Delhi

North East

CC/105/2017

JASVINDER SINGH - Complainant(s)

Versus

JITENDER GUPTA COMMUNICATION SALUTIONS - Opp.Party(s)

25 Jul 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 105/17

 

In the matter of:

 

	Jasvinder Singh R/o D-26, New Govindpura Gali No. 8, Delhi-110051.	Complainant
	Versus
1.     2.     3.	Jitender Gupta Communication Solution G-3, Pankaj Plaza, Nirman Vihar, Delhi-92.   RM Communication A1/14, Krishna Nagar, Delhi-51.   Idea Cellular Ltd. A-68, Sec-64, Noida-201301.	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

27.03.2017 23.07.2018 25.07.2018

 

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

 

 

 

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Grievance of the complainant in the present complaint is that he had purchased a SIM card number 89910484011660503877 for his prepaid mobile number 8750401965 of OP3 cellular service provider company from Babbu Telecom at Govindpura Delhi on 15.06.2016 and got the same activated on 16.06.2016.  The complainant had applied for his aforesaid number to be transfered from prepaid to postpaid on 30.11.2016 with OP1 and paid a sum of Rs. 300/- vide receipt no. 191275938 for activation of the same and executive of OP1 gave a SIM number 89910433071518093499 to the complainant with assurance that the said number would be activated within 24 hours. The said number got activated on the mobile number 8750401965 as postpaid on 03.12.2016. The complainant thereafter received an itemized bill on 09.01.2017 for a sum of Rs. 350/- payable to OP3 which he paid vide cheque                no. 11814191 cleared on 11.01.2017. However the complainant did not receive the bill for the month of February 2017 for  which he lodged a complaint with OP3 helpline number 9891012345  where he was assured by the executive of OP3 that he shall receive the bill within next seven days. However, he did not receive any such bill and instead received a duplicate bill for February 2017 from OP3 for a sum of Rs. 876/- which the complainant paid on 01.03.2017. Thereafter, the complainant visited the office of OP1 on 03.03.2017 for converting his mobile number back to prepaid to postpaid but OP1 clearly refused to give him prepaid SIM for which the complainant then asked for refund of sum of Rs. 300/- which was also declined by OP1. Thereafter complainant visited office of OP2 on 10.03.2017 for conversion of his mobile number from postpaid to prepaid and OP2 demanded a sum of Rs. 300/- for the said service which the complainant paid to OP2 and was acknowledge by OP2 vide receipt dated 03.10.2017 and was given a new SIM                no. 889910412070534365522 with assurance that the said SIM will be activated within next two days. However, the said SIM never got activated for which the complainant personally visited office of OP2 on 18.03.2017 but did not get any satisfactory reply therefrom. Therefore the complainant was constrained to file the present complaint alleging deficiency of service on the part of OPs in failure to restore his mobile number causing him mental agony and failure to refund the sum of Rs. 600/- paid by the complainant to OPs for SIM activation and has prayed for issuance of direction against the OPs to restore the complainant’s number 8750401965 and refund complainant’s amount of Rs. 600/-, pay a sum of Rs. 10,000/- to the complainant as compensation for harassment mental agony and pain and Rs. 25,000/- towards cost of litigation.

The complainant has attached copy of itemized mobile bill for the month of February 2017 dated 1^st March, copy of mobile bill for the month of January 2017 dated 1^st February, copy of receipts dated 03.10.2017 and 02.12.2016 for sum of Rs. 300/- each paid in cash by the complainant towards SIM activation, copy of blank customer application form, copy of Andhra Bank Savings Accounts passbook of the complainant highlighting cheque payments made by the complainant to OP3 towards telephone mobile bills, copy of Syndicate Bank Savings Account passbook of the complainant highlighting cheque payments made by the complainant to OP3 towards telephone mobile bills and copy of three SIM card numbers of the complainant of OP3.

2. Notice was issued to the OPs. However none appeared on behalf of OP1 and OP2 despite service and were therefore proceeded against Ex-parte vide order dated 01.06.2017 and 09.01.2018. Written statement was filed by OP3 in which OP3 admitted that the complainant was using the mobile number in question as prepaid since 16.06.2016 till he got the same converted into postpaid on 02.12.2016 however OP3 contended that the complainant used the said number as postpaid till 11.03.2017 when he approached OP3 for transferring back the said number from postpaid to prepaid. He was given a SIM number 89910427011719331346 and was asked by OP3 to get the same activated into prepaid by dialing 59059 for tele-verification process for activation as per TRAI Regulations whereby certain question related to documents filed with CAF are asked by from the customer. However, the complainant has neither mentioned anywhere in his complaint that he dialed the said number nor he did dial the said number for verification and therefore his number could not be activated thereby alleging that the complainant has concealed the true facts for non activation of number by putting false and vague facts before this Forum. Further OP took the defence of non maintainability of the present complaint in view of the recent judgment of the Hon’ble Apex Court titled General Manager, Telecom Vs M. Krishnan and Anr. AIR 2010 SC 90 wherein the Hon’ble Apex Court while deciding the controversy regarding billing of telephone, has ousted the jurisdiction of consumer Fora with the observation “in our opinion when there is a special remedy provided in section 7 – B of Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under Consumer Protection Act is by implication barred.” The OP further contended and denied the allegation of complainant having received a duplicate bill of February 2017 for a  sum of Rs. 876/- and submitted that the OP3 was sending monthly bills regularly and the complainant was using the mobile number without any interruption or complaint. OP3 also submitted that regarding the excess amount of Rs. 677.66/- of the complainant after adjustment of security despite, bill payment and waiver charges, when the complainant disconnected his number from postpaid, the OP3 immediately refunded the said amount vide cheque no. 052918 dated 12.04.2017 drawn on Deutsche Bank for a sum of Rs. 677.66/- but the complainant refused to accept the said cheque and returned the same to OP3 before this Forum on 04.05.2017. The OP3 denied having issued any such SIM number 889910412070534365522 to the complainant and submitted that the complainant failed to get the SIM number 89910427011719331346 activated by dialing 59059 for reason best known to him. OP3 further highlighted that the payment of                       Rs. 300/- made by the complainant on 10.03.2017 was duly reflected in mobile bill generated on 1^st April 2017. Lastly, OP3 urged that there was no deficient service or negligence on its part as the complainant himself was negligent in getting his number activated as prepaid as per TRAI Regulations and the present complaint is false and frivolous and prayed for dismissal of the same. OP3 has attached copy of cheque dated 12.04.2017 for           Rs. 677.66/- as refund by OP3 to the complainant, copy of itemized bill for the month of March 2017 generated on 1^st April 2017 highlighted the usage of mobile phone and copy of power of attorney.  
3. Rejoinder was filed by the complainant in rebuttal to the defence taken by OP3 in its written statement and the complainant reiterated his grievance alongwith evidence by way of affidavit which was also a summary of the grievance made against the OPs in the present complaint.
4. Evidence by way of affidavit was filed by OP3 reiterating its defence and exhibited copy of customer application form with respect to SIM no. 89910427011719331346 and copy of refund cheque of              Rs. 677.66/-.
5. Written arguments were filed by the complainant reinforcing his complaint against the OPs.
6. Written arguments were filed by OP3 in which OP3 argued interalia that the complainant had falsely stated that he had not received bill of February 2017 whereas he had himself annexed the same dated 01.02.2017 alongwith his complaint which statement is contradictory to the conduct and allegation of the complainant.
7. We have heard the rival contentions of both the parties and have thoroughly perused the documentary evidence placed on record.

On perusal of bills filed by the complainant himself, it is clear and evident that they are not duplicate bills for January -February 2017 filed by the complainant alongwith the complaint since the duplicates bills always have an endorsement of duplicate bills against them contrary to which both the bills are identical in format. The complainant has concealed that he was using the mobile number 8750401965 till February 2017 whereas as per the copy of bill for March 2017 filed by OP3, there is a clear usage / duration of the number having been used by the complainant in March for local calls - cellular 39 and free air time (duration) shown as 3:00 charged @ Rs. 2.50/- after discount. The said bill shows a surplus of Rs. 677.66/- after deducting of the billed amount which the OP had offered to pay at the inception of complaint on the very first day of its appearance before this Forum on 04.05.2017 but the complainant refused to accept the cheque. Further we have observed that the sum of Rs. 300/- paid twice by the complainant to avail of services of OP3 was consumed since it was paid for transporting the number from prepaid to postpaid and then postpaid to prepaid for which the services were already availed by the complainant and therefore the same cannot be refunded. After giving a thoughtful consideration to the complaint and the defence by OP3 and documents filed by both and arguments forwarded by them, we find force in the arguments and defence of the OP3 and observed that no deficiency of service is made out against the OPs qua the complainant. The complainant cannot be allowed to take advantage of his own act of commission and omission of having availed the services of OP3 and not having dialed the 59059 for activation of his prepaid number as per TRAI Regulations and saddling the blame on to the OPs for his inaction for not taken steps for tele-verification. We therefore dismiss the present complaint under section 26 of Consumer Protection Act as frivolous and vexatious and direct the complainant to pay a sum ofRs. 2,000/- to OP3 for misusing the process of law and is also hereby warned to abstain from filing such frivolous complaints in future lest they be dealt with a heavy hand of law.

8.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.   File be consigned to record room.
10.   Announced on 25.07.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member