THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.

C.C.635/2014

Dated this the 12^th day of December, 2019

(Smt. Rose Jose, B.Sc, LLB.              :  President)

                                                                       Sri. Joseph Mathew, M.A., L.L.B.       :  Member

                                                                       Smt. Priya S., BBL, LLB, MBA          :  Member

ORDER

Present: Hon’ble Sri. Joseph Mathew, Member:

This petition is filed under Section 12 of Consumer Protection Act, 1986.

The case of the petitioner is that, he is a customer of the 1^st opposite party vide mobile No. 9961124637. He is having only this number of the 1^st opposite party and he has not taken any other SIM or mobile connection of the opposite party. While so, he received a call from the customer care of the 1^st opposite party stating that they have issued two other SIM cards and mobile connection in his name vide Mobile No.s 8157831428 and 7560859489 on 28/02/2014 and 30/06/2014 respectively. It is stated by the petitioner that he has not applied or submitted any documents or ID proof or photos before the 1^stopposite party or any other dealer for the additional mobile connection. He is unaware of the facts that to whom the 1^stopposite party had issued the SIM cards and mobile connection in his name and based on what document they have issued the same. When he called to that numbers it is found that the numbers are active and somebody is using that numbers. Now he is under the fear that if the numbers is using by any miscreant or terrorist for any anti-social activities then the result will be bad and he has to suffer the consequences. Due to mental stress and strain he could not even work properly. The issuance of SIM cards in his name to some unknown persons without his knowledge or consent is unfair trade practice and also deficiency in service on the part of the opposite party and this caused much mental pain and other hardships to him. Hence this petition is filed to direct the opposite parties to cancel the SIM cards and mobile numbers illegally issued to unknown persons and to pay him Rs.5,00,000/- as compensation for his sufferings and also cost of the proceedings.

            The 1^st opposite party filed version denying all the allegations of the petitioner as false and frivolous. It is contended that private telecom service providers are Telecom Authorities under the Indian Telegraph Act as per notification dated 24/05/1999 in the Gazette. In the case of The General Manager, Telecom V/s. M. Krishnan 2009 (8) SCC481, the Hon’ble Supreme Court held that “When there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedyunder the Consumer Protection Act is by implication barred .” So any disputes between the service provider and customer can be decided only as per the provisions of the Telegraph Act and the Fora having no jurisdiction to entertain and decide such case. Moreover the petitioner has not paid any amount or consideration for obtaining the disputed mobile connections and so he is not a consumer under the Provision of Consumer Protection Act. It is also submitted that this case is bad for non-joinder of necessary party. For these reasons this petition is not maintainable before this Forum.

            The 1^st opposite party admitted that as per Company record, mobile No. 9961124637 is in the name of the petitioner. It is stated that as per the company’s process, a mobile number is activated only after receipt of the signed application form along with passport size photo and valid ID proof. As per their records, the petitioner had provided the ID proof and the signed application form to the retailer “Virus Mobile” while taking the disputed mobile numbers 7560859489 and 8157831428. The retailer has confirmed in the application submitted by the customer against the said numbers that he has seen the customer in person and the application form has been signed by the applicant himself in his presence. The retailer also confirmed that he has verified the self attested document copies with the original. Based on the confirmation from the retailer the numbers are approved by the distributor and later by the Company. Post acceptance of the application form by the Company, the customer has to make a verification call to 59059 in order to confirm the name and address for activating the number. The customer care executive will cross-check the address and other details of the customer and only after getting the correct details the number get activated. As per their records the petitioner had made the verification calls to 59059 and activated the numbers 7560859459 and 8157831428 on 28/02/2014 and 30/06/2014 respectively. Both the numbers are activated after the documents verification and successful tele-verifications. They are always abide by the Circulars and Orders issued by the Department of Telecommunications with respect to the activation of mobile numbers. They have not activated the said numbers illegally as alleged.

            The opposite party also submitted that both the numbers 7560859489 and 8157831428 are inactivated as on date. There is no unfair trade practice or deficiency in service on their side and the petitioner has not suffered any mental agony or other losses due to any of their acts and so he is not entitled to get any of the reliefs sought for in the petition and hence prayed to dismiss the petition with compensatory cots.

            The 2^nd opposite party in their reply stated that they have in no way related with the case and requested the petitioner to approach their corporate office Kozhikode if he is having any grievances.

The matters for determinations are:

1. Whether this petition is maintainable before this Forum or not?
2. Whether there is any unfair trade practice or deficiency in service on the part of the opposite party?
3. Reliefs and cost if any?

Evidence consists of the affidavits filed by the petitioner and the 1^st opposite party. Ext.s A1 to A6, B1 to B5, MO-1 and deposition of PW1 and RW1.

Point No. 1: The opposite parties raised a contention that this petition is not maintainable before this Forum. According to them the petitioner has not paid any amount or consideration towards the disputed mobile connections and so he is not a customer as per the Provision of Consumer Protection Act. This was admitted by the petitioner also. But here the petitioner is still using the mobile No. 9961124637 of the 1^st opposite party and so he is a customer of the 1^st opposite party and as such a consumer also. He is challenging the illegal issuance of the disputed mobile numbers in his name to somebody without his knowledge or consent. So the said contention of the opposite party is not sustainable. The other reason stated by the opposite parties is the observation made by the Hon’ble Supreme Court in the case “The General Manger Telecom V/s. M. Krishnan 2009 (8)SCC481”. But on a perusal it is found that this decision is with respect to disputes regarding telephone bills. Here the dispute is with regard to the issuance of SIM cards illegally and not with regard to telephone bills. So the said decision is not applicable in this case. The 3^rd reason raised by the opposite party is that the petitioner has not impleaded the necessary party ie. the Dealer before whom the application was made for obtaining the mobile connection and so this petition is bad for non-joinder of necessary party. But in cross examination it is stated by the petitioner that the dealers are changing and the dealer before whom he had submitted the application is not in existence at present. So how the petitioner can implead a person who is not in existence at the time of filing this petition. So considering the facts stated it is found that the contention of the opposite parties is not sustainable and the petitioner is a consumer and this petition is maintainable.

PointNo.2: The specific case of the petitioner is that while he is a subscriber of the 1^st opposite party having mobile No. 99661124637, the opposite party had issued two other SIM cards covering mobile no.s 9157831428 and 7560859489 to some other unknown persons in his name without his knowledge or consent. He has not applied for the disputed SIM cards or had given any ID proof to anybody in this regard. The issuance of SIM to unknown person without his knowledge or consent is illegal and amounts to unfair trade practice as well as deficiency in service on the part of the opposite parties. According to the petitioner by manipulating his ID proof submitted for taking the mobile connection of the opposite parties, the opposite party had issued the other two numbers to some other persons. To prove his identity he produced the copy of the front page and mark list of his SSLC book and was marked as Ext. A1 and A2. In Ext.A1 and A2 the date birth of the petitioner is given as 15/05/1969. According to the opposite party they have activated the other two connections after the documentary verification and successful tele-verification of the documents submitted by the petitioner before the dealer along with the filled application form. The petitioner had provided his ID proof and the signed application form to the retailer Virus Mobiles while obtaining the disputed mobile numbers. The petitioner had signed the application form in the presence of the retailer also. They produced the copies of filled Customer Application Forms and copy of election identity card of the petitioner based on which they had issued the mobile nos. 8157831428 and 75602859489 in the name of the petitioner. This documents are marked as Ext. B1, B2 and B2(a). But in Ext. B1 the date of birth of the petitioner is given as 10/01/1967 and in Ext.  B2 it is given as 10/01/1971. Moreover the signature of the petitioner in Ext.s B1 to B2(a) is also different. Thus Ext.s B1, B2 and B2(a) clearly shows that these applications are fake and was not submitted by the petitioner as claimed by the opposite party and somebody had manipulated the petitioner’s  ID proof for obtaining the disputed mobile numbers in his name.

            According to the opposite party the retailer confirmed that he had verified the self-attested documents copies with the originals. Based on the confirmation from the retailer the numbers are approved by the distributor and later by the Company.  It is also stated that on acceptance of the application form by the Company, the customer has to make a verification call to 59059 in order to confirm the name and address for activating the number. Their customer care executive will cross-check the address and other details of the customer and only after getting the correct details the number get activated. But here it is found that Ext.s B1, B2 and B2(a) are forged documents and it shows that the application was not submitted by the petitioner. So it is clear that the verification call to 59059 was also not made by the petitioner. All these clearly shows the falsity of the claims made by the 1^st opposite party regarding the procedures and precautions taken by them before activating a new number.

Above all the petitioner had produced the SIM card bearing mobile no. 9847624918 issued by the 1^st opposite party in the name of his uncle Sri. Kunhirama Kurup after ten years of his demise. This SIM card was marked as MO-1. Ext. A4 is the copy of election ID card of late Sri. Kunhirama Kurup and Ext. A5 is the copy of his death certificate. In Ext. A5 the date of death of Sri. Kunhirama Kurup is showed as 16/04/2007. The petitioner obtained the said mobile connection in the name of his uncle late Sri. Kunhirama Kurup using his ID proof only to prove the utter inefficiency, negligence and irresponsibility on the part of the opposite parties in providing mobile connections and to prove the failure of their precautionary measures in providing new mobile connections. This shows that anybody can get a mobile connection from the opposite parties in the name of any other person without any proper application form or ID proof. As the service provider the 1^st opposite party is liable for the act of their distributors and retailers and they cannot evade from the responsibilities in providing mobile connections to the wrong persons or simply wash their hands by merely saying that the duty of verification is on the part of the retailer. The 1^st opposite party is equally liable for the acts of their agents and if any fault is committed by their agents they are responsible for the same also. The opposite party should have a clear idea about their agents and control over their activities.

            The petitioner is examined as PW1. But nothing has been brought out in favour of opposite party in that cross examination. The Legal Manager of the 1^st opposite party was examined as RW1. In cross RW1 deposed that they can issue upto 9 connections to a person. If their Rules permit so, they can do so but it should be after proper verification of the identity of the person to whom they are providing the connections and should not be based on any forged documents.

So from the evidence on record it is found that the disputed mobile nos., 8157831428 and 7560859498 are issued by the 1^st opposite party in the name of the petitioner not based on the application made by the petitioner or after verifying the ID proof of the petitioner but based on the fake documents submitted by somebody. So the fear of the petitioner that if the persons who are using that numbers misused the same it will affect him badly is quite reasonable. If that numbers are used for any anti-social activities, then this poor man will have to suffer its consequences without any fault of him. Moreover providing mobile connection to anybody without proper verification of documents or identification of the applicant is harmful to the national safety, security and integrity also. So the opposite parties should be much vigilant in providing mobile connections. Here in this case the issuance of mobile connection to some other persons in the name of the petitioner without his knowledge or consent is nothing but utter negligence, carelessness and also gross deficiency in service on the part of the opposite parties.

Considering the seriousness of the matter we are of the view that this kind of irresponsible and careless activities on the part of the 1^st opposite party should be prevented by imposing heavy compensation. Point No. 2 found accordingly.

Point No. 3: In view of the findings in Point No. 2, this petition is to be allowed. One of the prayer of the petitioner is to direct the opposite parties to cancel the mobile numbers illegally given to other persons in his name. In their version the 1^st opposite party submitted that they have already deactivated the disputed numbers. So there is no need of any further direction in this regard. But the petitioner is entitled to get reasonable reliefs for his mental agony and other sufferings due to the said act of the 1^st opposite party.

In the result, the following order is passed.

As the service provider, the 1^st opposite party is ordered to pay Rs.1,00,000/- (Rupees one lakh only) to the petitioner as compensation for his mental agony and other hardships suffered and Rs.5,000/- (Rupees five thousand only)  as cost of the proceedings within 45 days from the date of receipt of this order. Failing which the entire amount will carry 9% interest per annum from the date of default till payment.

Dated this the 12^th day of December, 2019

Date of filing: 10/12/2014

SD/- MEMBER                      SD/-PRESIDENT                  SD/-MEMBER

APPENDIX

Documents exhibited for the complainant:

A1. Copy of front page of SSLC Book

A2. Copy of mark list

A3. Copy of Transfer Certificate

A4. Copy of Election ID card of Sri. Kunhirama Kurupp

A5. Copy of Death Certificate of Sri. Kunhirama Kurup

A6. Copy of mobile card cover

Documents exhibited for the opposite party:

B1. Copy of Customer application form

B2. Copy of Customer application form

B2(a). Copy of election ID card

B3. Copy of Customer application form

B4. Copy of election ID card

B5. Copy of receipt received from Nadakkavu Police Station

Witness examined for the complainant:

PW1. Chandran (Complainant)

MO1. Sim Card

Witness examined for the opposite party:

Augustine Joseph (Legal Manager of opposite party)

Sd/-President

//True copy//

(Forwarded/By Order)

SENIOR SUPERINTENDENT