BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.290 of 2016

Date of Instt. 13.07.2016

Date of Decision: 05.06.2018

Surinder Singh s/o Kamaljit Singh r/o 738 Wadda Gurudwara, Basti Mithu Jalandhar.

..........Complainant

Versus

1. Vodafone Mobile Service Limited, Regd. Office C-48 Okala Industrial Area, Phase 2, New Delhi 110020, Through its authorized signatory.

2. Vodafone Mobile Service Limited, C-131, Industrial Area, Phase-III, Mohali, 160071, Through its authorized signatory.

3. Vodafone Service Store, Ground Floor, V-Mart Mall, Nakodar Road, Jalandhar, Through its authorized signatory.

4. M/s Sukhwinder Telecom, Opposite Near Wadda Gurudwara, Basti Mithu, Jalandhar, Through its Prop. Varinder Singh.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Amrinder Singh, Adv Counsel for the Complainant.

Sh. KK Arora, Adv Counsel for OP No.1 to 3.

OP No.4 exparte.

Order

Karnail Singh (President)

1. This complaint is filed by the complainant, wherein alleged that OP No.1 is the provider of Mobile Phones Sim Card namely Vodafone, OP No.2 is the authorized agent/distributor of the OP No.1 and OP No.3 is the authorized service store of the OP No.1 and 2 and OP No.4 is also authorized distributor of OP No.1 and 2 from whom complainant purchased mobile phone sim card. That the complainant purchased a new mobile phone sim having number 9517880600 and IMSI No.404882956718807 from OP No.4.

2. That complainant is using above said mobile phone number. It does not working properly. When the complainant making outgoing calls, it is not working properly and when relatives and friends of complainant call him on above said mobile number, the call is not interlinked to complainant on above said mobile number, but it is received by Mr. Ashok Kumar of Ferozepur, who is having same mobile sim number. It is worth to mention here that how all the OPs issued the same number to two people and complainant surprised to know about this and he approached OP No.3 i.e. near service store of OP No.1, but all the OPs after giving due admonition by complainant failed to pay attention. When complainant purchased the above said mobile sim number, the OP No.4 assured complainant that it will work properly. The complainant is working man and he is using this mobile number for his profession. He is working as a clerk of an advocate at New Courts, Jalandhar. He has to contact his clients and similarly, his clients have to contact him on this mobile number. But OPs have failed to solve this matter. The complainant approached the OPs for several times and demanded for the solution, but OPs are dilly dallying the matter on false and frivolous grounds. OP No.3 and 4 also misbehaved with him and threatened him to do whatever to do. Complainant has to suffer a physical and mental loss. The complainant got served a legal notice upon the OPs through his counsel, but all in vain and as such, the complainant has suffered huge loss, mental harassment against which the complainant is force to file the present complaint with the request that the complaint of the complainant may be accepted and OPs be directed to pay Rs.100/- as the cost of the sim card plus the damages to the tune of Rs.50,000/- for physical and mental harassment and Rs.10,000/- as the litigation charges, total amounting to Rs.60,100/- for the reasons stated above in the interest of justice, equity and fair play.

3. Notice of the complaint was given to the OPs, but despite service OP No.4 did not come present and ultimately, OP No.4 was proceeded against exparte.

4. OP No.1 to 3 appeared through its counsel and filed joint reply, whereby contested the complaint by taking preliminary objections that the present complaint filed by the complainant is liable to be dismissed on the sole ground that the complainant has failed to disclose the cause of action regarding which the complainant is relating deficiency in service. The bare perusal of the complaint shows that the complainant has failed to disclose any cause of action as regards the deficiency in service as has been alleging against the OP. It is further alleged that the present complaint is liable to be dismissed on the sole ground that this Forum has got no jurisdiction to try and entertain the present complaint/application. It is pertinent to mention here that the appropriate Forum for filing the present complaint by the complainant is under the provisions of Section 7-B of 'The Indian Telegraph Act' and the present Tribunal/Court has got no jurisdiction to try and entertain the present complaint. It is pertinent to mention here that as per the judgment passed by the Hon'ble Supreme Court of India in case of M. Krishanan Vs. General Manager, Telecom, the complaint before this Court is not maintainable and the specific remedy has been provided under Section 7-B of 'The Indian Telegraph Act'. It is further alleged that the present complaint filed by the complainant is liable to be dismissed on the ground that the present complaint filed by the complainant is liable to be dismissed on the ground that this Forum lacks territorial jurisdiction to try and entertain the present complaint. It is pertinent to mention here that the complainant has while signing the customer agreement form has duly conferred the jurisdiction with his free consent upon the Courts at Mohali and as such, the present complaint filed by the complainant before this Court is not maintainable. It is further averred that the mobile connection given to the complainant was a mobile number series of Idea Cellular Ltd., which was released in favour of the company and further released in favour of the complainant due to technical error. It is pertinent to mention here that few numbers were mistakenly sent to the OP company, whereas these mobile numbers belongs to some other mobile operator and the mobile number of the complainant was also one of that numbers and presently, the same mobile number is running in the name of some other subscriber of the said operator. Further, it is also pertinent to mention here that the mobile purchased by the complainant is not allotted to the OP company and by technical default, the number was released to the OP company. The OP company is thus not at fault as the same has happened due to technical fault. On merits, the purchase of the mobile sim by the complainant is admitted and it is also admitted that due to technical default the number was released to two different persons. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

5. In order to prove the case of the complainant, complainant himself tendered into evidence his duly sworn affidavit Ex.CA along with some documents Ex.C-1 to Ex.C-4 and closed the evidence.

6. Similarly, counsel for the OP No.1 to 3 tendered into evidence affidavit Ex.OP/A and further tendered supplementary affidavit Ex.OP/B and closed the evidence on behalf of the OP No.1 to 3.

7. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.

8. After considering the over all circumstances, it reveals that the factum in regard to purchase the mobile phone sim having number 95178-80600 and IMSI No.404882956718807 from OP No.4, manufactured by the OP No.1 and 2 is not in dispute. The dispute in this case is only that the same mobile number was sold to two different person i.e. one complainant and other to one Mr. Ashok Kumar of Ferozepur and whenever a relative/friend of the complainant call on the said number to the complainant, the said mobile number was received by Mr. Ashok Kumar of Ferozepur and these factum has not denied by the OP No.1 to 3 in its reply rather categorically admitted that due to technical fault, the said number was released to two different persons. The reason behind issuing the same number to two different persons is alleged by the OP that the mobile number series of Idea Cellular Ltd., which was released in favour of the company and further released in favour of the complainant due to technical error, but this reply of the OP is not satisfactorily and sufficient to meet the grievances of the complainant because the complainant has suffered loss due to not receiving the call form his cell phone rather the same was received by one Mr. Ashok Kumar of Ferozepur. The factum in regard to selling the same sim number to two different persons i.e. complainant and one Mr. Ashok Kumar of Ferozepur is admitted by the OP No.1 and 3, if so then, the mental harassment and financial loss is established and even the deficiency in service and unfair trade practice on the part of the OP No.1 to 3 is also established, if so then, the complainant is entitled for the relief claimed, subject to the decision to legal ground raised by the OP in its reply, which are to be discussed in the coming para.

9. Now, we have considered the legal plea taken by the OP one by one, firstly the OP alleged that this District Forum has got no jurisdiction to try and entertain the present complaint because as per Section 7-B of 'The Indian Telegraph Act', the jurisdiction of the Court and any Tribunal is barred and this factum has been also decided by the Hon'ble Supreme Court of India. The plea taken by the OP is obviously admitted, but the facts of the case in hand are some how different because the OPs No.1 to 3 are a private telecommunication service provider and if telecommunication services is provided by the private company, then the same is not covered under Section 7-B of 'The Indian Telegraph Act' as well as under the judgment of Hon'ble Supreme Court. In support of this observation, we like to get assistance of one judgment of our Hon'ble State Commission, cited in 2010(4) CLT 518, titled as “Spice Communication Pvt. Ltd Vs. Gurinder Kaur and another” and as such, the reply of the query put by the OP No.1 to 3, is absolutely and satisfactorily given as above.

10. Further, we have also considered the submission and plea taken by the OP in its written reply that this Forum has no territorial jurisdiction to try and entertain the present complaint because the complainant has while signing the customer agreement form has duly confirmed the jurisdiction with his free consent upon the Courts at Mohali and as such, the present complaint filed by the complainant before this Forum is not maintainable. The above said plea of the OP is not authenticated by any documentary evidence, because if there was any customer agreement allegedly signed by the party, then the said agreement is necessary to prove on the file to fortify its version by the OP, but for the best known reason, the OP has not proved the said customer agreement and in the absence of that agreement, we cannot construe any finding upon the plea taken by the OP rather held that the said plea is not proved.

11. From the above circumstances, we come to conclusion that the complainant is able to prove his case from all corners and accordingly, complaint of the complainant is partly accepted and OP No.1 to 3 are directed to refund the price of the sim card i.e. 100/- with interest @ 12% per annum from the date of filing complaint i.e. 13.07.2016, till realization and further OP No.1 and 3 are directed to pay compensation for mental and physical harassment to the complainant, to the tune of Rs.20,000/- and litigation expenses of Rs.5000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

05.06.2018 Member President