Punjab

Ludhiana

CC/21/400

M/s Mittar Vegitarian - Complainant(s)

Versus

M/s Bharti Airtel Limited - Opp.Party(s)

Suresh Kumar

21 Nov 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                             Consumer Complaint No:  400 dated 31.08.2021.                                       Date of decision: 21.11.2024. 

 

1. M/s. Mittar Vegitarian, Building No.1, Country Home, Samrala Road, Khanna, Tehsil Khanna, Distt. Ludhiana, through its Partner Mrs. Shelly Ghai.
2. Mrs. Shelly Ghai W/o. Sh. Vijay Ghai, Partner of M/s. Mittar Vegitarian, Building No.1, Country Home, Samrala Road, Khanna, Tehsil Khanna, Distt. Ludhiana.                                                                                                                                                              ..…Complainants

                                                Versus

1. M/s. Bharti Airtel Limited, Plot No.21, Rajiv Gandhi Technology Park, Chandigarh-160101 through its Manager/Concerned Officer.
2. M/s. Bharti Airtel limited, Block-G, 454-G, Ferozepur Road,  Housing Board Colony, Bhai Randhir Singh Nagar, Ludhiana, through its Manager/Concerned Officer.
3. M/s. Bharti Airtel Limited, Opposite Kalgidhar Gurudwara Sahib, Nai Abadi Khanna, Tehsil Khanna, District Ludhiana, through its Manager/Sada Shiv Kochhar.                                                                                                                                                 …..Opposite parties 

Complaint Under Section 35 of Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants            :         None.

For OP1 and OP2          :         Sh. Govind Puri, Advocate.

For OP3                         :         Exparte.

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant M/s. Mittar Vegitarian is a hotel being a partnership concern and is also running two restaurants namely “Razza” and “PB-26”  under M/s. Mittar Vegetarian. In the year 2016, the complainant firm got issued five corporate numbers/Sims from the OP in name of Mittar Vegetarian, the detail of which is reproduced as under:-

Account No.	Number
1267538478	7087206791
1267540877	7087206790
1267538477	7087206789
1267540878	7087206793
1267538479	7087206792

 

The complainants stated that it has been regularly paying the consumption charges and rent for the above said numbers but due to some unavoidable circumstances and due to lock-down, could not deposit the consumption and rent charges due to which the services of the numbers were abandoned. One number 7087206789 was being used for office purpose for the services of customers, guests, general public and all online booking portals i.e. Booking.com, Goibibo, Make My Trip, Zamato etc. However, during the lockdown period due to Covid-19, the hotels were closed and the complainant could not deposit the consumption/rent charges for the above said numbers. When the restrictions by the Govt. were lifted and hotels were opened, the complainant deposited entire dues with the OPs then the OPs resumed all the numbers except one number 7087206789. The complainant approached the OPs with request to resume the said number and also sent Emails to the OPs then the OPs asked the complainant through Email dated 22.07.2021 to deposit Rs.300/- for further activation process, which the complainant deposited at office of OP3 along with requisite documents including Aadhar Card, Identification Card, Address proof and other documents. But OP3 on the instructions of OP1 and OP2 refused to receive the amount of Rs.300/- and refused to resume the services of said SIM number 7087206789 and demanded Rs.25,000/- as vanity charges otherwise the services of said number will not be resumed as the said number comes under a Paid Number. OP3 further threatened the complainant that if the said amount of Rs.25,000/- is not deposited within short time, then the said number will be sold to any other person. The complainants further stated that the said number 7087206789 was used for office purpose at booking counter and due to non-activation of said number, it effected the daily sale of Rs.10,000/- to their business. The complainants many times requested the OPs through Emails to resume the services of said number but the OPs paid no heed. The complainant claimed to have suffered financial loss as well as mental harassment and mental agony due to non-activation and no n-resume of services of above said number. The complainants also sent legal notice dated 10.08.2021 to the OPs but to no effect. Hence this complaint, whereby the complainant has prayed for issuing directions to the OPs to activate and resume the services of mobile No.7087206789 and to pay a compensation of Rs.3,00,000/- for loss of business, mental harassment etc. besides Rs.22,000/- as litigation expenses.

2.                Upon notice, none appeared on behalf of OP3 despite service and as such, OP3 was proceeded against exparte vide order dated 01.12.2021.

3.                Upon notice, OP1 and OP2 appeared and filed written statement. Under the column preliminary submission and objections, OP1 and OP2 assailed the complaint on the ground of maintainability; the complaint being false, frivolous and vexatious; the complainant being not a Consumer; lack of cause of action; concealment of material facts; lack of jurisdiction; the complaint being barred by limitation etc. OP1 and OP2 stated that the complainant does not fall within the definition of Consumer as per Section 2(7) of the Consumer Protection Act as the numbers in question were used by the complainant for commercial purpose. According to OP1 and OP2, they disconnected/suspended the mobile connections on 30.11.2020 only due to non-payment of bills for the months of August, September, October and November 2020 amounting to Rs.4674.74 as evident from the latest bill dated 21.11.2020 and as such, they were forced to disconnect the connection of the complainant. The complainant was called to make the said payment through repeated SMS and calls to enjoy the uninterrupted service but he failed to make the payment of outstanding dues due to which the number was disconnected.

                   OP1 and OP2 further stated that as per provisions of Rule 443 of the Telegraph Act which has been duly considered by the various High Courts, it has been categorically held that once the complainant is using the number and he is defaulted in making the payment of the said number, the Telegraph Authority can disconnect the connection in respect of his number other than the number which is in default. As such as per the Rule 443 of Telegraph Act the OP company is within its right to disconnect the connection of the complainant. The said Rule 443 of the Indian Telegraph Act is reproduced as under:-

"443. Default of payment. If, on or before the due date, the rent or other charges in respect of the telephone service provided are not paid by the subscriber in accordance with these rules, or bills for charges in respect of calls (Local and Truck) or phonograms or other dues from the subscriber are not duly paid by him, any telephone or telephones or any telex service rented by him may be disconnected without notice. The telephone or telephones or the telex so disconnected may, if the Telegraph Authority thinks fit, be restored, if the defaulting subscriber pays the outstanding dues and the reconnection fee together with the rental for such portion of the intervening period (during which the telephone or telex remains disconnected) as may be prescribed by the Telephone Authority from time to time. The subscriber shall pay all the above charges within such period as may be prescribed by the Telegraph Authority from time to time."

                  

                   OP1 and OP2 further stated that the present complaint is not maintainable before this Commission in view of the specific remedy available to the complainants under the provisions of Section 7-B of the Indian Telegraph Act, 1885 as amended up to date, which are duly prescribed that in case of a dispute between the Telegraph Authority and the person for whose benefit the service has been provided, the same shall be determined by Arbitration and for the purpose of such determination be referred to an Arbitrator appointed by the Central Government. The relevant provisions of Section 7-B are being reproduced below for the kind perusal of this Hon'ble Commission –

7-B. Arbitration of disputes.-(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section.

(2) The award of the arbitrator appointed under sub-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any court.

As such, the complaint is barred by the limitation imposed by Section 7B of the Indian Telegraph Act, 1885.

                   OP1 and OP2 further stated that the complainant has subscribed five mobile numbers from them bearing Nos. 7087206789, 7087206790, 7087206791, 7087206792 & 7087206793 under their Single bill Scheme with Relationship Number 1267262658. The above said numbers were duly running in the name of complainant till November 2020, but the same were disconnected on 30.11.2020 on account of non-payment of the outstanding dues at the end of the complainant. Subsequently, as the complainant failed to make the payment of the outstanding amount for the period of more than 4 months i.e. August, September, October and November 2020 and as such, the said numbers disconnected on 30.11.2020 and were permanently disconnected on 13.03.2021. Thereafter, the complainant made the payment of outstanding dues on 17.07.2021. As the numbers in question were already disconnected and as such, the same cannot be restored at the behest of the complainant. According to OP1 and OP2, the complainant is now seeking the restoration of his one number i.e. 7087206789 on account of the fact that the complainant was using the number for office purpose for the service of customers, guest, general public and all online booking portals i.e. Booking.com, Goibibo, Make My Trip, Zomato etc. which clearly shows that the number in question was used for commercial purpose. As such the complainant does not fall within the definition of the Consumer to invoke the jurisdiction of this Commission by filing the present complaint. Further the complainant has abandoned the services in respect of all other numbers except mobile No.7087206789 which was used by the complainant for the commercial purpose for the purpose of its business in respect of two restaurants and hotel being run by the complainant as detailed out in the complaint. Thus, the complainant himself being at fault cannot be allowed to take benefit of his own wrong and the number at the behest of the complainant cannot be restored in view of the fact that the complainant has failed to make the payment of the outstanding dues and thereafter, only after giving sufficient notices to the complainant, the numbers were disconnected by them.

                   On merits, OP1 and OP2 reiterated the crux of averments made in preliminary submission and objections. OP1 and OP2 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

4.                In evidence, complainant No.2 Mrs. Shelly Ghai tendered her affidavit as Ex. CA and reiterated the averments of the complaint. The complainants also placed on record documents Ex. C1 to Ex. C21 and closed the evidence.

5.                On the other hand, the counsel for the OP1 and OP2 tendered affidavit Ex RA of Sh. Ashutosh Kalia, Authorized Signatory  along with documents Ex. R1 to Ex. R4 and closed the evidence.

6.                None turned up for the complainants today also. We have heard the arguments of the counsel for OP1 and OP2 and also gone through the complaint,  affidavit and annexed documents as well as written statement along with affidavit produced on record by both the parties. We proceed to decide the case on merits.

7.                The complainant No.1 a post paid subscriber of five mobile Nos7087206789, 7087206790, 7087206791, 7087206792 & 7087206793 of the OPs under Single Bill scheme having Relationship No.1267262658. The complainants availed services of those postpaid numbers which were duly running in their name till November 2020. On 30.11.2020, the said numbers were disconnected by the OPs due to non-payment of outstanding dues of total amount Rs.4674.67 by the complainants for the period of more than four months i.e. August, September, October and November 2020 as reflected from the bills Ex. R1 to Ex R4. Thereafter, the said connections were permanently disconnected on 1303.2021. However, after a gap of 4 months, on 17.07.2021, the complainants made the outstanding payment of the outstanding dues with the OPs. But the restoration of the said numbers could not be affected as the said numbers were already permanently disconnected. The complainant sought restoration of only one number i.e. 7087206789 meant for on line booking purpose for service of customers, guests, general public as well as through online booking portals such as Booking.com, Goibibo, MakeMyTrip, Zomato etc. According to the OPs, they have further allotted the said numbers to other subscribers and now it is not possible to re-allot/restore the said number in favour of the complainants.

8.                Now the complainants by invoking jurisdiction of this Commission have sought restoration/activation of mobile No. 7087206789 and also sought compensation that they have suffered loss in business and they were deprived of usage of these phones during that period and due to this, they have suffered physical and mental pain and sought compensation in this regard.

9.                The complainants were fully aware of the fact that their all five connections were disconnected due to non-payment of outstanding dues for the period of four months and even they made the payment of the outstanding amount on 17.07.2021 i.e. much after the permanent disconnection of the said numbers on 13.03.2021. During this period the OPs sent repeated reminders and SMS alerts to the complainants but the complainants ignored the same and now by filing this Complaint are trying to take advantage of their own wrong. It can also be borne from the record that the complainants had ignored certain reminders in the shape of calls and messages issued by the opposite parties for payment of outstanding dues which were charged for the period from August 2020 to November 2020. As such, there is no deficiency in service on the part of the OPs.

10               Even otherwise, the complainants have failed to discharge the initial onus of deficiency in service on the part of the OPs. In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

“19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In view of the above said facts and circumstances of the case, the complainants have failed to prove the deficiency in service on the part of the OPs by any cogent and convincing evidence.

11.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.   

12.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)                               (Sanjeev Batra)               Member                                         President  

Announced in Open Commission.

Dated:21.11.2024.

Gobind Ram.