Punjab

Ludhiana

CC/14/745

Ravieet Singh - Complainant(s)

Versus

Bharti Airtel Ltd - Opp.Party(s)

Vishal Kumar

01 Sep 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA

 

Consumer Complaint No.745 of 31.10.2014

Date of Decision        :   01.09.2016

 

Ravijeet Singh Dhindsa son of S.Jagroop Singh, resident of Ward No.5, Lakhvir Complex, Lalheri Road, Khanna, District Ludhiana.

IInd Address:

20, Birchbank RD Brampton,ON-L6T1L7, Canada.

….. Complainant

Versus 

 

1.Bharti Airtel Limited, 454G, B.R.S.Nagar, Ferozepur Road, Ludhiana, through its Manager/Authorized Signatory.

2.The Nodal/Legal Officer, Bharti Airtel Limited, I.T.Park, Chandigarh.

3.Idea Cellular Store, Bhai Bala Chowk, National Road, Opp.Park Plaza, Ludhiana through its Manager/Authorized Signatory.

..…Opposite parties

 

 

(Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.KARNAIL SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                     :        Sh.Vishal Kumar Dua, Advocate

For OP1 and OP2          :        Sh.Deepak Kumar, Advocate

For OP3                         :         Ex-parte.

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant purchased one SIM bearing No.97792-00000 from OP1 and OP2 by spending Rs.2 lac for purchase of VIP number. That SIM was used for many years. Complainant used to reside in Canada and visit  India often. Complainant has his permanent residence at Khanna, District Ludhiana. Complainant has never prayed for disconnection of said number because the same number is only one available with him for use of communication with all relatives, clients and other family members. In August 2014, the complainant came to know that some employees of Op1 and OP2 without his permission and consent issued the said number in the name of some other person. This was done despite the fact that request for such transfer was never submitted by the complainant and nor complainant ever applied for disconnection or temporary withdrawal of services from the said SIM number. The person, who fraudulently got the said number of the complainant transferred to his name, then got the said number ported to Idea Cellular Limited i.e.OP3. This porting of the said number got on presentation of fake documents. Employees of OP3 did not verify the documents submitted fraudulently. Thereafter, complainant contacted his friend Satish Kumar, who filed complaints with S.H.O., P.S.City Khanna on 19.8.2014 and 21.8.2014 at the time, when the complainant was in Canada. Complainant  called upon Ops many times to resolve the matter in dispute by reissue of the said number in his name, but the same has not been done. Complainant claims that he has suffered huge financial loss because he had to leave his important business assignments for coming back to India for resolving the matter. Compensation to the tune of Rs.10 lac claimed.

2.                In written statement filed by OP1 and OP2 jointly, it is pleaded interalia as if the complaint is not maintainable as the complainant has no cause of action; complainant has filed the false, frivolous and vexatious complaint by suppressing the material facts; this Forum has no jurisdiction; provisions of Indian Telegraph Act are applicable and the complainant is estopped by his  own act and conduct from filing this complaint. Rather, it is claimed that the complaint has been filed for abusing the process of law. On request for sim swap and subsequent request for porting of the number, processing is done. Complaint on ground of fraud of portability as well as transfer of Sim number has already been filed with the police. It is claimed that number was      provided back to the complainant and his issue was resolved. Despite resolving of issue, this complaint alleged to be filed with ulterior motive. Even the number of the complainant was got activated in his name. Number of the complainant was activated due to special mutual efforts of service provider. In view of this, complainant undertook not to initiate any action against the service provider and as such, it is claimed that complaint is not maintainable.

3.                OP3 is ex-parte in this case in  view  of  orders dated        31.8.2015.

4.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C20 and then his counsel closed the evidence.

5.                On the other hand, counsel for OP1 and OP2 tendered in evidence affidavit Ex.RA of Mr.Birinder Mohindru, Manager and thereafter, closed the evidence.

6.                          Written arguments not submitted by any of the parties, but oral arguments alone addressed and were heard. Records gone through minutely. 

7.                Counsel for the complainant claims that Enrollment Form Ex.C1 was submitted for getting the special number with five zero digits in the end,   on production of proof of identity i.e. copy of driving license Ex.C2,         number 97792-00000 was allotted. Copy of customer form Ex.C3, copy of Aadhar Card Ex.C4 along with copy of tariff plan and supplementary service form Ex.C5 are produced on record. As fraud was committed in getting the above number transferred by Sh.Rishav Goyal and then  its portability and    that is why FIR Ex.C6 was got registered on the basis of complaints Ex.C18 and Ex.C19 of Sh.Satish Kumar. Other documents Ex.C7 to Ex.C16 and Ex.C20 proves that SIM card in question got transferred from the name of the complainant to name of Sh.Rishav Goyal, on the basis of forged documents like Ex.C9 to Ex.C11 and as such, it is vehemently contended that fault lay with OPs in not taking due care of transferring the number and then its portability. Photographs on Ex.C9 and Ex.C10 are forged and those are alleged to be of Rishav Goyal, an employ of OPs and as such, it is contended that in view of deficiency in service on the part of OPs, complainant suffered a lot, due to which, he is entitled to compensation for mental harassment and loss of business activities.

8.                Procedure for portability involves of taking the following steps:-

(i) You will have to go to the new Mobile Service Provider’s Service Centre or Authorised Dealer to request for porting of your mobile number. Fill in a Service Registration Form and pay the porting fees for processing. (Presently BSNL is not charging any fees for porting into BSNL.) 
(ii) The Recipient Operator shall ask the subscriber to send a SMS to Donor Operator to request for UPC (Unique Porting Code) using short code 1900 from the mobile number which is sought to be ported. 
(iii) The SMS text for requesting UPC by a subscriber shall be the word ‘PORT’ followed by a space followed by the ten digit mobile number, which is to be ported which shall be case insensitive. (i.e. it can be port or Port etc.) (e.g. PORT XXXXXXXXXX and send it to 1900) 
(iv) Upon receipt of the SMS, the Donor operator shall forthwith send back a reply SMS containing a unique porting code through an automated system. Subscriber will fill the UPC in the Application form for porting. 
(v) In case the subscriber’s CLI does not match with the ten digit mobile number, UPC shall not be allotted but a message shall be generated to inform such subscriber that the CLI does not match with the mobile number. 
(vi) UPC allocated to a subscriber shall be valid for a period of fifteen days from the date of request or such time till the number is ported out, whichever is earlier, for all service areas except Jammu & Kashmir, Assam and North East licensed areas. The validity for the UPC shall be for a period of thirty days from the date of request or till such time the number is ported out, whichever is earlier, irrespective of number of requests the subscriber makes; in case of J&K pre-paid mobile subscriber to get UPC - call 1900 instead of sending SMS.

(vii) You will be issued a new SIM card by the new service provider. 
(viii) Upon approval of porting request, the new Mobile Service Provider will inform you the date and time of porting. You are required to change your SIM card at the said time. In case of problem you need to contact the new Service Provider. 

9.                In view of this procedure,it is obvious that customer concerned will have to visit the authorized dealer or service providing centre with the request for portability and thereafter, Receptionist Operator to call upon the subscriber(customer/complainant) to send an SMS to Donor Operator with request for UPC(Unique Porting Code). That SMS text for requesting UPC to contain the word “PORT” and thereafter, the Donor Operator to send back the reply SMS containing a Unique Porting Code. When such is the procedure laid, then sending of an SMS was bound to be from the mobile available with the complainant. Complainant does not claim to have parted with this mobile or SIM and if   that be the position, then it was for the complainant to explain as to how the SMS for portability sent from his mobile or SIM.That has not been explained and as such, submission advanced by counsel for OPs has force that some connivance in commission of alleged fraud of the complainant cannot be ruled out. Only on thorough investigation, it can be found as to from which mobile the SMS for portability was sent and as to on which mobile number, reply qua SMS was received. These facts are not explained in the complaint or in the evidence and as such, the facts qua forgery, fraud as brought on record are not complete. As and when intricate question of law and facts to be gone into, then matter deserves to be decided by the Civil Court. How the photographs of Rishav Goyal pasted on driving   license or on the enrollment form or other documents, those are the questions which needs  be gone into minutely. As and when allegations of theft, forgery requiring elaborate evidence are involved, then the same cannot be decided by the Consumer Fora. In holding this view, we are fortified by law laid down in cases titled as P.N.Khanna vs. Bank of India-II(2015)CPJ-54(N.C.); Bright Transport Company vs. Sangli Sehkari Bank Limited-II(2012)CPJ-151(N.C.); Oriental Insurance Company Limited vs. Muni Mahesh Patel-VI(2006)SLT-436=IV(2006)CPJ-1(S.C.). In view of  this legal position and above discussed factual position, it is obvious that it is a case, in which, elaborate evidence required to be scrutinized/recorded for finding as to whether fraud actually committed in portability without connivance of the complainant or not and as such, it is fit and appropriate to direct the complainant to approach the Civil Court.

10.              It is also contended by counsel for the complainant that one Rishav Goyal, an employ of OPs, committed fraud in matter of transfer of SIM card in question and then its portability. If the employee of any OPs committed such fraud, then action of said employee was not within the course of agency because the employee authorized to do legal acts and not commit fraud. As per Section 228 of The Indian Contract Act, 1872, the principal not liable for the illegal acts done by the agent during the course of agency or exceeding of his  authority. Act of committing fraud in matter of portability and transfer of SIM by an employ is not within the purview of agency transactions. Such acts by no stretch of imagination can be treated as acts performed in course of agency business of the employer/principal and as such, for alleged fraudulent act, OPs, being principal cannot be held liable for deficiency in service, particularly when the plea taken in the written statement of OP1 and OP2 is that by special mutual efforts of service provider, the alleged VIP number in question has been got activated and transferred in the name of complainant again. As special efforts made by the OPs in undoing the effect of fraud and as such, OPs helped the complainant in getting justice after registration of the FIR Ex.C6.

11.             Therefore, as a sequel of the above discussion, complaint disposed of in terms that due to complicated questions of law and facts involved, complainant should approach Civil Court. No order as to costs. Copies of order be supplied to parties free of costs as per rules..

12.                        File be indexed and consigned to record room.

 

                                      (Karnail Singh)                            (G.K.Dhir)

                                   Member                                            President

Announced in Open Forum

Dated:01.09.2016     

Gobind Sharma.