BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 19^th DAY OF MARCH 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This complaint has been filed under Section 12 of C.P.Act, 1986 (herein under referred as an Act) has filed the complaint for the following reliefs against the OPS:-

(a) Direct the OP to provide the 4G services forthwith with no further delay.

(b) Direct the OP No.1 to pay compensation of Rs.1,00,000/-.

(c) Pass such other orders.

2. The case set up by the complainant in brief is as under:-

The complainant being the prepaid consumer of 4 G SIM of Airtel mobile service with mobile No.9008423261 has purchased a SIM from OP No.2 by paying Rs.2,000/-.  But, 4 G SIM provided to him at no 4 G tower display and he can get 4 G services.

3. Even though he served notice on OP no.1 by E-mail.  But, OPs failed to provide 4 G services.  Hence, this complaint.

4. After receipt of notice, the OP No.1 alone appeared and filed version.  Despite service of notice, OP No.2 failed to appear and OP No.2 has been placed exparte.

5. The Op No.1 contends that the complaint is not maintainable either in law or on facts.  OP No.2 is not the sale execute of BSNL and OP No.2 is only a Franchise.  As per the request of the complainant, the 4 G service was allotted and complainant recharged for Rs.1999/-.  3 and 4 G service are ruled out, complainant will not be able to get the service.  There is no deficiency of service on the part of OP No.1. The complainant never approached OP No.1.  OP No.1 is discharging sovereign functions and request to dismiss the complaint.

6. Despite sufficient opportunity granted to the complainant, he failed to file affidavit evidence with documents.  OP No.1 has filed affidavit evidence of its Divisional Manager, AGM and rely on one document.

7. Heard the advocate for OP No.1 only.  No argument is advanced on behalf of complainant.

8. The following points arise for our consideration:-

1. Whether the complainant proves deficiency of service on the part of OPs?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

9. Our answers to the above points are as under:

       Point Nos.1 and 2:  Negative.

      Point No.3: As per final orders

REASONS

9. Point No.1:  The allegations made in the complaint even denied by the OP No.1.  Despite sufficient opportunity granted to the complainant, he failed to file affidavit evidence. Whereas, the OP No.1 in support of its contention has filed affidavit evidence of Divisional Manager and AGM.  The OP No.1 relies on Ex.R.1.  Ex.R.1 indicates that OP No.1 BSNL has been providing 2 and 4 G network in a few SSA’s in Karnataka and the remaining SSA’s have 2 and 3 G network.  It further indicates that a customer with 3 G SIM will not be able to assess the network, if he moves to 4G network area whereas a customer with 4G SIM will be able to access the network in 2G, 3G and 4G network areas. Therefore, BSNL provide seamless service to the customers in all the three network areas BSNL is providing 4G to its customers. 
10. Even though, complainant alleged that he own 4 G SIM Airtel to his mobile number.  OP No.2 is not the employee of BSNL.  According to OP No.1, OP No.2 is only a SIM franchise.  The notice sent to OP No.2 returned with endorsement addresses absent.  But, such endorsement as taken as service vide order dated 14.09.2021. 
11. The question arises, whether complainant is able to prove the deficiency of service on the part of OP and entitlement in the absence of his evidence.  It is relevant to refer Section 38(3)(b) and (c) of C.P.Act, 2019 which read thus:-

38(3)(b) – If the OP, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Commission, it shall proceed to settle the consumer dispute-

1. On the basis of evidence brought to its notice by the complainant and the opposite party, if the opposite party denies or disputes the allegations contained in the complaint, or
2. Exparte on the basis of evidence brought to its notice by the complainant or fails to take any action to represent his case within the time given by the Commission.

38(3)(b) – decide the complaint on merits if the complainant fails to appear on the date of hearing.

12. This Commission can decide this complaint on the evidence filed by both the parties or in exparte matter, this Commission can decide the exparte matter on the evidence brought to its notice by the complainant. Even though, OP No.1 has filed version and lead evidence.  But, complainant has not lead evidence by filing affidavit evidence.  The complainant failed to comply Section 38(3)(b) of C.P.Act, 2019.  In the absence of evidence on behalf of the complainant, the case set up by the complainant cannot be accepted.  Apart from this, OP No.1 lead evidence in support of its contention.  The complainant failed to prove the deficiency of service on the part of OPs by filing affidavit evidence.  When the complainant failed to prove the deficiency of service on the part of OPs through evidence, complainant is not entitled to any reliefs.  
13. Point No.3:- In view of the discussion referred above, the complaint requires to be dismissed.   We proceed to pass the following

  O R D E R

1. The complaint is dismissed.
2. No costs.
3. Furnish the copy of this order to both the parties.

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 19^th March, 2022)

Documents produced by the Complainant which are as follows:-

Documents produced by the OP No.1 which are as follows:-