consumer Fora in view of the Judgement rendered by the Hon’ble Supreme Court of India in Civil Appeal No.7687/2004 dated: 01.09.2009. In the case of General Manager, Telecom V/s M. Krishnan and another reported in 2009 AIR SCW 5631 as per this decision, the dispute raised by the Complainant is between subscriber and Telecom Service Provider and the remedy available is u/s 7-B of the Indian Telegraphic Act which provides adjudication of the dispute under the provision of Arbitration Act. Further, it is submitted that the Government of India Department of Telecommunication (Security Wing) vide Circular dated: 13.09.2009 bearing No.1/34/2006- VI (P) has specifically instructed all the Private Cellular service providers to strictly adhere to the process of address verification and in the event of any mismatch in the address/identity of the subscriber, the licence should proceeded to deactivate the connection forthwith, any non-compliance of such mandatory procedure would compell the service provider to deactivate such connections. In this case also, there was no proper compliance regarding submission of required documents on the part of the subscriber inspite of repeated directions. Hence, the service was deactivated from 13.05.2010 thereafter no action was taken by the subscriber to get the number reactivated though sufficient time was provided. Hence, as per procedure, the said number has been recycled and the same had been issued in the name of one Mrs. Geeta on 23.10.2010. The other allegations in the Complaint are hereby denied. Hence prayed to dismiss the Complaint.

 

4.      The Complainant has produced letter of R2 for sale of Sim Card for Rs.30=00 in favour of Complainant and also produced Airtel Prepaid Enrollment Form copy, his I.D. Card copy, Postal receipts, legal notice copy and acknowledgements. The Respondent No.1 has produced a copy decision of Hon’ble Supreme Court reported in AIR 2010 Page 90 in the case of General Manager, Telecom V/s M. Krishnan and another and also a copy of the Judgement in Appeal No.226/2009 dated: 27.10.2009 in the case of Mr. Saneesh Mathew V/s M/s Bharati Airtel Ltd., Ban galore rendered by State Commission, Bangalore. R2 has not filed objections.

 

5.      Heard argument. Now the points for our consideration are as under.

 

Point  1)     Whether the Complaint is maintainable

before this Forum as per Law?

          Point  2)     Whether there is a deficiency of service

on the part of the Respondent as alleged?

Point  3)     What Order ?

 

6. Our findings on the above points are as under;

1. Negative,
2. In the light of our negative findings on Point No.1,Point No.2 do not survive.
3. As per order below.

 

R E A S O N S

          7.      Point No 1:  In this Complaint, the Complainant alleging the deficiency of service on the part of the Respondent No.1 and 2 in deactivating the service on his Sim Card purchased from R2 by paying Rs.30=00 on 23.11.2009 filed the case. According to the Complaint, the Respondent No.1 earlier has deactivated the outgoing call and later from 13.05.2010 barred the incoming calls also and thereby totally barred the service to the Sim Card of the Complainant. But, the Respondent No.1 in order to defend his case has questioned the very maintainability of this case before this Forum relying on the Judgement of the Hon’ble Supreme Court and Hon’ble State Commission. According to the R1 the Hon’ble Supreme Court of India in its Judgement reported in AIR 2010 Page No.90, in the case of General Manager, Telecom V/s M.Krishnan and another has clearly stated that “a disputes about the telephone bills beyond jurisdiction”. The Hon’ble State Commission in Appeal No.226/2009 in the case of Mr. Saneesh Mathew V/s M/s Bharati Airtel Ltd., Judgement dated: 27.10.2009 relying on the Hon’ble Supreme Court referred supra has the dismissed the Appeal on the ground that no jurisdiction vest with Foras. So, in view of barring of the jurisdiction in respect of the telephone service the Consumer has to seek redress u/s 7-B of the Indian Telegraphic Act by arbitration method. The provision of 7-B of Telegraphic Act reads as follows:

         

“S. 7B, Arbitration of Disputes:-

 

          (1)   Except as otherwise expressly provided in this Act, if any dispute concerning any telegraphic line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitratory appointed by the Central Government either specifically 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-s. (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court.

                   Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules.”

 Therefore, the objection raised by the Respondent No.1 questioning the maintainability of this Complaint is justified. Hence, we answered this point in Negative.

 

          8.      POINT NO.2:   In the light of our finding on Point No.1 in negative, Point No.2 do not survive.

          9.      POINT NO.3:  In the light our negative finding on Point No.1, we proceed to pass the following:

 

O R D E R

          The complaint is hereby dismissed as not maintainable.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 10^th day of December, 2010)

 

 

Sri F.P.Laxmeshwarmath       Sri S.G.Palled,        Smt. G. Shyamala,

          Member.                        District Judge (R)            Member.

                                                       President