Ld. Advocate(s)
For Complainant: Debraj Das
For OP/OPs :Arindam Saha
Date of filing of the case :30.05.2019
Date of Disposal of the case :30.05.2024
Final Order / Judgment dtd.30.05.2024
Some dispute over purchase of cell phone led the complainant to file the present case against the OP. The basic fact of the complaint case is that the complainant Chiranjit Kundu had two prepaid SIM Cards no.9800000084 and 9800000024. Previously the said two SIM Cards were issued by Airtel . The SIM Card no.9800000024 was taken by the complainant on 31.01.2011 and thereafter, on 05.05.2011 the complainant ported the phone from Airtel to Vodafone on 09.05.2011. The SIM Card no.9800000084 was taken previously
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from Airtel company on 16.03.2011 and it was ported on 16.04.2017 from Airtel to Vodafone. After successfully porting the SIM the complainant is using it for personal purpose. The said SIM card no.9800000024 is given to the bank for the purpose of transaction. The said SIM card no. 9800000024 is also used for Whatsapp and online banking like m-pasa online wallet . The complainant is using both the SIM card simultaneously. On 17.08.2017 the complainant purchased Rs.50/- in SIM Card No.9800000024. Suddenly on 02.09.2017 both the network or tower signal of the SIM Cards were not showing with the projection of “emergency mode”. Whenever, the phone was being used it was showing as switched off. So, the complainant was astonished and as such he tried to contact with the helpline no.144. On 14.09.2017 the complainant was totally astonished that those two SIM Cards which were being used were ported to Reliance Jio mobile GSM, W.B. But the complainant never applied for porting those two numbers into other networks . So, the G.D was lodged over the incident vide G.D entry no. 891 on 20.09.2017 stating all facts. The matter was also informed to the OP company vide e-mail dated 25.09.2017. The answer given by OP was not satisfactory . Subsequently, a reply was given stating that “I will revert to you with a conducive response by three working days.” But no response was given by the OPs. So, the complainant again sent one e-mail to OP on 08.10.2017. The complainant apprehends that some fishy transactions might have taken steps behind his back since he had never applied for porting the said SIM cards . Therefore the complainant sent a legal notice to the OP raising his grievance. The complainant could not make communication with his friends and relative due to the said disruption in the phone service and as such the relation has been broken down. The OP No.1&2 failed to restore the SIM Card connection within due time. The aforesaid the demeanour on the part of the OP amounts to unfair trade practice which has caused financial loss and mental pain and agony to the complainant. So, the complainant prayed for an award to direct the OP to restore the service connection of said two SIM Cards and pay Rs.1,50,000/- towards compensation for financial loss and mental pain and agony together with litigation cost of Rs.15,000/-.
OP No.1&2 contested the case by filing written version wherein they denied each and every allegation. The OPs challenged the case as not maintainable on the ground that it is bad in law , without jurisdiction and malafide. The positive defence case of the OPs in brief is that the complainant Chiranjit Kundu was a mobile subscriber of two mobile numbers 9800000024 and 9800000084. The mobile number 9800000024 was activated on 09.05.2011 and mobile number 9800000084 on 09.04.2017. The commission does not have any
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jurisdiction to try this case since a dispute under the Indian Telegraph Act shall be referred to an arbitrator appointed by the Central Government . The TRAI Act is a special legislation to regulate the Telecom Services. The OP narrated the history of inception of TRAI and the provisions of law. A request for port out /mobile number portability can be made by the user only through his mobile handset . Without the request and confirmation from the user a mobile number cannot be ported. No service provider can port out any mobile number to any other service provider/operator at his own will. The mobile numbers portability from Vodafone to Reliance Jio was done on the request by the complainant no company would like to lose it customer at its own pleadings to business loss. The complainant on 05.09.2017 generated port out request of both his mobile number 9800000024 and 9800000084 from his own mobile number handset on the basis UPC VV 472635 and VV473685. The OPs are not aware about the port out details of the complainant. The OP claimed that the case is liable to be dismissed with cost.
The dispute raised by the complainant vis-a-vis the defence case persuaded this Commission to set forth the following points for proper adjudication of this case.
Points for Determination
Point No.1.
Whether the case is maintainable in its present form and prayer.
Point No.2.
Whether it is barred by the Indian Telegraph Act.
Point No.3.
Whether the case is bad for defect of parties.
Point No.4.
Whether the complainant is entitled to get the relief as prayed for.
Point No.5.
To what other relief if any the complainant is entitled to get.
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Decision with Reasons
Point No.1,2&3.
All the three points relate to question of law and as such these are taken up together for brevity and convenience of discussion.
The OPs pleaded that the present case is barred by Indian Telegraph Act.
The complainant categorically stated that he purchased two SIM cards . While he was using the said two SIM Cards, the phone numbers were port out without his permission and consent.
The OP never denied that the complainant was there customer . The Indian Telegraph Act deals with the provisions but the Consumer Protection Act has protected the consumer whereby a consumer can raise complaint and file a case against the service provider. The OP has never denied that they were not the service provider of the complainant by which the said SIM cards were being used. In the given facts and circumstances of the case, the commission finds that there is a relation of consumer and service provider between the complainant and the opposite parties. So, the case is not barred under the Indian Telegraph Act.
The OP further argued that the disputed SIM Cards alleged to have been ported to Jio phone but Jio company /Reliance Company has not been made party to this case.
Ld. Advocate for the complainant counter argued that the complainant never ported to Jio and also never intended to be a customer of Jio and as such he never paid any money to the Jio. So, there is no relation of customer and service provider between the complainant and the Jio.
The argument has reasonable force. It appears that there is no document to show that the complainant has paid any money to the Jio company or Reliance Company . There is also nothing to show that the Reliance Company has provided any service to the complainant on payment of money.
Accordingly, there is no relation of consumer and service provider between the complainant and the Reliance /Jio company.
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Having scrutinised the entire pleadings of the parties and after taking into consideration the argument advanced by Ld. Advocate for both the parties the Commission holds of the present case is not barred by any provisions of law and it is not bad for defect of parties.
Accordingly, point no.1,2&3 are answered in affirmative and decided in favour of the complainant.
Point No.4&5.
The subject matter of these points deal with the fate of the case or in other words whether the complainant is entitled to get the relief or not.
It is the specific case of the complainant that while two SIM Cards of Vodafone were being used, these were ported out with Jio Reliance without the knowledge and consent of the complainant. The complainant also claimed that he never applied for porting out of his two SIM cards .
The OP denied the case mainly on the ground that whatever was done that was done with the knowledge and consent of the complainant.
The complainant in order to substantiate the case adduced oral evidence in the form affidavit in chief and proved the documents.
No.1 is the G.D Entry no.891 dated 20.09.2017 to the O.C, Krishnagar, P.S.
No.2 is the e-mail to the OP Vodafone company and its reply by Vodafone care.
No.3 is the request for changing phone number with bank account .
Complainant also proved one letter to the Branch Manager, Bank of Baroda, Benali Branch, Nadia.
The complainant lodged the complaint to the police through G.D stating inter-alia that his previous two SIM Cards of Vodafone company number 9800000024 and 9800000084 had been delinked from the Vodafone services with a further request to investigate into the matter .
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The complainant also intimated the matter to the OP company over which they responded to help in this regard but subsequently , no positive steps were taken.
The complainant also sent a letter to the head office of Vodafone stating the entire matter but despite receipt of the said letter the OP company did not do anything .
Ld. Defence Counsel argued that without consent and knowledge of the customer no SIM card can be port out.
Ld. Advocate for the complainant rightly argued that a customer could not send any request to port a SIM Card in the name of others.
After scrutiny of the entire documents in evidence it appears that there is nothing to show that the complainant ever requested to port his SIM Card to the Jio Company.
The complainant was put certain question during cross-examination. As per question no.5 the complainant answered that he ported the SIM from Airtel to Vodafone on 09.05.2011 and for another consumer no. 9800000084 from Airtel to Vodafone on 16.04.2017.
The complainant was further asked as to whether it is the habit to change network services frequently but he denied it.
The complainant also answered in cross-examination that he did not apply to Vodafone for any porting.
The complainant further answered in cross-examination that he sent SMS through the helpline 144 from another SIM No.9434121869 on 04.09.2017. He further answered that he called the customer care no. 198 through the phone number within 24 hours as he received SMS that both the SIMs have been ported to Reliance Jio.
Against question no.14 the complainant further replied that he filed G.D entry to Krishnaganj P.S regarding his suffering of financial loss.
The complainant further stated that he sustained financial loss because due to illegal port he lost all his personal and private communication including m-pesa online wallet in SIM no. 9800000024.
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Ld. Defence Counsel further drew attention of the Commission by showing the Aadhar Card of the complainant Chiranjit Kundu and submitted that the signature in the Aadhar Card is not that of the complainant and it has been forged . Ld. Advocate further argued that this Commission has power to verify the signature u/s 73 of the Evidence Act in as much as the court is the expert of all experts.
After close scrutiny of the signature of the complainant in the complaint and the signature in the Aadhar card filed by the complainant, prima-facie it appears to be not similar and alike.
The OP never filed any petition challenging the signature of the complainant in the Aadhar card or to sick any opinion of a hand writing expert.
Having considered this aspect of this case the Commission finds that there is no document to show that the complainant ever applied to the OP for porting out the said two disputed SIM cards.
The complainant further alleged that the OP company has sold out the two uncommon numbers of the SIM card at a huge price. Specific question was put in this regard that the OP has sold the two phone numbers in a very good price. Although , the OP denied that allegation but they stated that as per the SIM change document available with the Vodafone it is prima-facie evident that the SIM replacement was done by the complainant. The Aadhar card which was provided as proof of identity was also of Chiranjit Kundu.
But after comparing signature in the Aadhar card it prima-facie appears that there is discrepancy in the signature of the complainant in the Aadhar Card and in the complaint.
The OP was further asked that for SIM replacement the permission of consumer is required. The OP answered in a twisting manner.
The OP further answered under question no.8 that the TRAI came up with the notification dated 23.09.2009 by which every subscriber desirous of porting his mobile number shall make a request in writing to the concerned recipient operator.
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But in the instant case the OP could not prove any letter or message in writing that the complainant requested to the OP to port out the disputed phone numbers.
Ld. Defence Counsel referred to a decision with his BNA being FA/465/2009 dated 19.04.2010 wherein it was held that there was no deficiency in service by the OP company.
The said case law is not a applicable in as much as the complainant duly proved by cogent and succinct evidence that he never applied for porting the SIM to the OP company.
The OP company also took recourse of another case law which is referred in BNA being 1993 volume-II CPJ 230 wherein it was held that filing inflated claims should be discouraged.
The said case law does not help the OP in as much as the facts of the reported case and the case in hand of this Commission are completely different. Moreover, in the instant case the complainant has prayed for a reasonable amount of compensation along with direction as per the prayer of the complainant.
On the contrary the Ld. Advocate for the complainant referred to one decision reported in FA/511/2007 between the Bharati Airtel Vs. Kuldip Singh. In that case it was held that the provision of TRAI is not applicable and the Indian Telegraph Act does not apply when a dispute is pending between the service provider and their individual customer.
So, the argument of the Ld. Defence Counsel that the case is barred under Indian Telegraph Act 1985 is not acceptable in view of the aforesaid decision.
In the backdrop of the aforesaid discussion and observation made hereinabove the Commission comes to the finding that the opposite parties have acted in a manner with the complainant which tantamounts to unfair trade practice and deficiency in service .
Accordingly, points no.4& 5 are answered in affirmative and decided in favour of the complainant.
In the result the complaint case succeeds with cost.
Hence,
It is
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Ordered
that the complaint case no.CC/99/2019 be and the same is allowed on contest with cost of Rs.5,000/- (Rupees five thousand) against the OPs. The complainant do get an award with a direction to the OPs to restore the service connection of the two SIM Cards of the complainant, to pay Rs.25,000/- (Rupees twenty five thousand) towards unfair trade practice and mental pain and agony and Rs.5,000/- (Rupees five thousand) towards litigation cost to the complainant. Both the OPs are jointly and severally directed to pay Rs.30,000/- (Rupees thirty thousand) to the complainant and comply with the award within 30 days from the date of passing the final award failing which the entire award money shall carry an interest @ 12% p.a from the date of passing the final award till the date of its realisation.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(SHRI NIROD BARAN ROY CHOWDHURY)
