Advocate for the Complainant- Sri B.C.Pradhan & Associates.
Advocate for the O.Ps 1,2 & 3 - Sri T.K.Harichandan & Associates.
Advocate for the O.Ps 4 & 5 - Sri D.K.Nanda & Associates.
Advocate for the O.P.No.5 - Sri A.K.Pujari.
Date of filing of the case-01.01.2016
Date of order -21.08.2017
JUDGMENT.
Sri A.K.Purohit, President.
The complainant a consus consumer has preferred this case alleging deficiency in mobile SIM service. The case of the complainant is that, he had purchased a mobile SIM from Dasmati Trading Patnagarh, on payment of Rs 100/- vide SIM No.99373475757 in the year 2012 and since then he is using the same in his mobile phone. O.P.No.1 to 3 are the service provider for the said SIM. On 25.2.2015, the complainant found that the said SIM is not functioning properly and he was not receiving any call. To this the complainant came to know from the service provider through mobile network system that, his SIM was swapped ;by the O>P>No.6. After receiving complaint from the complainant the service provider O.P.Nos. 1 to 3 have restored the SIM in favour of the complainant, but again O.P.No.6 used the said SIM of the complainant by ported with Voda phone network. The complainant alleges that although the fraudulent act of O.P.6 is within the knowledge of the service provider O.P.No.1 to 3 they have not taken any care for protection of the SIM and allowed to use the same by porting with another network provided by O.P.Nos.4 & 5. The complainant further alleges that due to this unauthorized act of the O.Ps the complainant has harassed by moving to different authorities and also sustained injury and all his data has been used by O.P.No.6 for which he sustained financial loss as well as mental harassment. Hence the complaint.
2. The O.P.No.6 has not filed written version and has challenged the maintainability of the case. O.P.No.1 to 3 have filed their version jointly and O.P.No.5 has filed his version separately.
3 According to O.P.No.1 to 3, after receipt of complaint from the complainant they have restored the SIM card in favour of the complainant and submitted that they have no control over the SIM card when the same is ported out to another network and hence there is no negligence on their part.
4. The O.P.No.5, denies the complainant’s allegations and submitted that, the verification process for mobile number 9937375757 has been failed and hence he same has not been ported with their network and was returned to Airtel. Hence the O.P.No.5 claims dismissal of the case against him.
5. During pendency of the case the complainant has filed a petition for addition of party on dt.21.03.17 and the O.P. No.6 filed a petition challenging the maintainability of the case on dt.11.04.17 . To avoid piecemeal trail both the petitions were heard along with the merit of the case .
6. So far the petition dt.21.03.17 of the complainant is concerned the complainant wants to add the dealer, from whom he had purchased the SIM card for consideration as a party. On perusal of the material available on record it is seen that, there is no dispute regarding the purchase of SIM card by the complainant from Dasmati Trading , Patnagarh. Hence at this stage there is no necessity of addition of party . It is also not disputed that the cause of action arose at Patnagarh hence addition of the dealer as a party will delay the case and no purpose of the complainant will be served. Hence the petition dt.21.03.17 filed by the complainant for addition of party is rejected.
7. So far the petition dt.11.04.17 filed by O.P 6 is concerned, the OP 6 challenge the maintainability of the case on the ground that, he is not a service provider. It is true that, the OP 6 is not rendering any service for consideration so far the SIM card of the complainant is concerned. On a perusal of the complaint petition it is seen that, the complainant has alleges that, the OP 6 has swapped the SIM card of the complainant and use the same by porting with Vodafone network. SIM swapping is a online procedure and SIM portability is also a online procedure and even if the OP 6 has adopted the said procedure, then it is a cyber crime and the fraudulent act of the OP 6 is coming within the jurisdiction of the criminal court. The complainant is at liberty to approach the criminal court against O.P No.6 . So far the consumer complainant is concerned the OP 6 is not a service provider. However since there is allegation against the OP 6 for SIM swapping for which the consumer complaint has been filed, the OP.6 is a necessary party in this case.
8. Coming to the merit of the case, it is an admitted fact that, the complainant is using the Airtel SIM vide SIM No: 9937375757 and the OP 1 to 3 are the service provider for the same. It is also evident from the material available on record that, the SIM of the complainant is not functioning from 25.02.2015 and he was not able to receive any call, for which the complainant has reported the same before the service provider and also moved to different authorities for restoration of the SIM. Therefore the complainant has clearly established that his SIM has been swapped unauthorizedl y by any other person who is using the same number illegally. SIM swap is a online process wherein there is every chance of practicing fraud. Hence it is the bound down duty of the service provider to protect the same. In their written version the O.P 1 to 3 have admitted that, there was SIM swap of the complainant SIM No. 9937375757 and they have restored the same in favour of the complainant. But the O.P 1 to 3 have failed to protect the SIM from porting with another network.
9. Since mobile porting with another network is a online procedure and by sending SMS it is the duty of the O.P.1 to 3 to reject the same. But there is no evidence available on record to show that, the O.P 1 to 3 have taken care in protecting the SIM of the complainant.
10. It is seen from the documents filed by the complainant that, due to the aforesaid act of the O.Ps the complainant has sufficiently harassed by moving to different authorities and also sustained financial loss and hence the complainant is entitled to compensation. Hence ordered.
ORDER.
The O.Ps are directed to restore the SIM card No.9937375757 in favour of the complainant immediately after receipt of this order. Further the O.Ps No.1 to 3 are directed to pay Rs 10,000/- (Rupees Ten Thousand ) towards compensation and Rs 1,000/- (Rupees one thousand) towards cost to the complainant within one month from the date of receipt of this order failing which the entire amount shall carry an interest @ 10% P.A. till payment.
Accordingly the case is disposed off.
Order pronounced in open forum this the 21st day of August 2017,
(S.Rath) (G.K.Rath) (A.K.Purohit,)
Member Member, President.
