Delhi

North East

CC/138/2014

Prakash Chand Tiwari - Complainant(s)

Versus

M/S Idea Cellular Ltd. - Opp.Party(s)

30 Jan 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 138/14

 

In the matter of:

 

	Prakash Chand Tiwari R/o H.No. 73, Gali No. 1 A-Block, Maha Laxmi Enclave, Karawal Nagar, Near Shiv Vihar Pulia, Delhi 110094	Complainant
	Versus
1     2	M/s. Idea Cellular Ltd. A-68, Sector-64, NOIDA UP 201301   M/s Vibgyor Marketing Harsh Arcade, 3rd Floor, Plot No. 11, D.C. Chowk, Sector-9, Rohini, Delhi 110085	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:                DATE OF DECISION      :

21.04.2014 22.01.2018 30.01.2018

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

 

 

ORDER

Ms. Sonica Mehrotra, Member

 

1. Complainant has filed the present complaint against M/s. Idea Cellular Ltd. (OP1), M/s Vibgyor Marketing-(OP2) alleging deficiency in service on the basis of his grievance that the complainant is a user of IDEA pre paid mobile phone connection vide No. 980258312 since a long time and being in property dealer business with the title M/s. Pandit properties at Maujpur, Delhi the number has been supplied by complainant to his clients. On 21.09.2013, OP2 made an offer to convert of his pre paid connection to post paid connection and the complainant paid Rs. 300/- acknowledged vide receipt bearing Sl. No. 5369 dated 21.09.2013 for transferred connection to post paid on the assurance that the mobile connection would be transferred / connected to post paid within next 24 hours but in fact, it was not activated for a long time. Further complainant alleged that OP1 sent a mobile bill of Rs. 53/- dated 20.10.2013 for the period from 27.09.2013 to 19.10.2013 with due date 04.11.2013 despite the fact that the mobile was not in use due to being de-activated and as such the same amounts to deficiency in service on the part of OP1 & OP2. Complainant further alleged that due to deactivation of his said mobile phone number complainant had to lose his clientele, his dealings of properties collaboration and thus suffered a financial loss upto Rs. 10,00,000/-. Further, the complainant seeking Rs. 2,00,000/-from OP1 & OP2 in addition to Rs. 11,000/- for litigation expenses. It has been stated by complainant that legal notice was served to OP1 on 08.11.2013 and 06.01.2014 but no reply was received by the complainant and is claiming Rs. 5,500/- are to be charged from the OPs for the said legal notices.
2. Notices were served upon both the OPs. OP2 did not appear despite service effected upon it and was proceeded against ex parte vide order dated 07.07.2014.
3. Written statement was filed by OP1 wherein it is stated that the instant case is that of portability of number from Airtel to Idea and not from Idea prepaid to Idea post paid as stated by complainant.  The OP further urged that the number in disputed was disconnected due to non-payment of outstanding bills pertaining to said mobile number to the tune of Rs. 1764/-. The following bills were raised by OP to complainant :

		Amount (in Rs.)	Due date
	27.09.2013 to 19.10.2013
	20.10.2013 to 19.11.2013
	20.11.2013 to 19.12.2013
	20.12.2013 to 19.01.2014
	20.01.2014 to 19.02.2014
	20.02.2014 to 19.03.2014
	20.03.2014 to 19.04.2014

 

And has attached itemized bills from invoice dated October 2013 till April 2014 which the OP alleged the complainant did not file intentionally because the same reflected the number of calls made by complainant from this disputed number which were reflecting in these bills. It has been stated that complainant has not made any payment against any of the above said bills raised by OP1 and due to the reason of non-payment of the outstanding bills of the mobile number, the said mobile phone number has been disconnected temporarily on 02.04.14. And despite temporarily disconnection, the complainant made no payment, hence, the said number was deactivated permanently on 30.06.2014. The OP1 further states that it has given sufficient opportunity to the complainant for almost 6-7 months to clear the outstanding bills but to no avail. The OP1 has further disputed the claim of Rs. 10,00,000/- made by the complainant for loss of property business due to lack of evidence of complainant doing any such property business and proof of any project/ agreement / collaboration. Moreover, there is no proof of delivery of legal notices to OPs as claimed by the complainant. The OP has question the maintainability of present complaint on ground that this Forum has no jurisdiction to adjudicate the present complaint. Since, neither the OP1 nor OP2 is within the jurisdiction of this Forum since they are located at NOIDA and Rohini respectively. And further urged that u/s 7-B of Indian Telegraph Act, such disputes shall be determined by arbitration and shall for the purpose of such determination, be referred to arbitrator relying upon Judgment passed by Hon’ble Supreme Court in the case of General Manager, Telecom V/s M. Krishanan & Anr. The OP1 has also disputed the claim made by complainant seeking compensation of amount of Rs. 12,00,000/- for financial loss and mental agony and towards litigation expenses etc. Basing his rebuttal of complaint on the grounds taken in defence in his written statement the OP1 denied committing any deficiency in service and prayed for dismissal complaint as being false and vexatious.

4. Replication was filed by the complainant in rebuttal to the written statement of OP1 in which the complainant submitted that due to typographical mistake it was wrongly mentioned in complaint that the pre paid mobile number of complainant was ported from Idea to post paid Idea for which the complainant stated to have a separate affidavit and denied having used the number in dispute ever from October 2013 onwards. The complainant further disputed the subsequent bills raised by OP1 quo the said number and denied temporarily deactivation of the same stating that number was never activated at first place.  
5.  Complainant and & OP1 filed their respective affidavits of evidence exhibiting relevant documents in support of their case / defence.
6. Written arguments were filed by complainant and OP1.
7. We have heard the arguments forwarded by both the parties and perused the documents placed on record by complainant and OP1.
8. From the pleadings and subsequent corrections made by complainant it is clear that the issue pertains to the portability of disputed number from Airtel to Idea and not Idea Prepaid to Postpaid. The complainant has filed a single invoice dated 20.10.2013 for a sum of Rs. 53.04p which was immediately after the disputed number was ported from Airtel to Idea and has deliberately withheld and concealed the subsequent bills raised by OP1 from November 2013 till April 2014. On perusal of bills, there are itemized details for the disputed mobile number with pulse rate description with respect of Local and STD calls made by the complainant from the said number which proves beyond doubt that the said number was in used from activation since September 2013 till November 2013. Therefore, this issue stands settle in favour OP1 on two grounds firstly, the issue was that of portability from Airtel to Idea and not prepaid to postpaid and that the disputed mobile number was indeed used by the complainant as the itemized bills clearly reflected the usage and VAS charges levied on the complainant from October 2013 till November 2013 which bills are also reflecting the pulse charges for the said calls made.  Second objection taken by the OP1 regarding jurisdiction of this Forum quo maintainability of present complaint and adjudication thereof u/s 11(2) of CPA. In this regard though, bare perusal of Memo of parties clearly and unequivocally establishes that neither of the OPs had any corporate / registered / branch office within the territorial jurisdiction of this Forum and as such the condition stipulated in section 11 sub clause 2 (a) or (b) or (c) of CPA were not fulfilled, however the OP did not strongly oppose or question/dispute the jurisdiction of this Forum and therefore in accordance with proviso 11 (2)(b), it was deemed acquiescence on part of the OP with respect to jurisdiction of this forum and therefore as per section 11 sub clause 2 sub clause (b) this Forum granted permission to the complainant for being heard on the said complaint. In such cases, the advisable course of action is seeking permission of the District Forum right at the time of institution of complaint. Clause b of sub section (2) of section 11 has not provided any criteria or guideline on basis of which the complainant can ensure that the district Forum would, in all probability grants such permission; this therefore is a matter within discretion of District Forum. Thus the objection taken by the OP for non-maintainability is dismissed in this light. The third objection taken by the OP for the matter to be determined by an arbitrator under section 7 B of Indian Telegraph Act on the lines of judgment passed by Hon’ble Supreme Court in the case of General Manager Telecom Vs M Krishnan is also not sustainable since the Hon’ble Supreme Court specifically held therein that the dispute of private service providers with their individual consumer does not fall in the scope of section 7 B of Indian Telegraph Act 1885 and therefore private cellular service providers cannot avail the benefit of this judgment and consumers therefore have a right to challenge the actions of private telecom service providers by filing complaints under CPA 1986. Therefore this defence is also not sustainable and decided against the OPs.
9. After keen perusal of the entire documentation placed on record by both the parties and hearing the rival contentions, we are of the considered opinion that there is no doubt that the itemized bills filed by the OP particularly for the period September 2013 to October 2013 clearly show that several calls were made by the complainant from disputed number to various numbers STD as well Local and pulse rates also corroborates the same in tandem.
10. Therefore, we find no merits or truth in the instant complaint which has been filed as an afterthought and after using the SIM card of the OP and thereafter denying usage of the same. There are contradiction in the stand of the complainant with respect to his complaint and rejoinder where in the first instance, the complainant stated that he had got his number changed from pre paid to post paid and after the written statement of the OP, in his rejoinder stated and rather admitted that the issue was that of portability and not of billing. The complaint appears to be a false and vexatious one and therefore we dismiss the same under section 26 of Consumer Protection Act and impose a cost of Rs. 5,000/- payable by the complainant to the OP within 30 days of receipt of this order with a warning to refrain from filing such vexatious and frivolous complaint in future and the cost is therefore accordingly and appropriately imposed to act as a deterrent.    
11. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
12.   File be consigned to record room.

 

13.   Announced on  (30.01.2018)   

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member