JUDGMENT

 Sri A.K.Patra, President

1. The captioned Consumer Complaint is filed by the complainant named above inter alia alleging negligence & deficiency in service on the part of Opposite Parties for unauthorized porting out of his Airtel SIM Card to Jio Sim Card by the OPs .
2. The complainant seeks for an order directing the OPs to issue the same SIM card bearing No.9777777738 to the complainant and for an award of compensation of Rs.5,,00,000/- towards mental agony & harassment , other incidental sufferings and cost of this litigation and further prayed for all other reliefs as this Hon’ble Commission may deem fit and proper.
3. The factual matrix leading to the case of the complainant as emerged from the case record is that, the complainant was using an Airtel SIM  card bearing NO.9777777738 for last 12 years i.e up to Aapril,2021with his mobile phone. On 17.04.2021 said SIM did not operate and on being enquired it is ascertained that ,said SIM card got port out  to JIO SIM by the Airtel Company on   the back & behind of the complainant and allotted to an unknown person. The matter is reported to the  IIC, Town PS Bhawanipatna. vide GD No.06/TBS dt.26.04.20222 .The complainant also swear an affidavit in this respect on 26.04.2021 stating therein that his SIM card got ported out  to JIO SIM on his back & behind and it is allotted to an unknown person. Said affidavit is produced before the Airtel authority, Bhawanipatna for needful action. But no avail for which the complainant suffered a lot. It is contended that ,the complainant was using the said SIM Card on various aspects with precious information linking with Bank Account , Adhar  Card, Pan Card and other useful agency and in such situation of inoperative of said SIM card the complainant sustained great loss with humiliation and embracing position in absence of said operated SIM card used earlier. Hence this complaint.
4. On being notice, the OP 1 & 2 appeared through learned counsel Sri B.B.Panda and filed their written version challenging the maintainability of the complainant for non joinder and mis-joinder of necessary parties so also it is contended that there is no cause of action to bring this complaint against the Ops liable to be dismissed .
5. The OP 3 did not turn up to contest this  case though notice through Registered Post is  properly served.
6. On merit, the OP 1 & 2 submitted  that, since the alleged SIM card was working till 17.04.2021 and thereafter the same was ported out to JIO and so   far as port out of a number is concerned ,the same can only be possible only when, the customer possessing the SIM , will initiate action for port out of the number and it is not possible without the knowledge of the complainant . The answering Ops are no way responsible for porting out the number .It is further submitted that, as per MNB guideline, if any port out request is received other than the valid reason, the OP company is bound to release the number to the recipient operator here in this case it is Reliance Jio Ltd. As the alleged number has been ported out to Jio ,the answering OPs has got no control over the said SIM Card . Therefore, the complainant was advised to approached  the Reliance Jio limited and to ventilate the grievance before the proper Forum to get back the said SIM number and that, there is no deficiency of service on the part of the  answering Ops rather, the complainant has neglected in handling the number & circumstances diligently which lead to a successful port out of SIM and after port out of the SIM the OPs has no role to play but the recipient operator can act solely on this matter who is not made a party in this case as such this complaint  is liable to be dismissed with cost for non joinder of necessary party. It is further submitted that, the complainant  is in no way entitle for any relief as claimed and that  the OPs has done nothing wrong towards the complainant rather this complaint has got no merit liable to be  dismissed with cost.
7. Perused the material available on record. We have our thoughtful consideration on the submission of both the parties in this case.
8. After perusal of the complaint petition, written version and all the documents relied on by both the parties placed in the record, the points for consideration before this Commission is whether there is any negligence & deficiency in service on the part of OPs   towards the complainant causing injuries to the complainant and whether the complainant is entitled to get the relief as claimed?

9. To substantiate his claim the complainant has filed the copy of his Aadhar Card , Copy of affidavit stated to be submitted  before the Ops dt.26.04.2021, Copy of FIR vide GD No.6/TPS dt.26.04.2021 of Town PS Bhawanipatna.
10. The facts that, the complainant was using an Airtel SIM bearing No.9777777738 and it has been ported out to Jio Sim on dt.17.04.2021 are not disputed.
11. The OP has challenged the maintainability of this complaint on the ground of non joinder of necessary party. The written version of the Ops is duly received by the Learned Counsel of the complainant on 2.8.2022 but no steps has been taken for addition of party or for amendment of the complaint petition.
12. Admittedly the alleged SIM Card is ported out to Jio and the
    Reliance Jio Ltd. has been operating the alleged Sim Card as on date. No effective order can be passed to restored the alleged SIM card to the complainant by reverting it again from Jio SIM Card to Airtel   Sim Card   without hearing the Reliance Jio Ltd . The complainant has received the copy of the written version of the answering Ops. Though sufficient opportunity has been availed after receiving of the copy of the written version of the Ops but the complainant has deliberately failed to add the Reliance Jio Ltd as a necessary party in this complainant. As such we are of the opinion that, the Reliance Jio Ltd a necessary party in this case and accordingly this complaint is bad for non joinder of necessary party.
13. No evidence on affidavit as prescribed in C.P.Act 2019 is adduced by the complainant. The photo copy of documents filed by the complainant as per list along with his complainant petition without  authenticated by fundamental evidence that, the photo copy is in fact a true copy of the original may not be accepted as evidence,(Reliance placed on the ratio of judgement of Honourable Supreme Court in M.Chandra Vrs. M. Thangamuthu & another ,reported in 2010(ii) CLR (SC) 746 :(2010) 9 SCC 712 ) .Here the  complainant has failed to adduce any cogent evidence  to substantiate his claim.
14. As per Sec.38(6) of C.P.Act,2019 every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record ; as such it casts an obligation on the District Commission to decide the complaint on the basis of evidence brought to its notice by the complainant and the service provider/seller, irrespective of whether the service provider/seller adduced evidence or not. The decision of the District Commission has to be based on evidence relied upon by the complainant. The onus thus is on the complainant making allegation.
15. Law is well settled that, complainant is to prove deficiency in service as alleged against the Ops but here the complainant failed to prove any negligence & deficiency of service on the part of the Ops.
16. Based on above facts & circumstances and settled principle of law, we are of the opinion that this complaint sans merits. Hence , liable to be dismissed against the OPs on contest. However, no order as to cost.

O R D E R

 This consumer complaint is dismissed on contest against the OP 1  &     2 and   exparte against OP 3. No order as to costs and compensation.  

Dictated & corrected by me.

      President

                     I agree.

Pronounced in open Commission today on this 16^th August   2023     under the seal and signature of this Commission .The pending application if any is also stands disposed off accordingly.

Free copy of this order be supplied to the respective parties or they may download the same from the Confonet to treat the same as copy of the order receipt from this Commission. Order accordingly.