Rakesh Gupta complainant through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that opposite parties be directed to activate the SIM and pay the amount of Rs.One Lakh alongwith interest @ 24% per annum w.e.f. 15.5.2015 till realization for the mental harassment, agony, inconvenience and insult alongwith litigation expenses in the ends of justice.
The case of the complainant in brief is that he was running a business of photo copying machines for earning his livelihood and his entire business was based on his mobile. It was pleaded that he was using Mobile No.09357406508 of opposite party No.2 for his entire business for the last 10 years and his mobile phone was lost on 14.5.2015 with SIM which was inserted in it and as per the rule complainant had purchased new duplicate mobile SIM on 15.5.2015 from opposite party no.1 who was the authorized dealer of the opposite party No.1 but after the lapse of sufficient time the same i.e. SIM was not activated by the opposite party inspite of repeated requests of the complainant. It was further pleaded that complainant was repeatedly asked the opposite party to activate his SIM and ultimately a notice dated 23.5.2015 was served upon the opposite by the complainant and he was falsely told that his SIM had been activated on which he again approached the opposite party No.1 who misbehaved with him and asked him to do what ever he can do and threatened to kill him if he will come to his shop. It was also pleaded that complainant had suffered great loss of business due to illegal act and conduct of the opposite parties and had also suffered harassment, mental agony and financial loss to the tune of Rs.50,000/- and as such he is legally entitled to receive the amount of Rs.50,000/- and Rs.50,000/- as damages from opposite parties. It was next pleaded that complainant got served a notice dated 23.5.2015 upon the opposite parties but opposite party refused to activate the SIM and had also refused to make payment and rejected his claim and the cause of action to file the present complaint had accrued to the complainant on 15.5.2015 when he had approached the opposite party No.1 to pay the amount, on 25.5.2015 when he approached the office of opposite party No.2 and opposite party No.2 had refused to activate the SIM and pay the damages amount, hence this complaint.
3. Notice of the complaint was issued to the opposite parties. Sh.Vijay Kumar Sharma Prop. of opposite party no.1 had appeared and filed the written reply in which he stated that he had no idea about the business activities of the complainant and he was a channel partner of opposite party No.2 and he had sold a SIM to the complainant for Rs.25/- only. It was further stated that SIM was to be swap by the opposite party No.1 and Hand Set Data Service had already been activated on the concerned Mobile No. i.e. 09357406508 of the complainant and it was mandatory to first of all close those services for getting the SIM swaped. It was pertinent to mention here that closure of HSD services on the mobile was not in the hands of opposite party No.1, it was only done by opposite party No.2 and opposite party No.1 was regularly pursued with opposite party No.2 for the closure of HSD services so that SIM may be swaped. It was also stated that when HSD services were closed by opposite party No.2 SIM was immediately swaped and the allegations about the misbehaved are totally baseless and denied. Opposite party No.1 had not appeared for producing the evidence and his evidence was closed by order on 23.11.2015. Notice was issued to opposite party No.2 but the same was not received back and by taking the presumption the opposite party No.2 was ordered to be proceeded against exparte vide order dated 4.9.2015.
4. Counsel for the complainant tendered into evidence affidavit of complainant Ex.C1 alongwith other documents Ex.C2 to Ex.C8 and closed the evidence on behalf of complainant.
5. We have duly considered the pleadings of the parties; heard the arguments advanced by the counsel for the complainant and have also appreciated the evidence produced on record with the valuable assistance of the learned counsel for the complainant for the purpose of adjudication of the present complaint.
6. Counsel for the complainant has contended that complainant was running a business of photo copying machines for earning his livelihood and his entire business was based on his mobile phone No.09357406508 which he was used for the last 10 years and was lost on 14.5.2015 with SIM which was inserted in it. He has further contended that after the loss of mobile phone he had purchased new duplicate SIM from opposite party No.1 i.e. dealer of opposite party No.2 but inspite of his repeated requests opposite party No.1 had failed to activate his SIM and due to this illegal act and conduct of the opposite parties complainant had suffered great financial loss and harassment. To prove these facts complainant has placed on record a E-mail/letter dated 20.5.2015 which is Ex.C2 in which he informed the opposite party No.2 that after the loss of his mobile he had purchased a new duplicate SIM from opposite party No.1 which is the dealer of opposite party No.2 but the same had not been activated inspite of his repeated requests. A reminder to this effect was also send by the complainant to opposite party No.1 which is Ex.C3 and in response to it he received a E-mail dated 21.5.2015 from which he came to know that as per the record of opposite party No.2 his mobile services have been activated.
7. On the other opposite party No.1 had failed to produce the evidence and the same was closed by order on 23.11.2015. Opposite party No.2 did not appear to contest the claim of the complainant and was proceeded against exparte from which it is clear that opposite part No.2 has admitted the claim of the complainant and has not rebutted the evidence produced by him.
8. From the entire above discussion we partly allow the present complaint by giving the directions to the opposite party No.2 to activate the SIM of the complainant. Opposite party No.2 is also directed to pay Rs.3000/- as compensation as well as Rs.2000/- as litigation expenses to the complainant within 30 days of the receipt of the copy of these orders otherwise the aggregate amount shall carry an interest @ 9% P.A. from the date of orders till actual payment.
9. Copy of the order be communicated to the parties free of charges. File is ordered to be consigned to the record room.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
NOV. 27, 2015 Member.
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