DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.150 of 01-04-2010 Decided on 21-10-2010
Gurpreet Singh Advocate, aged about 29 years, son of Sh.Massan Singh, resident of #20375, St.No.30, Ajit Road, Bathinda. .......Complainant Versus
Bharti Airtel Ltd., C-25, Industrial Area, Phase-2, SAS Nagar (Mohali), through its General Manager. The Manager/In-charge, Gee Gee Telecom, The Mall, Bathinda.
......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt. Vikramjit Kaur Soni, President. Dr. Phulinder Preet, Member. Sh. Amarjeet Paul, Member.
Present:- For the Complainant: Sh.Navpreet Singh, counsel for the complainant. For Opposite parties: Sh.Naveen Goyal, counsel for opposite party No.2. Sh.Sunder Gupta, counsel for opposite party No.1.
ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
In brief, the present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act'). The complainant has filed the present complaint with allegations against the opposite parties that he got a prepaid Mobile connection No.98727 45446 from the opposite parties through their retailer in August, 2006 for his personal use and at that time, the complainant gave his identity proof to the Retailer of the opposite parties. Some time back, the complainant received a massage from the opposite parties on his mobile to avail Life Time Incoming free on getting mobile connection recharged for some consideration. The complainant got recharged the said facility on his said mobile connection by paying the requisite amount which was deducted from the due amount in the card/chip itself and it was assured that he will be getting life time incoming facility on his said mobile number and he has been getting recharged his connection for outgoing purposes as per his convenience. On 21.12.2009, the complainant's mobile displaying “No Service”. The complainant approached the opposite party No.2 and the opposite party No.2 assured the complainant that the service will continue, if he submits fresh I.D. proof and they will give fresh Sim/chip for the said number. He submitted his fresh identity proof to the opposite party No.2 in January, 2010 and the opposite party No.2 assured him that the service on the mobile will start within 2-3 days but there remained no service even after lapse of the said period. On 11.02.2009, the complainant came to know that the opposite parties in furtherance of their malafide and deficient act and by misuse of powers have allotted the said mobile connection number i.e.98727 45446 to one Mr. Pankaj Bansal resident of 3845, Neeta Street, Mehna Chowk, Bathinda. Hence, the complainant has filed this complaint with the prayer to restore the connectivity of his Airtel connection number 98727-45446 and pay him Rs.1,00,000/- as damages and Rs.50,000/- as compensation for mental tension and harassment alongwith Rs.10,000/- as litigation expenses. The opposite parties filed their separate written statements. The opposite party No.1 pleaded in its statement that the Life Time Validity was subject to certain terms and conditions which the subscriber had to follow. Under the life time validity plan, the subscriber had to make compulsory recharge of Rs.200/- in every 180 days. It has further pleaded that the opposite party No.1 has been granted license under Section 4 of the Indian Telegraph Act, 1885 by Department of Telecom (DOT), Ministry of Communications, Government of India to provide Unified Access Services (Telephone-VAS services). Further Department of Telecom, as a licensor, has issued various directions to the service providers with respect to Subscriber Verification. The Licensing condition, inter alia provides that the Licensee shall adequately verify each and every customer and instructions issued by the Licensor/DOT in this regard from time to time shall be scrupulously followed. The DOT vide direction dated 22.11.2006 issued various Guidelines to all Service Providers regarding Customer Verification which inter alia cast duty upon all Service Providers to ensure that information about the subscriber is entered into Licensee's database correctly based on the information in Customer Acquisition Form/CAF/Subscriber Acquisition Forms/SAF and supporting documents. If any discrepancy is found at any stage, the mobile connection shall be de-activated immediately and in any case not later than 72 hours. The Guidelines further provides that the Licensee shall cross-verify the information from the actual user by calling the respective subscriber. The aforesaid guidelines also prescribe minimum penalty per unverified subscriber. It is submitted that the DOT vide direction dated 24.12.2008 has enhanced the maximum financial penalty upto 50,000/- for per unverified subscriber. So, the opposite party No.1 can not provide services to any subscriber, only on the basis of payment of requisite charges. The opposite party No.2 pleaded that according to the conditions of Life Time Connection, the complainant is bound to recharge his life time connection with recharge of Rs.200/- after every six months. In this case, the complainant has failed to recharge the said connection with recharge of Rs.200/- within 180 days, so his connection was disconnected showing no service. Moreover, the services are to be given by the opposite party No.1 and the opposite party No.2 is only the retailer of the opposite party No.1 and has nothing to do with the services given by the opposite party No.1. Parties have led their evidence in support of their respective pleadings. Arguments heard. Record alongwith written submissions submitted by the parties perused. The complainant got Airtel mobile connection No. 98727 45446 from the opposite parties in August, 2006 under pre-paid scheme for his personal use. He got it converted into life time connection after paying the requisite amount. In December, 2009 his mobile connection was disconnected by the opposite parties without giving him any prior information or notice and his connection number was issued to one Pankaj Bansal, R/o 3845, Neeta Street, Mehna chowk, Bathinda. The opposite parties have taken shelter of terms and conditions which were applicable in case of life time connection. Such terms and conditions were never supplied to the complainant at the time of availing the facility or even afterwards that amount of Rs. 200/- should be paid every time after the interval of 180 days. The opposite parties have taken support of law laid down by the Hon'ble Supreme Court in case titled 2006 (IV) CPJ 1 (SC) Oriental Insurance Co. Ltd., Vs. Munimahesh Patel. The facts and circumstances of the case in hand are different from the facts of that case. The opposite parties have also taken support of precedent laid down by Hon'ble National Commission, New Delhi in United India Insurance Co. Ltd., Vs. Sri Dwarika Dhees Industries. This authority is not applicable to the case in hand as there is no such complicated question of law involved. The opposite parties have further taken support of law laid down by Hon'ble Supreme Court in case titled “General Manager, Telecom Vs. M. Krishnan and Another (Civil Appeal No. 7687 of 2004), wherein it has been held that there is special remedy provided in Section 7-B of the Indian Telegraph Act, then the remedy under the general law is barred. Section 7-B of the Indian Telegraph Act, 1885 reads as under :-
“Section 7B, Arbitration of Disputes - (1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph 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 Arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this section.” The said case law is also not applicable in the present case as Sectrion 7B relates to landline connection only and where the dispute is between the Director General of Posts and Telegraph and the consumers. In this regard, support can be sought from First Appeal No. 1172 of 2009 decided on 22-02-2010 by the Hon'ble State Commission, Punjab, Chandigarh, titled as Spice Communication Pvt. Ltd., Vs. Gurinder Kaur and another, wherein it has been held and the full clarification has been given as follows : “ 17. Now the question arises is whether the appellants i.e. private service providers are the telegraph authority within the meaning of Section 3(6) of the Indian Telegraph Act, 1885 or in other words are they the Director General of Posts and Telegraphs or they are the officers empowered by him to perform all or any of the functions of the telegraph authority under the Indian Telegraph Act, 1885 ? 18. Admittedly the private service providers are the licencees to operate private mobile lines under Section 4(1) of the Indian Telegraph Act, 1885. Therefore, they cannot be equated with the Director General of Posts and Telegraphs nor they can be termed as the officers appointed by the Director General of Posts and Telegraphs to discharge the functions of the telegraph authority. They are only the licencees. Therefore, any dispute between a licencee and their consumer is not covered by the provisions of Section 7-B of the Indian Telegraph Act, 1885. 22. Similarly proviso (B) to Section 14(a) of the TRAI Act protects the provisions of the Consumer Protection Act, 1986 by providing that the provisions of this Act shall not apply to any complaint filed by an individual consumer before the District Forum/State Commission/National Commission. From this angle also it is clearly proved that the private service providers are neither governed by the provisions of Section 7B of the Indian Telegraph Act, 1885 nor the jurisdiction of the District Forum over the private service providers is ousted rather it is protected.”
In view of the discussion held above, it is held that the private service providers are not covered by the law laid down by the Hon'ble Supreme Court in General Manager Telecom Vs. M. Krishnan & another's and the consumers/customers have the right to challenge the actions of the private service providers by filing complaints under the Consumer Protection Act, 1986.” Hence, this Forum has the jurisdiction to entertain and try the present complaint. From the above discussion, it is quite clear that there is deficiency in service and unfair trade practice on the part of the opposite parties. Both the parties have failed to produce the copy of terms and conditions which are required for the life time connection or any such document/agreement which can show the requirements of the life time connection or condition laid down by the opposite parties is correct. Since the connection number of the complainant has been issued to some other person, direction cannot be given regarding its restoration. The mere deficiency in service on the part of the opposite parties is that after issuing the life time connection, they have disconnected the connection of the complainant without giving him prior intimation or notice which amounts to mental harassment and agony. Hence, this complaint is accepted against all the opposite parties with Rs. 1000/- as cost and Rs. 5,000/- as compensation for mental harassment. The compliance of this order be made by the opposite parties jointly and severally within 30 days from the date of receipt of copy of this order. A copy of this order be sent to the parties concerned free of costs and file be consigned.
Pronounced : 21-10-2010 (Vikramjit Kaur Soni) President
(Dr. Phulinder Preet) Member (Amarjeet Paul) Member |
