DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 112 of 30.04.2007<br /> Decided on : 23-08-2007 <br /> <br /> Gurvinder Singh S/o Sh. Darshan Singh R/o Village Sailbrah. Tehsil Phul, District Bathinda. <br /> ... Complainant<br /> Versus<br /> 1.M/s. Aggarwal Cojmmunications, Main Chowk, Rampura Phul, District Bathinda through its Prop/Partner Dinesh S/o Rajinder Kumar.<br /> 2.Airtel Communications, Regional Office, The Mall, Bathinda through its Authorised Representative.<br /> 3.Airtel Communications, H.O. 5/12 Qutub Ambience, Mehrauli, New Delhi 110 030 through its M.D. ...Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. Bikramjit Singh Ahluwalia, Advocate.<br /> For the Opposite party : Opposite party No. 1 exparte.<br /> Sh. Sunder Gupta, Advocate, for opposite parties No. 2 & 3.<br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT<br /> 1. Instant one is a complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as `Act') which has been preferred by the complainant seeking direction from this forum to the the opposite parties to restore his connection; pay him Rs. 50,000/- as compensation and Rs. 5500/- as cost.<br /> 2. Version of the complainant lies in the narrow compass as under :-<br /> 3. He is resident of village Sailbrah, Tehsil Phul, District Bathinda. For the purpose of earning his livelihood, work of recharging mobile connections was started by him. Demo No. 9815123686 having Sim No. 8991021205054546967 purchased by him from opposite party No. 1 was activated on 9.9.06. A sum of Rs. 512/- for the same was charged from him by opposite party No. 1. It was having validity of one year from the date of its activation. Thereafter he started recharging the mobile connections through his Demo by purchasing easy recharging from opposite party No. 1 from time to time. Opposite parties were paying commission to him to the tune of 2.70% on the net sale. He was having net sale of Rs. 60,000/- per month. This was the only source of his livelihood. Demo was released by the opposite parties after obtaining complete documents including identity proof. In the absence of identity proof, Demo could not be activated. After it was activated complainant was using it . On 30.3.07, message was received by him from the opposite parties to deposit the identity proof which was already deposited by him at the time of purchasing the connection. In order to avoid any further complications, documents regarding identity proof were submitted by him with opposite party No. 2 in the presence of Pardeep Kumar and Jagsir Singh residents of Sailbrah. To his dismay, opposite parties blocked his Sim and disconnected his connection on 1.4.07 without sufficient cause and reason. There was no fault on his part. He approached opposite parties No. 1 & 2 saying that identity proof has already been deposited by him at the time of of release of Demo connection and even thereafter when message was received from them and that his connection be restored. They paid no heed. To the contrary they say that Sim has already been blocked and cannot be restored. Further request was made by him that he is still ready to deposit the identity proof for getting the connection restored but the opposite parties did not accede to his request. He alleges that due to arbitrary act of the opposite parties, he has lost his only source of income and has undergone mental tension, agony, botheration, harassment and humiliation. In these circumstances, there is deficiency in service and unfair trade practice on the part of the opposite parties.<br /> 4. On being put to notice, opposite party No. 1 filed reply of the complaint taking legal objections that complainant has no locus standi to file the complaint. It is false and frivolous. It only starts the connection. Trading and disconnection is done by opposite parties No. 2 & 3. On merits, it admits that complainant had purchased Demo No. 9815123686. It was having Sim No. 8991021205054546967 which was activated on 9.9.06. A sum of Rs. 512/- was charged from him. Validity period was one year from the date of activation i.e. 9.9.06. He (complainant) was purchasing recharges from it from time to time. Commission was paid to him as per margin. It did not deny that complainant was having net sale of Rs. 60,000/- per month and that this work done by the complainant was only source of his livelihood. It admits that connection has been disconnected by opposite party No. 2. It does not own any liability for disconnection. Remaining averments in the complainant are denied by it.<br /> 5. Opposite parties No. 2 & 3 filed reply taking preliminary objections that complainant is not consumer as Demo Cards are used for carrying out the business of recharge to the subscribers and it is not for personal use; complainant has not approached this forum with clean hands; Demo connections are not issued to normal subscribers but are used only for commercial purposes and that complainant has admitted that he was using it for business purposes. Complaint has been filed with ulterior motive to harass them. It is false and frivolous; It has not been filed as per provisions of the Act. Amount claimed as compensation is exorbitant. Complaint involves complicated and complex question of fact which requires elaborate evidence and trial and as such, it can only be decided by civil court and not by this forum. On merits, they admit that mobile connection in question is a Demo connection which is used for sales functioning such as recharge application etc., They are not for sale in the market. They are used for their business purposes. As per their record, no documents of identity proof were received by them at the time of activation of the impugned connection. Any business entity using Demo connection does not become its owner. Activation and deactivation depends upon business considerations. They deny that they have acted arbitrarily and have caused harassment and mental tension to the complainant. They do not admit the remaining averments in the complaint.<br /> 6. In support of his averments contained in the complaint, complainant has produced in evidence his two affidavits (Ex. C-1 & Ex. C-2), affidavit of Jagsir Singh (Ex. C-3), affidavit of Pardeep Kumar (Ex. C-4) and phtocopies of invoice cum Delivery challans (Ex. C-5 to Ex. C-21)<br /> 7. In rebuttal, on behalf of the opposite parties No. 2 & 3 affidavit of Sh. Ritesh Chandra, Asst. Manager (Legal) (Ex. R-1) has been produced in evidence.<br /> 8. We have heard learned counsel for the parties. Besides this, we have gone through the record and written brief of arguments submitted on behalf of the complainant.<br /> 9. Sh. Rajinder Kumar was appearing as authorised representative of opposite party No. 1. On 6.8.07, no one was present on behalf of opposite party No. 1. Accordingly, it was proceeded against exparte. Exparte order has not been got set aside by opposite party No. 1 although Sh. Rajinder Kumar had appeared as representative of opposite party No. 1 on 22.8.07.<br /> 10. Facts that Demo connection No. 9815123686 was issued to the complainant and that it has been disconnected are not in dispute. Connection has been disconnected on the sole ground that complainant failed to deposit his identity proof.<br /> 11. First point for determination is as to whether complainant is consumer. Consumer has been defined in Section 2(1)(d) of the Act. Submission of the learned counsel for opposite parties No. 2 & 3 is that complainant is not consumer as Demo connection is issued for commercial purposes i.e. for easy recharging to retailers and that complainant himself has admitted that he was using Demo connection for business purposes. This argument of the learned counsel for opposite parties No. 2 & 3 cuts no ice in the facts and circumstances of this case. Connection was taken from opposite party No. 1. In para No. 1 of the complaint, complainant has averred that work of recharging mobile connections was started by him and Demo No. 9815123686 was purchased for earning livelihood. Even in para No. 2 of the complaint, he has stated in so many words that he was getting commission on the net sale @2.70% and that this was his only source of livelihood. Opposite party No. 1 has not denied these facts in the reply of the complaint. Hence they stand admitted on its part. Complainant reiterates his version on this aspect of the matter in his affidavits Ex. C-1 & Ex. C-2. His this stance has been supported by Jagsir Singh and Pardeep Kumar in their affidavits Ex. C-3 & Ex. C-4 respectively. Bald affidavit Ex. R-1 of Sh.Ritesh Chandra, Assistant Manager (Legal) stands amply rebutted with this evidence of the complainant. As per explanation under Section 2(1)(d) “Commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment. In this case, complainant obtained Demo connection and was using it for the purpose of earning his livelihood. Accordingly, he is consumer qua opposite parties.<br /> 12. One of the objections taken by opposite parties No. 2 & 3 is that complicated questions of facts are involved in this case which require elaborate evidence and trial which is possible only in the civil court and as such, this forum has got no jurisdiction. There is no substance in this objection. Opposite parties No. 2 & 3 have concluded their evidence of their own. Nothing was brought to our notice by them that any other evidence could be led by them which being elaborate could not be produced. Details of the alleged complicated and complex questions have not come before this Fora. We have no hesitation in observing that this objection set up by opposite parties No. 2 & 3 has not gone beyond the stage of objection. Moreover, matter has been set at rest by their Lordships of the Hon'ble Supreme Court in the case of CCI Chamber Co-op Housing Society Limited Vs. Development Credit Bank Limited III(2003) CPJ 9 (SC) by holding that merely because recording of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any Forum under the Act to the person aggrieved . Similar view has been held in the case of J J Merchant and Others Vs. Shrinath Chaturvedi and others III (2002) CPJ 8 (SC). <br /> 13. Contention of the learned counsel for the complainant is that identity proof was submitted by the complainant while taking the connection and also after message was received on 30.3.07 in the presence of S/Sh. Pardeep Kumar and Jagsir Singh. Despite this, opposite parties have blocked the sim and have disconnected the connection arbitrarily.<br /> 14. Contention of the learned counsel for the opposite parties No. 2 & 3 is that identity proof was not submitted by the complainant at any stage.<br /> 15. After Considering the rival contentions and critical appraisal of the facts on the record, we find that there is considerable force in the submissions of the learned counsel for the complainant. In para No. 3 of the complaint there are specific averments of the complainant that all the documents including identity proof were submitted. After completing the formalities and as per the rules and regulations, Demo was released by the opposite parties. Demo was activated only after obtaining the identity proof. There is no specific denial of this fact in the reply of the complaint submitted by the opposite parties. There is no evidence of opposite party No. 1 to controvert this averment in the complaint. It is worth mentioning that such like connections are issued by the concerned authorities after requisite formalities including submission of identity proof are completed. Affidavit Ex. R-1 cannot be given any weight. In his affidavits Ex. C-1 & Ex. C-2, complainant has supported his version. Not to speak of this, complainant through his affidavits and through affidavits of S/Sh. Jagsir Singh and Pardeep Kumar has established that he has again deposited the identity proof with opposite party No. 2. It is not a case where opposite parties have blocked the Sim and connection has been disconnected for default in the payment of charges. Allegation that connection was disconnected for want of deposit of identity proof is not substantiated. No doubt on the copies of the invoices which are Ex. C-5 to Ex. C-21 Happy Music Centre has been recorded. This does not in any way advance the cause of the opposite parties particularly when the fact of taking Demo connection and its disconnection on the ground of non-submission of identity proof are not in controversy. In these circumstances, unescapable conclusion is that blocking of the Sim and disconnection of the Demo connection of the complainant are arbitrary, illegal and un-warranted leading to deficiency in service on the part of the opposite parties.<br /> 16. Now question arises as to which relief should be accorded to the complainant in the given situation. Demo connection was purchased by the complainant from opposite party No. 1. It has been disconnected by opposite parties No. 2 & 3 as stated by the learned counsel for the complainant. Accordingly direction deserves to be given to the opposite parties to restore Demo connection to the complainant. Complainant is craving for compensation of Rs. 50,000/- for mental tension, agony, botheration, harassment, humiliation, loss in income and loss to his reputation. Facts and circumstances of this case warrant that some compensation be allowed to the complainant. Accordingly we find that it is a fit case where direction can be given to the opposite parties to pay compensation to the tune of Rs. 2,000/-. Ordered accordingly.<br /> 17. No other point was urged before us at the time of arguments.<br /> 18. In the result, complaint is allowed against the opposite parties with cost of Rs. 1,000/-. Opposite parties are directed to do as under :-<br /> i)Restore Demo connection No. 9815123686 of the complainant.<br /> ii)Pay Rs. 2,000/- to the complainant as compensation under Section 14(1)(d) of the Act.<br /> Compliance of this order be made within 30 days from the date of its receipt failing which the amount of compensation under Section 14(1)(d) would carry interest @ 9% p.a. till payment.<br /> Copy of this order be sent to the parties concerned free of cost and file be consigned to record room.<br /> Pronounced :<br /> 23-08-2007 (Lakhbir Singh )<br /> President<br /> <br /> (Hira Lal Kumar )<br /> Member<br /> <br /> (Dr. Phulinder Preet)<br /> Member<br />