Delhi

East Delhi

CC/556/2014

R.K JAIN - Complainant(s)

Versus

VODAFONE STORE - Opp.Party(s)

05 Feb 2020

ORDER

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. NO. 556/14

 

1. Shri R.K. Jain

S/o Late Shri Mangey Ram Jain

 

2. Smt. Sarita Jain

W/o Shri R.K. Jain

 

Both R/o D0375, Anand Vihar,

Delhi- 110092

•  

Vs

 

1. Vodafone Store,

     Through Concerned/ Authorised Person,

      K-62, Chachi Building, Krishna Nagar, Delhi- 51

 

2. Vodafone India Limited,

Through Concerned/ Authorised Person,

Peninsula Corporation Park, Ganpatrao Kadam Marg,

Lower Parel, Mumbai- 400013

 

….Opponents

 

Date of Institution: 20.06.2014

Judgment Reserved on: 05.02.2020

Judgment Passed on: 17.02.2020

CORUM:

Sh. SUKHDEV SINGH                  (PRESIDENT)

Dr. P.N. TIWARI                           (MEMBER)

Ms. HARPREET KAUR CHARYA (MEMBER)

 

ORDER BY: HARPREET KAUR CHARYA (MEMBER)

 

JUDGEMENT

The present complaint has been filed by Shri RK Jain and Smt Sarita Jain, the complainants, against Vodafone Store, (OP-1) and Vodafone India Limited, (OP-2) under Section 12 of the Consumer Protection Act, 1986.

Facts necessary for the disposal of present complaint are that the Complainant no. 1 is an advocate and has served the Shahadra Court Bar as President for 2 terms and complainant no. 2 is his wife. The complainants got their mobile number ported from Airtel to Vodafone due to network problem. The complainants have stated that OP disconnected the outgoing facility for the number of complainants on 10.05.2014 without giving any prior notice. Complainants were told that since the complainant did not reside at the address given, their address could not be verified as per the report received by OP.

The complainants have further stated that they requested the OP to activate the outgoing facilities as complainant no. 1 was in Sonepat, Haryana, but executive of OP informed that services could not be activated before Monday i.e. 12.05.2014.

It has been stated that complainant No. 2 being the house wife remained at the house and in case any person for verification would have visited would have met her and noticed the name plate which had the name of the complainant no. 1. The complainant was informed that re-verification would be done on 12.05.2014, which was not done. On inquiry, the complainant was asked to visit the nearest Vodafone centre and re-submit his details. The complainant visited the Vodafone store, on 10.05.2014 and again on 12.05.2014, no documents were asked, but rather he was informed that his number would be activated on the next day.

The complainant has further stated that the numbers got activated in the afternoon of 13.05.2014, without re-verification, which was stated to be the main reason for discontinuation of outgoing facility.

The complainant has stated that due to the gross negligent act of OP, Complainant No. 1 could not contact his clients for 3 days, which not only caused loss in profession but also mental harassment and torture. Feeling aggrieved the complainant, have prayed for compensation of Rs. 2,20,000/- on account of mental harassment and agony alongwith interest @18% per annum.

The complainant has annexed the copy of the token issued by OP of date 10.05.2014 and 13.05.2014 and photographs as address proof.

Notice of the present complaint was served upon OPs. Thereafter, Written Statement was filed on behalf of OPs, where they have stated that the services pertaining to cellular connection no. 9810039499 and 9971028384 were provided by Vodafone Mobile Services Limited (VMSL) and not by Vodafone India Limited, therefore, VMSL was a necessary party. It was submitted that the complainants were not the registered subscribers of the above mentioned connections.

It was further submitted that VMSL and subscriber were bound by the terms and conditions of Customer Acquisition Form (CAF) and had reproduced the relevant clauses:

“……

3….

(xv) VMSL will not provide customer data to third parties with the exception being when data is provided to processors that print & / or dispatch documents to the Customer, collect customer’s bills, payment/ arrears and/or other Customer service or other administration purposes.

4…..

(xviii) Not to assign any right or interest under this agreement without prior notice and prior written consent of VMSL

….

(xx) You are not entitled to assign/ transfer/ resale/ lease/ rent or create any charge/ lien on the SIM card or service of any nature whatsoever. The SIM card in user terminal is non transferable.

…..”

Another objection taken by them was that as per Indian Telegraph Rules, 1951:

“2(pp). “Subscriber” means a person to whom a telephone service has been provided by means of an installation under these rules or under an agreement”

“429. Transfer of telephone.- (1) A subscriber shall not transfer the telephone without the permission of the Telegraph Authority.

(2)……”

It was also submitted that as per the guidelines issued by DOT, Ministry of Communication, GOI vide file no. 800-09/2010-VAS dated 09.08.2012, which pertains to verification of new mobile subscribers. As per relevant clause:

“7 Change in name of subscriber

1. The change of name of subscriber is not permitted as the SIM Card in user terminal is not transferable. The change in name between the blood relatives/ legal heirs is permitted provided new CAF and all the procedure as for registering a new subscriber is followed and new SIM CARD is issued. However, after the change in name the connection shall be treated as new connection. In this case, change in address is not permitted. Further, No Objection Certificate from the original user shall also be taken. In case of death of the original user, death certificate will suffice instead of No Objection Certificate.”

They have stated that the complainants were not consumers, thus they could not file complaint under the Consumer Protection Act. OP have further submitted that the complaint was barred under Section 7 B of Indian Telegraph Act, 1885, which referred;

7 B- Arbitration of disputes._

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

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

 Reference was made to Rule 416 and 416 A of the Telegraph Rules. Telegraph included Telephones and mobile phones and as per rule 413 of Telegraph Rules, all the services relating to telephones are subject to the provisions contained under Telegraph Rules and thereby implication  of the definition “any dispute in relation to telephone or rising out of the services relating to telephones were subject to the provisions contained the India Telegraph Act.” They have also stated that as per the judgement of Hon’ble Supreme Court in the matter of “General Manager Telecom Vs. M. Krishnan” vide order dated 01.09.2009 had held that special law (Telegraph Act, 1885) would override the provisions of the Consumer Protection Act, 1986.  Rest of the contents of the complaint have been denied.

They have annexed the instructions issued by DOT of date 09.08.2012 as Annexure-R1, order dated 29.05.2014 by DOT as Annexure-R2 (Colly.), order dated 20.05.2014 of DOT as Annexure-R3 and Annexure-R4. Annexure-R5 is the judgments of Hon’ble National Commission.

Evidence by way of affidavit was filed by both complainants, Shri R.K. Jain and Smt. Sarita Jain, who have got themselves examined as CW-1 and CW-2. They have deposed the contents of their complaint.  Smt.  Sarita Jain has placed on record the power of attorney executed by Shri Ankur Jain in favour of Shri R.K. Jain, the complainant no.1.

OP in support of their contention has examined Ms. Nidhi Soni, Manager Legal, VMSL. She has also reaffirmed the submissions made by them in their Written Statement. She has got exhibited the power of attorney as Ex. RW1/A.

We have perused the written arguments filed on behalf of both the parties. The first and foremost objection taken by OP was that the complainants were not the consumer qua them.

Alongwith the written arguments, OP have filed CAF as directed vide order dated 14.07.2017.  It is seen that the Customer Agreement Form bears the subscribers name as “Ankur Jain” and against the company name: Bar Council of Delhi, H.No. 216, Siri Fort Instt., Area Khelgaon Marg, Delhi is written, thus, it implied that the subscriber had got ported his number under Corporate plan.

A look is to be made at the CAF form, which bears the name of “Ankur Jain”, during the course of proceedings, the complainant submitted that the complainants were parents of the subscriber “Ankur Jain” and in support of his averment, he has filed a GPA dated -.

As per Section 2(d) of the Consumer Protection Act, “Consumer” means any person who:-

1. -
2. ³[hires or avails of ] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who ³[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person ⁴[but does not include a person who avails of such services for any commercial purpose];

And as per Section 2(b) – “Complainant” means –

1. A consumer; or
2. -

Thus, the conjoined reading of Section 2(b) and 2(d)(ii), the complainants are consumer qua OP, this objections is decided against the OPs.

The second objection taken by OP was with respect to section 7 B of the India Telegraphs Act, which barred the adjudication of telecom disputes under the Consumer Protection Act, 1986. It has been held by Three Members Bench of Hon’ble National Commission in “Bharti Hexacom Ltd. V/s Komal Prakash” RP no. 1228 of 2013, that power of telegraph authority are now not vested in the private telecom service providers and also in BSNL;  The view was affirmed in Special Leave to Appeal (C) nos 30531-30532 of 2015, in D.P. Sharma vs. Bharat Sanchar Nigam Ltd., & Anr. decided on 04.09.2017, it was observed

“Delay condoned”. 

In view of the decision rendered by the National Consumer Disputes Redressal Commission in R.P. No. 1228 of 2013, decided on 02.05.2004, we are of the view that petition filed by the petitioner is maintainable.  Under the circumstances, we set aside the impugned judgement and order dated 13.01.2014 and remand the matter to National Consumer Disputes Redressal Commission for consideration on merits.

The SLP is disposed of

 “Pending Application”, if any is disposed of. 

The parties may appear before the National Commission on 10.10.2017.”

Therefore, Section -7B of the Indian Telegraph Act has no application and Forums constituted under Consumer Protection Act are competent to entertain disputes between individual telecom consumers and telecom service providers. Thus, this Forum has jurisdiction to entertain the present complaint.

Now, deciding on the merits of the complaint, no specific denial has been made with respect to the allegations made by the complainant in the complaint; thus, they are deemed to be admitted. The averment that the outgoing services of the phone number of the complainant were disconnected without any prior notice and were resumed without re-verification has remained un-rebutted. This act/ omission on part of OP amount to deficiency in services.

Thus, in the facts and circumstance of the present case, we hold that OP-1 and OP-2 were deficient in services. Therefore, OP-1 and OP-2 are jointly and severely liable to pay Rs. 20,000/- as compensation on account of mental harassment and agony as they have disconnected the outgoing services of the complainants without any prior notice and resumed the services without re-verification.

The order be complied within 30 days from the date of receipt of order. Copy of this order be sent to the parties as per law.

 

 

(DR. P.N. TIWARI)                                    (HARPREET KAUR CHARYA)     Member                                                     Member

 

 

(SUKHDEV SINGH)

          President