Date of Filing:29-06-2016
Date of Order:30 -7-2019
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.VIJENDER, B.Sc. L.L.B. PRESIDENT.
HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER
Tuesday, the 30th day of July, 2019
C.C.No.322 /2016
Between
Mr.Devender S/o.Late A Sri Ramulu,
Aged 40 years, Occ: Advocate,
R/o.H.No.2-2-173, Uppal Vijaypuri Colony,
Ranga Reddy District. ……Complainant
And
- The General Manager,
Bharti Airtel Splendid Towers,
Opposite Begumpet Police Station,
Begumpet, Hyderabad – 500016
- Mr. Naveen
Air Tel Opposite Vijaya Diagnostic Centre,
Beside Indus-Ind Bank, Gaddiannaram,
Dilsukhnagar, Hyderabad – 500036
- Mr. Frankleen
Bharti Airtel Splendid Towers,
Opposite Begumpet Police Station,
Begumpet, Hyderabad – 500016
- The General Manager,
Idea Cellular Limited,
Khan Lateef Khan Estate
Opp Faithemaidan Stadium
Hyderabad – 500001
- Mr. Ashish Dalal,
S/o. Sh. Sukhbir Dalal, } Impleaded as per orders dt.6-11-2017
R/o.V.P.O.Jhakhoda, in I.A.No.101/2017
Bahadurgarh, Jhajjar District,
Haryana State- 124507 ….Opposite Parties
Counsel for the complainant : Mr. Sujith Jaiswal
Counsel for the opposite Party No.1 to 3 : M/s. Gopi Rajesh & Associates
opposite Party No.4 : Mr. Srinivas Pachwa
O R D E R
(By Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)
This complaint has been preferred under Section 12 of C.P. Act 1986 alleging that porting of complainant’s mobile number to opposite party No.5 by opposite party No.1 to 4 amounts to unfair trade practice and deficiency in service hence a direction to opposite party No.1 to 4 to terminate the ported service of complainant’s mobile number and revert the same to him and to award a compensation of Rs.4,00,000/- for mental agony, annoyance on account of porting of mobile number to 3rd party and cost of this complaint.
- The complainant’s case in brief is that he is a holder and owner of mobile number 900003000 for 5 years under the pre-paid category. He requested for portability of said number and same was accepted under Unique ID: AA567933 dated 10-05-2016 by opposite party No.1. His mobile number was supposed to be ported to other net work provider locally and this information was shared to opposite party No.2 working in Dilsukhnagar branch of Airtel on 10-5-2016. Opposite party No.2 dodged the issue under some or other pretext. On finally 26-5-2016 the complainant learnt that his mobile number was activated in National portability to opposite party No.5 under opposite party No.4 net work and opposite party No.5 procured it by paying a sum of Rs.2,00,000/-. There was full –fledged criminal conspiracy and organized scam between opposite party No.1 and opposite party No.5 and complainant was deprived the fancy number illegally. Opposite party No.1 & 5 have colluded with their employees and changed the status of ownership of the said number without consent or approval of the complainant and thereby illegally deviated the ownership infavour of opposite party No.5. It is a clear case of criminal breach of trust, cheating and unfair trade practice on the part of the opposite parties.
The issue of illegal transfer of the complainant’s mobile number infavour of the opposite party No.4 without the consent and knowledge of the complainant was brought to the notice of opposite party No.3 on 27-5-2016 but opposite party No.3 having collected the copy of the complainant refused to endorse as an acknowledgement and later did not look into the matter. Hence the complainant got issued a legal notice to opposite party No.1 to 3 on 1-6-2016 and to opposite party No.4 on 10-6-2016 but there was no response from opposite party No.1 to 3. Complainant lodged a report with Uppal Police on 8-6-2016 where the case in Crime No.450/2016 was registered for the offence under Section 420 IPC and it is pending for investigation.
The complainant requested portability of his mobile number and never gave consent for transferring his mobile number to 3rd party. Hence the present complaint for above stated reliefs.
- A common written version has been filed for opposite party No.1 to 3 denying the allegations of either unfair trade practice or deficiency in service on their part. The defense set out for opposite party No.1 to 3 is that the complainant did not exhaust his remedy available as per Telecom Consumer Protection and Redressal of Grievance Regulation, 2007 and also under Section 7-B of Indian Telegraph Act, 1885. As per Section 7-B of Indian Telegraph Act, 1885 any dispute connecting any telegraph line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus has been provided the dispute shall be determined by an arbitration and the award of arbitrator shall not be questioned in any Court of law. The Hon’ble Supreme Court in the judgement reported in 2009 (8) SCC 481 in Civil Appeal No.7687 of 2004 SC held that Consumer Forum does not have jurisdiction on disputes relating to telephone services and telephone bills in view of the remedy provided under Section 7-B of Indian Telegraph Act, 1855. Similar view was also expressed by the Hon’ble National Commission in R.P.No.1703 of 2010 in Prakash Varma Vs., Idea Cellular Ltd., . Hence in the present case, the complainant has to approach the Arbitrator for raising any dispute and this Forum has no jurisdiction to entertain the complaint.
The complainant himself generated the unique portability code for porting out to another Telecom Service provider i.,e opposite party No.4. The unique portability code is a code sent through SMS which is to be confined to the customer’s mobile alone and it is not supposed to be disclosed to 3rd party. The said information is provided in the SMS itself and UPC should not be shared the same with anyone. But the complainant deliberately shared the information of UPC to a 3rd party.
The complainant’s mobile number 9000030000 is no more with the opposite party No.1 to 3 as he raised mobile number portability. Opposite party No. 1 to 3 have no control whatsoever on the documentation or working of the said mobile number. Opposite party No.1 to 3 have transferred the complainant mobile number 9000030000 to opposite party No.4 the desired operator of the complainant as such opposite party No.1 to 3 have no knowledge of transfer of complainant’s mobile number ownership to 3rd party. Opposite party No. 1 to 3 have no right or obligation to block the services of the complainant’s mobile number 9000030000 and no relief can be granted to complainant against opposite party No.1 to3.
- Opposite party No.4 in its separate written version also denied the allegations of the complainant. The defense set out in its written version is that the General Manager of IDEA Cellular alone is made as a party to the complaint and not the company as such the company is not liable for any claims of the complainant.
The complainant has never been consumer or subscriber of Idea Cellular Limited. Opposite party No.1 could alone explain as to where and from whom he received the unique porting code number for port out the complainant’s mobile number 9000030000. Originally the MSISDN No.9000030000 series was belongs to the Bharati Airtel. On 16-5-2016 Idea Cellular Ltd at Haryana received National Port in request from opposite party No.5 along with valid UPC and M/s. Idea Cellular, Haryana processed the request as per established process of the Telecommunication mobile number portability Regulations, 2009 and collected the customer application form and other documents i.,e proof of Address , proof of identity and unique porting code from opposite party No.5 and successfully ported the services from opposite party No.1 to 3 to opposite party No.4 at Haryana. On 27-5-2016 opposite party No.4 received a mail from opposite party No.1 stating that the complainant is claiming to be the original owner of the said MSISDN No.9000030000 as per records. To substantiate the same opposite party No.1 shared the customer application and other details available with its records. Basing on the information from opposite party No.1 IDEA Cellular Ltd immediately had sent a letter to opposite party No.5 on 15-7-2016 asking him to substantiate his ownership of said mobile number 9000030000. Opposite party No.5 replied through email stating that he had purchased the said mobile number from one Mr.Devendra whose mobile number is 8143428161 for consideration of Rs.95,000/- and that Mr.Devendra has sent him the unique porting code number of 9000030000. Opposite party No.5 also has provided an affidavit dated 2nd August 2016 containing undertaking that he will abide by all rules and regulations of the concerned department.
Opposite party No.4 left with no option made a representation by mail on 10-8-2016 to Telecom Enforcement Resource and Monitoring cell at Haryana by a letter dated 22-8-2016 and informed Telecom Enforcement Resource and Monitoring cell at Hyderabad material facts and requested for further course of action to be followed. But till now no reply has been received from Telecom Enforcement Resource and Monitoring cell.
The ownership over any MSISDN remains with the Department of Telecommunications. The number series are allotted to the respective Telecom Service provider for providing services to their individual subscribers by way of an unique identity number for their easy identification as an entity such identification code facilitated by Department of Telecommunications can never became the property of any individual by way of a subscriber. When opposite party No.4 has received the port in request from an intending subscriber and the same was processed as per the procedure of the mobile portability regulation 2009. On intimation from the opposite party No.1 regarding original subscribership of the number opposite party No.4 made a representation to Telecom Enforcement Resource and Monitoring cell at Haryana and Hyderabad but till now no reply has been received from them. As such there is no unfair trade practice on the part of the opposite party No.4. The opposite party No.4 has no knowledge of registering of a crime by Uppal police on a complaint from the complainant. The complainant was never subscriber of opposite party No.4 with mobile No.9000030000 and he never availed any services or opted for services with it. Hence there is no deficiency of service on the part of the opposite party No.4 in favour of the complainant . Hence the complaint against opposite party No.4 is deserved to be dismissed.
- Opposite party No.5 is brought on record as per orders in I.A No.101/2017 on 6-11-2017 but he remained exparte.
In the enquiry the complainant filed his evidence affidavit reiterating the material facts of the complaint and to support the same got exhibited eleven (11) documents. Similarly for the Opposite Party 1 to 3 the evidence affidavit of one Sri Bipin Thomas stated to be Deputy General Manager is got filed and the defense set out is in line with the written version filed for them and (6) Six documents are exhibited through him. For opposite party No.4 evidence affidavit of one Sri A.V.K.Naidu stated to be Asst. legal Manager of it is got filed and through him one (1) document is exhibited. Written arguments are filed for complainant as well as opposite party No.1 to 4.
On a consideration of material brought on record the following points have emerged for consideration .
- Whether the complainant can maintain the present complaint before this Forum ?
- Whether the complainant is entitled for the amount claimed in the complaint?
- To what relief?
Point No.1: Opposite party No.1 to 4 in their written version have made an objection as to the maintainability of the complaint before Consumer Forum in view of under section 7 –B Indian Telegraph Act, 1855 and the support of it they have referred the judgment of the Hon’ble Supreme Court in the case of General Manager Telecom Vs. M.Krishnan and another reported in 2009 (8) SCC 481 in the Civil Appeal No.7687 of 2004 SC. They also referred orders of the Hon’ble National Commission in R.P.No.1703 of 2010 in the case of Prakash Varma Vs., Idea Cellular Ltd., and also the orders passed by Hon’ble A.P.State Commission in Appeal No.F.A.No.739/2011. The copy of the orders of the Hon’ble Supreme Court in the case of General Manager Telecom Vs.M.Krishnan and another is placed on record before this Forum.
A reading of the facts in the decision shows the dispute relating to that case is in respect of bill amount. Section 7B of Telegraph Act reads as under: Any dispute connecting any telegraph line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus has been provided the dispute shall be determined by an arbitration be referred to an arbitrator appointed by Central Government and other specifically for determining that dispute or generally for the determination of dispute under this section. In the present case the dispute neither relates to appliances, telegraph line nor apparatus or in respect of bill amount. It is the case of transferring the ownership of mobile number of the complainant to opposite party No.5 without his consent or approval.
In the light of it, it can be safely said that the present dispute between the parties does not fall under the category of disputes enumerated in Section 7B of Telegraph rules. Hence this Forum has got jurisdiction to entertain the complaint. Accordingly point is answered infavour of the complainant.
Point No.2: The undisputed facts are that the complainant was original owner of the mobile No.9000030000 having obtained it from opposite party No.1 about five (5) years back under the category of pre-paid. Later on 10-5-2016 he made a request with opposite party No.2 for porting of this particular number to opposite party No.4. He was stated to have been informed by opposite party No.1 that within a week the portability of the number will be completed but to his surprise he learnt that this number was activated in the name of opposite party No.5 in National Portability net work and opposite party No.5 stated to have procured the same by paying a sum of Rs.2,00,000/-. The contest of opposite party No.1to 3 is the complainant himself generated the unique portability code for porting of his number to another Telecom Service provider i.,e opposite party No.4 and the unique portability code is a code sent through SMS which is to be confined to the customer’s mobile alone and the complainant is not supposed to be disclose to 3rd party. But the complainant deliberately shared the information of UPC to a 3rd party and thus opposite party No.1 to 3 have no role in activating the complainant’s mobile number in the name of opposite party No.5.
The contest of opposite party No.4 is that on 16-5-2016 it received National Port in request from opposite party No.5 informing that he bought this number from the complainant and on such approach M/s. Idea Cellular, Haryana processed the request as per established process of the Telecommunication mobile number portability Regulations, 2009 and collected the customer application form and other documents which includes UPC from opposite party No.5 and successfully ported the services from Bharathi Airtel to Idea Cellular so opposite party No.1 to 3 are one hand and opposite party No.4 is another hand are trying wash of their hands for porting the complainant’s subject mobile number in the name of opposite party No.5 through service provider opposite party No.4.
Now coming to the aspect of complainant grievance that opposite party No.1 to 4 in collusion with their employees divested of his ownership over his fancy mobile number and transferred to the opposite party No.5 without his consent and approval. It is not in dispute that the complainant approached opposite party No.2 for porting of subject mobile number to other service provider ie., opposite party No.4 and the code generated was communicated to the complainant on his mobile. So opposite party No.2 or opposite party No.1 &3 will have the knowledge of the code that was sent to the complainant’s mobile number and after receipt of the request opposite party No.4 stated to have ported the number in the name of opposite party No.5 by following the required formalities under the Telecommunication portability regulations.
Regulation No.4 in chapter II specifies obligations to provide mobile number portability and regulation 8 speaks action to be taken by recipient operator and under this the recipient operator upon receipt of the porting request from a subscriber shall verify if the customer acquisition form is accompanied by all the documents specified in regulation 7. Then it shall record in the customer acquisition form that he had seen the subscriber and verified his documents with their respective originals and found them to be in order. Regulation 8 (3) says recipient operator shall ask the subscriber to send a message through SMS to a specified short code of the Donor Operator from the subscriber’s mobile number which is sought to be ported. Regulation 8 (4) says upon receipt of the message from the subscriber, the donor operator shall forthwith send back a reply message through an automated system generated SMS containing a unique porting code. Regulation 8 (5) says upon receipt of the unique porting code from the Donor operator, the subscriber shall incorporate the same in the porting request form. Regulation 8(6) says the recipient operator shall within a period of twenty four hours, forward the mobile number, the corresponding unique porting code and the date on which porting request is made by the subscriber to the concerned mobile number portability service provider. Opposite party No.4 neither in the written version nor in the evidence affidavit explained whether it verified the customer form with all necessary documents as specified in regulation (7) and if it secured the said document should have been placed the same on record before this Forum. But the opposite party No.4 has not placed any document stated to have collected from the opposite party No.5 when he approached for porting of number in his name.
The opposite party No.4 in the written version has stated that on 27-05-2016 it received a mail from opposite party No.1 stating that the complainant is claiming as the original owner of the subject mobile number and he shared the customer application and other details as per the record. On such information opposite party No.4 stated to have sent a letter to opposite party No.5 informing about the information received from opposite party No.1 and asked the opposite party No.5 to substantiate his ownership of subject mobile number as to his bonafide subscriber ship . It further stated that opposite party No.5 informed that he purchased the unique porting code number of subject mobile number for sum of Rs.95,000/- from the complainant. Had it been so opposite party No.5 would have appeared before this Forum or could have submitted a document relating to purchase of subject mobile number from the complainant. So it goes to show that opposite party No.4 without following the regulation No.8 of Telecommunication mobile number portability Regulations 2009 processed the request and ported the service of subject mobile number from Bharati Airtel to itself at Haryana. It is nothing but in violation of the statutory regulations. Unless someone from the opposite party No.1 to 3 co-operate with opposite party No.5 would not have secured the unique port code and then approach opposite party No.4 with a claim that he purchased the code from complainant. Thus there is negligence on the part of the an employee of opposite party No.1 to 3 so also on the part of the opposite party No.4 which failed to follow the regulations while porting the subject mobile number to opposite party No.5 and it amounts to deficiency of service and unfair trade practice. Hence the complainant is entitled for a direction to cancel the allotting of subject mobile number in the name of opposite party No.5 and allot it himself and also compensation. Accordingly point is answered.
Point No.3: In the result, the complaint is allowed in part directing the opposite party No.4 to terminate the ported service of mobile no.9000030000 and revert back the same to the complainant. The complainant is entitled for a compensation of Rs.1,00,000/- for the mental agony and annoyance caused to him on account of illegal porting of his mobile number in the name of opposite party No.5. This compensation shall be shared by both service providers in equally Opposite parties 1 to 3 are liable to pay to the complainant a sum of Rs.50,000/- and opposite party No.4 is liable to pay a sum of Rs.50,000/- . Further complainant is entitled a sum of Rs.10,000/- towards cost of this complaint to be shared by opposite party No.1 to 3 and 4 equally. Claim against opposite party No.5 is dismissed.
Time for compliance: one month from the date of service of this order. If opposite party No.1 to 4 fails to comply the order they are liable to pay interest on compensation amount at 12% P.A from the date of service of the order till the date of payment.
. Dictated to steno, transcribed and typed by her, pronounced by us on this the 30th day of July , 2019
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Exs. filed on behalf of the Complainant:
Ex.A1- legal notice dt.01-06-2016
Ex.A2-letter dated 06-06-2016
Ex.A3- FIR dt.08-06-2016
Ex.A4-legal notice dt.10-06-2016
Ex.A5 to A8 – acknowledgements
Ex.A9 & A10- photographs of SIM card
Ex.A11- letter dated 06-06-2016
Exs. filed on behalf of the Opposite parties
Ex.B1- Mobile number portability regulations 2009
Ex.B2-letter being sent to Mr.Ashish Dalal dated 15-07-2016
Ex.B3- email received from Ashish Dalal dated 20-7-2016 & 21-7-2016
Ex.B4- undertaking received from Ashish Dalal dated 2-8-2016
Ex.B5- email being sent to TERM Cell Haryana dated 10-8-2016
Ex.B6- letter being sent to TERM Cell Hyderabad dated 22-8-2016
Ex.B7-Telecommunication Gazette
MEMBER PRESIDENT
