Punjab

Faridkot

CC/14/144

Sandeep Singh - Complainant(s)

Versus

Idea Cellular Limited - Opp.Party(s)

Avtar Krishan

10 Sep 2015

ORDER

      DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

Complaint No. :        144

Date of Institution :   21.10.2014

Date of Decision :      10.09.2015

 

Sandeep Singh Prop of M/s Shhinderpal Dairy Farm, Village Surghuri District Faridkot.                                                                                      

  .....Complainant

Versus

1. Idea Cellular Ltd Showroom, Circular Road, In front of Balbir Avenue, Faridkot through its Manager.

2. Idea Cellular Ltd Circle Office: C-105 Phase 7 Ind, Area Mohali (Punjab).

3. Surinder Kataria, Proprietor of Kataria Teleword, r/o Rose Enclave, Talwandi Road, Faridkot.

                                   ......OPs

   Complaint under Section 12 of the

   Consumer Protection Act, 1986.

    

   Quorum:     Sh. Ajit Aggarwal, President.

   Smt Parampal Kaur, Member,

   Sh P Singla, Member.

   Present:       Sh Avtar Krishan,  Ld Counsel for complainant,

    Sh Jatinder Bansal, Ld Counsel for OP-1 & 2,

    Sh Manpreet Singh, Ld Counsel for OP-3.

    

   (Ajit Aggarwal , President)

                                                      Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Ops for deficiency in service in not issuing the VIP number and for seeking directions to Ops to pay Rs 70,000/- as compensation for mental agony and harassment besides Rs 10,000/- as litigation expenses.

   2                                          Briefly stated, the case of the complainant is that OPs launched a scheme vide which if complainant purchases 30 mobile numbers of the Company then, Company will provide him VIP number free of cost and the market value of VIP number will be Rs 12,000/- and according to that scheme Rs 6000/- will be given by his showroom to the Company and Rs 6000/-would be borne by Company itself. It is contended that on advise of Manager of OP-1, complainant purchased 30 mobile numbers of the Company and then, OP-1 issued 30 mobile numbers under said scheme and gave one extra SIM vide no. 891149420001714900 and booked one VIP Mobile No. 81960-00066 vide receipt no. 1641753 dt 24.02.2014 and assured complainant that his VIP mobile number would start working within few days. After one week, complainant visited the Showroom of OP-1 with sim no. 8991149420001714900 and requested OP-1 to activate his VIP mobile number and on this, OP-1 assured him that his VIP mobile number would start working within a day. After a week, complainant again made request to OP-1 to activate his VIP number, but OP-1 again sought some more time. In April, when complainant visited OP-1, who told him that his VIP mobile no. 81960-00066 has been issued and activated on some other person’s name and denied his responsibility and even refused to activate the said mobile number on the SIM no. 891149420001714900 of complainant, which was issued by OP-1 vide receipt no. 1641753 dt 24.02.2014 to complainant and said that they have no responsibility to activate the same and complainant is free to do whatever he likes. Despite repeated requests made by complainant, Ops failed to consider his legal and lawful claim and all this amounts to deficiency in service and trade mal practice and has caused much inconvenience, harassment and mental agony to complainant and due to this complainant has prayed for seeking direction to Ops to pay Rs 70,000/- as compensation for mental agony and harassment etc and to pay Rs. 10,000/- as cost of litigation besides the main relief. Hence, the present complaint.

   3                                             The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 28.10.2014, complaint was admitted and notice was ordered to be issued to the opposite party.      

   4                                                  On receipt of the notice, OP-1 and 2 filed reply taking preliminary objections that complaint is liable to be dismissed on the ground that it discloses no cause of action regarding deficiency in service and complaint filed by complainant is bad for misjoinder and non joinder of necessary parties as complainant has not impleaded the distributor Kataria Teleword, Faridkot, who has supplied numbers and given the alleged commitment regarding number in question as necessary party. It is further asserted that complainant has concealed the material facts by not impleading M/s Kataria Teleword as party to the present complaint and has levelled false allegations. It is further averred that complainant in connivance with M/s Kataria Teleword, had wrongly got himself allotted  mobile no. 81906-00066 in the name of complainant despite the fact that said number was a premium  number and complainant has not paid any charges for the same. Allegation regarding payment of charges amounting to Rs 6000/-by distributor and Rs 6000/-to be borne by Company is totally incorrect and false and said number is running in the name of other subscriber and cannot be allotted to the complainant. Ld Counsel for OPs brought before the Forum that complainant is using the number for commercial purposes and has subscribed to 30 numbers and is not using these numbers for earning his livelihood, rather is using the same for commercial purpose of running his dairy farm. However, on merits, OP-1 and 2 reiterated the pleadings taken in preliminary objections and asserted that no VIP number free of cost was given by OP Company to complainant and no such commitment as alleged in the complaint is ever made by answering OPs and as no charges were paid by complainant and therefore, no such number was activated in the name of complainant. It is asserted that there is no deficiency in service on the part of answering opposite parties. All other allegations and allegation with regard to relief sought were refuted with a prayer that complaint may be dismissed with costs against the answering OPs.

   5                                                 OP-3 also filed reply taking preliminary objections that there is no deficiency in service on the part of answering OP and no commitment in particular was made by the distributor with complainant and as per convention, it was told by Manager of the Distributor that a particular number may be given on payment to the Company if available and half amount which was to be paid by consumer was paid by distributor to the Company, Company has waived its share keeping in view the conversations made with the consumer and it is not mandatory for the Company to allot the particular number. It is averred that due to technical snag, Company had not activated the particular number and moreover, Complainant was requested to get any other number, but he did not give any response. It is further averred that M/s Surinder Kataria of Kataria Teleword has surrendered the distributor ship of Idea Company. It is averred that complainant is using the said number for commercial purpose and not for earning his livelihood and therefore, he does not fall under the definition of consumer. On merits, OP-3 asserted that 30 mobile numbers were given to the complainant in a plan/scheme and a particular number was asked to be given as per the prevailing conventions after making the payment of the said number and as far as the share of the distributor was concerned to be paid to the Company, that was performed and confirmation of the same was made by OP-2. It is further submitted that complainant was told that a particular number may be given but due to some technical snag the same could not be got activated by the company and the complainant was apprised of the facts and was asked that he may have any other VIP number, but complainant did not give any response afterwards. It is further reiterated that complainant was asked by OP-1 and 3 to have any other VIP number, but complainant did not give any response and by that time OP-3 surrendered the distributor ship. Op-3 further averred that no consideration on account of VIP number was ever taken from complainant and therefore, he cannot be termed as consumer and as per settled law, no one can be treated as consumer unless there any consideration is paid and thus, no embezzlement is committed by answering OP-3 in providing services to complainant.  It is reiterated that there is no deficiency in service on the part of answering OP and all the other allegations and allegation with regard to relief sought too were refuted with a prayer for dismissal of complaint with costs against OP-3.                                            

   6                                                  Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to C-29 and then, closed the evidence.

   7                                                                     In order to rebut the evidence of the complainant, Counsel for OP-1 and 2 tendered in evidence affidavit of Manoj Madan as Ex OP-1,2/1 and Ex OP-1,2/4 and documents Ex OP-1,2/2, 3, 5 and 6 and closed the evidence. Ld Counsel for OP-3 tendered in evidence affidavit of OP-3 as Ex Op-3/1 and documents Ex OP-3/2 to 3 and then also closed the evidence on behalf of OP-3.

   8                                                                    We have heard learned counsel for parties and have very carefully perused the affidavits & documents placed on the file by complainant as well as opposite party.

   9                                                   Ld Counsel for complainant argued that complainant is running a Dairy Farm business and in order to run his business, he wanted to purchase some mobile connections and for this purpose he visited the showroom of OPs. The Manager of OPs told him that if he purchased 30 mobile numbers, then company will provide him a VIP number free of costs of market value worth Rs 12,000/-. As per scheme, out of Rs 12,000/- Rs 6000/- were to be paid by the Distributor to the Company and remaining 6000/- would be borne by the Company itself. On the advice of OPs, complainant purchased 30 mobile numbers and OPs issued 30 numbers and gave one extra sim to complainant and complainant booked one VIP number 81960-00066. OPs duly issued receipt dt 24.02.2014 regarding it and the same is Ex C-2. The sim is Ex C-29.   The OPs assured complainant that VIP no. will start working and after one week, complainant visited the showroom of OPs, who told him that not to worry as number would start within a day but the number did not start and complainant visited the showroom of OPs, where he was told that they are trying to activate the number and sought some time. In the month of April, OPs told complainant that his VIP number has been issued to some other person and it cannot be activated in his name and denied their responsibility to activate that number in the name of complainant and told him that he could not do anything against Company and Company has no responsibility for issuing above said number. This act of Ops amounts to deficiency in service and trade mal practice on the part of OPs and caused mental tension and harassment to complainant and complainant has prayed that OPs may be directed to activate the said VIP number and also prayed for compensation.

   10                                      In reply to the arguments of complainant, ld counsel for OPs no. 1 and 2 argued that complainant has no cause of action to                          file this complaint. There is no deficiency on the part of OP-1 and 2. The complainant purchased mobile connection from OP-3 and only OP-3 allotted the VIP number to complainant, who has no right to allot this number. This number is a premium number and complainant has not paid any charges for the same. There was no scheme regarding payment of Rs 6000/-by the Distributor and remaining Rs6000/- by the Company itself. The number in dispute is already issued to someone else and is running in his name and cannot be allotted to complainant. Moreover, as per statement of complainant, he is engaged in the business of Dairy Farm and he purchased mobile numbers for the purpose of running his business i.e for commercial purpose so, he does not fall under the definition of consumer as per Consumer Protection Act. Complainant purchased 30 mobile connections from OPs, but it is wrong that complainant was assured to give any VIP number free of cost by the OPs. No commitment regarding it was made by OP-1 and 2. He in connivance with Distributor/OP-3 himself got allotted the said mobile number which was a premium number carrying premium charges. If Distributor made any commitment without the consent of Company, then, Company is not liable for the same. There was no such scheme to issue premium number free of cost. If the Distributor has made any commitment without the consent of OPs beyond the terms and conditions of Company, then, it is not binding upon the Company. Distributor made commitment at its own end. Since the complainant has not made any payment of premium number therefore, OPs did not activate the number in the name of complainant and activated the same in the name of other person. There is no deficiency in service and unfair trade practice on the part of OP-1 & 2 and prayed for dismissal of the complaint.

   11                                     Ld Counsel for OP-3 argued that there is no deficiency in service on the part of OP-3 and OP-3 has never made commitment regarding the particular number. The Manager of OP-3 told complainant that particular number may be given to him if available. As per scheme of the Company, the OP-3 paid ½ of the cost of number to the Company and Company also waived its half share. It was not binding to allot that particular number. Due to some technical snag, the Company has not activated that number to complainant but complainant was requested to get any other number of his choice but no response has been given by the complainant and in the mean time, OP-3 surrendered the Distributorship of the Idea Cellular Company. Regarding waiving of 50% of price of premium number is confirmed by the Company, vide their confirmation Ex OP-3/2, the OP-3 also sent e-mail to Company to activate the number of complainant. The copy of the e-mail is Ex OP-3/3. As per promise, the OP-3 paid Rs 6,180/- to the Company as his share towards the price of premium number and Company also confirmed the waiving of 50% share and the liability of Distributor is completed at that moment. There is no ill will on the part of OP-3. He took all necessary action required to issue the number immediately. Moreover, OP-3 never committed to issue that particular number, rather he simply asked that this number may be issued as per prevailing conventions of the Company but due to some technical snag, the said number could not be activated by the Company and OP-3 told this fact to the complainant and also requested him to choose some other number of his choice, but complainant did not give any response. There is no deficiency in service on the part of OP-3 and also prayed for dismissal of present complaint.

   12                                                  The case of the complainant is that he purchased 30 mobile connections from OP Company and as per scheme of the Company, on purchase of these mobile connections, he will get a premium number free of cost and as per scheme of the Company, he booked premium mobile number 81960-00066, but the Company did not activate the said number in his name, rather they issued this number to some other person. OP-1 and 2 denied that there was any scheme regarding it and they never gave assurance to issue this number to the complainant. OP-3 submitted that as per scheme, the complainant was entitled to get a premium number worth Rs 12,000/- out of which ½ of the price was to be borne by the Distributor and remaining half to be waived by the Company itself and he  deposited his share to the Company and Company waived the remaining 50 % and gave a confirmation vide Ex OP-3/2 but due to some technical ground, the VIP number booked by the complainant could not be activated in the name of complainant. OPs did not promise to issue that particular number, rather told him that if the number was available, then it can be activated in the name of complainant.

   13                                     From the aforementioned discussion and after careful consideration of all the documents placed on file, it is clear that there was a scheme to issue a premium number worth Rs 12,000/- on purchase of 30 mobile connections, but  OPs failed to fulfil their promise to issue the premium number to complainant, which amounts to deficiency in service. In these circumstances, the present complaint is hereby allowed against OP-1 and 2 and as OP-3 has left the distributorship of Company, therefore, complaint against OP-3 stands dismissed. OPs no. 1 and 2 are ordered to issue a premium number in the price band of Rs 12,000/- of his choice to complainant free of cost within one month from the date of receipt of the copy of the order. OP-1 and 2 are further directed to pay Rs 5,000/- as compensation for harassment and mental agony suffered by complainant and Rs 2,000/-as litigation expenses. Compliance of this order be made within one month from the date of receipt of the copy of the order failing which complainant shall be entitled to initiate proceedings under Section 25 and 27 of Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.

   Announced in open Forum:

   Dated: 10.09.2015

   Member                Member            President (Parampal Kaur)         (P Singla)             (Ajit Aggarwal)