ORDER

                   3. The first opposite party entered appearance and filed a version and later an additional version.  The main contentions in the version is as follows:  This complaint is not maintainable before this Forum in the light of the ruling of the Hon’ble Supreme Court in Civil Appeal No. 7687 of 2004.  Further the first opposite party denied that the disputed mobile connection is not in the name of the complainant and this opposite party has not received any complaint from the complainant regarding the loss of the simcard.  The opposite parties never issued any duplicate simcard to the complainant and they had not received any request from the customer of this mobile number for the call details of October 2009.  The opposite parties have not sent any call details for the period from 01.09.2010 to 23.09.2010 to the complainant.

                   4. Main contentions in the additional version is as follows:  In the additional version also they challenged the maintainability of this complaint in the light of the Supreme Court Judgment and also denied the allegation of the loss of simcard and the issuance of the duplicate simcard.  But they admitted in the additional version that they have received a request for the call details from the complainant from 18.10.2009 to 25.10.2009 during December 2009.  Accordingly, they have sent the requested call details on 14.01.2010 by registered post.  It is also admitted that they have given the call details from 01.09.2010 to 23.09.2010 as per the request received from their channel.  According to the first opposite party, this complaint is devoid of merits and they have not committed any deficiency of service to the complainant.  With the above contentions, the first opposite party prays for the dismissal of the complaint.

                   5. The second opposite party is exparte.

                   6. On the basis of the pleadings of the parties, the following points were raised for consideration?

(1)             Whether the complaint is maintainable before this Forum?

(2)             Whether the reliefs sought for in the complaint are allowable?

(3)             Reliefs and Costs?

                    7. The evidence of this case consists of the oral deposition of PWs.1 and 2 and Exts.A1 and A2.  The opposite parties have not adduced any oral or documentary evidence.  But they have cross-examined PWs.1 and 2.  After closure of evidence, both sides were heard.

                   8. Point No.1:  The first opposite party challenges the maintainability of this complaint in view of the decision of the Hon’ble Supreme Court in Civil Appeal No.7687/2004 as the complainant’s grievances can be adjudicated through the Arbitration Clause provided under Sec.7B of the Indian Telegraph Act, 1885.  But the opposite parties failed to prove that they are also entitled to get the benefits of the above said Supreme Court decision and Sec.7B of the Indian Telegraph Act, 1885.  There is no mention either in the decision of the Hon’ble Supreme Court or in the Indian Telegraph Act that the private service providers like the first opposite party’s deficiency of service is also covered in the ruling and in the Telegraph Act.  The Consumer Protection Act was passed by the Indian Parliament in the year 1986 and the said Act came into force after 101 years from coming into force of the Indian Telegraph Act, 1885.  As per Sec.3 of the Consumer Protection Act, Consumer Protection Act is an additional law for redressing the grievances of the consumers and it is not in derogation of the provisions of any other law for the time being in force for redressing the grievances of the consumers.  So the present complaint is well within the scope of Consumer Protection Act 1986 and the alleged grievance of the complainant against the opposite parties herein can be adjudicated by this Forum. Therefore, we find that this complaint is maintainable before this Forum.

                   9. Point Nos. 2 & 3:  The complainant’s main allegation against the opposite parties is that they have not provided the call details of the complainant’s mobile connection from 18.10.2009 to 25.10.2009 inspite of his request for the same.  He made such a request for ascertaining the calls made during 18.10.2009 to 25.10.2009 by using the complainant’s lost simcard for tracing out the person who is possessing the complainant’s lost simcard.  But the opposite parties failed to give the call details as requested by the complainant.  Instead of giving the call details requested by the complainant, opposite parties had given the call details from 01.09.2010 to 23.09.2010.  The above said acts of the opposite parties is a clear deficiency of service and the opposite parties are liable to the complainant for the same.

                   10. In order to prove the complainant’s case, the complainant and one witness were examined as PWs.1 and 2 and the documents produced by the complainant were marked as Exts.A1 and A2.  Ext.A1 is the call details for the cellular number of the complainant from 01.09.2010 to 23.09.2010 issued by the first opposite party.  Ext.A2 is the petition receipt No. 1601/09 dated 21.10.2009 issued from Adoor Police Station to the complainant in respect of the complainant’s complaint regarding the loss of his simcard.

                   11. On the other hand, the first opposite party’s contention is that the alleged connection is not in the name of the complainant and they have issued the call details from 18.10.2009 to 25.10.2009 during December 2009 as per the request of the complainant and they have issued another call details from 01.09.2010 to 23.09.2010 as per the request received from their channel.  Therefore, they argued that they have not committed any deficiency of service.  But the first opposite party has not adduced any oral or documentary evidence to prove their contentions.  But they cross-examined the complainant and the witness and submitted certain documents at the time of argument. 

                   12. On the basis of the contentions and arguments of the parties, we have perused the materials on record.  The first opposite party filed their version at the first instance and thereafter they have filed an additional version also.  The contentions raised in the both versions are basically contradictory.  In the version, they have totally denied the complainant’s case.  But in the additional version, they have partially admitted the complainant’s case with their justifications.  Though the first opposite party contended that the complainant is not a subscriber of the first opposite party and the complainant never filed an application for call details, they have never issued any duplicate simcard to the complainant, they have issued call details as requested by the complainant.  But the first opposite party has failed to prove any of the aforesaid contentions with any cogent evidence.  The documents produced at the time of argument does not supports their contentions.  However, from the oral testimony of complainant/PW1 and as per Exts.A1 and A2, it is clear that the complainant had lost his simcard and the opposite parties have not given the call details as requested by the complainant and instead they have issued another call details not required by the complainant.  Therefore, we find that the complainant had proved his case against the opposite parties.  The above said act of the opposite parties is a clear deficiency of service and this complaint can be allowed with modifications against the opposite parties.

                   13. In the result, the complaint is allowed, thereby the opposite parties are directed to issue the call details of the cellular connection, 9961594144, from 18.10.2009 to 25.10.2009 along with compensation of ` 2,500 (Rupees Two thousand five hundred only) to the complainant within 15 days from the date of receipt of this order, failing which the complainant is allowed to realise ` 5,000 (Rupees Five thousand only) from the opposite parties along with interest @ 12% per annum from today till the realisation of the whole amount.

                   Declared in the Open Forum on this the 29^th day of July, 2011.

                                                                                                        (Sd/-)

                                                                                                Jacob Stephen,

                                                                                                  (President)

Sri. N. Premkumar (Member)                 :         (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :         K. Gopalan.

PW2  :         Thomas Baby.

Exhibits marked on the side of the complainant:

A1     :         Call details for the cellular number of the complainant from   

                     01.09.2010 to 23.09.2010 issued by the opposite parties.

A2     :         Petition’s receipt No. 1601/09 dated 21.10.2009 issued from Adoor  

                     Police Station to the complainant

Witness examined on the side of the opposite parties: Nil.

Exhibits marked on the side of the opposite parties:  Nil.

                                                                                      (By Order)

                                                                                           (Sd/-)

                                                                           Senior Superintendent.

Copy to:  (1)  Sri. K. Gopalan, Kollante Thekkethil Veedu, Parakodu P.O.,

                       Adoor Village.                                                                    

(2)   Ideal Cellular Limited, Mercy Estate, 2^nd Floor, Ravipuram, M.G.  

       Road, Cochin – 682 015.

(3)   Draksha Communications, Court Road, Adoor P.O.

(4)   Stock file.