IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 29th day of September 2021.
Filed on 19-06-2020
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Sholy P.R, B.A.L,LLB (Member)
In
CC/No.133/2020
between
Complainant:- Opposite parties:-
Sri.G.Samuel 1. The Authorized Officer
(Secretary Human Rights Idea Customer Care
Protection Council) Circle Office, V.J.Tower
Valyaparambil Vyttila.P.O, Kochi-19
Mankamkuzhi.P.O
Mavelikkara, Alappuzha 2. Smt. Bindhu Gopal
( Party in person) Appellete Authority
Idea- Kerala Circle Office
Vodafone – Idea Ltd.
V.J.tower, Vytila.P.O
Kochi.-19
(Adv. George.V Thomas for Ops)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 12 of the Consumer Protection Act, 1986.
Material averments briefly stated are as follows:-
Complainant is the State Secretary of Human Rights Protection Council and also the editor of Manishada Magazine. He was having a mobile connection as No. 9349149977 from M/s Vodafone. The service of M/s Vodafone was not satisfactory and M/s Idea Company had contacted him and assured good service. Accordingly he ported his connection to M/s Idea. On 17/1/2020 during night the connection was disconnected. On 18/1/2020 he contacted the 2nd opposite party. It was informed that there is no balance in the account. When he contacted again it was informed that Rs.275/- is due to M/s Vodafone and when it is paid connection will be given. Accordingly he paid Rs.275/- and inspite of that connection was not given. When contacted it was told that connection was disconnected by M/s Vodafone. Thereafter 1st opposite party was not attending phone calls. When complainant contacted idea customer care it was told that he is having 10 connections and that is why the problems occurred. He contacted idea showroom at Trivandrum and after verifying it was told that the connection is not that of them at it belongs to Vodafone.
2. Complainant filed a complaint against 1st opposite party at Mavelikkara Police Station and at the time of enquiry opposite parties informed that it was their mistake. On 18/1/2020 at 9.PM complainant sent an e-mail to idea and within 10 minutes connection was restored. On 19/2/2020 during night phone was disconnected and it was restored after two weeks. There is deficiency of service from the part of opposite parties. He filed a complaint as CC/39/2020 and it is pending. Opposite parties are taking vengeance against the complainant for filing CC/39/2020. Though mobile phone companies are regulated by TRAI it is not approachable for common man. Disconnecting the mobile phone of the complainant without sufficient reason caused much inconvenience and difficulty to the complainant. Hence the complaint is filed for realizing an amount of Rs. 5,00,000/- as compensation since he was unable to use the phone for about 2 weeks. Direction may be given to the mobile companies to exhibit names of proper forums to make complaint and to direct them to keep complaint book.
3. Opposite parties filed a version mainly contenting as follows:-
The opposite parties provide normal acceptable standard of service to its subscribers. The terms and conditions of the subscription agreed by the complainant is binding him. Telecom Disputes are subject to adjudication by the expert technical agency or adjudicating authority as per Indian Telegraph Act and TRAI Act 1997. The technical over tone in this matter could be confirmed through expert adjudication alone. The jurisdictions of Consumer Protection Forums are ousted as concluded by the Hon’ble Supreme Court. Therefore the present dispute is not maintainable before this Commission.
4. Vodafone India Ltd and Vodafone mobile services ltd merged with and into Idea Cellular ltd as per the order of the National Company Law Tribunal Ahmedabad and Mumbai Bench with effect from 31/8/2018. However for the purposes of mobile number Portability and network, the same continues to operate under two different network operators under the brand Vodafone and Idea respectively.
5. As per Customer Application Form submitted to the company, the subscriber of the connection No.9349149977 is the complainant with effect from 7/11/2019. He was an erstwhile Post- paid Customer under Vodafone Network and had an amount of Rs.274.13/- as outstanding usage charges at the time of porting into idea. Copy of the last bill dated 22/11/2019 of the customer is produced. The customer failed to clear its outstanding charges with the Donor Operator at the time of porting the number to Idea network. As per the Mobile Number Portability Regulations, in the event of any outstanding balance due to the Donor( Original Operator), Vodafone in the present case, the recipient operator (this opposite party) shall bar the services unless such outstanding has been cleared by the customer within due date and the payment receipt is submitted to the recipient operator.
6. Opposite parties disconnected service connection on 17/1/2020 and subsequently on 18/3/2020 on getting instruction from the donor service provider on 2/1/2020 that there is bill outstanding under Vodafone Network and therefore without clearing the same the service cannot be continued as per MNP Regulations. The fact that the customer had subsequently cleared the outstanding payment was not communicated to this opposite party until 28/3/2020 by which date the subscriber connection had churned and returned to the original owner of the subscriber connection M/s Reliance communications. The burden of proving clearance of the outstanding amount due to the Donor Network is on the complainant. However on raising complaint by the customer as of initial Non Payment Disconnection on 17th January and as a gesture of goodwill, customer claiming to hold socially relevant position, the disputed connection was re-activated on 20/1/2020 even in the absence of confirmation of receipt of payment with M/s Vodafone.
7. Even after reconnection of the ported number as concession to continue usage under Idea Network, customer failed to furnish the proof of payment of his outstanding dues with Vodafone. Therefore as per the MNP process as prescribed by the MNP Regulations on the 89th day of porting the number got disconnected and reversed to the original operator Reliance Communications. The mobile number portability is being handled by a specific department/ vertical of the Company as required by Government Authorities since MNP is a very sensitive procedure. As per MNP guidelines Donor Service Provider called upon for a disconnection specifying the outstanding.
8. On getting complaint this opposite partie has gone beyond and exceed its customer service excellence in ensuring that the customer gets the same number re-activated back from Reliance Communications into Idea Network. Amidst the peak of Covid 19 infection and lockdown customer executives of the opposite party ensured to activate fresh SIM for the customer by reversing the connection from Reliance Communication.
9. The statement of the complainant that after clearing outstanding payment the calls made by the complainant were intentionally not answered etc is false. This opposite party runs 24x7 customer call centre which is accessible to all the customer across India 365 days 24x7. In addition to the same, the customer is also provided the opportunity to raise written complaint to the Customer Nodal Officer as also register complaint by approaching Company Retail Stores. The statement of the complaint on his visit to retail out let at Trivandrum is false. The story of police complaint is also false.
10. This opposite party was not in receipt of any email complaint from the complainant. There is no other consumer complaint is pending against this opposite parties filed by the complainant. There was no attempt to withdraw consumer case no.39/2020 as alleged. This opposite party had provided special concessions and subsidies to subscribers as suggested by the Government which interalia included specified free top- ups, wavier of certain charges, wavier of certain tariffs, wavier of certain value added charges and the like. There was no negligence of deficiency in service on the part of this opposite party. Complainant had no loss, injury or hardship from this opposite party. Complainant is not entitled to get any relief and hence the complaint may be dismissed.
11. On the above pleadings following points were raised for consideration?
1. Whether there was deficiency of service from the part of opposite parties as alleged?
2. Whether the complainant is entitled to realize an amount of Rs.5,00,000/- as compensation from the opposite parties as prayed for?
3. Reliefs and cost?
12. Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A3 from the side of the complainant. Opposite parties have not adduced any oral evidence Ext.B1 was marked.
13. Point No. 1 and 2:-
PW1, the complainant was having a mobile connection as No. 9349149977 from M/s Vodafone India Ltd. Since the services were not satisfactory he ported to M/s Idea Cellular ltd (idea in short). On 17/1/2020 his connection was disconnected. When he contacted 1st opposite party on 18/1/2020 during night. It was informed that Rs.275/- is due to M/s Vodafone and hence the disconnection. However he paid Rs. 275/- and thereafter this connection was restored, on 18/1/2020 during night after sending an email. Later again his connection was disconnected on 19/2/2020 during night and though he tried to contact the opposite parties there was no response. After about 2 weeks the connection was restored. Opposite parties were unable to give any reason for disconnecting for the 2nd time. Hence according to him disconnection was without any proper reason and he was unable to make and receive phone calls for about 2 weeks which has resulted much mental agony and difficulty to him. Hence he has filed this complaint for realizing an amount of Rs. 5,00,000/- from the opposite parties. Opposite parties filed a detailed version contenting that they are functioning as per the Indian Telegraph Act and TRAI act 1997. Complainant had a connection from M/s Vodafone India Ltd and his connection was ported to M/s Idea Cellular ltd with effect from 7/11/2019. He was an erstwhile post paid customer of Vodafone net work and had an amount of Rs.274.13/- as outstanding. The connection was disconnected on 17/1/2020 and subsequently on 18/3/2020 on getting instruction from the Donor Service Provider of 2nd January that there is bill outstanding. As per the Mobile Number Portability Regulations in the event of any outstanding balance due to the Donor(Origianal Operator) the recipient operator shall bar the services unless such outstanding has been cleared within due date and the payment receipt is submitted to the recipient operator. According to opposite parties since there was due to M/s Vodafone the connection was disconnected and payment of bill was not intimated to them. Hence according to them there was no deficiency of service and the complaint filed on experimental basis is only to be dismissed. Complainant got examined as PW1 and Ext.A1 to A3 were marked. Opposite party did not adduce any oral evidence. Ext.B1 bill of Vodafone for Rs. 274.13/- against complainant was marked.
14. Admittedly PW1 is having a mobile connection as number 9349149977. He took the connection from M/s Vodafone India Ltd and later it was ported to idea cellular ltd. Now the allegation of the complainant is that on 17/1/2020 during night without any valid reason it was disconnected and after a lot of struggle the connection was restored during the night on 18/1/2020. He filed a complaint on 3/2/2020 as CC/39/2020. Thereafter again the phone was disconnected on 19/2/2020 and it was restored only after 2 weeks. It is alleged that opposite parties were taking vengeance in filing CC/39/2020 against them. Per contra according to the opposite party since Ext. B1 bill for Rs. 274.13/- was outstanding to M/s Vodafone India ltd. disconnection was effected. As per Mobile Portability rules if there is any due to the previous company connection is liable to be disconnected. Ext.B1 shows that Rs.274.13/- is due to M/s Vodafone India Ltd and due date is 7/12/2019. Though PW1 contented that he had paid the entire dues, there is no evidence for the same expect his testimony. Ext.A1 to A3 are email communications between PW1 and the opposite parties. Though in the version opposite parties had taken a contention that the jurisdiction of Consumer Protection Forums are ousted as concluded by the Hon’ble Supreme Court of India no document is produced to prove the same. This complaint is seen filed on 10/6/2020 and as per Sec. 3 of the Consumer Protection Act, 1986, the complaint is maintainable. Thought opposite parties filed a detailed version running into 8 pages none of them entered into witness box to prove their case on oath. They have taken lot of contentions including the question of jurisdiction, but no evidence was adduced to prove such contention. As held by the Hon’ble Surpeme Court in AIR 1999 SC 1441(Vidhyadhar Vs Manikrao)
“WHERE a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”
15. Though PW1 has got a case that his phone was disconnected for 2 weeks and he was unable to contact anybody and vice versa also by which he sustained lot of mental agony he has not examined any witness to prove that when contacted he was not available over phone. PW1 claims that he is the State Secretary of Human Right Protection Council but no documents is produced to prove the same.
16. PW1 is seeking an order against all mobile companies to exhibit address and phone numbers of responsible officers for making complaint of the public and for keeping a complaint book. However such reliefs cannot be granted from this Commission and the complainant can approach appropriate authorities to redress such grievances. From the complaint and the chief affidavit it is gathered that Pw1 was unable to use his phone for about 2 weeks from 19/2/2020. It is not specifically denied in the version. In the version it is contented that it was during covid- 19 periods but during that period also mobile connections of all other companies were working smoothly. As discussed earlier though concrete evidence is not produced to prove the mental agony and difficulty sustained by PW1, during this period mobile connection is highly necessary to contact other people especially during the Covid-19 pandemic situation when direct contacts were not permitted. So naturally PW1 had sustained mental agony due to the disconnection that also for about 2 weeks. The act of the opposite parties clearly amounts to deficiency of service and so PW1 is entitled for compensation. Considering the entire circumstances of the case we are of the opinion that PW1 is entitled for an amount of Rs.2,000/- for the mental agony and other difficulties for the delay in restoring the connection. As stated earlier for the other reliefs sought in the complaint PW1 can approach the appropriate authorities like TRAI etc. These points are found accordingly
17. Point No.3:-
In the result, complaint is allowed in part.
A) Complainant is allowed to realize an amount of Rs. 2000/-(Rupees Two thousand only) as compensation from the opposite parties.
B) Complainant is allowed to realize an amount of Rs.1000/-(Rupees Thousand only) as cost.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 29th day of September, 2021.
Sd/- Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R(Member)
Appendix:-Evidence of the complainant:-
PW1 - G.Samuel (Complainant)
Ext.A1 - e-mail Communication dtd. 29/3/2020
Ext.A2 - e-mail Communication dtd.27/3/2020
Ext.A3 - e-mail Communication dtd. 27/3/2020
Evidence of the opposite parties:-
Ext.B1 - Bill dtd.22/11/2019
//True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
