The averments in the complaint are as follows. The complainant approached the second respondent and availed a mobile telephone connection of the first respondent on 4.10.03 and towards the activation charge he paid Rs.770/- and the second respondent issued a receipt bearing No.1626 for the above amount. At the time of accepting the money the second respondent assured the complainant that the sim card will be activated on the very next day. The connection is a post paid connection. The very next day the complainant operated his telephone connection, but the sim card was not activated as promised by the 2^nd respondent. Then the complainant approached the 2^nd respondent and enquired about the matter, then the 2^nd respondent said that the sim card will be activated on the very next day, but the next day the same thing repeated, then the complainant again approached the 2^nd respondent and enquired the matter, but they have not given a definite reply to the complainant. The 2^nd respondent was evading the complainant by saying one or other reasons. The complainant is a manager of a banquet hall which is given for rent on daily basis for marriages, meetings etc. Due to the non-availability of the mobile connection the complainant has lost so many bookings. Hence this complaint. 

 

            2. The averments in the counter of first respondent to the effect that there is no privity of contract between this respondent and the complainant. This respondent is responsible for the services rendered by this respondent on availing a connection by a customer. This respondent has no responsibility on the alleged actions if at all by the 2^nd respondent. The statement that the complainant availed a mobile telephone connection of the first respondent on 4.10.03 is false and denied. The allegations that there were assurances of activation and there was no activation etc. are false and denied. The allegation that the complainant has been put to loss due to non-availability of mobile connection is denied. There is no reason why complainant did not apply for a different connection, if he had a genuine grievance based on the non-availability of connection. There is no deficiency in service. Hence dismiss the complaint.

 

            3. The averments in the counter of second respondent are as follows: Admittedly no connection has been given to the complainant. It is admitted that the complainant had approached this respondent being a dealer of BPL Mobile Ltd. for a mobile connection. An amount of 770/- was received from the complainant. While offering the amount, the complainant expressed desire for a particular fancy No. of 9846426666. This respondent stated that this particular number was not with him at present and that he would try to get the number. Even before receiving the amount this respondent made clear the point that he cannot make any promises. The complainant also agreed that he would opt for another number in case this particular was not available. Only upon this assurance did this respondent receive the amount. The very next day the respondent intimated the complainant that this number was not available and he can opt for another number in hand. But the complainant insisted for that particular number. The respondent also requested to the complainant to take back the amount of Rs.770/-. But he neither opted for another number nor was he willing to receive the amount. This respondent is a very reputed businessman. This respondent has issued several hundreds of connections to satisfied customers. This respondent is always willing to refund Rs.770/- to the complainant. The statement that the complainant availed a mobile telephone connection of the first respondent on 4.10.03 is false and denied. The very fact that the complainant has not mentioned the mobile number anywhere in the petition would go to show that the complainant has not selected a number. This respondent denies the averment in the petition that the complainant is a manager of a banquet hall. Even for argument sake it is admitted that if complainant is a manager, he is only a salaried employee and would not incur any loss. The allegation that complainant has been put to loss due to non-availability of mobile connection is denied. There is no reason why complainant did not apply for a different connection, if he had a genuine grievance based on the alleged non-availability of connection. There is no deficiency in service on the part of this respondent. Hence dismiss.

 

            4. The points for consideration are:

 

(1)   Is there any unfair trade practice committed by the respondents?

(2)   If so, reliefs and costs.

 

            5. The evidence consists of Exts. P1 to P3.

 

            6. Point No.1: The complaint is filed to get compensation and also to activate the sim card. The case of complainant is that he had approached the second respondent and availed a mobile telephone connection of the first respondent on 4.10.03 and he also paid Rs.770/- towards the activation charges. At the time of accepting the money the 2^nd respondent assured the complainant that the sim card will be activated on the very next day, but the card is not activated till date. According to the complainant he had approached several times but it was not activated. He has produced three documents and marked as Exts. P1 to P3. The second respondent who is the dealer taken the defence that the complainant while paying the amount to the second respondent expressed his desire for a particular fancy number i.e. 9486426666 and the second respondent stated that this number was not with him and he would try to get the number. According to him, the complainant also agreed that he would opt for another number in case this particular number was not available. He also stated that this number was not available and he wanted to opt for another number, but he did not turn up. The second respondent was also ready to return the amount of Rs.770/-, but the complainant neither opted another number nor received the amount. So it is clear that the connection is not activated and the complainant did not take back the amount also. The relief sought by the complainant is activation of the connection and compensation. The aspect of non-activation is admitted by the second respondent. According to the complainant he had taken much efforts to get activated and not activated. The option of a fancy number is not pleaded by the complainant anywhere and there is no evidence to this point. But Ext. P2 shows that the mobile number as 9846426666. It is produced by the complainant and the number is written on it. The second respondent stated that so far no activation is done and so there won’t be any number. In the complaint also the number is not mentioned. So the number noted on Ext. P2 is only his desire. From the records it is clear that complainant was not willing to accept another number. The first relief sought is activation of the telephone only. Since there is no pleading regarding the option of a particular number, the activation can be done by the second respondent by allotting any other number. So the non-activation amounts to deficiency in service of second respondent and he is answerable to the complainant. The liability is strictly confined to the second respondent only. According to the first respondent, there is no privity of contract between the complainant and first respondent. The 2^nd respondent also admitted that he was ready to refund the amount of Rs.770/- and it shows that no amount was given to first respondent.

 

            7. Point No.2: The service deficiency of second respondent is proved. The complainant is eligible to receive the amount of Rs.770/- and second respondent is ready to return. But the relief sought is getting activation. At the time of argument the counsel for complainant submitted that they had returned the sim card because of non-activation for a long time. So the complainant is entitled for Rs.770/-, which is paid for activation. Regarding the aspect of compensation it is to be considered that this person is only a manager of the banquet hall. So there is no chance of monetary loss to the complainant. Complainant has failed to prove the loss sustained to him. There is no evidence to tie up the first respondent to any of the mischief.

 

            8. In the result, complaint is allowed and the second respondent is directed to refund the amount of Rs.770/- (Rupees seven hundred and seventy only) to the complainant within one month and also pay cost of Rs.1000/- (Rupees one thousand only).

 

            Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 5th day of January 2009.