Heard learned counsel for the appellant virtually.

2.            None appears for the respondent.

3.              This appeal is  filed  U/S-15 of erstwhile  Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to  with reference to their respective status before the learned District Forum.

4.             The case of the complainant in nutshell is that the complainant  being a lawyer used the mobile  hand set having Mobile no.9437377667. It is alleged inter-alia that complainant lost the mobile hand set on 11.03.2008  and approached the OP to supply a new Sim keeping the same mobile number  for his profession. O.P. agreeing to sell another Sim subsequent FIR being lodged at local police.  However, the complainant was issued a Sim card by the OP on 15.03.2008 on the assurance  that it will be activated on 16.03.2008 but the sim card did not function till 25.03.2008 inspite of several request of the complainant. Moreover it is alleged that  after sim card getting activated, it was found that the previous account balance of Rs.245/- was not added to the next recharge on 26.03.2008. The complainant also informed OP about such fact. Since, the matter could not be solved, the complainant filed the complaint case alleging deficiency of service on the part of the OP.

5.           The OP  filed written version stating that after blank sim was  purchased on 15.03.2008 by complainant it was supposed to be activated on 16.03.2008 but due to technical problem from 11.03.2008  to 23.03.2008 the sim card could not be activated and it was activated on 24.03.2008. It is also stated by the OP that the allegation with regard to the non-adjustment of the previous balance of Rs.245/- has bee also taken care and it has been adjusted  in the meantime. So, he submitted that there is no deficiency of service or negligence on the part of the OP.

6.              After hearing both the parties, learned District Forum passed the following order:-

                     Xxxx              xxx                xxx

 “  From all above, we direct the OP to pay compensation of Rs.1000/- to the complainant within a span of one month from the date of this order and also adjust Rs.245/- in his Sim Card within that period. With this the case is disposed of.”

7.          Learned counsel for the appellant submitted that learned District Forum committed error in law by not appreciating the written version filed by the OP with proper perspective. According to him the technical fault can not be considered as  negligence or deficiency  of service on the part of the OP. Moreover, when Rs.245/- has already adjusted after getting complaint from complainant, there is hardly any  deficiency of service on the part of the OP. Therefore, he submitted to set-aside the impugned order by allowing the appeal.

8.           Considered the submission of learned counsel for the appellant,  perused the DFR and impugned order.

9.           It is for the complainant to prove the deficiency of service on the part of the OP. It is admitted fact that the complainant has lost the sim card and approached the OP to supply another sim card and it has been already supplied after request of the complainant. It is admitted by the OP that due to technical fault it could not be activated till 24.03.2008. It is also admitted fact that Rs.245/- was not adjusted to the next balance of the new sim card but later it is adjusted on the approach of the complainant.

10.      Learned District Forum observed that the technical fault can not exonerate OP  from  the negligence  in duty being a  service provider for which it amounts to deficiency of service. This hyper  analysis is irrational and unreasonable. When it is admitted that it is technical fault and beyond the human  control, it can not be said that the OP has negligence in causing delay. Moreover, when Rs.245/- has been already adjusted on the approach  by the complainant, there  hardly remained any deficiency of service on the part of the OP.

11.                  In view of the above discussion, this Commission is of the view that the impugned order is illegal and improper and is liable to be  set-aside and  it is set-aside.

                       The appeal stands allowed. No cost.  

                        Free copy of the order be supplied to the respective parties or they may download same from the confonet  or webtsite of this  Commission to treat same asif  copy of order received from this Commission. 

                       DFR be sent back forthwith.