Punjab

Ludhiana

CC/20/191

Keshav Malhotra - Complainant(s)

Versus

Bharti Airtel - Opp.Party(s)

Kapil singh Adv.

03 Nov 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:191 dated 21.09.2020.                                                         Date of decision: 03.11.2023.

Keshav Malhotra, Advocate aged about 26 years son of Shri Rajesh Malhotra, resident of House No.21, Old City Control Room, Backside DIG Office, Ludhiana.                                                                                                                                                                                             ..…Complainant

                                                Versus

1. Bharti Airtel (a telecommunication company), Bharti Crescent 1, Nelson Mandela Road, New Delhi, through its Founder Mr. Sunil Bharti Mittal.
2. Bharti Airtel (a telecommunication company), having its Customer Care Office at Damoria Bride, Ludhiana, through its authorized person.
3. Vodafone Idea Limited, C-105, Industrial Area, Phase VII, Mohali, Punjab through its authorized person.
4. Vodafone Idea Limited, Customer Care Main Office at Mall Road, Ludhiana through its authorized person.                                                                                                                    …..Opposite parties 

Complaint Under section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Kapil Singh, Advocate.

For OP1                         :         Sh. Govind Puri, Advocate.

For OP2                         :         Exparte.

For OP3 and OP4          :         Sh. Harvinder Pal Singh, Advocate.

 

 

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant, an Advocate was earlier subscriber of Postpaid Airtel sim No.76039-60006 and was regularly making payment of said connection. As the complainant was not satisfied with services of Airtel Company so he ported his said connection from Airtel to Vodafone with same sim number in June 2020 and started making usage charges. He paid the full and final bill amount to OP1 and OP2 with additional charges. The complainant further stated that after using the postpaid sim with Vodafone company for 2½ months, the Airtel Company raised claim of Rs.399/- and Vodafone Company disclosed that outgoing service of sim have been closed by Airtel due to non-payment of Rs.399/-. The complainant told the officials of the OPs that he had already paid entire due bill amount to Airtel Company before porting his connection to Vodafone and nothing was due against him prior to portability of connection and Airtel is not entitled to raise such claim of Rs.399/-. However, the officials of OPs did not pay heed to request of complainant and the complainant deposited Rs.399/- with Airtel Company under protest vide receipt dated 02.09.2020 and requested Vodafone to restore his services but no response was given by the OPs. The complainant registered a complaint with Vodafone company through online on 03.09.2020 but his services had not been restored which has caused mental tension, agony, hardship etc. to the complainant. In the end, the complainant has prayed for issuing directions to the OPs to restore the services of his sim connection and to pay compensation of Rs.2,00,000/- along with litigation expenses of Rs.20,000/-

2.                Notice was sent to OP2 received with report of refusal and as such, OP2 was proceeded against exparte vide order dated 16.12.2020.

3.                Upon notice, opposite party No.1 filed written statement and by taking preliminary objections, assailed the complaint on the ground of lack of maintainability of the complaint; lack of jurisdiction; suppression of material facts by the complainants; lack of cause of action to file the complaint. Opposite party No.1 stated that it is not a consumer dispute and does not fall within the ambit of the provisions of the Consumer Protection Act 1986 and is exclusively triable by a Civil Court after leading detailed evidence. The complainant has only made bald statements and has not supported his allegations with any documentary evidence which shows that he is trying his luck before this Forum in getting undue advantage from the Opposite party. Opposite party No.1 further stated that the present complaint is not maintainable before this Commission in view of the specific remedy available to the complainants under the provisions of Section 7-B of the Indian Telegraph Act, 1885 as amended up to date, which are duly prescribed that in case of a dispute between the Telegraph Authority and the person for whose benefit the service has been provided, the same shall be determined by Arbitration and for the purpose of such determination be referred to an arbitrator appointed by the Central Government. The relevant provisions of Section 7-B are being reproduced below for the kind perusal of this Hon'ble Commission –

7-B. 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 for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section.

(2) The award of the arbitrator appointed under sub-section

(1) shall be conclusive between the parties to the dispute and shall not be questioned in any court.

Opposite party No.1 further stated that the complaint is barred by the limitation imposed by Section 7B of the Indian Telegraph Act, 1885. The Opposite Party Company is a licensed cellular service provider having been granted license by the DoT, Ministry of Communication, Govt. of India under section 4 of the Indian Telegraph Act, 1885. Union of India vide notification dated 24.05.1999 had conferred the power of telegraph authority to all the private cellular service providers, including appellants company, within the meaning of section 19B of the Indian Telegraph Act, 1885.

                   Opposite party No.1 further stated that the number in question i.e. 7603960006 was activated in name of the complainant on 04.04.2017, which was ported from Airtel to Vodafone in the month of June 2020. At the time of porting out of the number it was duly made aware to the complainant that if any amount is found due and payable, the same shall be liable to be paid by the complainant. The number was ported in to Vodafone and subsequently it was found that the complainant had failed to make the payment of the outstanding dues for the period from 23.05.2020 to 07.06.2020 amounting to Rs.399.20. As per the request received from OP1 and OP2, Vodafone  stopped the connection on 02.09.2020 due to non-payment of dues (NDP). The complainant made the payment of Rs.399/- on 03.09.2020 and OP3 and OP4 requested for reconnection on 07.09.2020 to which the positively responded. According to OP1, the onus to restore the services of the number was on OP3 and OP4 and as such, OP1 and OP2 had no role to play in the same.

                   On merits, opposite party No.1 reiterated the crux of averments made in the preliminary objections. Opposite party No.1 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                Opposite party No.3 and 4 filed separate written statement by taking preliminary objections and assailed the complaint on the ground of maintainability; lack of jurisdiction, bad for non-joinder and mis-joinder of necessary parties; the complaint is vexatious, baseless, misconceived and an abuse of process of law. Opposite party No.3 and 4 alleged that the complainant became their customer by porting in the mobile No.7603960006 from Airtel in the post-paid category to their network. OP3 and OP4 being Recipient operator received a request for disconnection of the number of the complainant from the opposite party OP1 and OP2/Donor operator/ Bharti Airtel Limited through the Mobile Number Portability Service Provider as per the Telecommunication Mobile Number Portability Regulations, 2015. Upon receiving the aforesaid request, the complainant was duly sent messages to clear the outstanding payment with the previous operator and to submit the receipt at any Vi showroom of the opposite party No.3 and 4, which the complainant had cleared on 02.09.2020 with the opposite party No.1 and 2. However, the complainant never submitted the receipt to the opposite party OP3 and OP4 which was requested time and again in the messages which were mandatory for all the Telecommunication companies as per the Regulations and therefore the opposite party No.3 and 4 sends such like messages to all the customers who port in to its network but do not clear the outstanding dues of the Previous Operator/after clearing, don't show the receipt of payment to it. As such, as per Regulation 15 (3) and Regulation 15 (4) of the Regulations of 2009, the opposite party No.3 and 4 barred the services on the number of the complainant on 18.08.2020. Thereafter, the complainant submitted the proof of the payment made to Airtel with the opposite party No.3 and 4 on 07.09.2020 and the services to the number of the complainant were immediately restored at 18:30 PM on 07.09.2020 itself.

                   On merits, opposite party No.3 and 4 reiterated the crux of averments made in the preliminary objections.   Opposite party No.3 and 4 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

5.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of receipt dated 02.09.2020, Ex. C2 is the copy of the text message and closed the evidence.

6.                On the other hand, counsel for opposite party No.1 tendered affidavit Ex. RA of Sh. Shivam Bhardwaj, Authorized Signatory of M/s. Bharti Airtel Limited, circle office Chandigarh and closed the evidence.

                   The counsel for opposite party No.3 and 4 tendered affidavit Ex. RB of Sh. Manoj Madan, Authorized signatory of Vodafone Idea Limited,  Mohali along with documents i.e. Ex. OP3&4/1 is the copy of KYC application form,  form, Ex. OP3&4/2 is the copy of notification of TRAI, Ex. OP3&4/3 is the copy of portability data and closed the evidence.

7.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.

8.                Undisputedly, the complainant is the subscriber of OP3 and OP4 Vodafone Idea for his mobile No.7603960006 which he got ported the same from OP1 and OP2 i.e. Bharti Airtel. However, after porting the sim to OP3 and OP4, they received request from OP1 and OP2 for disconnection of the number of the complainant due to non-payment of dues. Upon receiving such request, OP3 and OP4 sent messages to the complainant to clear outstanding dues of Rs.399.20 for the period from 23.05.2020 to 07.06.2020 raised vide bill/porting data Ex. OP3&4/3 and subsequently, OP3 and OP4 barred the services of the number of the complainant on 18.08.2020. The complainant made the payment of Rs.399/- vide receipt dated 02.09.2020 Ex. C1. The complainant submitted the proof of payment with OP3 and OP4 on 07.09.2020 and requested for restoration of his connection. As such, the services of number of the complainant were restored by OP3 and OP4 at 18.30 PM on 07.09.2020. Now the complainant sought compensation that he has suffered physical and mental pain. The complainant was fully aware of the fact that he has made request for porting out during billing cycle and before generation of the bill of that particular billing cycle. It is also not the case of the complainant that at the time of making a request of porting out, he had deposited certain anticipated charges in advance and had made a request to opposite party No.3 and 4 to issue the supplementary bill in this regard. It can also be borne from the record that the complainant had ignored certain reminders in the shape of calls and messages issued by the opposite parties for payment of outstanding dues which were charged on pro-rata basis for the period from 23.05.2020 to 07.06.2020. As such, they have righty invoked the regulations on Mobile Number Portability (MNP) framed by the Telecom Regulatory Authority of India (TRAI) issued vide notification dated 23.09.2009 Ex. OP3&4/2. The relevant regulations are reproduced as under:-

“14 (4) In case of non-payment of any outstanding bill issued to the subscriber after the porting request, for the services availed till the disconnection of the mobile number from the network of the Donor Operator, within such time as specified in such bill, the Donor Operator shall give a notice of not less than seven days to the subscriber, notifying him that in case of non-payment within the said notice period, the Donor Operator shall request the Recipient Operator to disconnect the ported number

14 (5) In case after expiry of such period such subscriber fails to make payments as specified in the notice, the Donor Operator shall communicate the details of such outstanding bills to the Recipient Operator through the Mobile Number Portability Service provider with an advice to take action for disconnecting the ported number.

15 (3) Where a request is made by the Donor Operator under sub- regulation (5) of regulation 14 for disconnecting the ported number, the Recipient Operator shall issue a notice to the concerned subscriber, the period of which shall be not less than seven days and not more than fifteen days, about the request received from the Donor Operator and 15 calling upon such subscriber to produce evidence of having settled such outstanding dues with the Donor Operator within such notice period and in case the subscriber produces such evidence of having settled such dues, the Recipient Operator shall not take any further action in pursuance of the notice and shall inform the Donor Operator accordingly through Mobile Number Portability Service provider.

15 (4) In case, before expiry of the period specified in the notice under sub-regulation (3), the subscriber fails to provide evidence of having settled such outstanding dues with the Donor Operator, the Recipient Operator shall disconnect the mobile number of such subscriber and inform the Mobile Number Portability Service provider forthwith about the disconnection of such mobile number and request for reversal of such mobile number to the Number Range Holder after expiry of ninety days.”

Moreover, the connection in question of the complainant was restored by the OPs even before filing of the present complaint and the complainant has concealed the factum of restoration of his connection in the complaint. In the complaint itself, the main relief of the complainant is to restore his connection which already stood restored even prior to filing of the complaint. As such, there is no deficiency in service on the part of the opposite parties. Even otherwise, the complainant has failed to discharge the initial onus of deficiency in service on the part of the opposite parties. In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

“19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

The Hon'ble Supreme Court of India has further upheld this view in recent judgment II(2023) CPJ 83 (SC) in Chairman & Managing Director, City Union Bank Ltd. & Anr. Vs R. Chandramohan. In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite party by any cogent and convincing evidence. 

9.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

10.                  Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                     (Sanjeev Batra)

Member                         Member                                       President         

 

Announced in Open Commission.

Dated:03.11.2023.

Gobind Ram.