This appeal is preferred against the Final Order dated 20.02.2019 delivered by Ld. D.C.D.R.F., Uttar Dinajpur at Raiganj in CC No 71 of 2016. The fact of the case in brief is that the respondent No. 1 Keshav Bajaj registered a Consumer Complaint to the effect that he purchased a mobile sim card as a customer vide No 9475222222 from BSNL Raiganj. Formally, it was Post Paid but subsequently it was converted to pre-paid system on behest of the Keshav Bajaj. Since, the day one of the such purchase of sim he could not get proper service from the BSNL Authority and for that reason he wanted to port his number to avail the service of Bharati Airtel and on the basis of such request the said sim Bearing No 9475222222. was ported to Airtel mobile service. After, porting Keshav Bajaj was getting proper service from Airtel but all of a sudden, the service of the sim on 13.01.2016 was automatically stopped. On 15.01.2016 he contacted with Bharati Airtel thereafter on 27.01.2016 the service of the said sim was completely stopped and he registered a GD before the Raiganj Police Station on 28.01.2016 and at that time it was detected to him that one person unknown to him was using the said sim allotted by Vodafone Company. He, then contacted with the Airtel Authority for using such sim by a different man. The Airtel Authority asked him to contact with Vodafone Company. He visited the office of Vodafone store who in response asked the Complainant Keshav Bajaj to go to office of BSNL. The Complainant on 17.02.2016 visited the office of BSNL and as per direction of the Authority of BSNL he had to deposit a sum of Rs. 3,000/- to cure the defects and BSNL Authority has issued a money receipt. But the service facility of the said sim remained stopped as another person was using the sim ported at Vodafone. So, he registered the instant Consumer Complaint against the Airtel Company, BSNL Company and Vodafone Company. Both the three companies have contested the case and denied the allegations levelled against them and contended inter-alia that the instant Consumer Complaint was not tenable in law and liable to be set aside as per provisions of Section 7 of Indian Telegraph Act.

According to the, case of the O.P No. 1 Bharati Airtel that in the month of January 2016 on the basis of a request of Complainant and as per porting guidelines the number was ported to other operator following the existing rules and regulations and for that reason the Complainant was not a consumer of O.P No. 1. The O.P No. 2 BSNL contended that the mobile facility allotted to the Complainant was shifted to Bharati Airtel on porting request of the Complaint. The Vodafone Company also submitted the W.V in this case and stated that the Complainant never approached this Vodafone Company for any porting of his mobile sim and as per the telephone regulations Complainant does not have any fiduciary relationship with Vodafone Company. The Ld. Forum after recording the evidences and after hearing the arguments came into conclusion that the cause of harassment of the Complainant was due to negligent act and deficiency of service on the part of Vodafone Company and for that reason the Vodafone Company was asked to pay compensation Rs. 30,000/- for mental pain and agony, Rs. 10,000/- as litigation cost to the Complainant and BSNL Authority was asked to refund the Rs. 3,000/- in favour of the Complainant which the company has received falsely from the Complainant. Being aggrieved with this order this appeal follows on the ground that the Complainant/Respondent No. 1 was ever have any fiduciary any relationship with the appellant and no cause of action was there against the Vodafone Company and the said mobile sim Bearing No 9475222222 was issued in the name of different subscriber in due compliance of all regulations by the Vodafone Company and this Complainant/Respondent No. 1 was not a customer of Vodafone Company. The grounds of appeal mentioned that all of a sudden, during the course of evidence the Complainant/Respondent No. 1 mentioned that he received a text massage from Vodafone “you have chosen Vodafone” and this statement was utterly false as because the Complainant never mentioned this in the original Consumer Complaint. So, the order of Ld. Forum against the Vodafone Company is inappropriate and not in accordance with law. The Complainant/Respondent No. 1 Keshav Bajaj, Bharati Airtel and BSNL Authority after receiving the notice of appeal has contested the case through their Ld. Legal Counsels and all of them filed Written Note of Arguments separately.

Decision with reasons

Appeal was heard in presence of all sides. During the course of hearing the appeal Ld. Advocate of the appellant mentioned that the Complainant/Respondent No. 1 was an original customer of BSNL and at his own instance the said sim number was ported to Airtel. After some days of such porting the service of the sim was completely stopped and Keshav Bajaj the respondent No. 1 registered a GD before the Raiganj Police Station and subsequently found that a different person was using the said sim number issued by Vodafone Company. The Complainant came to the office of Vodafone Company where he was instructed that he should go to the BSNL office for such defects he was facing and as per advice of Vodafone Company the Complainant/Respondent No. 1 went to the office of BSNL where the BSNL Authority in order to mitigate the dispute asked him to pay Rs. 3,000/- and according to the advice of BSNL Authority the Complainant had to pay Rs. 3,000/- by procuring a money receipt. Ld. Advocate further mentioned that here in this case the Vodafone Company was unnecessarily made a party to this case. The respondent No. 1 did not have any nexus with the Vodafone Company. He further referred the Paragraph No. 13 of the Consumer Complaint where it was mentioned that the cause of action arose on July 2005 when the Complainant ported his mobile number service connection from BSNL to Airtel and thereafter continuing day by day. and in that Consumer Complaint there was no whispering against Vodafone Company. Here in this case no services has been provided by the Vodafone Company to the Complainant/Respondent No. 1 and no consideration has been paid or promised or partly paid or partly promised by the Complainant/Respondent No. 1 to the Vodafone Company and as such the Complainant was not a consumer of the Vodafone Company. He further argued that at the time of cross-examination the Complainant/P.W.1 took a surprise note by mentioning that Vodafone by sending a text message informed him that “you are choosing Vodafone” but no documentary evidences is given to prove the same. He further mentioned that against Vodafone Company the Consumer Complainant never approached the Ld. Forum for any relief to be awarded in his favour from the end of Vodafone Company. But Ld. Forum has unnecessarily imposed the financial burden to Vodafone Company while Vodafone Company had no nexus with this incident. The Complainant as respondent No. 1 at the time of his argument mentioned that while the sim remained fully stopped from providing services, he found that the same mobile sim card was providing services to another person and the entire conspiracy was culminated by the three mobile companies that is Airtel, BSNL and Vodafone. He approached the Vodafone Company while the said sim was using in the name of a different person then Vodafone Company asked him to go to BSNL from where the original sim was issued. BSNL Authority without showing any reasons asked him to pay Rs. 3,000/- and he has deposited the same. But his problem was not sorted out. So, as per contention both the three mobile service companies are liable for such sufferings for the mental pain and agony and the financial loss on the part of the Complainant/Respondent No.1. Respondent No. 2 at the time of argument mentioned that from the chain of incidents in connection with this case makes it clear that the alleged sim number has been ported out from the network of respondent No.2 to the network of the appellant Vodafone Company through due process has laid down of the law of the land framed by TRAI and thus the entire cause of action of the case revolved between the Complainant and appellant Vodafone Company and respondent No. 3 BSNL. BSNL in their part mentioned in the appeal that originally the respondent No. 1 Complainant was the customer of BSNL who converted the sim Bearing No. 9475222222 from Post Paid to Pre-Paid thereafter at his own instance on July 2015 ported his number BSNL to Airtel and since then the respondent No. 1 ceased to be the customer of BSNL. While, he could find that the said sim number was using by a different person as customer of Vodafone he approached the Vodafone Company for disconnect of the number and as a request Vodafone deactivated the said number and the number became a free number and said free number again came back to BSNL on 12.02.2016. The Complainant came to the BSNL office on 15.02.2016 and requested verbally to get back the number. The JTO considered his request and wrote a request letter to sale phone technical service at Calcutta and as per direction of Circle Office Rs. 3,000/- was deposited on the part of the Complainant on 17.02.2016 as advance money.

Subsequently, the Complainant was communicated to deposit balance money of Rs. 15,000/- to get back the said number. As the number was then available as free premium number whose base price was fixed at Rs. 21,000/- and for that reason due to non-payment of balance amount of Rs. 15,000/- said number could not be given to him. And, subsequently the said number was allotted to another person at Siliguri after getting an amount at of Rs. 36,775/-. According to, BSNL, Airtel had duty to get back the number to the Complainant and on the other hand the Vodafone also had the duty to get back the number to Airtel. But due to contributory negligence on the part of the Airtel and Vodafone the Complainant has been harassed. The BSNL at the time of argument produced the guidelines formulated by TRAI. Ld. Advocate of the BSNL mentioned in his argument that there was catena of judicial pronouncements from Hon’ble Supreme Court and High Court that in such a disputes the only remedy of the customer of telephone services lies within the purview of Section 7B of Indian Telegraph Act and Consumer Protection Act does not come into his help.

After, hearing the valuable arguments canvassed by all the Ld. Advocates connected with this case it is reflected that the Complainant never approached Vodafone Company to port his number, he approached BSNL for porting and at his request the BSNL had ported the number to Airtel. The Complainant did not mention any single word in Consumer Complaint that Vodafone had any connection in respect of the said sim or he ported the said sim from Airtel To Vodafone. But he came to know that one person was using his said sim number allotted by Vodafone. He, in the cross-examination mentioned that he all of a sudden received a message from Vodafone in this phone that “you are choosing Vodafone”. Ld. Forum on the basis of such statement had believed that the said number was ported from Airtel to Vodafone. But no cogent evidence is produced on the part of the Complainant/Respondent No. 1 to prove the same. Rather, while the said sim number was already allotted or activated to a different person as alleged then in which way the Vodafone could sent phone message to him by mentioning “you are choosing Vodafone”. After, observing the incident in details it has established beyond any doubt that there was some system fault or server problem of all the three mobile service providers. Firstly, the said mobile sim was ported from BSNL to Airtel and such porting was taken place at the instance of the Complainant. The fact remains under the cloud to the score that in which way the said mobile sim was allotted to a different person from the end of Vodafone Company. The Complainant never approached Airtel Company to port his number to Vodafone Company. The Complainant also does not say that he approached Vodafone Company to port his number. BSNL says due to some fault on the part of the Airtel the allotted porting took place to Vodafone Company and when the Vodafone Company allotted the said number to a different person who was using the same instead of original owner of the said mobile sim and subsequently when it was brought into the notice of the Vodafone Authority then they deactivated the said mobile sim number and then it has converted to free number which was subsequently allotted in favour of a different person of Siliguri who has paid for the same to the tune of Rs. 31,000/- as auction price. Ultimately, in this incident a bonafide consumer has been severely harassed neither he could use the said mobile service in a proper manner and also, he was further harassed and humiliated while the number allotted to him was re-allotted to a different person beyond his knowledge. Definitely, there are negligence and contributory negligence on the part of all the three Telephone Service Providers connected with this case and simply shifting the entire liability upon the Vodafone Company is not practicable one. The Telephone Regulatory Authority has provided the advantage to the subscribers of telephone services for porting the telephone connection from a company to a different company at his own instance and due to some system failure and mal handling  during the process of porting on the part of service providers a genuine customer was harassed and for that reason the Bench thinks it fit that entire liability to be casted equally and proportionally upon all the Telephone Service Companies that is Bharati Airtel, BSNL and Vodafone Company in connection with this incident. The quantum of compensation imposed for mental pain and agony and litigation cost are found very practicable in nature and no excessive amount was awarded to penalize the Telephone Service Providers. But such amount should be paid in equal shares by all the three telephone companies connected with this case and BSNL Authority should be refunded Rs. 3,000/- to the Complainant which was squeezed from him. And for that reason, the Bench thinks it fit to modify the order of the Ld. D.C.D.R.F., Uttar Dinajpur at this Appellate Forum. Thus, the appeal has got some merits and the order of Ld. Forum should be interfered and modified as follows.

Hence, it’s ordered

That the appeal be and the same is partly allowed on contest without cost. The Final Order delivered by Ld. D.C.D.R.F., Uttar Dinajpur at Raiganj dated 20.02.2019 in CC No 71 of 2016 is modified as follows. The respondent No. 2 of the appeal Bharati Airtel, the respondent No. 3 AGM, BSNL Raiganj and the appellant Vodafone East Ltd. are directed to pay jointly Rs. 30,000/- all together to the Complainant as compensation for mental pain and agony and Rs. 10,000/- as litigation cost within 45 days. The BSNL respondent No. 3 is separately asked to pay another Rs. 3,000/- to the Complainant which it has received from him within 45 days.

If, they make such payment in due time as per order of this Commission no interest will be carried on and if such payment are not made within the stipulated period then the interest at the rate of 5% per-annum will be remained active.

Let a copy of this order be supplied to the parties free of cost and the same to be communicated to the Ld. D.C.D.R.F., Uttar Dinajpur.