DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.

 

Consumer Complaint No.: CC/46/2017

Date of Institution : 19.04.2017

Date of Decision : 15.04.2019

Anil Azad son of Sh. Parkash Chand resident of House No. 108, Green Avenue, Nanaksar Road, Barnala Tehsil and District Barnala.   

           …Complainant

Versus

1. Tata Docomo, Tata Teleservices Limited, Registered Office: Tower 1, Jeevan Bharti, 10th Floor, 124 Connaught Circus, New Delhi-110001 through its Director/Authorized Signatory.

2. Tata Docomo, Tata Teleservices Limited, G.M. Gallery, Street No. 6, Kacha College Road, Barnala through its Manager/Authorized Signatory.

        …Opposite Parties

Complaint Under Section 12 of Consumer Protection Act,1986.

Present: Sh. Lokeshwar Sewak counsel for complainant.

Sh. PS Masouen counsel for opposite party No. 1. 

Opposite party No. 2 exparte.  

 

Quorum.-

1. Sh. Amrinder Singh Sidhu : President

2. Sh. Tejinder Singh Bhangu : Member

 

(ORDER BY AMRINDER SINGH SIDHU PRESIDENT):

    The complainant namely Anil Azad son of Sh. Parkash Chand  has filed the present complaint under Consumer Protection Act, 1986(as amended upto date) against Tata Docomo, New Delhi and another(hereinafter referred as the opposite parties). 

2. The brief facts of the present complaint as stated by the complainant are that the complainant have two mobile numbers of the opposite parties having Nos. 97811-61111 and 90412-15029 and these numbers are ported in Tata Docomo CDMA on 9.1.2017 and 11.1.2017 respectively. The process of porting of both numbers in Tata CDMA was done by opposite party No. 2 and these mobile numbers are using by the complainant for his business purpose and numbers of calls come from various clients of the complainant on these numbers. Further, the complainant is regularly paying all the bills issued by the opposite parties and nothing is due against the complainant. 

3. It is further alleged that on 1.3.2017 signal of both the numbers disappeared then the complainant sent e-mail to the opposite parties at their complaint ID on 2.3.2017 and requested the opposite parties that the complainant has not been getting signal on both the numbers and cannot make or receive calls and he received the response from the opposite parties and asked the complainant to do some settings which he has already done but to no effect. Then, the opposite parties assured the complainant that they have registered the complaint of the complainant with service request No. 570574247 and it is expected to be resolved by 4.3.2017 inspite of intimating the customer about the withdrawal of Tata Docomo CDMA service the opposite parties made false commitment to resolve the problem by 4.3.2017. It is further submitted that when the CDMA services of the company is going to withdraw in just 50 days in Barnala region then why they ported the numbers of the complainant in Tata CDMA. But the opposite parties did not resolve the complaint of the complainant.

4. It is further submitted that then the complainant approached sub dealer at Barnala who told the complainant that company has withdrawn the CDMA services in Barnala and suggested the complainant to migrate the services from CDMA to GSM services. So, the complainant received new SIM after depositing his ID proof and old CDMA SIM and paid billed and unbilled amount. The complainant also sent emails to the Appellate Authority to activate number on new SIM provided by their sub dealer i.e. opposite party No. 2. 

5. It is further submitted that the complainant received email from the opposite parties and instructed the complainant to visit the outlet where the complainant have submitted the documents for further proceedings and complainant did so but with no result. They assured the complainant that there should be completion of 90 days in one operator to port out to another operator, then the complainant requested the opposite parties to divert calls to another number but he did not get any response. Then complainant made a complaint to National Consumer Helpline because the opposite parties did not give any prior intimation regarding withdrawal of its CDMA services from Barnala region and also sent email to the opposite parties and in reply the opposite parties told that the mobile number can be ported out after the completion of 90 days in the same operator/same technology or from the date of number activation.

6. It is further submitted that the complainant sent email to the opposite parties that as per TRAI every operator have to intimate the customer before disconnection of his number and withdrawal of its services but in this case the opposite parties did not do so and they never intimate the complainant at any time before disconnection inspite of their knowledge and complainant has suffered a great mental and physical tension as well as economic loss. 

7. It is further submitted that when the complainant approached Govt. site on 21.3.2017, the opposite parties diverted incoming calls of both the numbers to another number i.e. after 20 days of disconnection. But the opposite parties in place of activate the services of the complainant waived the bills of the complainant. Further, after completion of 90 days the complainant requested the opposite parties for porting code from them so that he can activate his numbers but the opposite parties have not provided any porting code to the complainant till filing of this complaint. On asking the opposite parties told to go to Sangrur or Bathinda to generate the porting code as signal of Tata CDMA is available in these Districts but complainant has already received new Tata GSM Sim from the opposite party No. 2 and how he can generate porting code from inactive Sim then again they made promise to provide porting code to the complainant but they failed to provide porting code. So, the act of the opposite parties is practicing unfair trade practice and there is deficiency in service on the part of opposite party. Hence, the present complaint is filed seeking the following reliefs:-

1) The opposite parties may be directed to provide port code so that the complainant can port out his numbers from Tata CDMA to other operator.    

2) To pay Rs. 1,00,000/- as compensation on account of physical and mental harassment.   

3) To pay Rs. 5,500/- on account of litigation expenses. 

4) Any other relief to which the complainant is found entitled. 

8. Upon the service of notice of this complaint, the opposite party No. 1  appeared and filed written version taking preliminary objections on the grounds that the complainant requested for Mobile Number Portability of the Del in question to the Tata Network and subscribed to the telephone connection in the month of January 2017 by way of submission of duly filled and signed Customer Application Form admitting the terms and conditions. The opposite party further alleged that at the end of February 2017 due to certain reasons the company was constrained to suspend its CDMA services in the area of complainant which was duly informed to the complainant vide email dated 21.3.2017, so there is no deficiency in service on the part of opposite parties. The opposite parties further alleged that vide email dated 21.3.2017 they requested the complainant that in order to avoid the network related issues to shift in the Tata GSM network post completion of 90 days in CDMA network which is in accordance with the Mobile Number Portability Regulations issued by Telecom Regulatory Authority of India. Regulation 6 (a) reads as under.-

6. Eligibility Criteria for making a porting request- Every subscriber shall be eligible to make a request for porting his mobile number:

Provided that

(a) a period of ninety days has expired from the date of activation of his mobile connection in the case of a mobile number not ported earlier, or from the date of activation of his mobile number after its last porting, in the case of a mobile number which has been ported earlier, as the case may be.

9. It is further submitted by the opposite party No. 1 that the mobile No. 97811-61111 has been ported out from the network of the answering opposite party on 25th April 2017 and other number 90412-15029 had been ported out from the network of the opposite parties on 5th June 2017. Further the opposite parties alleged that they waived of all the charges of the complainant and also sent a cheque of Rs. 108/- to him which has been received by the complainant on 13.6.2017. 

10. On merits it is admitted by the opposite party No. 1 that the complainant was customer of opposite parties and having mobile No. 97811-61111 and 90412-15029. It is further submitted by the opposite party No. 1 that the opposite party was constrained to suspend the CDMA operations in the area of complainant in the month end of February 2017 in accordance with terms and conditions which was informed to the complainant vide email dated 21.3.2017. The opposite party No. 1 submitted the remaining version on the same lines as taken in the preliminary objections so there is no need to repeat the same. Lastly, the opposite party No. 1 has prayed for the dismissal of the present complaint. 

11. The opposite party No. 2 refused to take the notice and not appeared before this Forum despite knowledge so the opposite party No. 2 was proceeded against exparte vide order dated 30.5.2017. 

12. The complainant in order to support his complaint has tendered in evidence his own affidavit as Ex.C-1, copy of email dated 21.3.2017 as Ex.C-2, copy of email dated 19.4.2017 as Ex.C-3, copy of email dated 26.4.2017 as Ex.C-4, copy of email dated 30.5.2017 as Ex.C-5, copy of tracking details as Ex.C-6, copy of email dated 18.4.201 as Ex.C-7, copy of email dated 21.3.2017 as Ex.C-8, copy of email dated 16.4.2017 as Ex.C-9, copy of email dated 21.3.2017 as Ex.C-10, copy of ebills of April 2017 as Ex.C-11 and as Ex.C-12, copy of ebills March 2017 as Ex.C-13 and as Ex.C-14, copies of complaint emails as Ex.C-15 to Ex.C-31 and closed the evidence. 

13. On the other hand the opposite party in support of their version have tendered into evidence copies of emails as Ex.OP-1/1 to Ex.OP-1/3, copy of docket delivery tracker screen shot as Ex.OP-1/4, affidavit of Mr. Rajesh Chauhan Manager as Ex.OP-1/5 and closed the evidence. 

14. We have heard the learned counsel for the parties and gone through the record on the file. Written arguments also filed by the parties.

15. Before going to the merits of the present complaint, firstly, we deal with the main objection of the opposite party No. 1 that the complainant is not a consumer of the opposite parties as he has used both the mobile numbers for commercial purpose. 

16. On the other hand the counsel for the complainant argued that the complainant is consumer of the opposite parties as he has used both the mobile numbers and regularly paying all the bills to the opposite parties and  nothing is due against him. 

17. As per Section 2 (1) (d) of The Consumer Protection Act, 1986 (as amended up to date) the definition of “consumer” is as under.-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose or

(ii) (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services  other than the person who (hires or avails of) the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose); 

Explanation- For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self employment

18. But in the present complaint, complainant himself admitted in his complaint and affidavit Ex.C-1 that he has been using both these mobile phone numbers for his business purpose and number of calls come from his various clients on these numbers. We have perused his entire complaint and affidavit which is Ex.C-1 but the complainant has not mentioned anywhere that he has used these numbers for his business purpose exclusively for the purpose of earning his livelihood by means of self employment, which clearly proved that the complainant has used these numbers for commercial purpose and in view of the Section 2(1)(d)(ii) of The Consumer Protection Act, 1986(as amended up to date) the complainant does not fall within the definition of a consumer. 

19. In view of the above discussion, without going to the merits of the present complaint, the same is hereby dismissed being the complainant is not a consumer of the opposite parties. However, there is no order of costs or compensation. Copy of the order be supplied to the parties free of costs. File be consigned to the records after its due completion. 

Amrinder Singh Sidhu, President who is the author of this order, assumed Additional Charge of this Forum as President on 01.01.2019 for only two days a week and this complaint is decided as soon as possible on the conclusion of arguments on 9.4.2019 by the learned counsel for parties.  

ANNOUNCED IN THE OPEN FORUM:

15th Day of April 2019

 

 

 

            (Amrinder Singh Sidhu)

           President

 

 

           (Tejinder Singh Bhangu)                Member