Dt. 04.04.2016
JAGANNATH BAG, PRESIDING MEMBER
The present appeal is directed against the Order, dated 17.05.13, passed by the Ld. District Consumer Disputes Redressal Forum, North 24-Parganas, whereby the complaint was allowed on contest against the OPs with cost.
The Complainant’s case, in brief, was as follows:
The Complainant had obtained a prepaid connection of Vodaphone from which he changed the said connection into a post-paid one from the OP No. 2 and the said post paid connection was activated on and from 15.11.2011. But, from 08.04.2012 the said connection was stopped by the Vodaphone Company for portability between the Vodaphone and the Aircel . Allegedly , the phone No. 9874791301 was given to some other person by some other service mode. The Complainant faced problems for change of the mobile phone number of the Vodaphone connection to the name of another person which amounts to negligence and deficiency in rendering service to the Complainant by the OPs. Hence, the Complainant filed the complaint with prayer for direction upon the OPs to pay compensation of Rs. 40,000/- .
As noted by the Ld. Forum below the complaint was contested by OP No.1 as well as by OP No.4 ( to be correctly read as OP No.3 going by the cause title of the complaint petition ) both of whom filed W.V. and denied all allegations.
Ld. Forum below also observed that OPs filed no evidence and the allegations made by the Complainant have not been challenged by any of the OPs. The problem for which the Complainant filed the case was not for billing but for the negligent manner of service towards the Complainant by allotting the existing Vodaphone connection of the Complainant to some other person in Aircel connection. The Complainant never received any response to his letter which was sent to OP No.1 on 24.04.12 . The complaint was heard ex parte against all OPs and allowed against the OPs with cost of Rs. 3,000/- . OP No.1 was directed to return the Vodaphone connection being No. 9874791301 to the Complainant, apart from payment of compensation of Rs. 3,000/- by the OPs within a period of one month from the date of order failing which the OPs shall have to pay @ Rs. 100/- per day from the date of order till realization as punitive damages which shall be deposited to the State Consumer Welfare Fund.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below the OP No.2 has come up in appeal before this Commission with prayer for direction to set aside the impugned order.
The memorandum of appeal has been filed together with copies of the impugned order , the petition of compliant and other documents including the copy of the petition filing objection to the complaint petition on the point of maintainability, the revision petition filed against the interim Order No. 8 dated 17th October 2012 passed by the Ld. Forum below and the M.A No.487 of 2013 filed by the OP.
Ld. Advocate appearing for the Appellant submitted that the petition of compliant was not maintainable as per provision of Section 7B of the Indian Telegraph Act , according to which any dispute as regards telephone and telegraph has to be disposed of by arbitration process. But Ld. Forum below acted beyond their jurisdiction with legal and material irregularity.The Complainant/Respondent opted for Number Portability from Vodaphone to Aircel and in that case the Appellant has no liability whatsoever about the allegation made by the Complainant. Ld. Forum below in spite of knowledge of the pending Revision Petition against its order relating to maintainability of the complaint petition directed the Appellant to submit document and observed that the Appellant failed to produce any document . It was submitted that the Appellant /OP was not given any opportunity of filing evidence as a revision petition was filed before this Commission against the order of the Ld. Forum below in the matter of objection raised about the maintainability of the complaint petition. Ld. Forum’s order was contradictory in so far as it was held in the impugned order that the case has been heard ex parte ultimately against all the OPs and at the same time it was held that the case be allowed on contest against the OPs. The impugned order suffers from legal infirmity and deserves to be set aside.
Ld. Advocate for Respondent No.3/ OP No.3 submitted that the Complainant / Respondent had no locus standi to move the complaint petition which is based on Number Portability of the Vodaphone connection. The application challenging the maintainability of the complaint petition was filed before the Ld. Forum below with the contention that as per Section 7B of the Indian Telegraph Act, 1885, disputes relating to any telephone line , appliance or apparatus shall be referred to an arbitrator appointed by the Central Government. The Ld. Forum below having rejected the maintainability petition, a revision application was filed before this Commission against the order on the issue of maintainability of the complaint petition. While the revision petition was pending , Ld. Forum below disposed of the complaint case without giving any opportunity of filing W.V. and evidence by the OPs. It was rather a misconception on the part of the Ld. Forum below that the petition of objection on the point of maintainability was itself the W.V. of the OP. It was argued that the dispute in question falls under the Indian Telegraph Act and not the Consumer Protection Act. Accordingly, Ld. Forum below did not have jurisdiction to entertain the complaint petition. It was stated that the judgment passed by the Hon’ble Supreme Court in Civil Appeal No. 7687 of 2004 is binding upon all the subordinate courts within the territory of India. Therefore the order dated 17.05.2012 passed by the Ld. Forum below deserves to be set aside.
Respondent No.1/ Complainant did not appear at the hearing. Also the Respondent No.2 remained absent .
Decision with Reasons
The point for consideration is whether the impugned order suffers from material irregularity or legal infirmity.
It is a fact that the Complainant/ Respondent -1 filed the complaint not because of any billing dispute, but, because of alleged negligent manner of service towards the Complainant by allotting the existing Vodaphone connection number of the Complainant to some other persons in Aircel connection. It was for deficiency in service on the part of the Appellant that the disputed number which was initially allotted to him has been issued to some other persons.
It has been observed by the Ld. Forum below that both contesting OPs neither denied allegations made by the Complainant nor filed any document or any scrap of paper from which it would be proved that the Complainant requested to transfer the same number to some other person by some different service mode by portability system. Such observation of the Ld. Forum below is fallacious in so far as the OPs were not given opportunity of adducing evidence in their support as the complaint was disposed of during pendency of the revision petition against the order of the Ld. Forum below on the question of maintainability of the complaint. Ld. Forum below disposed of the complaint petition on 17.05.2013 , while the revision petition filed against the direction upon the OP to file affidavit of evidence , was pending with this Commission and disposed of on a much later date i.e., 08.10.2013. It is therefore, evident that the OP / Appellant herein did not get opportunity to file evidence before the Ld. Forum below. OP No.1, i.e., the Appellant herein should have been given the opportunity to prove with evidence if the Complainant/Respondent No.1 himself requested the Appellant to put his Vodaphone connection Number in to another service mode through portability system. In that view of the matter the impugned order appears to have suffered from material irregularity and as such the appeal deserves to be allowed . Hence,
Ordered
That the appeal be and the same is allowed. The impugned order is set aside. The matter is referred back to the Ld. Forum below for fresh adjudication after fresh hearing of the parties who may file evidence in support of their respective averment / contention. Parties to appear before the Ld. Forum below on 20.04.2016 for necessary order. There shall be no order as to costs.
