The instant case was instituted on the basis of a petition under Section 12 filed by one Keshav Bajaj, Son of Late. N.M.Bajaj, resident of Kumardangi, P.O. & P.S.- Raiganj, Dist.- Uttar Dinajpur which was registered as Consumer Case No. 07/18 in this Forum.
The fact of the case as revealed from the petition of complaint as well as from the evidence is that the complainant (Keshav Bajaj) purchased a SIM being No-9475222222 from the opposite party No-2 that is BSNL Raiganj after completing all the formalities. It has been further stated that at the time of taking connection it was a post paid. But subsequently the complainant converted the said connection into a pre paid connection.
As the complainant did not get proper service from the O.P.No-2 that is BSNL Authority, so the complainant wanted to port his number that is 9475222222 to O.P.No-1 that is Airtel Co. and the said connection was ported from BSNL to Airtel on July, 2015.
Thereafter, the complainant enjoying his service but suddenly on 13.01.2016 the said service connection was automatically stopped. Then on 15.01.2016 the complainant contacted with the office of the O.P.No-1 & O.P.No.1 again connected his said SIM properly.
Thereafter on 27.01.2016 the service connection was stopped. Then the complainant lodged a GD before the Raiganj Police Station on 28.01.2016. Then the complainant made contacted with another phone and the complainant found that someone was using the same SIM number of Vodafone.
Thereafter, the complainant contacted with the office of the O.P.No-1 and told the same fact that the said number that is 9475222222 is being operated by someone and when the complainant wanted to file a written complaint then the office of the O.P.No-1denied to receive the same. So, the complainant informed the matter through Email & Whatsapp and the O.P.No-1 instructed to make communication with office of the Vodafone Company.
Thereafter, the complainant visited the office of the Vodafone store and the Vodafone store advised the complainant to contact with the office of the O.P.No-2 for getting the said number.
Thereafter, on 17.02.2016 the complainant went to the office of the O.P.No.2 and as per direction of the O.P.No-2 the complainant deposited a sum of Rs.3000/-(three thousand) to the office of the O.P.No-2 and they also provided money receipt to that effect.
Again on 08-03-2016 the complainant contacted the Vodafone Store but no fruitful result from the corner of any O.Ps.
That during the negligent act of the opposite parties the complainant suffered huge financial loss of business and the complainant was unnecessary harassed, for which the complainant prayed for Rs.300000/- for mental pain and agony and Rs.10,000/- for litigation cost.
The petition has been contested by the O.P.No-1,2&3 by filing separate written statement. It is to be mentioned that O.P.No-3 filed a written statement but after filing the W.V the O.P.No-3 did not contest the case. The definite defence case of the O.P.No-1 i.e Bharati Airtel is that the case is not maintainable. There is no cause of action to file the case against the O.P.No-1 and the petition is barred by Principle of Estoppels, waiver and acquiescence. The instant case is barred by mis joinder and non joinder of parties. The definite defence case is that in the month of January, 2016 a request was generated from the number of the complainant for porting the number. On the basis of porting request and as per M.N.P (Porting Guidelines) the number was ported to other operator following all the existing rules and regulations. So, the complainant was not a consumer of O.P.No-1. As such the complainant is not entitled to get any compensation from the O.P.No.1 and the case is liable to be dismissed against the O.P.No-1 that is Bharati Airtel Ltd.
The petition has been contested by the O.P.No-2 by filing separate W.V denying all the material allegations as labeled against the BSNL Authority contending inter alia that the instant case is not maintainable in law and there is no cause of action to file this case under the Consumer Protection Act and the case is barred by estoppels, acquiescence, waiver and limitation. The definite defence case is that the complainant was not a consumer under the O.P.No-2. So, the case is not maintainable under the provisions of Consumer Protection act against the O.P.No-2 (BSNL). So, the complainant cannot claim a compensation from the O.P.No-2, as such the petition is to be rejected.
On the other hand the O.P.No-3 has filed separate W.V denying all the material allegations as labeled against the Vodafone Company contending inter alia that the case is not maintainable in the present Form and this Forum has got no jurisdiction to try the case and the case is barred by waiver, estoppels and acquiescence and law of limitation. The complainant was not at all a consumer of this O.P and the complainant allegedly opted to take the mobile connection of BSNL (O.P.No-2) and thereafter, the complainant ported to Bharti Airtel(O.P.No-1). Thus the complainant does not have any fiduciary relationship with Vodafone Company. So, considering such facts and circumstances the instant case is liable to be dismissed. Though the O.P.No-3 filed W.V but ultimately, O.P.No-4did not contest the case as such the case was proceeded ex party against the O.P.No-3&4.
In order to prove the case the complainant keshav Bajaj was examined as PW1 and he was cross examined by the O.P.No-2 and he was cross examined in the form of questionnaires by the O.P.No-1. No other witness was examined on behalf of the complainant. On behalf of the BSNL initially Ganu Ravi was examined as O.P.W. 2 and he was cross examined by the O.P.No-1. On the other hand one Arvind kumar was examined as O.P.W.3 by the BSNL and he was cross examined. On behalf of O.P.No-1 one Rakesh Kumar Samantaray was examined as OPW1 and he was also cross examined by the complainant.
A) Point argued on behalf of the complainant as follows:-
- The O.Ps willfully de activated his mobile connection for which the complainant was suffering for mental pain and agony.
- In order to get the SIM number the complainant deposited Rs.3000/- to the BSNL Authority that is O.P.No-2. In spite of receiving money the BSNL Authority did not give the same number. As such the complainant is entitled to get compensations as prayer for.
- Argument as advanced by the O.P.No-1:-
- As the service connection was ported from Airtel to Vodafone. As such there was no relationship between the complainant and the O.P.No-1 that is Bharati Airtel.
- That port was done on the basis of a request sent by the complainant. As such the O.P.No-1 has no liability to give any compensation.
- Argument as advanced by the O.P.No-2:-
- The number was initially ported from BSNL to Airtel on the basis of a request sent by the complainant. As soon as the number was ported to Airtel and the complainant seized to be a consumer under the BSNL. The further point is that the complainant again the same number ported the same number from Airtel to Vodafone. After porting the number and after some days the and the Vodafone Company deactivated the same number and the Vodafone Company neither informed the BSNL nor informed the Airtel. As soon as the number was deactivated by the Vodafone and the same number became free number of the BSNL Authority and the number was auction as per provision of law. The complainant did not pay the requisite amount for taking the number, so the BSNL Authority has no liability to make any payment.
Now the point for determination as to whether the complainant is entitled to get any relief or not?
D E C I S I O N W I T H R E A S O N S
There is no dispute that initially the complainant was a customer under B.S.N.L in respect of the special no-9475222222 and the same was lastly converted to pre paid number of the BSNL and there is no dispute that the same number was ported by the complainant from BSNL to AIRTEL and such fact has been admitted by the complainant as well as the O.P.No.1 (Airtel) and the complainant (Keshav Bajaj) again ported the same number to the Vodafone Company. Though in the W.V the O.P.No-3 and 4 has stated that there was no fiduciary relationship between the complainant and the Vodafone Company is not believable as because PW 1 in his cross examination has admitted that he all on a sudden received a message from Vodafone “You are choosing Vodafone” that indicates the No-9475222222 was ported from Airtel to Vodafone and such fact has been stated by the O.P.No.1 (Rakesh Kumar Samataray). Such admission establishes the fact that the complainant was a consumer under “Vodafone Company,” when the number was ported from Airtel to Vodafone, so the fact as stated in the W.V by O.P.No-3 is not believable. As the number came to the BSNL as free number this is why the BSNL Authority made the auction and one person paid the required amount and took the same number. As such BSNL has no liability to pay any compensation.
The argument as advanced by the Ld. Lawyer of the O.P No-2 is quite believable as because the complainant deposited Rs.3000/-(three thousand) for getting that number. Unless the number was deactivated why the complainant will deposit Rs.3000/-and no rule has been filed by the complainant to show that the original number will remain with the complainant. As it has became free number so the BSNL Authority made the same number in auction. So, considering such facts and circumstances there was no latches and negligent act on the part of the BSNL Authority. The next point is under whose fault the complainant was suffered? Definitely, initially the complainant took the service connection from the BSNL and the complainant ported the same number from BSNL to AIRTEL. Then the complainant further ported the SIM from Airtel to Vodafone. But the Vodafone Company deactivated the same. The reason for deactivation is not forth coming before this Forum as such the Vodafone Company is liable for Negligent Act. The Vodafone Company should have informed the complainant as well as the Company from which the number was ported and should also inform the original service provider from which the number was originated that is B.S.N.L. But nothing was done. In the W.V the Vodafone Company has denied that the complainant was not at all a consumer with the Vodafone Company. But such fact has mentioned in the W.V is not at all believable as because it is clearly stated from the evidence of PW1 and OPW1 that the number was ported to Vodafone. So, there was a fiduciary relationship between the complainant and the Vodafone Company. The manner in which a number was deactivated that should have informed to the complainant. But there is no evidence that the matter was informed to the complainant as because the Vodafone Company is not contesting the case. It is found that Vodafone Company is the mainly liable for the latches for not informing the complainant and the Other Tele phone service provider in question. So, there was a deficiency of service on the part of the Vodafone Company. As such the Vodafone Company is liable to pay the compensation. It is fact that on perusal of the record it is found that the complainant deposited Rs.3000/-(three thousand) to the BSNL but the complainant did not deposit require amount for taking the free number. As such the BSNL Authority is liable to return the same amount to the complainant without any interest. As the complainant did not deposit the required amount to the BSNL Authority for which the BSNL had to wait for a long time? So, considering such facts and circumstances the complainant (Keshav Bajaj) is entitled to make compensation against the O.P.No.3&4 that is Vodafone Company.
C.F. paid is correct,
Hence, it is,
O R D E R E D
That the complainant case being No. CC-71/16 be and the same is allowed on ex party against the O.P.No-3 & 4 with cost that is the Vodafone East Ltd. DLF IT Park, Block-AF,15th Floor, 08 Major Arteriol Road, New Town, Rajarhat, Kolkata.-156 and Vodafone Store, to be represented by its proprietor/ partner, M.G.Road, P.O+P.S- Raiganj and Dist.- Uttar Dinajpur & dismissed against the O.P.No- 1 &2 without any cost.
The complainant get compensation of Rs.30,000/-(Thirty thousand) for mental pain and agony and Rs.10,000/- (Ten thousand) for litigation cost. The O.P.No-3 and 4 are directed to pay the amount within 45 days from the date of order failing which it will carry interest @5% per annum form the date of order and the B.S.N.L Authority is directed to refund of Rs.3000/-(Three thousand) to the complainant by issuing any A/c payee cheque or any other manner which the B.S.N.L Authority thinks just and proper. The complainant is at liberty to execute the order as per provision of law in case of default of payment by the O.Ps.
Let a copy of this order be given to the parties free of cost except O.P.No-3.
