Haryana

StateCommission

A/1187/2018

ANUBHAV SINGH - Complainant(s)

Versus

BHARTI AIRTEL LTD. - Opp.Party(s)

16 Aug 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution:11.10.2018

                Date of final hearing:16.08.2023

                                                Date of pronouncement: 21.08.2023

 

First Appeal No.1187 of 2018

 

IN THE MATTER OF

 

Anubhav Singh, House No.2513, Sector-23, Gurugram, Haryana-122001.

.….Appellant.

Appellant in person.

Versus

 

1.    Bharti Airtel Ltd., 6^th Floor, Tower-A, Plot No.16, Udyog Vihar, Industrial Area, Phase-IV, Gurugram-122016.

….Respondent No.1.

Through counsel Shri Sanjeev Pabbi, Advocate

2.    Vodafone Mobile Services Ltrd., Peninsula Corporate Park, Ganpatrao Kadam Marg, Lower Parel, Mumbai-40013.

….Respondent No.2.

Through counsel Shri Punit Tuli, Advocate

 

CORAM:   S.C. Kaushik, Member.

 

Present:-    Shri Anubhav Singh, appellant in person.

                   Shri Punit Tuli, counsel for respondent No.1.

                   Shri Sanjeev Pabbi, counsel for respondent No.2 (already proceeded against ex-parte).

 

O R D E R

S.C. KAUSHIK, MEMBER:

 

                   Present appeal is preferred against the order dated 13.08.2018 in Consumer Complaint No.525 of 2017, whereby the complaint filed by present appellant-complainant was dismissed on the ground of jurisdiction by learned District Consumer Disputes Redressal Forum, Gurugram (now learned “District Commission”).

2.                Brief facts giving rise to the present complaint are that the complainant was a consumer of Bharti Airtel Ltd.-opposite party No.1 (“OP No.1”) and using the mobile No.999935533. It was alleged that on 21.07.2017, his mobile number was ported out from OP No.1 to OP No.2 (Vodafone Mobile Services Ltd.) without getting any consent from him. Thereafter, he contacted OP no.1 and OP No.2 and requested them to inform how such a thing can happen, but they never answered properly. It was further alleged that despite complaints made to the customer care as well as appellate authority of the OPs, no solution was provided. It was further alleged that he never made any contact with OP No.2 before the said number was ported out and requested to provide the relevant documents used for porting out the said number. Thus, there was deficiency in service on the part of OPs.

3.                Upon notice, OPs have appeared and filed their separate written statements. OP No.1 in its written statement submitted that complainant himself requested to port his number from Bharti Airtel and the same was ported out of Airtel on 21.07.2017 and thus there was no deficiency in service on the part of OP No.1 and prayed for dismissal of the complaint.

4.                On the other hand, OP No.2 in its written statement submitted that complainant himself got his mobile number 9999355333 activated on 10.10.2017 through aadhar based e-KYC verification using bio-metric authentication and also subscribed to Vodafone Red SRTP-149 plan on 10.10.2017. OP No.2 was approached by the complainant himself after having generated a Unique Porting Code (UPC) bearing No.AD633479) for the purpose of mobile number portability (MNP). It was further submitted that on 02.07.2017, complainant himself approached the OP No.2 and submitted the documents alongwith UPC for the purpose of getting his existing mobile services transferred and ported in to the services of the OP. Thereafter, upon request and undertaking of complainant to abide by the Terms & Conditions governing the use of the mobile connection as contained in the Customer Application Form (CAF). OP No.2 ported the existing post paid mobile number of the complainant and the same was ported into the network of OP no.2 on 21.07.2018. It was further submitted that complainant failed to complete the tele verification process as mandated by DOT under the guidelines dated 09^th August, 2012 bearing reference No.800-09/2010-VAS. It was further submitted that due to failure in completing tele-verification process by the complainant, the subject number was automatically churned out on 21.08.2018. It was further submitted that there was no deficiency in service on part of OP No.2 and prayed for dismissal of the complaint.

5.                After hearing the parties, learned District Commission dismissed the complaint of complainant on the ground of jurisdiction as mentioned above in para 1^st of this order.

6.                Aggrieved from the order passed by learned District Commission, present appellant-complainant has preferred the present appeal.

7.                The arguments have been advanced by Mr. Anubhav Singh, appellant in person, Mr. Sanjeev Pabbi, learned counsel for respondent No.1 as well as Mr. Punit Tuli, learned counsel for respondent No.2 and with their kind assistance contents of the appeal have also been properly perused and examined.

8.                Main controversy involved in the present matter is that the present appellant-complainant was a consumer of respondent No.1 and was using its sim for his mobile phone which was ported out to the company of respondent No.2 without consent of appellant. When his request were not heard by the respondents, he approached the learned District Commission by filing a complaint and the same was dismissed by learned District Commission on the ground of jurisdiction by observing the judgment of Hon’ble Apex Court in case titled as “General Manager, Telecom Vs. M. Krishnan & Anr.” (2009) 8 SCC 481 according to which the provisions of Section 7B of Indian Telegraph Act have excluded the jurisdiction of the Consumer Fora.

9.                The question that arises before this Commission for adjudication is as to whether Section 7B of the Indian Telegraph Act, 1885 ousts the jurisdiction of the Consumer Forum in deciding a dispute between telecom company and a consumer? In fact, Section 7B of the Indian Telegraph Act, 1885 provides a special remedy regarding the dispute in respect of telephone connection provided by the Telegraph Authority. The judgment of Hon’ble Apex Court in case titled as “General Manager, Telecom Vs. M. Krishnan & Anr.” (2009) 8 SCC 481 has held that when a dispute exists between Telegraph Authority and a consumer then the remedy available under Section 7B of the Indian Telegraph Act would be exercised. In support of version of appellant, he drew our attention towards the judgment of Hon’ble Supreme Court in case title as “Vodafone Idea Cellular Ltd. Vs. Ajay Kumar Aggarwal” in Civil Appeal No.923 of 2017, wherein it has been held that Consumer Protection Act of 1986 is special law providing protection to the Consumers and Section 3 of the Act clearly provides that remedies under the Act are in addition to and not in derogation of the provisions of any other law for the time being in fora. In view of this the judgment in General Manager’s case (Supra) cannot be invoked in the facts of the present case.

10.              In view of the above discussion and after a careful perusal of the entire record, it is true that the complaint filed by the present appellant-complainant before learned District Commission was dismissed on the ground of jurisdiction vide order dated 13.08.2018, but, as we all know that it is always better if rights of parties inter-se be decided on merits instead of on technicalities and it is golden principle of law that proper opportunity should be afforded to the concerned party before deciding the case on merits. The opposite parties-respondents are not going to suffer any irreparable loss if the present appellant-complainant is afforded an opportunity to assail and get his rights adjudicated on merits before the learned District Commission. So in these circumstances, order dated 13.08.2018, passed by learned District Commission, Gurugram, vide which the consumer complaint filed by present appellant-complainant was dismissed is hereby set-aside and the present appeal stands allowed with the directions to restore the complaint to its original number. The matter is remitted back to the learned District Commission, Gurugram to decide the complaint on merits and in accordance with law  after affording an opportunity to parties to contest the complaint. 

11               Parties are directed to appear before the learned District Commission, Gurugram on 15.09.2023 for further proceedings.

12.              Copy of this order be sent to the learned District Commission, Gurugram.

13.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for perusal of the parties.

14.              Application(s), pending, if any, stands disposed off in   terms of the aforesaid order.

15.              File be consigned to record room alongwith a copy of this order.

 

Pronounced on 21^st August, 2023                                                                                                                                                                                           

                                                                                                            S.C. Kaushik                                                                                                                        Member                                                                                                                                 Addl. Bench