D.O.F. 24.03.2010

                                                                                   D.O.O. 18.03.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:   Sri. K. Gopalan                                     :        President

                Smt. K.P. Preethakumari                     :         Member

                Smt. M.D. Jessy                                   :        Member

Dated this the 18^th day of March, 2011.

C.C.No.94/2010

Suresh Babu K.,

House No.640

Kunjipally, Kottali P.O.,                                       :         Complainant

Kannur – 670 016.

1.  M/s. Bharti Airtel Limited,

    ‘Circle Office’,                               

    Sl. Avenue – N.H. Bypass,             :        

    Kundannoor, Maradu P.O.,

    Cochin – 682 304

(Rep. by Adv. T. Ravindran)                                  :         Opposite Parties

2.  SBI CARD,

     Ground Floor – Chirammel Chambers,

     Kurishupally Road, Ravipuram,

     Cochin –  682 015

O R D E R

Smt. M.D. Jessy, Member.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay an amount of              ` 1,00,000 as compensation.

          The facts of the complaint are as follows.  The complainant is working as an LIC agent.  On 2006 August he purchsased a mobile phone with a SIM bearing No.9895270809.  Earlier the said SIM card was issued in the name of another person.  But it is came to the notice of complainant that he is getting messages from SBI intimating the customer information in the name of the earlier SIM card holder.  The complainant approached the PRO of the State Bank at Kannur directing him to stop the sending of message to his mobile number.  The said request was declined by the bank stating that it is the duty of the mobile company.  Thereafter the complainant contacted the franchise of the mobile company at Kannur and taken steps to transfer SIM card in his name even after transfer of the SIM card the said process of getting message to the earlier SIM card holder is continued.  Complainant intimated the situation to the opposite party’s office at Cochin and     New Delhi by registered post and requested them to stop the annoyance message.  But a reply received from Cochi. But there was no positive result.  So the complainant filed this complaint requesting to give direction to opposite parties to take steps to stop the practice of sending message to previous holder in the SIM card of complainant.

          Forum sent notices to opposite party.  Opposite party appeared and filed their version as follows.  Opposite party is a public limited company established for telecommunication facilities to the general public.  They are ‘licensee’ as per the Indian Telegraph Act and they are providing services to the State of Kerala and other parts of the country on the basis of the License No.842-381/2001-VAS/Kerala dated 28.09.2001, issued by department of Telecommunication under Section 4 of the Indian Telegraph Act, 1885.  According to them Consumer Forum does not have jurisdiction to entertain the disputes relating to telephone services in the light of special remedy provided in Section 7-B of Indian Telegraph Act, 1885.  In August,2006 complainant purchased a mobile set with a SIM card which was earlier used by another person.  A customer of this opposite party is not permit another person to use the mobile connection.  If he do not want the connection he has to surrender the same to opposite party.  As the complainant has been using the connection of another person unauthorzedly the opposite party is not liable to provide any service to the complainant as he is not a consumer.  The opposite party has not sold the mobile set or SIM card to the complainant.  The averment that such an arrangement was prevalent in the beginning was false and denied by opposite party.   The messages that the complainant have been receiving from SBI, Kannur are as per the standing instructions given by the previous owner of the mobile to SBI.  This opposite party has no branch office in Kannur. Complainant sent a letter on 18.12.2009.  It was replied on 27.01.2010.  At the request of complainant opposite party transferred the mobile connection from the previous owner in the name of the complainant. An ownership certificate also produced for the complainant by opposite party for producing the same to SBI, Kannur for requesting them to stop annoyance message from the Bank in the mobile of the complainant.  Moreover opposite party cannot prevail upon SBI and direct SBI to stop sending messages for the complainant’s mobile.  This has to be done by previous owner.  According to them complaint is bad for non-joinder of necessary party.

          On the above pleadings the following issues are formed.

1.     Whether there is any deficiency on the part of opposite party?

2.     Whether the complainant is entitled for any remedy as prayed in the complaint.

3.     Relief and cost.

The evidence consists of chief affidavit of the complainant and Ext.A1 to A3 marked.  No documents marked on the side of opposite party.

Issue No.1 to 3 :

          It is an admitted case that the complainant obtained the SIM from the opposite party which was earlier used by another person.  The allegation of the complainant is that he is getting messages from SBI regarding the bank transaction of the earlier SIM card holder.  The complainant raised objection against the same to the PRO of the SBI  and the office bearers of the opposite party.  But the getting of message from SBI has been continued.  Hence the SIM card was subsequently transferred in the name of the complainant.  Even after transfer he received the messages from the same bank.   The copy of the alleged message has not been produced by the complainant though he has orally adduced evidence to that effect.  Except the interested testimony of complainant, there is nothing to show that the complainant is getting unwanted messages that is actually meant for the previous owner.

It is pertinent to note that opposite party replied to the letter of complainant.  Ext.A2 wherein he was informed that an ownership letter was provided for his reference and clarification.  It was also informed to reply in case any further assistance is required. Complainant failed to  utilize the letter properly.  Even after getting Ext.A3, ownership certificate he has not taken any steps neither against the bank who has been allegedly sending the message nor against previous owner of the SIM on whose standing order the messages were sent.  Anyhow the complainant is well aware of the source of message.  But he has not taken any steps against them.  The SBI being the source of message they might have impleaded as parties to this proceedings.  Opposite party contended in their version that since the message is allegedly receiving from SBI, they are necessary party to this proceedings and pleaded  that the complainant is bad for non-joinder of necessary parties .  But the complainant has not taken care to implead SBI to this proceedings.  If SBI was impleaded as party to the proceedings that would have been a source of finding solution practically for entire problem.  But complainant took an adamant stand not to implead SBI to the proceedings even he was reminded of this in open Forum.

          Admittedly complainant purchased the SIM of opposite party from another subscriber.  Opposite party contended that it was used without the knowledge and consent of the opposite party.  Opposite party contended that a customer of opposite party is not permitted to transfer the connection to another person without the knowledge and consent of opposite party.  Anyhow, opposite party is not in anyway responsible for the message which was intended for the previous owner from whom the SIM was purchased.  Complainant deposed in cross examination he is getting the following message : “\n§-fpsS A¡u-­n C{X ss]k credit  D­v, meeting ]s¦-Sp-¡-WT” F¶mWv km[m-cW message hcm-dp-f-fXv.  It can be very well be presumed that the message may probably as per the standing intimation to bank given by previous owner of the SIM card. Practically the opposite party has no control over the message.

Complainant has not taken any steps even to trace out who was the person from whom he brought SIM.   What he deposed is thus : “Rm³ I¼-\n-bpsS ASp¯p \n¶p samss_ FSp-¯n-«n-Ã.  Rm³ hm§nb customer BcmWv F¶-dn-bm³ bmsXmcp \S-]-Sn-bpT FSp-¯n-«n-Ã.”  If he was very particular with respect to the subject matter he should have been taken an attempt to trace the person so as to make him send an instruction to withdraw the standing instruction. Moreover Bank, was not impleaded to the proceedings.  Any how he was admitted in cross examination that “SIM card amän-bn-«p-s­-¦n {]iv\-§Ä D­m-Inà F¶p ]d-ªm icn-bmWv.” It should also be taken into account that complaint never felt of lodging a complaint before police.  If he is really serious to prevent such message he might have been taken an initiative to lodge such a complaint before police for investigating the matter.

          It can be seen that the available evidence on record is not sufficient enough to cast deficiency in service on the shoulders of opposite party.  Complainant miserably failed to prove his case by placing adequate evidence so as to establish deficiency in service on the part of opposite party.  Hence issues 1 to 3 are found against complainant.

In the result, the complaint is dismissed.

No order as to costs.

                          Sd/-                    Sd/-                      Sd/-

President              Member                Member

APPENDIX

Exhibits for the Complainant

A1. Notice sent by complainant.           

A2. Reply letter dated 27.01.2010.         

A3. Ownership letter dated 27.01.2010.         

Exhibits for the opposite party

Nil

Witness examined for the complainant

Nil

Witness examined for opposite party

Nil

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT