1        The complainant Jatinder Singh filed the present complaint under Section 11, 12 and 13 of the Consumer Protection Act (herein after called as 'the Act') against Idea Cellular Limited, C-105, Industrial Area, Phase VII, Mohali (Opposite Party No. 1-Company ) and Idea Showroom i.e. Gulati Telecom, Amritsar Road, near Bohri Chownk, Tarn Taran (Opposite Party No. 2-dealer) on the allegations of deficiency  in service and unfair trade practice with further prayer to direct the opposite parties to reactivate the mobile No. i.e. 98886-43063 (herein after called as 'mobile number in question')  and to pay Rs. 20,000/- as damages for mental and physical harassment and Rs. 20,000/- as costs of litigation and counsel fee or in the alternative prayed that if the opposite parties fails to reactivate the mobile number in question, then opposite parties may be directed to pay Rs. 50,000/- as compensation for unfair trade practice and gross deficiency, Rs. 20,000/- as damages for harassment etc. and Rs. 20,000/- as costs of litigation etc. 

2        The case of the complainant in brief is that complainant is permanently working as Sathi employee in the office of Deputy Commissioner Tarn Taran; that the complainant has earlier purchased a prepaid mobile No. 98886-43063 of Vodafone Company in the year 2006 and afterwards has used the portability facility and got converted his mobile number in question to the Idea Cellular Limited Company and the Opposite Party No. 1-Company has issued the SIM bearing No. 899114940004591915 2 MNP and started the services of Idea Company on the mobile number in question; that after the activation of services by Opposite Party No. 1-Company, the above said mobile number worked for approximately 6 months and afterwards the company has disconnected the number of the complainant in a very arbitrary manner without giving any notice and without citing any reason; that the complainant made complaint to opposite parties who assured the complainant that the services will be activated soon but later on they did nothing and due to this unfair trade practice as well as arbitrary act of the opposite parties, the complainant has to suffer a lot as the complainant has been using the number 98886-43063 since 2006 and approximately all the persons in his contact used to call the complainant on the mobile number in question but due to arbitrary act of opposite parties, the complainant has missed his many necessary employment related calls as well as certain socially necessary calls. The complainant has to face great hardships due to above said act and conduct of opposite parties and it amounts to deficiency in service and unfair trade practice and the complainant has suffered a lot of physical and mental harassment as well as financial loss by personally contacting the opposite parties for so many times as he had to spend certain amount of money on travelling expenses.  Hence the present complaint is filed by the complainant.

3          After formal admission of the complaint, notice was sent to opposite parties and opposite party No. 1 appeared through counsel and filed power of attorney. Opposite party No. 2 did not appear inspite of service and was proceeded against exparte vide detailed order dated 17.3.2016 of the then Ld. Forum.  

4        Opposite Party No. 1 filed written version contesting the complaint on the preliminary objections that the complainant has not come to this Forum with clean hands and has not disclosed the true facts in his complaint as true facts of the matter have not been mentioned in the complaint and the complainant has tried to hide the factual position in the matter with vested interests;  that the complainant is a subscriber of the opposite party for 6 mobile numbers and total eight mobile numbers are running in his induvial name by 2.9.2015, the detail of which alongwith the current status are as follows:-

that from the above table, it is clear that the complainant is at default of payment of some of the numbers owned by him which substantiates the fact that he has not come to this Forum with clean hands and the complainant is guilty of concealment of facts as he has not disclosed the above facts in the present complaint; that it is clear that the aforementioned numbers are not for self use and that are being used for the commercial purpose; that the facts of the complaint filed by the complainant does not establish that he had purchased the mobile numbers from the Opposite Party No. 1-Company exclusively for earning livelihood by means of self employment or for self use and as such, the present complaint is not maintainable as the provision of the Consumer Protection Act are inapplicable in respect of any commercial activity other than for self employment and for earning an individual livelihood; that the present complaint is filed only to harass the Opposite Party No. 1-Company which is also clear from the verification done by the Opposite Party No. 1-Company on 1.4.2016 and it shows that the complainant has subscribed to the numbers of the opposite party company but has given one of his numbers to his friend for use which further proves that he is using the numbers for a commercial purpose; that the complainant is of adamant nature and is harassing the opposite party even during the pendency of the complaint by refusing to sign one of the forms; that the relevant facts regarding the mobile number 98886-43063 mentioned in the complaint are that the complainant ported in and subscribed to the services of the Opposite Party No. 1-Company on 1.5.2015 by duly filing the CAF and the said number was activated in the pre-paid category; that on scrutiny by the Opposite Party No. 1-Company, it was found that the complainant has procured multiple connections of the Opposite Party No. 1-Company both on post-paid and pre-paid category; that as the complainant was having multiple connections in his name, therefore all the CAFs were further scrutinized in detail and the multiple connections verification process was initiated; that thereafter it was found that the date of birth and the signatures of the complainant on the CAFs  of numbers 98886-43063 and 87259-91771 did not match with the other CAFs submitted from time to time by the complainant for the other connections which raised suspicion; that in order to substantiate the verification activity as mandated in the guidelines issued by the Department of Telecommunications, Government of India and directives issued by TRAI from time to time to all the mobile companies for verification of subscribers and to further check on the misuse, the complainant was requested by the Opposite Party No. 1-Company to furnish fresh proof of identifications and allied documents so as to clarify and rectify the discrepancies in the various CAFs; that the said process was followed by the Opposite Party No. 1-Company as stipulated in the guidelines issued by the government and to prevent the misuse of the mobile numbers; that the complainant was duly approached and even the field staff of Opposite Party No. 1-Company enquired numerous times regarding the ownership of multiple connections but the complainant was adamant every time and never gave satisfactory response which gave rise to more suspicion and the Opposite Party No. 1-Company was left with no option but to act bonafide on the basis of CAF documentation submitted; that it was asserted that the complainant did not furnish the requisite documents as specified and the said numbers were transferred to the suspicion category due to negative verification as per the guidelines of TRAI and were deactivated on 2.9.2015; that the complainant did not complete the said formalities and did not bother to contact the company for the activation of his numbers and hence due to his incapacitation, the said numbers were deactivated. The mobile number 98886-43063 which was ported in from Vodafone was returned to the Range Holder operator on 2.11.2015 i.e after sixty days from the date of permanent disconnection as per the prevalent DOT guidelines regarding Mobile number portability; that the Opposite Party No. 1-Company did not indulge in any unfair trade practice or deficiency in service by barring the services on the mobile Number 98886-43063 of the complainant, rather, the said process was undertaken to check the authenticity of subscribers so as to ensure and safeguard the authenticated customers and to serve the purpose for law and order and security of the state and can also be considered as a precautionary prior action taken by the company to avoid occurrence of misuse of connections as it is a common practice that when multiple numbers are issued in an individual’s name, it becomes a matter of doubt as to whether the subscriber is actual user of the numbers issued or not; that therefore, in order to prevent the misuse of numbers /connections and in order to verify that the complainant is the actual user of numbers, the Opposite Party No. 1-Company, before barring the services of complainant’s numbers, asked the complainant to submit the required documents; that there is no “Consumer- Service Provider” relationship between the complainant and the Opposite Party No. 1-Company qua the mobile number 98886-43063 as complainant is not a consumer as per the provisions of the Consumer Protection Act; that the said Mobile number which was ported in by the complainant was returned to the Range Holder on 02.11.2015 and the said number was not active on the network of Opposite Party No. 1-Company when the complainant filed the present complaint on 01.02.2016 before this Forum and the complainant does not fit into the definition of ‘Customer’ and as such, the present complaint is not maintainable under the Act; that the present complaint is frivolous and vexatious and liable to be dismissed under section 26 of the ACT; that the complaint of the complainant deserves to be dismissed on the ground that it is bad for mis-joinder and non-joinder of necessary parties as complainant has not impleaded Vodafone Company, which is a necessary party and the complaint is not maintainable On merits, the Opposite Party No. 1-Company has taken the same pleas as were taken in the preliminary objections and denied all the other allegations and prayer was made for dismissal of the complaint with costs. 

5          Sufficient opportunities were granted to the parties to lead evidence in order to prove their respective case. The ld. counsel for the complainant tendered in to evidence documents Ex. C-1 to C-3, affidavit of Jatinder Singh Ex. C-4 and closed the evidence and thereafter Ld. Counsel for the Opposite Party No. 1 tendered in to evidence documents Ex. OP1/1 to OP1/32, affidavit of Manoj Madan Ex. OP1/33 and closed the evidence.

6        We have heard the Ld. Counsel for parties and have gone through the evidence and documents placed on the file by the parties.

7        Ld. counsel for complainant contended that he applied for a mobile number of  Vodafone company in the year 2006 and Vodafone company delivered sim of mobile number in question in the year 2006 and since then complainant was continuously using the said phone and was paying the bills regularly. He contended that in the year 2015, he ported his mobile number in question from Vodafone company to idea cellular i.e Opposite Party No. 1-Company and vide portability facility, Opposite Party No. 1-Company gave the sim for mobile number in question on 1.5.2015 after taking customer application form and all identity and residential proofs. He contended that Opposite Party No. 1-Company arbitrarily and without any reason, deactivated the services of mobile number in question in September 2015. He contended that complainant requested the Opposite Party No. 1-Company many times for providing reasons for deactivation of mobile number in question but of no effect. He contended that deactivation of mobile number in question by the Opposite Party No. 1-Company arbitrarily and without any reason amounts to deficiency in  service and unfair trade practice and as such, the complaint is required to be allowed and complainant is entitled for the relief mentioned in the complaint alongwith compensation and litigation expenses.

8.       Ld. counsel for Opposite Party No. 1-Company contended that complaint is not maintainable and is false and has been filed in order to harass the opposite party. He contended that the complaint is not maintainable as complainant was using the mobile number in question for commercial purpose as complainant is subscriber of 8 mobile numbers the detail of which is given in the written reply out of which 6 mobile numbers are active whereas 2 mobile numbers including the mobile number in question are in active. He contended that the complaint in hand is not maintainable in view of section 7B of the Indian Telegraph Act as there is an arbitration remedy under the Act and complainant is to follow that remedy and as such, complaint under the Consumer Protection Act is barred. He contended that complaint is not maintainable as complainant does not fall within definition of consumer, since the mobile number in question has been deactivated and complainant is not consumer of the Opposite Party No. 1-Company since the deactivation of mobile number in question. He also contended that  complaint is bad for non-joinder of necessary parties as Vodafone company has not been impleaded in the complaint in hand as mobile number in question was originally allotted to the complainant by Vodafone company. He contended that  as complainant was having 8 mobile numbers which caused suspicion that complainant is not using the mobile numbers for his personal use but for commercial and illegal purposes, therefore the application forms were scrutinized and it was found that date of birth and signatures in the application forms for mobile number in question and mobile number 87259-91771 were different and it caused suspicion and Opposite Party No. 1-Company started verification of the complainant in order to check the miss-use of mobile number and complainant was approached repeatedly and was inquired about numerous numbers he was using but complainant did not give any suitable reply, which caused suspicion. He contended that complainant was asked many times to supply the information but complainant did not care due to the fact that complainant was having other mobile numbers and due to inaction on the part of complainant, the mobile number in question was stopped but inspite of that, complainant did not approach the Opposite Party No. 1-Company or gave the explanation due to which reason, mobile number in question was deactivated permanently and in due course and as per rule, mobile number in question was returned on 2.11.2015 to the Vodafone company from which mobile number in question was ported. He contended that there was no deficiency in service or unfair trade practice on the part of  Opposite Party No. 1-Company and it is due to the fault of complainant that the mobile number in question was deactivated and complaint has been filed in order to harass the opposite party and to extract illegal money and as such, complaint is false and is liable to be dismissed with costs.

9        It is admitted fact between the parties that the mobile number in question was initially allotted by Vodafone Company in the year 2006. It is also admitted fact between the parties that in the year 2015, the complainant ported the mobile number in question from Vodafone Company to Opposite Party No. 1-Company and after necessary formalities and filing of application form, sim of mobile number in question was allotted by Opposite Party No. 1-Company. There is no contest between the parties that complainant is having different mobile numbers as mentioned in the written version but the Opposite Party No. 1-Company has not produced any rule or law to show that a person cannot possess more than one mobile number. The plea of Opposite Party No. 1-Company is that the complainant was using the mobile number in question and other mobile numbers for commercial purposes as he was having 8 mobile numbers out of which 6 were in-operation. However this Forum does not find any force in the contention of Ld. counsel for Opposite Party No. 1-Company as simply if a person possess 6 or 7 mobile numbers does not mean that he is using those mobile numbers for commercial purposes. Moreover, the Opposite Party No. 1-Company has not produced any evidence in this regard that the complainant was using the mobile number in question or other mobile numbers for commercial purposes. The Opposite Party No. 1-Company has also contested the complaint on the ground that complaint is not maintainable in view of special remedy provided under Section 7B of Indian Telegraph Act which provides solution by arbitration if the agreement between the parties contain arbitration clause. Though agreement between the parties containing arbitration clause is not produced on the file but otherwise, remedy in Consumer Protection Act is additional remedy and can be availed by a person though the agreement contains arbitration clause. In case titled Cholamandalam DBS Finance Ltd. Vs Kishore Jain 2008(1) Consumer Law Today page 647 a plea was taken that in view of arbitration clause in Hire-Purchase agreement the Consumer Forum has no jurisdiction and it was observed by Hon’ble National Commission, New  Delhi that remedy under the Consumer Protection Act is additional remedy and plea that Consumer Forum has no jurisdiction in view of provision for arbitration in Hire Purchase agreement was repelled as Section 3 of the Consumer Protection Act 1986 clearly stipulates that this is an additional remedy.

10      Opposite Party No. 1-Company has also taken plea that complaint is bad for non-joinder of necessary parties i.e. Vodafone company but this plea is also of no force as after the mobile number in question was ported to the Opposite Party No. 1-Company, the complainant is no longer consumer or user of services of Vodafone Company and as such, Vodafone Company is not a necessary party in the complaint in hand.

11      Opposite Party No. 1-Company has also taken plea that after the deactivation of mobile number in question the complainant is not consumer of Opposite Party No. 1-Company. However this Forum does not find any force in the pea of Opposite Party No. 1-Company as complainant has filed the present complaint on the allegations that mobile number in question has been arbitrarily and authoritatively deactivated by Opposite Party No. 1-Company and definitely the complainant was consumer of Opposite Party No. 1-Company when he was using mobile number in question and as the complaint has been filed on the allegation of illegal deactivation of mobile number in question, therefore, complainant is consumer of Opposite Party No. 1-Company so far as mobile number in question is concerned and complaint is maintainable as the same has been filed within time as provided by Consumer Protection Act. Otherwise also Opposite Party No. 1-Company has taken a plea that Opposite Party No. 1-Company verified the particulars of the complainant as the complainant was under suspicion because he was having 8 mobile numbers at that time and complainant did not cooperate with the Opposite Party No. 1-Company nor provided the particulars and as such mobile number in question was deactivated. Again this Forum does not find any force in the contention of Opposite Party No. 1-Company because simply if a person possess 6 or 8 mobile phones does not cause any suspicion that he is using those mobile numbers for illegal purpose unless this fact is proved on the file by the cogent evidence. Otherwise also, the opposite party has not proved any document on the file to show that the complainant was asked to provide particulars or identity or residential proofs which were not provided by the complainant. All the documents proved by the Opposite Party No. 1-Company regarding customer address, verification forms are with regard to other mobile numbers and not the mobile number in question. Opposite Party No. 1-Company has also proved report Ex. OP1/27 vide which mobile number in question was returned and it shows that  mobile number in question was returned on the request of the recipient i.e. complainant whereas no such request was given by the complainant. Rather complainant is contesting the deactivation of  mobile number in question. Otherwise also, Opposite Party No. 1-Company has taken plea that many requests were made to the complainant for providing identification and address verification document but the complainant did not provide the same as no document has been produced on the file in this regard as the documents proved by the Opposite Party No. 1-Company in this regard are not with regard to mobile number in question but with regard to other mobile numbers as is mentioned on the documents Ex. OP1/28, OP1/29, OP1/30 and OP1/31. Otherwise also, the plea of Opposite Party No. 1-Company is that the suspicion arose against the complainant as date of birth and signatures of the complainant were different in the application form of mobile Number  98886-43063 i.e. mobile number in question and 8725991771. However this plea is not enough to deactivate the  mobile number in question because date of birth is not a decider for this purpose particularly when the residential particulars are correct and similar in all the mobile numbers in possession of complainant, the documents of which are proved by Opposite Party No. 1-Company. Otherwise also, it is a cardinal principle of law that nobody should be condemned without hearing and Opposite Party No. 1-Company has not produced any evidence on the file to show that complainant was asked to explain his position before deactivation of mobile number in question. Otherwise, complainant was having 8 mobile numbers even as per Opposite Party No. 1-Company and particulars of the complainant alongwith identification and residential proofs have been filed by the complainant while making applications for the allotment of those mobile numbers. As such, deactivation of mobile number in question without giving any hearing to the complainant and without following procedure amounts to deficiency in service on the part of Opposite Party No. 1-Company. The complainant has claimed compensation of Rs. 50,000/- in case  mobile number in question was not activated but no documentary evidence has been produced on the file to show that how the complainant suffered loss of Rs. 50,000/-. Otherwise  the complainant was using the  mobile number in question since 2006 and as such must have lost some contacts which must have caused harassment and mental agony to the complainant and in the given circumstances the balance of justice would struck if the complainant is allowed compensation of Rs. 10,000/- if the Opposite Party No. 1-Company failed to activate the  mobile number in question.