Chandigarh

DF-II

CC/61/2015

Sudhir Kumar - Complainant(s)

Versus

Idea Cellular - Opp.Party(s)

Vishal Sharma,Adv

11 Feb 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	61 of 2015
Date  of  Institution	:	5/2/2015
Date   of   Decision	:	11.2.2016

 

 

 

 

 

1.         Sh. Sudhir Kumar Batish S/o Sh. S.P. Batish and

 

2.         Ms. Shreya Batish D/o Sh. S.K. Batish.

  Both r/o of House No.130, Sector 16-A, Chandigarh.

 

 

                …..Complainants

Versus

 

1. Idea Cellular Ltd. registered office Suman Tower Plot No.18, Sector 11, Gandhinagar 382 011 Gujrat, India

 

2. Idea Celluar LTd. Corporate office Windsor, 5^th floor, Off CST Road Near Vidya Nagari, Kalina Santacruz(E) Mumbai 400098.

 

3. The Idea Cellular LTd. Idea Store SCO No.495-96 IInd floor Sector 35, Chandigarh.

 

….. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         SH.JASWINDER SINGH SIDHU       MEMBER

         MRS.PRITI MALHOTRA             MEMBER

 

 

For complainant(s)      :     Sh. H.L.  Sharma, Advocate

 

For Opposite Parties    :     Sh. Vishal Gupta, Advocate

 

 

PER PRITI MALHOTRA, MEMBER

 

 

          As per the case, the complainants had been using TATA DOCOMO mobile Nos 92162-21199 (Sudhir Batish)  and 98780-29911 (Shreya Batish) respectively for a long time. On the constant inducement of the OPs the complainants agreed to port their number to Idea Cellular and retained their previous mobile Nos. with TATA DOcomo. But while shifting the number of complainants to idea cellular the mobile No. which was used by complainant No.2 was ported in the name of complainant No.1 and mobile No. of complainant No.1 was ported in the name of complainant No.2, which was never agreed to by the complainants. That means the mobile nos were ported with each other though the complainants never agreed to substitute their mobile numbers with each other.    The complainants approached the OPs at their sector 35 office for the redressal of their grievance and handed over application alongwith identity proof but nothing came out fruitful.  It is averred that due to wrong porting of above numbers, limit of talk time was substituted with each other regarding complainants. Even service of complainant No.1 was discontinued though he had to remain constantly in touch with officials in the field and other officials working under them. Thus he suffered heavily due to discontinuity of service.   The complainant No.1 again approached the sector 35 office of OPs and explained his difficulty faced due to discontinuation of service.  As a result the OPs extended the limit of complainant No.1 from Rs.500/- to 1000/-.  But again despite paying regular bills the service of complainant No.1 was discontinued on the ground that a payment of previous service provider i.e. TATA Docomo is outstanding; despite the fact that the receipts of payments and bills were given to the sector 35 office of the Opposite Parties. Thereafter again complainant No.1 faced with the same problem and he was again asked to send the receipts of payment made to the previous service provider on 27.10.2014 which was again submitted and thereafter only the mobile service of complainant No.1 was restored. It is further averred that complainant No.2 had plan of Rs.149/ and did not opt for any internet service but the OPs on 1.11.2014 sent a bill of Rs.899/- which included Rs.530/- for internet usage which was never applied for or used on her mobile No. It is alleged that despite submitting receipts of payment made to previous service provider on 28.10.2014 with OPs,  they again surprisingly asked the complainants to clear their  outstanding bill with previous service provider i.e. TATA Docomo, which is clear cut act of deficient/negligent service on the part of the OPs. Ultimately the complainants served legal notice dated 26.11.2014 on the OPs. But they did not respond to the same. Alleging the said act of OPs as deficiency in service, this compliant has been filed.

 

2. Opposite Parties in their joint reply took preliminary objection that the complaint is not maintainable before this Forum in view of Hon’ble Supreme Court order in case of General Manager Telecom Vs. M. Krishnanan and Ors. It is stated that the Opposite Parties have not wrongly shifted the mobile NOs. of the complainants rather the mobile nos. were ported in accordance with the details mentioned and signed under the “customer application form”. It is asserted that the complainants have themselves signed and executed  Customer Application Forms (CAFs) and being highly educated can understand fully that the same details have become part of OPs company’s database and cannot be disputed thereafter. It has been denied that the complainant No.1 approached Sector 35 office of the Opposite Parties on 14.10.2014 and handed over an application with ID proof. The Annexure “A” attached by the complainants is vehemently denied as it is not the part of the record of the OPs. It is averred that rather the complainants failed to furnish valid and clear ID proof to the answering OPs despite repeated requests. It is further asserted that the complainants have not mentioned the date of discontinuation of any of the numbers and simply raised the averments.  The mobile services of complainant No.1 was barred owing to the reason that he miserably failed to clear the outstanding dues which was required to be paid to the previous operator i.e. TATA DOCOMO and further the said number was unbarred on the same day on 28.10.2014 after production of all such receipts regarding payments made to previous telecom operator.  It is denied that the complainant had paid the outstanding dues towards the clearance of the bill of TATA DOCOMO within the time frame and had provided copy of the receipt to Opposite Parties for activation of the said mobile connection; which is in complete contravention of terms and conditions mentioned under the MNP services as mentioned in ‘customer application forms’ as well as applicable vide MNP guidelines issued by DOT and TRAI from time to time. It is denied that complainant No.2 had not availed internet services on her mobile No. In fact since the activation of the mobile No. of complainant No.2 she was provided with the benefit of 100 mb 3G data for 10 days on  29.10.2014 as GPRS fixed validity pack and the same  is mentioned in bill invoice dated 1.10.2014. Since complainant No.2 exceeds usage of free data  therefore, she was charged at 4p/10kb and accordingly Rs.530.12 was charged in the bill. Pleading no deficiency in service and denying rest of the allegations, it is prayed that the complaint be dismissed.

 

3.     The Complainant also filed rejoinder thereby reiterating the averments as made in complaint and controverting that of the Opposite Parties made in the reply.

 

4.     Parties led evidence in support of their contentions.
5.     We have heard the ld. Counsel for the parties and have also perused the record.
6.           As far as the objection of the OPs that this Forum has no jurisdiction to entertain the case relating to telephone disconnection/non-payment in view of the law laid down by the Apex Court in case titled as General Manager, Telecom Vs. M. Krishnan and Anr.-III 2009 (8) SCC 481 is concerned, it is important to mention that the Govt. of India vide letter No.J 24/11/2014 CPU dated 21.8.2014 has sent a copy of letter No.2-17/2013-Policy-I dated 24.1.2014 to the Hon’ble National Commission as well as State Commissions of all State Governments and U.Ts.  Paras No.4 & 6 of the letter are reproduced as under :-

“4.        The matter has been examined in this Department. It is mentioned that the matter referred to in the Hon’ble Supreme Court (General Manager, Telecom Vs. M. Krishnan and Anr.) involved a dispute between Department of Telecommunications (DoT) as a service provider prior to the hiving off telecom services into a separate company namely Bharat Sanchar Nigam Limited (BSNL).  Since DoT was also the telegraph authority, reference was made by the Hon’ble Supreme Court to the provisions of Section 7B.  However, powers of the telegraph authority have neither been vested nor are available to private telecom service providers and BSNL. Therefore, recourse to section 7B in case of disputes between consumers and private service providers and BSNL would not be available. The Hon’ble Supreme Court’s judgment is sui generis in its application and has to be read with reference to the particular facts and circumstances of the case before it.

6.         In view of the above position, this Department is of the view that the request from Government of West Bengal proposing to consider preferring an SLP before the Hon’ble Supreme Court of India for making the position of law unambiguous in the context of Section 3 of Consumer Protection Act, 1986 is not required and the District Forums are competent to deal with the disputes between telecom consumers and telecom service providers.”

The Hon'ble High Court of Delhi in JK Mittal Vs. Union of India & Ors., WP (C) 8285/2010 decided on 6.2.2012 has considered the provisions of Section 7B of the Indian Telegraph Act, 1885 and held that the consumer claim is maintainable before the District Forum. So, we are not impressed with this contention that this Forum has no jurisdiction to try the dispute involved between the parties. 

7.     Admittedly the complainants were using TATA DOCOMO mobile Nos 92162-21199 (Sudhir Batish)  and 98780-29911 (Shreya Batish) respectively for a long time and they got ported  their respective numbers to Idea Cellular i.e. the OPs. The main allegation of the complainant is that the OPs while shifting the number of complainants to idea cellular inter-exchanged the numbers which they never intended or agreed.  To clarify the mobile No. which was used by complainant No.2 was ported in the name of complainant No.1 and mobile No. of complainant No.1 got ported in the name of complainant No.2. It is claimed that such act of the OPs caused a lot of mental agony and harassment to them.  The complainants alleged that while porting their numbers from TATA Docomo to Idea Cellular (OPs) they duly submitted their ID proofs and had also supplied the same twice to the OPs when they came to know that the OPs had inter-exchanged their numbers in order to correct the mistake committed by them. It is claimed that despite supplying requisite ID proofs the OPs had not corrected the fault and the complainants are continuously suffering inconvenience for the same.  They also claimed that even during the pendency of complaint the number ported in the name of complainant No.1 i.e. Mr. Sudhir Kumar which actually belonged to complainant No.2 i.e. Ms. Shreya Batish,  the OPs discontinued its service and with the intervention of this Forum were restored by the Opposite Parties as there  was no outstanding against the complainant No.1. An application dated 14.10.2014 was also given by the complainants to the OPs with ID proof but despite the same they did nothing to set right the things.
8.     The OPs in their defence submitted that wrong porting of the number occurred on account of negligent act of the complainants themselves who while filling up ‘customer application’ form wrongly mentioned their mobile numbers  which led to wrong porting of the numbers.  They claimed that the complainant duly signed the ‘customer application’ form mentioning their respective numbers and accordingly the same numbers were ported in their name.  The Opposite Parties admitted that the service of complainant No.1 was discontinued for the reason that there was outstanding amount against him and as such are fully competent to do so under the instruction of Department of Telecommunications (DOT), Government of India and Telecom Regulatory Authority of India (TRAI).
9.     We have thoroughly perused the evidence produced by the parties and have also considered the submission made by them. It is pertinent to mention here that the complainants separately filled Customer Application Forms Annexure R-2 (colly) at page 41 and 49 respectively. A meticulous reading of these forms reveal that the complainants had correctly mentioned their respective mobile numbers  at the relevant place on the upper portion of the form however, at below portion of the forms at columns under office use only  which was to be filled up by the officials of the Opposite Parties the mobile  numbers of the  complainants have been exchanged with each other meaning thereby that the officials of the Opposite Parties acted in a negligent manner while filling the columns mentioned under ‘office use only’ and wrongly mentioned the numbers of the  complainants, which led to wrong porting of their numbers with each other.  The pleading of the Opposite Parties is that the respective application forms were duly signed by the complainants. We find no merit in this pleading of the Opposite Parties as in our opinion normally such signatures are taken by the officials of the Opposite Parties in routine and in advance on the application forms on the ground that they will fill the column of official use only later on.  So it can be said that there was clear cut negligence on the part of the Opposite Parties and now they cannot take plea that the forms were signed by the complainants.

 

10.     We have also gone through Telecommunication Mobile Number Portability Regulations 2009 placed on record as Annexure R-4 and gather that it was the sole responsibility of the OPs to verify the particulars and documents of the customers who apply/opt for portability and are supposed to verify ID proofs from the respective applicants, which in our opinion the OPs badly failed to discharge their duty as per the said regulation. As such the plea of the Opposite Parties is absurd that despite repeated demands the complainants failed to provide ID proof, which they asked for only when the complainants complained about the wrong portability of the mobile Nos. It can safely be presumed that the numbers of the complainants were ported on the basis of application forms supported with ID proofs. Had there been any negligence on the part of the complainants in providing the ID proofs, the OPs would not have activated the facilities on their respective Numbers.  So demand of ID proofs again and again by the OPs is not genuine.

 

    The OPs also failed to discharge their duties as per the regulation referred earlier and failed to perform their duty to enquire about any outstanding dues while porting the numbers in question from the previous service provider, as such discontinuation of service on this account certainly have caused harassment to complainant No.1 though he had no outstanding amount to be paid to the previous service provider.

         It is further observed that the arbitrariness of the OPs is still in continuation as they have not made the necessary corrections in their record to redress the genuine grievance of the complainants despite repeated requests made on that account..  We are of the opinion that there is merit in the complaint and the same deserves to succeed.

 

11.     In view of the above discussion, the deficiency on the part of the OPs is writ large, thus the complaint is allowed and the Opposite Parties are jointly & severally directed as under:-

        

a]  To set right wrong portability done by them by porting the numbers of the complainants at their original numbers.

   

b]  To pay Rs.10,000/- as compensation for causing mental agony and physical harassment to the complainants due to their deficiency in service.  

C]  To pay Rs.7,000/- towards litigation expenses.

 

         The above said order shall be complied with by the Opposite Parties within 30 days of its receipt, failing which they shall be liable to pay interest on the above awarded amount at (b) at the rate of 18% p.a. from the date of this order till it is paid, besides paying litigation expenses.

 

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

11.2.2016

                                                                             Sd/-  

 (RAJAN DEWAN)

PRESIDENT

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER

 

Sd/-

 

(PRITI MALHOTRA)

MEMBER