DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 410 of 06-10-2015

Decided on : 23-11-2016

Maninder Singh S/o Sukhram Singh R/o Street No. 3, Guru Nanak Nagar, Multania Road, Bathinda.

…...Complainant

Versus

1. Idea Cellular Limited, Regd. Office Suman Tower, Plot No. 18, Sector 11, Gandhinagar 382 001 through its Chairman/Managing Director

2. Idea Cellular Limited, Circle Office, C-105, Phase VII, Industrial Area, Mohali, through its Circle Manager

3. M/s. Srimath Associates, BDF-55 (Authozed Agents of Idea Cellular Limited) Ghorewala Chowk, 100' Road, Bathinda, through its Manager /Incharge

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. M.P.Singh. Pahwa, President

Sh. Jarnail Singh, Member

Present :

For the complainant : Sh. S.S. Bains Advocate.

For the opposite parties : Sh. Sanjay Goyal, Advocate, for OPs No. 1 & 2

Sh. A K Yadav, for OP No. 3

O R D E R

M. P. Singh Pahwa, President

1. Maninder Singh, complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Idea Cellular Limited and others (here-in-after referred to as 'opposite parties).

2. Briefly stated, the case of the complainant is that he desired to get mobile premium number. He approached opposite party No. 3 which is authorized agent of opposite parties No. 1 & 2 for the same purposes on 31-8-2015. The opposite party No. 3 disclosed that opposite parties No. 1 & 2 have launched a new mobile series of 92958 and premium mobile number 92958-00001 is avaiable, the cost of which is Rs. 25,000/- as per their paid number list. The complainant being crazy of said mobile number, immediately paid Rs. 25,000/- to opposite party No. 3 vide receipt No. SE-871682 dated 31-8-2015 by disclosing premium number charges. The opposite party No. 3 also disclosed that above said premium mobile number 92958-00001 stands booked for the complainant. He should submit his identity proofs through Whatsapp on mobile No. 98140-07138. The opposite party No. 3 also issued SIM No. 89911 49480 101017 8844 HLR-2 to complainant. The complainant on 31-8-2015 sent his photographs and Adhaar Card (Identity proof) on mobile No. 98140 07138 through Whatsapp from his mobile No. 94630 32838. The complainant also received phone call from opposite party No. 3 on his mobile No. 94630 32838 that the said premium number 92958-00001 will be activated within four days. The complainant is posted as Sub Inspector in Punjab Home Guard & Civil Defence at Fazilka. He informed all his friends and close relatives that he has purchased premium mobile No. 92958-00001 from the opposite parties and it will be activated within 4 days. They can call him on this number after four days.

3. It is alleged that after four days, as per instructions of opposite party No. 3, he inserted SIM and restarted mobile, but said premium number was not activated. The complainant approached opposite party No. 3 and requested for activation of mobile number. They assured that said mobile number will surely be activated within twenty days. Even after passing of twenty days, the opposite parties did not activate the said mobile number.

4. It is alleged that since the mobile number has not been activated so far by the opposite parties, the complainant is being taunted by his friends and relatives. He stands defamed in his friends and relatvies due to deficiency in service on the part of the opposite parties.

5. On this backdrop of facts, the complainant has filed this complaint for direction to the opposite parties to activate premium mobile No. 92958-00001 on the SIM issued to him and to pay Rs. 50,000/- as compenstion and Rs. 5,000/- as litigation expenses. Hence, this complaint.

6. Upon notice, the opposite parties appeared through counsel. The opposite parties No. 1 & 2 failed to file written reply within stipulated period.

7. The opposite party No. 3 filed its written reply and raised legal objections that complaint has got no locus standi and cause of action to file the complaint. That complainant has not disclosed any cause of action. The complaint is liable to be dismissed on this ground. That there is no deficiency in sercvice on the part of the opposite party. That complainant has paid advance money and asked the opposite party to provide him choice for premium number on his both contact numbers given by the complainant himself. The complainant did not finalize any specific number for activation. He did not submit any relevant proof and signatures and snap for activation of any number. Instead of it, he kept on insisting that after getting selected any particular number, he will visit show room in person and will complete the requisite formalities for activation of number. Ultimately, opposite party No. 3 requested the complainant to get back his money and sent request letter through registered post on 3-10-2015 for collection of his money from it.

8. Further legal objections are that complainant has not come to this Forum with clean hands. He has concealed true and material facts. At the time of applying special mobile number, the complainant was asked to submit certain documents regarding his identification but he did not submit the same and tried to send through Whatsapp. The complainant was asked to submit the documents in person but he failed to do so. As such, special number could not be activated. The complainant was asked to collect his advance paid amount Rs. 25,000/- at the earliest or permit opposite party No. 3 to deliver at his address to any of his family members, but he did not reply to the letter.

9. On merits, the opposite party No. 3 controverted all the material averments and prayed for dismissal of complaint.

10. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavit dated 9-2-2016 (Ex. C-1), photocopy of Service Receipt (Ex. C-2) and photocopy of SIM (Ex. C-3).

11. In order to rebut this evidence, opposite parties No. 1 & 2 have tendered into evidence photocopy of agreement (Ex. OP-1/1), photocopy of data of SIMS (Ex. OP-1/2), photocopy of letter alongwith receipt (Ex. OP-1/3), photocopy of letter (Ex. OP-1/4), photocopy of power of attorney (Ex.OP-1/5), affidavit dated 27-5-2016 of Sh. Manoj Madan (Ex. OP-1/6), photocopy of letter (Ex. OP-1/7 to Ex. OP-1/9), photocopy of cancelled cheque (Ex. OP-1/10), photocopy of mandate Form (Ex. OP-1/11), photocopy of certificate (Ex. OP-1/12), photocopy of NEFT mandate form (Ex. OP-1/13), photocopy of ID proof (Ex. OP-1/14), photocopy of cheque (Ex. OP-1/15), photocopy of authorization (Ex. OP-1/16), photocopy of cheque (Ex. OP-1/17), photocopy of lease deed (Ex. OP-1/18), photocopy of undertaking (Ex. OP-1/19) and photocopy of acknowledgement receipt (Ex. OP-1/20).

12. The opposite party No. 3 has tendered into evidence postal receipt (Ex. OP-3/1), photocopy of letter (Ex. OP-3/2) and affidavit dated 24-5-2010 of Naval Goyal (Ex. OP-3/3).

13. We have heard learned counsel for the parties and gone through the record.

14. Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that material allegations of the complainant are against opposite party No. 3 and opposite party No. 3 has impliedly admitted this fact. The complainant has made the payment of Rs. 25,000/- to opposite party no. 3 for premium number. The opposite party No. 3 has admitted receipt of Rs. 25,000/- although the version of opposite party No. 3 is that complainant has failed to finalize any specific number but in receipt Ex. C-2, specific number as disclosed by the complainant is mentioned. Therefore, the version of opposite party No. 3 is totally false. It is liable to be rejected. The facts prove that complainant paid Rs. 25,000/- for getting premium number and opposite parties No. 1 & 2 have failed to activate this number to the complainant. The opposite party No. 3 is working as agent of opposite parties No. 1 & 2. As such, opposite parties No. 1 & 2 are also liable for the deficiency in service and unfair trade practice on the part of opposite party No. 3. The opposite parties cannot escape from their liability by offering refund of Rs. 25,000/- to the complainant. The complainant has suffered mental tension, harassment etc., He was humiliated in the circle of his friends and relatives. He is entitled to compensation amounting to Rs. 50,000/- in addition to litigation expenses also.

15. On the other hand, learned counsel for oposite parties No. 1 & 2 has submitted that the opposite parties No. 1 & 2 have been unnecessarily impleaded. The agreement between opposite parties No. 1 & 2 and opposite party No. 3 is on the file as Ex. OP-1/1. There is nothing in this ageement to prove that opposite party No. 3 was authorized to activate any premium number or to promise to release premium number. Moreover, premium number claimed by complainant was not with opposite parties No. 1 & 2. As such, there was no question for allotment of this number to the complainant. The opposite party No. 3 has admitted receipt of Rs. 25,000/- from the complainant. Therefore opposite party No. 3 is responsible for the deficiency in service or unfair trade practice adopted by it, if any.

16. The learned counsel for opposite party No. 3 has reiterated his stand as taken in written reply. It is also submitted by learned counsel for opposite party No. 3 that complainant was not promised for any specific premium number. He was rather to disclose the premium number to be opted by him. As the complainant has failed to disclose any premium number of his choice, therefore he was asked to take refund of his amount. He was also written letter despatched on 3-10-2015 for refund of his amount and after receiving this letter, he has filed this complaint on 6-10-2015 only to drag the opposite party in unncessary litigation. The opposite party No. 3 is still ready to refund the amount paid by the complainant but he is not entitled to any compensation.

17. We have carefully gone through the record and have considered the rival contentions.

18. The complainant has claimed that opposite party No. 3 offered premium number 92958-00001 after receiving Rs. 25,000/-. The opposite parties No. 1 & 2 are the service provider (network) of Idea Cellular. There is nothing to show that opposite parties No. 1 & 2 have ever made any commitment for release of this premium number. There is also nothing to show that opposite parties No. 1 & 2 received any payment from the complainant or opposite party for activation of this premium number claimed by the complainant. In these circumstnces, no deficiency in service or unfair trade practice can be attributed on the part of opposite parties No. 1 & 2.

19. Now coming to the claim of complainant against opposite party No. 3. As per complainant, he has paid Rs. 25,000/- to opposite party No. 3 for getting premium number 92958-00001 and opposite party No. 3 has also issued SIM on which this number was to be activated. The opposite party No. 3 has admitted receipt of Rs. 25,000/- as advance. The opposite party No. 3 has not disputed issuance of SIM to the complainant. The only version of opposite party No. 3 is that the complainant was to disclose specific number to be opted by him. In the receipt Ex. C-2 issued by opposite party No. 3 mobile No. 92958-00001 is mentioned. Even otherwise it is difficult to digest that complainant will pay Rs. 25,000/- without opting for any speficic number. Therefore, the version of opposite party No. 3 that complainant has not opted for 92958-00001 is unbelievable. The best evidence with the opposite party No. 3 was to produce original of Ex. C-2 to prove that no mobile number was mentioned in this receipt but the opposite party No. 3 has withheld this documentary eidence. Adverse inference can be drawn against it for this reason also.

20. There is another aspect of matter also. The opposite party No. 3 has placed on record copy of letter Ex. OP-3/2 to prove that complainant was asked to collect refund of this amount. In this letter rather it is mentioned that they are unable to provide number of his choice due to non-availability in the record. It is no where mentioned that complainant has failed to disclose number of his choice and to submit documents. Therefore the version of opposite party No. 2 stands belied from this letter also.

21. It is accepted that complainant paid Rs. 25,000/- as advance to opposite party No. 3 for getting premium number 92958-00001. Admittedly opposite party No. 3 has failed to activate this number. It amounts to deficiency in service and unfair trade practice on the part of opposite party No. 3. The opposite party No. 3 cannot escape from its liability only by offering refund of Rs. 25,000/-.

22. For the reasons recorded above, this complaint is partly accepted with Rs. 10,000/- as cost and compensation against opposite party No. 3 only and dismissed qua opposite parties No. 1 & 2. The opposite party No. 3 is directed to refund Rs. 25,000/- to the complainant received from him.

23. The compliance of this order be made within 45 days from the date of receipt of copy of this order failing which the amount of Rs. 25,000/- will carry interest @ 12% p.a. thereafter.

24. The complaint could not be decided within the statutory period due to heavy pendency of cases.

25. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    23-11-2016

    (M.P.Singh Pahwa )

    President

     

     

     

    (Jarnail Singh )

    Member