BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 05/06/2010

Date of Order : 20/01/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 334/2010

Between

And

O R D E R

A. Rajesh, President.

1. Briefly stated, the case of the complainant is as follows :-

On 06-01-2010, the complainant visited the 2^nd opposite party to avail a new pre-paid mobile connection with vanity number. The 2^nd opposite party explained the details of hiring of their vanity number. The officials informed that all the hexa numbers (6 digits alike) are in platinum category and the value of which starts from Rs. 25,000/-. Accordingly, the complainant requested the hexa number 9061 111 111 and the executive had instructed the complainant to wait till 11-01-2010. Thereafter as per the direction of the executive, the complainant submitted a demand draft for Rs. 32,000/- in favour of the opposite party on 12-01-2010. The complainant has produced the relevant documents for the phone connection. The executive offered the complainant that the same would be activated by the evening of 12-01-2010. However thereafter, the complainant was informed that the number had been allotted to another person. On enquiry, it was found that the same has been allotted to one Mr. Naushad. In the mean time, the complainant approached the Kochi City Police Commissioner and the Telecom Regulatory Authority to get his grievances redressed but to no avail. On 09-02-2010, the 1^st opposite party issued a letter to the complainant stating that it was their prerogative to issue vanity numbers. Thus, the complainant is before us seeking direction against the opposite parties to allot the vanity number 9061 111 111 to the complainant and to pay an amount of Rs. 1 lakh towards compensation for deficiency in service and unfair trade practice on the part of the opposite parties.

2. The version of the opposite parties :-

The complainant is not a consumer. The complainant approached the opposite parties and made a request and handed over the demand draft of Rs. 32,000/- as advance for considering his request. There was no assurance to accept or approve the request. In fact, the complainant has subscribed to the mobile No. 9061543873. After availing the connection, he has requested for a fresh number specified as vanity number by accepting the terms and conditions of the subscription. The complainant has no privilege over any mobile number and the allotment of the mobile number is at the discretion of the opposite party and as per the availability of the number. So the demand draft has not been encashed. The number has been allotted to a procedural subscriber as per the due process of the company and at its sole discretion and the same has been allotted to one Mr. Naushad. Thereafter, the complainant was duly informed about the inability to consider the request and to allot the vanity number and further informed him to collect the demand draft, since the same had been procedurally allotted to another person. The complainant did not honour the request and did not collect the demand draft as well. The complainant has no cause of action against the opposite parties and there is no deficiency in service or unfair trade practice on the part of the opposite parties.

3. The complainant was examined as PW1 and Exts. A1 to A10 were marked on his side. The witness for the opposite party was examined as DW1 and Exts. B1 to B8 were marked on their side. Argument note was filed by the opposite parties. Heard the counsel on both sides.

4. The points that came up for consideration are :-

1. Whether the complainant is a consumer?

2. Whether this complaint is maintainable in this Forum?

3. Whether the complainant is entitled to get hexa number as claimed by him?

4. Whether the opposite parties are liable to pay compensation of Rs. 1 lakh to the complainant?

5. Point Nos. i. and ii. :- The opposite parties vehemently contended that this Forum has no jurisdiction to entertain this complaint, since the complainant is not a consumer as per the provisions of the Consumer Protection Act. The learned counsel relied on the decision rendered by the Hon’ble Supreme Court in General Manager, Telecom. Vs. M. Krishnan & Another (Civil Appeal No. 7687/2004 decided on 01-09-2009) and the decision of the Hon’ble National Consumer Disputes Redressal Commission in Prakash Verma Vs. Idea Cellular Ltd. and Another (Appeal No. 295/10 dated 10-02-2010).

6. Indisputably, the Hon’ble Apex Court held that “In our opinion when there is a special remedy provided in Section 7-B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred.

Section 7-B of the Telegraph Act reads as under :-

“S. 7B Arbitration of Disputes :-

(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this Section.

(2) The award of the arbitrator appointed under Sub-s (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court.”

Rule 413 of the Telegraph Rules provides that all services relating to telephone are subject to Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules”.

7. It is pertinent to note that the instant complaint has been filed by the complainant not with regard to any telegraph line appliance or apparatus which arises between the telegraph authority and a person. On the contrary, it is a complaint alleging deficiency in service and unfair trade practice on the part of the opposite parties in issuing hexa number to the complainant. The Telecom Regulatory Authority of India Act 1997 deals with the settlement of disputes between the service provider and an individual consumer. Section 14 (2) (b) of the Act reads as follows :

“The complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Disputes Redressal Commission established under Section 9 of the Consumer Protection Act.”

In view of the above, we have no doubt that the complainant is a consumer and the complaint is maintainable in this Forum.

8. Point No. iii. :- According to the complainant, the opposite parties agreed to provide a hexa number and accepted a sum of Rs. 32,000/- from the complainant. It is stated that thereafter the opposite parties provided the number to a third party by adopting unfair trade practice. He maintains that he is entitled to get the hexa number together with compensation of Rs. 1 lakh.

9. Per contra, the opposite parties vehemently contended that the complainant produced Ext. A4 request which is only an offer and never a constituent to concluded contract between the parties and thus, there is no privity of contract between them squarely. It is stated that after availing mobile number 9061543873, the complainant requested for a vanity number and the application of the complainant clearly shows that he could not have been allotted the vanity number subject to the availability of the number and as per the terms and conditions of the application. Since the disputed number had been allotted to one Mr. Naushad as per the priority of request and at any rate on the final decision of the company.

10. During the proceedings in this Forum at the instance of the complainant, the opposite parties were directed to produce the following documents in this Forum vide order in I.A.No. 296/2011 dated 01-10-2011 :-

1. “List of applicants for the disputed number 9061 111 111.

2. Details of the payments made by the said applicants in advance for the above number.

3. Call details including the details of incoming and outgoing calls made using mobile no. 9061543873 and 9061 111 111.

4. Customer applications received for the allotment of the disputed mobile no. 9061 111 111.

5. Records including MMS details relating to the allotment of the no. 9061 111 111 to Mr. Naushad.”

11. However, the opposite parties have not produced the documents for their own reasons, eventhough they state that they are governed by the Indian Telegraph Act and the Telecom Regulatory Authority of India Act. Moreover, for which no explanation is forthcoming. So we are unable to agree with the same for the same reasons. Moreover, the witness for the opposite parties who was examined as PW1 deposed before the Forum that the 1^st opposite party has no approved policy in issuing the hexa numbers. In spite of that however they have been issuing the same as per the priority and discretion of the company and according to them the Customer Service Department is the concerned authority for the same. Nothing is forthcoming on the part of the opposite parties to show the process of issuing vanity numbers to its customers. So, the non-production of the documents in spite of the direction from this Forum speaks volumes which calls for explicit explanation by the opposite parties. The non-production of the relevant documents in spite of direction from this Forum has not been complied with which compels this Forum to take adverse inference against the opposite parties under Section 114 of the Evidence Act 1872. They have even failed to produce the address of the so called Naushad who has received the allotment of the vanity number. During evidence, DW1 contrived a new story stating that they came to know that the complainant is going to resell the number and there was difference in the address of the complainant. For both claims there are no explanation.

12. The primary acceptance of Ext. A4 application for the hexa number and the receipt of the amount and the non-issuance of the number amounts to deficiency in service. The subsequent non-production of the details of the allotment not only amounts to deficiency in service, but also unfair trade practice on the part of the opposite parties. Since 90612 111 111 was already been allotted to one Mr. Naushad, which cannot be recalled the opposite parties are directed to issue a fresh hexa number to the complainant as per his request without fail.

13. Point No. iv. :- The pecuniary loss together with mental agony caused to the complainant has to be answered for which has already been prayed for. We feel that the claim is too big for such a cause. However, the consumer’s right is not denied. It would not compromise the ends of justice for the reasons said above a compensation of Rs. 10,000/- is awarded.

14. In the result, we partly allow the complaint and order as follows :

1. The opposite parties shall jointly and severally issue a hexa number to the complainant for the same cost remitted by him.

2. The opposite parties shall jointly and severally pay a compensation of Rs. 10,000/- (Rupees Ten thousand only) to the complainant for the reasons stated above.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amount shall carry interest at the rate of 12% p.a. till payment.

Pronounced in open Forum on this the 20^th day of January 2012.

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant’s Exhibits :-

Opposite party’s Exhibits :-

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