KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

 APPEAL  NO.507/12

JUDGMENT DATED:18.04.2013

PRESENT:

SHRI. K. CHANDRADAS NADAR                  : JUDICIAL MEMBER

SMT. A. RADHA                                                : MEMBER

Unitech Wireless (Tamilnadu) Pvt. Ltd.,

Formerly known as

“United Wireless(South)Pvt.Ltd”,

3^rd floor, Vankarath Towers,

Palarivattom, Cochin-682 024,               : APPELLANT

Rep. by its Authorised Officer.

(By Adv: Sri.G.S. Kalkura)

          Vs.

Vishal Stephen, S/o Stephen Varghese,

ARA 90, Cochans House,                       : RESPONDENT

Muttathil Lane, Alinchuvadu, Vennala.

JUDGMENT

SHRI.K. CHANDRADAS NADAR : JUDICIAL MEMBER

          The appellant was the 1^st opposite party in CC.334/10 in the CDRF, Ernakulam.  The respondent was the sole complainant.  The complainant approached the Forum alleging deficiency of service on the part of the opposite parties for the following reasons.  On 6.1.2010, the complainant visited the 2^nd opposite party to avail a new prepaid mobile connection with vanity Number.  The 2^nd opposite party explained the details regarding the hiring of their vanity number.  They informed that all the hexa numbers (six digits alike) are in platinum category and the value starts from Rs.25,000/-.  Accordingly the complainant requested the hexa No.9061 111 111 and the executive instructed the complainant to wait till 11.1.2010.  Thereafter as per the direction of the executive the complainant submitted demand draft for Rs.32,000/- infavour of the opposite party on 12.1.2010.  The complainant submitted relevant documents for getting phone connection.  The executive offered the complainant that the same would be activated by the evening of 12.1.2010.  However they informed the complainant later that the number had been allotted to another person.  On enquiry it was found that the number was allotted to one Mr.Noushad.  The complainant approached the Kochi City Police Commissioner and Telecom Regulatory Authority to get his grievances redressed, but without any result. On 9.2.2010 the 1^st opposite party issued letter to the complainant stating that it was their prerogative to issue vanity numbers.  According to the complainant the opposite parties committed deficiency in service by their failure to allot vanity number sought by the complainant.  He claimed a compensation of Rs.1 lakh.

          2.      The opposite parties contended before the Forum that the complainant approached them and requested to allot vanity number and handed over 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 and after availing 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 allotment of mobile number is at the discretion of opposite parties and as per the availability of the number.  So, the demand draft was not encashed.  The number was allotted to another subscriber as per due process of the company and it was allotted to one Mr.Noushad.  Thereafter the complainant was duly informed about the inability to consider the request to allot vanity number.  He was further informed to collect the demand draft.  The complainant did not act in terms of the request and did not collect the demand draft.  The complainant has no cause of action against the opposite parties.  There was no deficiency of service or unfair trade practice on their part.

          3.      Before the Forum, the complainant gave evidence as PW1.  Exts.A1 to A10 were marked on his side.  One witness was examined on the side of the opposite parties as DW1 and Exts.B1 to B8 were marked on their side.

          4.      As per the impugned judgment the Forum held that the opposite parties had committed deficiency in service and accordingly directed them jointly and severally to issue a hexa number to the complainant for the same cost remitted by the complainant.  They were also directed to pay compensation of Rs.10,000/-.  The 1^st opposite party, company is challenging the order of the Forum.  The only question that arises for consideration is:-  Whether the Forum was right in finding deficiency in service on the part of the appellant?  The argument advanced before the Forum based on Sec.7(b) of the Telegraph Act was not represented before this Commission.

          5.      The definite allegation in the complaint is that the complainant approached the 2^nd opposite party for pre-paid mobile connection with vanity number on 6.1.2010.  As informed by them that hexa numbers are in platinum category of value which starts from Rs.25,000/-,the complainant requested for the hexa No.9061 111 111.  He was asked to wait till 11.1.2010 and as per the direction of the executive he submitted the DD for Rs.32,000/- infavour of the opposite parties on 12.1.2010.  According to the opposite parties  infact the complainant had availed mobile connection as No.9061543873 and after availing that connection he requested for vanity number along with advance amount of Rs.32,000/-.  There was no promise or agreement to allow vanity number.  So the contention is that there was no concluded agreement between the parties to allot the vanity number so as to amount to deficiency in service or unfair trade practice when the number is allotted to a different person.  So ultimately the question is whether the allegations in the complaint or the contention of the appellant is true.  In this regard Exts.A4, A6, B1 and B6 are relevant.  Ext.A4 is the application submitted by the complainant for mobile connection. It is dated:12.1.2010 the number requested was 9061 111 111.  It is mentioned that DD for Rs.32,000/- drawn in the South Indian Bank Limited was enclosed.  So it is crystal clear that along with the request itself DD for Rs.32,000/- was kept and that must be advance amount as contended by the appellant.  There is absolutely nothing to indicate that prior to 12.1.2010 the complainant had approached the appellant for allotting vanity number and there was any agreement between the parties.  On the contrary he availed a mobile phone connection and submitted request on the same day itself.  The request would not give rise to a concluded contract. The amount was remitted along with request dated:12.01.2010.  It is further pertinent to notice that as per Ext.A6 the complainant was informed that his request had been forwarded to the concerned department.  Ext.B1 is the original application for allotment of mobile number dated:12.1.2010 referred to earlier.  There is nothing in evidence to show that infact the appellant had promised to allot the vanity number sought for.  It may be further mentioned that once the number was allotted to Mr.Noushad the appellant returned the advance remitted by the complainant along with interest and it was not accepted by him.  Exts.B6 and B7 evidenced that.  In the absence of any concluded contract to allot the vanity number, the Forum erred in finding deficiency of service on the part of the appellant.  So the Forum was not justified in directing the issuance of another hexa number to the complainant or awarding compensation to the complainant.  Therefore the appeal is liable to be allowed.

          In the result the appeal is allowed.  The order of CDRF, Ernakulam in CC.333/10 dated:20.11.2012 is set aside.  The complaint is dismissed.   However it is directed that the appellant shall effect refund of the advance amount of Rs.32,000/- remitted by the complainant, if not already refunded.

K. CHANDRADAS NADAR : JUDICIAL MEMBER

A. RADHA : MEMBER

VL.