Sahil Sharma, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against the Bharti Tele-Ventures Pvt. Limited, (here-in-after referred to as opposite parties).

2.       Briefly stated, the case of the complainant is that in January 2005 he has purchased a Mobile Sim of the company of opposite parties from Gurdaspur city under the scheme of New 100 Pack bearing Mobile No.9876659018 and as per scheme of New 100 Pack the validity of the Mobile Sim is for the life time. As per Airtel Prepaid Users'/Consumers Guide Book "Calling Facility till the last Rupee". It is alleged that the said Mobile Sim is at present being used by Sh.Ashok Sharma, Advocate, father of complainant as he is a Practicing Lawyer at District Courts Gurdaspur and Mobile Number of the Sim in dispute has been got printed on his envelopes which have been printed for the purpose of Advocacy as well as printed the same Sim Mobile Number on the visiting Cards used for the communication purpose. It is further alleged that on 08.11.2018   the balance amount of the Mobile Sim was Rs.35.60 Paisa, but the opposite parties on 08.11.2018 illegally, arbitrary and wrongly stopped the outgoing services of the Mobile Sim of him and message to this effect has been also sent to him. Now the complainant as well as his father are deprived from enjoying the outgoing services from Mobile Sim in dispute, despite of having sufficient amount for Calling Facility as well as its validity, as such the complainant as well as his father have been illegally mentally harassed by the company of opposite parties. It is further alleged that he telephonically contacted the service center of the Company of the opposite parties and requested to restart the outgoing services but they willfully and intentionally failed to solve the problem of him. It is further alleged that he has also issued legal notice on 12.11.2018 to the opposite parties through registered post and requested them to restart the outgoing services of Mobile No.9876659018 of complainant as well as to pay compensation within 7 days from the receipt of legal notice but the opposite parties received the legal notice and willfully and intentionally failed to comply with the notice and also failed to reply the same. It is further alleged that the complainant as well as his father have suffered more from the act and conduct of the opposite parties when the incoming facilities of Mobile Sim in question has been illegally and arbitrary stopped by them on 22.11.2018. Now the complainant as well his father are facing very difficulties, as today era is of the communication era and mobile phone has become the integral part of the human life.

          On the backdrop of facts, the complainant has pleaded to have suffered physical and mental harassed due to their act and conduct. Thus, there is clear cut deficiency gross negligence in service on the part of the opposite parties and prayed that the opposite party may be directed to restart the facilities of outgoing and incoming calls of Mobile Sim No.9876659018 and pay compensation of Rs.50,000/- for mentally harassment, torture and cause financially loss to the complainant as well as his father and the opposite parties may be burdened with a cost of Rs.50,000/- as litigation expenses in the interest of justice.

3.       Notice of the complaint was issued to the opposite parties and appeared through their counsel and filed their written reply taking the preliminary objections that the complainant has not approached this Hon'ble Commission with clean hands and the same may be dismissed on this very ground and the complaint is a frivolous and vexatious exercise and is fit to be dismissed under Section 26 of the Consumer Protection Act, 1986. It is pleaded that the complainant has himself mentioned in the complaint that the connection in question is not under his use. Also, it is clear from the complaint that the connection is being used for commercial purposes. It is, thus, clear that the complainant is not covered under the definition of the consumer as defined under the Consumer Protection Act and the Complainant is not entitled to any compensation, whatsoever. In any event, the compensation claim by the Complainant is excessive and deserves dismissal. It is further pleaded that the present Complaint is liable to be dismissed as it involves the complicated and complex question of fact, which requires elaborate evidence and trial, which can be decided only in the civil court and not by the this Hon’ble Consumer Commission. It is further pleaded that this Hon’ble Court has no jurisdiction to try and adjudicate the present complaint. It was submitted that Hon'ble Supreme Court in "General Manager, Telecom Vs M. Krishnan and Another" (Civil Appeal no. 7687 of 2004) has held that when there is a Special remedy provided in Section 7-B of the Indian Telegraph Act, then the remedy under the Consumer Protection Act is barred. Section 7-B of the Indian Telegraph Act talks of determination by arbitration of any dispute concerning any telegraph line, appliance or apparatus between the telegraph Authority and the person or whose benefit the line, appliance or apparatus is or has been provided. The Hon'ble Supreme Court has held that the special law overrides the general law. Thus, assuming but not admitting, if there is any dispute, this Hon'ble Court has no jurisdiction to try the present complaint. It is further pleaded that supposing even if the connection in question was used by the complainant under the mentioned scheme of life time, the complainant shall have to make the required recharge for the outgoing and incoming services to start as the said scheme is no longer in existence. On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint. In the end, the opposite parties prayed for dismissal of complaint with costs.

4.       Ld. counsel for the complainant has tendered into evidence affidavit of complainant (Ex.C-1) and affidavit of his father (Ex- CW-2/A) alongwith other documents (Ex.C-2 to Ex.C-11).

5.       Ld. counsel for the opposite parties has tendered affidavit of

Birinder Singh Mohindru (Manager Legal and Regulatory, Bharti Airtel Ltd.).

6.       Rejoinder filed by the complainant.

7.       Written arguments on behalf of complainant filed but not filed by the opposite parties.

 8.      We have carefully examined all the documents/evidence produced on record for its contained statutory merit and have also judiciously considered and perused the arguments duly put forth by the learned counsels for the parties.

9.       Counsel for the complainant has argued that in January 2005 complainant had purchased a Mobile Sim from opposite parties under the scheme of New 100 Pack bearing Mobile No.9876659018 and as per the scheme of New 100 Pack, validity of Mobile Sim is for the lifetime and as per Airtel Prepaid Users/Consumers Guide Book "Calling Facility till the last Rupee". The said Mobile Sim is being used at present by the father of the complainant namely Sh.Ashok Sharma, Advocate who is practicing at District Courts Gurdaspur. The said number has been got printed on various places. It is further argued that on 08.11.2018, the balance amount of the said sim was Rs.35.60 Paisa, but the opposite parties illegally and unlawfully stopped out going services of the mobile sim of the complainant and inspite of various efforts the out going facility has not been restored which amounts to deficiency in service.

10.     On the other hand counsel for the opposite parties has argued that the case of the complainant does not fall under the Consumer Protection Act and it has been further argued that a special remedy under Section 7-B of the Indian Telegraph Act is provided and remedy before Consumer Commission is barred. It is further argued that services of the complainant were barred by the opposite parties as complainant failed to recharge as such there is no deficiency in service on the part of the opposite parties.

11.     We have heard the Ld. counsels for the parties and gone through the record. It is admitted fact that complainant had purchased a Mobile Sim No. 9876659018 from the opposite parties under scheme New 100 Pack with "Calling facility till last Rupee". It is further admitted fact that out going service was stopped by the opposite parties on 08.11.2018. The contention of the counsel for the complainant is that on 08.11.2018 the balance of sim was Rs.35.60 Paisa. Further perusal of Ex.C2 clearly shows that under the scheme of Airtel Prepaid Users/Customers Guide Book "Calling Facility till the last Rupee" has been provided as per column No.3 of Ex.C3 meaning thereby that on 08.11.2018 there was amount of Rs.35.60 Paisa in the mobile sim of the complainant and as per Ex.C2 the complainant was authorized to use of facility upto last rupee. However, as per messages Ex.C5 and Ex.C6 the opposite parties stopped the out going calling facility of the complainant in violation of its own scheme mentioned in Ex.C2. Perusal of envelope Ex.C3, visiting card Ex.C4 shows that the said mobile number is being used by the father of the complainant who must had definitely suffered on having failed to contact with clients and general public at large. As far as the plea of the counsel for the opposite parties regarding special remedy provided U/s 7-B of Indian Telegraph Act is concerned, the said plea is not acceptable as Hon'ble Supreme Court of India has held as under:-

          "Telegraph Act, 1885 Section 7B- Telecom services-    Definition of expression 'service' in Section 2(42) of Act, 20019 specifically incorporates telecom services - Expression           'service' in Section 2(0) of Act of 1986 was wide enough to   comprehend services of every description including telecom services…………..(see under jurisdiction)" titled as Vodafone    Idea Cellular Ltd. V. Ajay Kumar Aggarwal reported in CPJ  Part 6, Vol. II Page 1.

As such by relying upon the said judgment, this Commission is of view that the complainant is fully competent and has rightly approached this Commission regarding deficiency in service on the part of the opposite parties having stopped out going facility of the mobile sim bearing No.9876659018. Accordingly, the present complaint is partly allowed and opposite parties are directed to restore the out going and incoming with facility of mobile sim No.9876659018 with "Calling Facility till last Rupee" within 30 days of the receipt of copy of this order. Since the complainant has definitely suffered great mental tension, harassment on account of non availability of mobile facility on the said mobile sim as such opposite parties are also directed to pay compensation of Rs.5,000/- to the complainant within the above mentioned stipulated period.

12.      The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

13.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room. 

                               (Lalit Mohan Dogra)

                                                                       President.  

Announced:                                          (B.S.Matharu)

Aug. 04, 2023                                               Member

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