DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.148 of 2017

                                                Date of institution:  27.02.2017                                              Date of decision   :  08.01.2019

Prem Singh son of Vijay Singh, resident of House No.200, Village Balongi, Tehsil and District, SAS Nagar, Mohali.

…….Complainant

Versus

1.     Idea Cellular Company Ltd., Circle Office, C-105, Industrial Area, Phase-VII, Mohali.

2.     General Manager-cum-Sr. Representative of Idea Cellular Company Ltd., Circle Office C-105, Industrial Area, Phase-VII, Mohali.

                                                                 ……..Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:    Shri S.M. Tripathi, counsel for complainant.

                Ms. Rameet Bakshi, counsel for the OPs.

Order by :-  Shri G.K. Dhir, President.

Order

                  Bipin, son of complainant was consumer of OP No.1 because of availing services of Mobile No.9855060977 (hereinafter referred as ‘said mobile number’) for the last 10 years. However, 5 years prior to filing of complaint, complainant started using said mobile number in his business of catering in the area of Chandigarh and Mohali. Said mobile number was transferred on 16.12.2016 in the name of complainant from Idea show room, Sector 37, Chandigarh. Sim No.89911494400610408096 and IMSI No.404149446104080 were issued. Said mobile number continued to work properly upto 5.00 p.m. of 10.02.2017, but services thereafter on  said mobile number stood closed on account of non receipt of incoming as well as outgoing calls. On 11.02.2017 complainant approached above referred office of OPs at Chandigarh, but they disclosed as if the above numbered mobile closed by OP No.1 on account of transfer of same in the name of Lakhwinder Yadav. Complaint was lodged at Sector 37 Idea Show Room and at Sector 35 Idea Show room at Chandigarh. Upon approach to Store Aryaman Enterprises, complaint was lodged through e-mail, but nothing was done even after lapse of 5 days. Thereafter on 13.02.2017, complainant was called by OP No.1 show room and was given SIM No.8991149950060080140 by disclosing that mobile connection will be re-activated within 24 hours. Even after 48 hours of receipt of new SIM, activation has not been done and as such complainant claims to be suffering financial loss in his catering business. Allotment of above said mobile number to Lakhwinder Yadav is an illegal and unjust act and as such by pleading deficiency in service on part of OPs, prayer made for directing OPs to activate the above numbered mobile in name of complainant. Compensation for mental, financial and physical harassment of Rs.50,000/-, but litigation expenses of Rs.25,000/- more claimed.

2.             In reply submitted by OPs, it is pleaded inter alia as if this Forum has no jurisdiction because matter deserves to be adjudicated by civil court in view of intricate questions of law and facts; complainant is not consumer as defined under Consumer Protection Act because he availed services of above said mobile number for commercial purpose without disclosing that commercial activity carried on for self employment or for earning livelihood; complainant has concealed material facts from this Forum and as such in view of legal maxim “he who seeks equity must do equity”, complainant not entitled for any relief. Above said mobile number was used by Bipan son of Reham Chand till 14.09.2016. De-activation of above said mobile number took place on 14.09.2016 and thereafter same was ported out from Vodafone to Idea Cellular on 20.12.2016 by way of activation of same in name of complainant Prem Singh w.e.f. 21.12.2016. Thereafter on 10.02.2017 complainant Prem Singh alongwith Lakhwinder Yadav came to Idea office in Phase-5, Mohali for requesting conversion of above mobile number from prepaid to postpaid category in the name of Lakhwinder Yadav. Accordingly said mobile number was activated in the name of Lakhwinder Yadav, on fulfillment of requisite formalities. On 16.02.2017, complainant Prem Singh again visited My Idea Phase-5, Mohali office with Lakhwinder Yadav with request for conversion of above said mobile number to prepaid category in the name of Prem Singh. New SIM card was issued in favour of complainant on submission of copy of adhar card and proof of identity as well as of address. Representative of OP duly informed complainant that he is required to fulfill necessary formalities like that of submission of thumb impression via electronic means as per latest DOT guidelines and only then the SIM would be activated. However, complainant did not visit the OPs despite various phone calls given by representative and as such due to non fulfillment of requisite formalities, SIM was not activated. It is claimed that complainant has connived with Lakhwinder Yadav for repeatedly exchanging the above said mobile number with each other. Facts in this respect concealed with ulterior motive. Complaint being vexatious, baseless and misconceived deserves dismissal, more so when same alleged to be filed for abusing process of law. Complaint also alleged to be bad due to misjoinder and non joinder of necessary parties. Complainant became consumer of OPs by porting the said mobile number from Vodafone to Idea Cellular only on 20.12.2016 and thereafter activation of same took place on 21.12.2016, but further activation has not taken place due to non compliance of formalities referred above by complainant.

3.             Complainant to prove his case tendered in evidence his affidavits Ex.CW-1/1 and Ex.CW-1/2 alongwith documents Ex.C-1 to Ex.C-11 and even affidavit Ex.CW-1/3 of his son Bipan, and thereafter closed evidence. On the other hand, counsel for the OPs tendered in evidence affidavit Ex.OP-1/1 of Shri Manoj Madan, authorised signatory of the OPs alongwith documents Ex.OP-1 to Ex.OP-5 and thereafter closed evidence. 

4.             Before completion of arguments, an application was filed by complainant for activation of above mobile number, which is registered as Misc. Application No.2 of 09.02.2018. Through this application, it is claimed that above numbered mobile of complainant was dishonestly closed by OPs on 10.02.2017 and on enquiry made by complainant, he came to know as if above numbered mobile transferred in the name of Lakhwinder Yadav. Realizing the mistake, new SIM card was issued with assurance of activation of the same within 48 hours, but despite that same has not been done. However, in written reply submitted by OPs, it is claimed that complainant has not visited OPs despite various phone calls and that is why activation has not taken place due to non fulfillment of requisite formalities by complainant.

5.             In reply to this application, it is claimed that application being filed beyond period of limitation, is not maintainable, more so when application is based on afterthought version. Fraudulent allegations are alleged to be leveled in the application, but it is admitted that in Para No.3 of written reply submitted by OPs, it is mentioned that on account of non visit to OPs by complainant, despite repeated calls by representative of OPs, activation of SIM has not taken place. As complainant has reproduced this version of Para No.3 of the main reply submitted by OPs and as such virtually he has admitted correctness of those raised preliminary objections. Complainant himself is adopting dill-dally tactics by way of filing this fraudulent application at belated stage and as such prayer made for dismissal of this application.

6.             Arguments in the main complaint as well as on the application for activation of above numbered mobile heard and that application also decided through joint discussion held through this order in the main complaint itself.

7.             It is the case of complainant that actually the above numbered mobile was used by his son Bipan since from 2009 and that fact even borne from copy of application submitted in that respect by Bipan son of Reham Chand produced on record as Ex.OP-1 by OPs. Copy of driving license of Bipan son of Reham Chand also produced alongwith application form. Name of present complainant is Prem Singh and not Reham Chand and as such by keeping in view contents of application form Ex.OP-1 dated 08.10.2009 alongwith that of driving license, it is made out that actually mobile number in question issued in name of Bipan  son of Reham Chand. Even if assuming for arguments sake that complainant also known by names of Prem Singh @ Prem Chand as projected through affidavit Ex.CW-1/3 of Bipan son of Prem Singh @ Prem Chand and also through affidavit Ex.CW-1/2 of complainant, despite that in view of contents of application form Ex.OP-1 alongwith annexed identity proof of driving license, it is made out that initially the mobile number in question was issued in name of Bipan son of Reham Chand and not in the name of Bipan son of Prem Singh @ Prem Chand. So certainly submission advanced by counsel for OPs has force that case of complainant is correct that actually mobile number in question was issued in name of his son.

 8.            Complainant has produced on record copies of complaints Ex.C-3 and Ex.C-4 sent by him to SSP, Mohali for claiming as if employees of Idea Cellular, Phase-V, SAS Nagar in connivance with Lakhwinder Yadav have fraudulently transferred the above numbered mobile in name of Lakhwinder Yadav. Even complaint of theft against Lakhwinder Yadav Ex.C-4 was lodged by complainant with SSP, Mohali by claiming as if Lakhwinder Yadav stole household articles of complainant on 05.10.2016. What action taken on the basis of these complaints, qua that contents of complaint and the supporting affidavits are absolutely missing. Even no record has been produced to show as to what action taken on the basis of these complaints by the office of SSP, Mohali. So just on the strength of these complaints alone, it cannot be inferred that there are bitter relations between complainant and Lakhwinder Yadav. However, OPs have produced record to show connivance of complainant with Lakhwinder Yadav in matter of portability of above numbered mobile from name of Bipan to Lakhwinder Yadav and then to Prem Singh as well as regarding portability of above numbered mobile from Vodafone to Idea Cellular or vice versa. So case of OPs is fully believable that actually complainant has connived with Lakhwinder Yadav in matter of getting the above numbered mobile ported from Vodafone to Idea Cellular and vice versa as well as for getting the same changed from prepaid to postpaid and vice versa.

9.             Ex.OP-2 is a document produced by OPs to establish that port deactivation from donor took place on 14.09.2016. It is the case of complainant projected through his affidavits as well as Para No.5 of his complaint that above numbered mobile phone transferred from name of Bipan to complainant on 16.12.2016. However, portability of above numbered mobile phone took place on 14.09.2016 from donor, but that fact is not mentioned by complainant and as such plea taken in the written reply is correct that this portability first took place in the name of Lakhwinder Yadav on 14.09.2016 i.e. atleast three months prior to alleged transfer of above numbered mobile on 16.12.2016 in name of complainant. Perusal of documents annexed with Ex.OP-2 further shows that activation of above numbered mobile with initial date of transfer of 14.09.2016 took place on 21.12.2016. So plea taken in the written statement is correct that activation of mobile phone in question took place on 21.12.2016 in name of complainant. Contents of Ex.OP-3 further establishes that on 20.12.2016 port activation took place from recipient through donor Code 230, which means that on 20.12.2016 portability of above numbered mobile took place and that portability as per case of OPs took place in favour of complainant. This portability took place on account of submission of application form Ex.OP-4 dated 15.12.2016 by complainant and after that services of postpaid connection on the above numbered mobile availed by Lakhwinder Yadav w.e.f. 10.02.2017 on submission of post paid connection application Ex.OP-5. If the connection was activated in name of complainant on 21.12.2016, then how Lakhwinder Yadav further came in picture, qua that due explanation has not come forth from OPs. However, OPs through Para No.3 of written reply claims that above numbered mobile will be activated in name of complainant on fulfillment of requisite formalities on submission of thumb impression through electronic means and as such certainly entitlement of complainant for activation of above numbered mobile on completion of requisite formalities is admitted. Admission binds a party and as such OPs must activate the above numbered mobile in favour of complainant on completion of requisite formalities by complainant.

10.           Copies of PAN Card and Adhar Card of complainant produced as Ex.C-7 and Ex.C-8 alongwith details of
SIM Ex.C-6 and Ex.C-5. As activation has not taken place despite filing of complaint and fault lays with complainant in not opting for completion of requisite formalities, even through MA No.2 referred above filed and as such, if any harassment of complainant took place due to      non activation, then it was on account of his own fault. Being so, complainant not entitled for any amount of compensation for mental harassment and agony or to litigation expenses, even though he is entitled for activation of above numbered mobile on completion of requisite formalities by him.

11.           It is vehemently contended by counsel for OPs that complainant is not consumer because he availed services of above numbered mobile for commercial purposes of carrying on his business of catering in area of Chandigarh and Mohali as alleged in the complaint and through submitted affidavits Ex.CW-1/1 and Ex.CW-1/2. Even if specific plea regarding carrying on of above business for earning livelihood not taken in the complaint, but version in that respect specifically incorporated in affidavit Ex.CW-1/2 of complainant. Contents of these affidavits further establishes that complainant had been residing in one room house, which shows that complainant being poor, not carrying on business of catering at large scale, but he is carrying on this business for earning his livelihood only.  Technicalities must not come in way of administration of justice and as such by keeping in view plea taken in affidavit Ex.CW-1/2 that the catering business carried by complainant for earning livelihood, it has to be held that case of complainant covered by Explanation appended to Section 2 (1) (d) of Consumer Protection Act. So certainly complainant is consumer of OPs and submission of counsel for OPs to the contrary has no force.

12.           As a sequel of above discussion, complaint disposed of in terms that complainant will complete requisite formalities for getting mobile No.9855060977 activated at the earliest after receipt of copy of the order and on completion of such formalities,  OPs will activate said mobile number within 15 days. Even application for activation of above said mobile number disposed of through this order. No order as to costs. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

January 08, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member