This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice as the OPs did not take any step to redress his grievance till filing of this complaint.

The brief fact of the case of the Complainant is that being an Advocate practicing in the Hon’ble High Court felt the necessity to avail of a mobile connection having a personal mobile telephone number in the year 2006 to contact easily with his clients/friends and colleagues. He came across an advertisement of Tata Indicom, a product of the OP-3 wherein it was offered to sell their pre-paid mobile connection having unlimited incoming call and message (SMS) facility for life time, for which onetime payment was required for Rs.999/-. Accordingly the Complainant went to the Tata Indicom True Value Hub, sales cum customer care outlet of the OP-3 on 09.08.2006 for knowing more about the said offer and he was told by the OP-3 that on purchase one pre-paid SIM card for Rs.999/- would be allotted where it would be possible to receive unlimited and non-stop incoming calls and messages on that number for life time. For outgoing call and sending messages the Complainant would have to maintain balance by purchasing the Company’s pre-paid recharge vouchers. It was specifically and categorically stated by the OP-3 during such discussion that since it was a scheme/offer of non-stop/unlimited life time incoming call and message (SMS) facility for Rs.999/- from the OP-3, no subsequent and separate payment/recharge would have to be made by the Complainant for availing of the non-stop life time incoming calls and message (SMS) facility on his allotted mobile number and that connection would remain active even on zero balance for life time. The OP-3 had also promised that the mobile connection that would be rendered by them  to him would be never be terminated for any reason whatsoever and the said number would be his unique personal number by which he alone would be identifiable and accessible and the said number would never be allotted to anybody else. Being satisfied with the terms and the condition of the service of the OP-3 the Complainant purchased the mobile connection along with one pre-paid SIM card having unlimited/non-stop life time incoming call and message facility (SMS) on 09.08.2006 by making payment of Rs.999/-to the OP-3 in cash and against such payment receipt was issued by the OP-3 in favour of the Complainant. Thereafter the Complainant being compelled had purchased a CDMA mobile handset from the said Hub for availing of the mobile service connection from the OP-3 on the said date by making payment of Rs.1480/- and upon receipt of the said amount the OP-3 issued receipt in his favour. At the time of purchasing the said SIM card and the mobile handset the Complainant was residing at the separate address and subsequently shifted at the address as mentioned in the cause title of this complaint.

On 25.04.2012 while he was in the Calcutta High Court, he tried to make an outgoing call from the said number, but his attempt was failed and subsequently all the attempts were also failed. Then he dialed his mobile number from another phone set, it remained in its idle mode and it did not show any signal of incoming call. Inspite of repeated call through the said set and number, result was same as earlier. On 27.04.2012 when the Complainant dialed in the said number the IVRS said that it was ‘switched off’. On the same day the Complainant rushed to an outlet of the OP-3 at Park Street and lodged a complaint with one Mr. Dibyendu, being the personnel of the customer care, who after perusing the computerized record of the OP-3 informed the Complainant that on fraudulent request a new SIM card had been issued to someone else against the Complainant’s mobile number on 24.04.2012 at 15.26 hrs. the said personnel also informed the Complainant that the computer record revealed that one Ms. Debasree Das, being a distributor of the OP-3 had been involved in the said fraudulent act and the unlawful/unauthorized possessor of the new SIM card had already consumed/misappropriated a part of the Complainant’s usable monetary balance by accessing the GPRS/Tata zone. The Complainant asked the said personnel that what should be done by him to de-activate the SIM card of the said person to whom it was given/obtained in a fraudulent manner and to activate the SIM card of the Complainant. Then the said Personnel replied that the Complainant would have to purchase a new SIM card for Rs.49/- from him and thereafter he would de-activate the SIM card, issued fraudulently and the activate the new SIM card of the Complainant and after inserting the new SIM card in his mobile hand set the mobile of the Complainant would be active again. Since the Complainant’s SIM was deactivated due to mischief of the OP-3, the Complainant requested the said Personnel to issue a new SIM card free of cost, but the personnel refused to provide the same free of cost and being compelled the Complainant purchased a new SIM card from the OP-3 for Rs.49/- from the Park Street outlet of the OP-3 on 27.04.2012 at 17.30 hrs. The said amount was paid by him in cash and upon receipt of the said amount sales invoice cum money receipt was issued in favour of the Complainant. After inserting of the new SIM card the mobile handset of the Complainant did not start to function despite activation and the said personnel told the complainant that the new SIM card bears an advanced software and hence for its functioning the Complainant would have to get the software of his handset upgraded from the manufacturer of the handset against payment of additional charges. When the new SIM card was inserted in the handset of the Complainant then all the valuable messages stored in the memory of the handset were erased, causing personal and professional loss and injury to the Complainant. Then the Complainant lodged a written complaint with the OC, Cyber Police Station, Lalbazar, Kolkata on 29.04.2012 mentioning the aforementioned fact. From the reports and documents submitted to the Ld. Commission, Barasat by Sri. S.K. Bose, SI of Police, Cyber Police Station, Lalbazar, Kolkata, it is transpired that the written complaint of the Complainant was registered by the concerned Department as complaint no-285/2012 dated 30.04.2012 and the said SI had enquired relating to the said complaint and in course of his enquiry it was ascertained  that one Sri. Jatindranath Bhattacharyya, Son of Sri. Gobinda Bhattacharyya, of Uttarpara, Hooghly was allotted a new SIM against the Complainant’s active mobile number being 9231314646. Thereafter the Complainant went to the service centre of Samsung, the manufacturer of his mobile handset at Girish Park, Kolkata and asked them to upgrade the software of the handset to make it compatible with the new SIM card. The service personnel after examination of the handset told that such up-gradation was not possible. Thereafter the Complainant again urged the OP-3 to eradicate the problem and restore his connection, then two personnel of the OP-3 met the Complainant i.e. Ms. Suparna Biswas, Head of the Customer Service and Mr. Sanjib Chowdhury, Assistant Manager, Regulatory Department with another activated SIM card and told the complainant that its insertion in the Samsung Hero Handset of the Complainant would activate the connection of him and the complainant allowed them to do so, but their purported attempt also failed. The Complainant made several requests to the OP-3 to restore his mobile connection, but the OP-3 did not restore his connection till filing of this complaint. Due to fraudulent issuance of a new SIM card to someone else against the Complainant’s active mobile number-92313144646 by the OP-3 the active SIm card became permanently disabled and inactive, caused severe loss and injury to him and his legal profession was jeopardized  as he was prevented from receiving calls and messages to his mobile number. Moreover his incoming calls and messages went to the fraudulent and unauthorized possessor of the new SIM card. At the relevant time the said mobile number was the only number which he had circulated amongst his clients, friends, colleagues and relatives who were professionally linked with him through the said mobile number. This number was the only contact number which was listed in the website of the Bar Association, High Court, Calcutta. As the OPs have miserably failed to redress his grievance, hence finding no other alternative the Complainant has approached before the Ld. Commission, Barasat by filing this complaint praying for direction upon the OPs to refund Rs.999/-, paid by him towards the cost of the pre-paid mobile communicating service with non-stop incoming calls and messages, to refund a sum of Rs.1,480/- paid by the Complainant towards the cost of the mobile handset, to refund Rs.49/-paid by him towards the cost of the new SIM card, to pay compensation to the tune of Rs.4,50,000/- due to loss and damage suffered by him for wrongful act of the OPs, to pay penal charges of Rs.12,000/- and litigation cost of Rs.35,000/- to him. The Complainant has also prayed for interest on the aforementioned amount.

The petition of complaint have been contested by the OPs-M/s. TATA TELESERVICES LIMITED by filing written version contending that there was no cause to the Complainant to rush to the outlet of the OPs for making any complaint and none was informed to him that his mobile number was issued to anyone on fraudulent request. Nobody had operated the handset of the Complainant and none is involved in the matter of deletion of the messages of the Complainant. So it is an out and out false statement that due to deficiency in service and negligence the Complainant had to suffer loss and injury. The Complainant is totally silent about his activities that his mobile phone number was not in use for almost about 06 years. The connection of the Complainant was lawfully disconnected for no usage for long period and as such he ceased to be consumer and is not entitled to claim any relief as consumer. The OPs have submitted that the alleged fraudulent transfer of the mobile number, if any, the same does not come under the purview of the Consumer protection Act. According to the OPs the mobile number was disconnected due to no usage/recharge for more than 180 days as per the Notification of TRAI. Even in the Sixth Amendment it is clearly mentioned in the paragraph no-12, clause-1 vide TELECOM CONSUMERS PROTECTION (Sixth Amendment) REGULATION, 2013 (2 of 2013) dated 21.02.2013. It is pertinent to mention herein that if a cellular mobile telephone number is deactivated due to non-usage, the same number shall not be recycled or re-allocated to any other consumer within a period of 15 days from the date of deactivation. In other words, there shall be a grace period of 15 days within which the consumer shall be entitled for requesting the telecom service provider for re-activation of his cellular mobile telephone connection with same number on payment of the amount specified for reactivation. According to the OPs the complaint is liable to be dismissed.

Both parties have submitted the entire papers and documents. The Complainant has submitted the BNA, but no BNA is forthcoming from the end of the OPs. During final argument none was present on behalf of the OPs.

We have carefully perused the entire record, documents and heard argument at length advanced by the Complainant in person. IT is seen by us that the Complainant being an Advocate practicing in the Hon’ble High Court felt the necessity to avail of a mobile connection in the year 2006 so that he can contact easily with his clients/friends and colleagues. He found an advertisement of Tata Indicom, a product of the OP-3 wherein it was offered to sell their pre-paid mobile connection having unlimited incoming call and message (SMS) facility for life time, for which onetime payment was required for Rs.999/-. Accordingly the Complainant went to the Tata Indicom True Value Hub, sales cum customer care outlet of the OP-3 on 09.08.2006 for knowing more about the said offer and he was told by the OP-3 that if he will purchase one pre-paid SIM card for Rs.999/-, it would be possible to receive unlimited and non-stop incoming calls and messages on that number for life time, but for outgoing call and sending messages the Complainant would have to maintain balance by purchasing the Company’s pre-paid recharge vouchers. It was specifically and categorically stated by the OP-3 during such discussion that since it was a scheme/offer of non-stop/unlimited life time incoming call and message (SMS) facility for Rs.999/- from the OP-3, no subsequent and separate payment/recharge would have to be made by the Complainant for availing of the non-stop life time incoming calls and message (SMS) facility on his allotted mobile number and that connection would remain active even on zero balance for life time. The OP-3 had also promised that the mobile connection that would be rendered by them to him would never be terminated for any reason whatsoever, and the number would never be allotted to anybody else. Being satisfied with the terms and the condition of the service of the OP-3 the Complainant purchased the mobile connection along with one pre-paid SIM card having unlimited/non-stop life time incoming call and message facility (SMS) on 09.08.2006 by making payment of Rs.999/-to the OP-3 in cash and against such payment receipt was issued by the OP-3 in favour of the Complainant. Thereafter the Complainant being compelled had purchased a CDMA mobile handset from the said Hub for availing of the mobile service connection from the OP-3 on the said date by making payment of Rs.1480/- and upon receipt of the said amount the OP-3 issued receipt in his favour.

Therefore it is clear to us from the aforementioned averment that the Complainant purchased the mobile connection along with one pre-paid SIM card having unlimited/non-stop life time incoming call and message facility (SMS) on 09.08.2006 by making payment of Rs.999/-to the OP-3 along with a mobile handset from the said OP by making payment of Rs.1480/-  on 09.08.2006. Since then till 24.04.2012 the Complainant did not raise any objection/allegation or complaint regarding the service of the OP-3. He was using his mobile connection uninterruptedly. 

Suddenly on 25.04.2012 when he tried to make an outgoing call from the said number his attempt was failed and subsequently all the attempts were also failed. Then he dialed his mobile number from another phone set, it remained in its idle mode and it did not show any signal of incoming call. Inspite of repeated call through the said set and number, result was same as earlier. So on 27.04.2012 the Complainant rushed to an outlet of the OP-3 at Park Street and lodged a complaint with one Mr. Dibyendu, being the personnel of the customer care, who after perusing the computerized record of the OP-3 informed the Complainant that on fraudulent request a new SIM card had been issued to someone else against the Complainant’s mobile number on 24.04.2012 at 15.26 hrs. The said personnel also informed the Complainant that the computer record revealed that one Ms. Debasree Das, being a Distributor of the OP-3 had been involved in the said fraudulent act and the unlawful/unauthorized possessor of the new SIM card had already consumed/misappropriated a part of the Complainant’s usable monetary balance by accessing the GPRS/Tata zone. The Complainant asked the way out to de-activate the SIM card of the said person to whom it was given/obtained in a fraudulent manner and to activate the SIM card of the Complainant. Then the said Personnel replied that the Complainant would have to purchase a new SIM card for Rs.49/- from him and thereafter he would de-activate the SIM card, issued fraudulently and the activate the new SIM card of the Complainant and after inserting the new SIM card in his mobile hand set the mobile of the Complainant would be active again.

From the abovementioned averment it is clear that the mobile number of the Complainant was issued in the name of an unknown person and with a view to deactivate the number of the said unknown person and activate his own number he had to purchase a new SIM card from the outlet of the OP-3 by making payment of Rs.49/-. So where the OP-3 promised at the time of providing the SIM card to this Complainant that his SIM card number will not be provided to any third party, the OP-3 has failed to keep their commitment and promise. Moreover without taking any prior notice or permission from the Complainant the number of the Complainant was given in the name of another person, such action in our opinion can be termed as deficiency in service on behalf of the OP-3.

But after inserting of the new SIM card the mobile handset of the Complainant did not start to function despite activation and the said personnel told the complainant that the new SIM card bears an advanced software and hence for its functioning the Complainant would have to get the software of his handset upgraded from the manufacturer of the handset against payment of additional charges. Then the Complainant lodged a written complaint with the OC, Cyber Police Station, Lalbazar, Kolkata on 29.04.2012 mentioning the aforementioned fact, which was registered by the concerned Department as complaint no-285/2012, dated 30.04.2012. One report was submitted to the Ld. Commission, Barasat by Sri. S.K. Bose, SI of Police, Cyber Police Station, Lalbazar, Kolkata, from where it is transpired that the said SI had enquired relating to the said complaint and in course of his enquiry it was ascertained  that one Sri. Jatindranath Bhattacharyya, Son of Sri. Gobinda Bhattacharyya, of Uttarpara, Hooghly was allotted a new SIM against the Complainant’s active mobile number being 9231314646.

So it is clear from the above mentioned report that the SIM card number of the Complainant was provided to the third party by the OP-3, which is totally beyond the terms and the condition of the said service.

Thereafter the Complainant went to the service centre of Samsung, the manufacturer of his mobile handset at Girish Park, Kolkata and asked them to upgrade the software of the handset to make it compatible with the new SIM card. The service personnel after examination of the handset told that such up-gradation was not possible. Thereafter the Complainant again urged the OP-3 to eradicate the problem and restore his connection, then two personnel of the OP-3 met the Complainant i.e. Ms. Suparna Biswas, Head of the Customer Service and Mr. Sanjib Chowdhury, Assistant Manager, Regulatory Department with another activated SIM card and told the complainant that its insertion in the Samsung Hero Handset of the Complainant would activate the connection of him and the complainant allowed them to do so, but their purported attempt also failed. The Complainant made several requests to the OP-3 to restore his mobile connection, but the OP-3 did not restore his connection till filing of this complaint. Due to fraudulent issuance of a new SIM card to someone else against the Complainant’s active mobile number-92313144646 by the OP-3 the active SIM card became permanently disabled and inactive, caused severe loss and injury to him and his legal profession was jeopardized  as he was prevented from receiving calls and messages to his mobile number. Moreover his incoming calls and messages went to the fraudulent and unauthorized possessor of the new SIM card. At the relevant time the said mobile number was the only number which he had circulated amongst his clients, friends, colleagues and relatives who were professionally linked with him through the said mobile number. This number was the only contact number which was listed in the website of the Bar Association, High Court, Calcutta. As the OPs have miserably failed to redress his grievance, hence this complaint has been initiated by the Complainant praying for certain relief.

The defense case of the OPs-M/s. TATA TELESERVICES LIMITED is that his mobile phone number was not in use for almost about 06 years. The connection of the Complainant was lawfully disconnected for no usage for long period and as such he ceased to be consumer and is not entitled to claim any relief as consumer. The OPs have submitted that the alleged fraudulent transfer of the mobile number, if any, the same does not come under the purview of the Consumer protection Act. According to the OPs the mobile number was disconnected due to no usage/recharge for more than 180 days as per the Notification of TRAI. Even in the Sixth Amendment it is clearly mentioned in the paragraph no-12, clause-1 vide TELECOM CONSUMERS PROTECTION (Sixth Amendment) REGULATION, 2013 (2 of 2013) dated 21.02.2013. It is pertinent to mention herein that if a cellular mobile telephone number is deactivated due to non-usage, the same number shall not be recycled or re-allocated to any other consumer within a period of 15 days from the date of deactivation. In other words, there shall be a grace period of 15 days within which the consumer shall be entitled for requesting the telecom service provider for re-activation of his mobile number.

In pursuance of the defense case of the OPs we are to say at the very outset that which Rules/Regulations/Terms and Conditions have permitted the OPs to allot the mobile number of the Complainant to any third party in case of no usage/recharge of the same for more than 180 days, the same is not forthcoming from the end of the OPs. When the SIM card was allotted to the Complainant then it was told by the OPs that the Complainant can get facility of unlimited incoming calls and unending incoming messages. It was further told that the number will not be provided to any third party. Then what prompted the OPs to provide the active mobile number of the Complainant to the third party, in this respect no satisfactory reply is not forthcoming. The OPs have mentioned one Regulation of 2013, but the instant incident happened in the year 2012, so the Regulation on which the OPs have relied on, the same is not applicable in the case in hand.

Admittedly as the Complainant is an Advocate by profession, his mobile number was given to his clients/friends and others and both parties used to contact through the said mobile number. As all on a sudden the Complainant had to face such severe problem, then certainly problem cropped up in his professional life and obviously it was happened due to deficiency in service on the part of the OPs-M/s. TATA TELESERVICES LIMITED, for which the said OPs are under the obligation to pay compensation to the Complainant. Admittedly the Complainant being an Advocate has filed and proceeded this complaint personally, but for such proceeding he had to incur some expenses, for which he is also entitle to get litigation cost from the said OPs.

It is necessary to mention that for using the SIM card the Complainant had to purchase one mobile handset from the OP-3. It was told that through the said SIM card the Complainant will be entitled to enjoy unlimited incoming calls and incoming messages for life time. But within about six years the mobile handset became idle as the Complainant’s SIM card was re-allotted to any third party. Therefore the said mobile handset as well the SIM card became invalid to the Complainant. Though being compelled and requested by the personnel of the OP-3 he had purchased another SIM card by making payment of Rs.49/-, but the new SIM could not work and became of no use. So in our considered view the Complainant is very much entitled to get refund of the said amount from the OPs.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-RBT/CC/162/2020 is hereby allowed on contest with cost against the OP-1-4 and dismissed against the Proforma OP without any cost. The OP-1-4 shall refund either jointly or severally a sum of Rs.999/- which was paid for purchasing the SIM card, Rs.1480/- paid for purchasing the mobile handset, Rs.49/- paid for purchasing the new SIM card to the Complainant within 45 days from the date of passing this judgment. The said OPs shall also pay a sum of Rs.10,000/- to the Complainant towards compensation due to deficiency in service, mental and physical harassment, mental agony, loss and damages faced by the Complainant and litigation cost of Rs.2,000/- to the Complainant within a period of 45 days from the date of passing this judgment, if default the Complainant will be at liberty to put the entire decree in execution as per provisions of Law.

Let plain copy of this judgment be given to the parties free of cost as per the CPR.

Dictated and corrected by

 [HON'BLE MRS. Silpi Majumder]
MEMBER