DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

Dated this the 27^th day of March 2024.

                           Filed on: 15/11/2017

PRESENT

Shri.D.B.Binu                                                                            President

Shri.V.Ramachandran                                                               Member Smt.Sreevidhia.T.N                                                                Member      

C C No. 452/2017

COMPLAINANT

P.I.Thomas, M / s Eurostar Distilleries Pvt. Ltd., HIG-5, Panampilly Nagar, Ernakulam District, Pin-682036.

(By Adv.dinesh Mathew J Murikan, Antony Joseph V., Murikan & Mangot, Chittoor Road, Valanjambalam, Kochi-16)

VS

OPPOSITE PARTIES

1. Reliance Communications Ltd., Regd.Office: 'H' Block, 1ª Floor, Dhirubhai Ambani Knowledge City, Kopar Khairane, Navi Mumbai,
2.  
2. Reliance Communications Ltd., 7 ^ (th) Floor, DD Trade Tower, Kaloor, Kathrikadavu Road, Kaloor.P.O., Cochin-682017.

(ops 1 and 2 rep. by Adv.Bijmon C.Cherian)

F I N A L   O R D E R

D.B. Binu, President.

1. A brief statement of facts of this complaint is as stated below:

              The complaint was lodged under Section 12(1) of the Consumer Protection Act, 1986, by a complainant who had been using a postpaid Reliance mobile connection with the number 9333333339 since September 12, 2005. Despite regularly paying the bills, the complainant encountered an issue on December 7, 2016, when requesting a GSM sim card to replace the old CDMA sim for the same number. The complainant was informed that the number had been allocated to another person. Further attempts to rectify the situation on December 8, 2016, through a formal request and providing a copy of recent bills, were met with a response from the second opposite party indicating that a switch from CDMA was required by August 16, 2016, a condition the complainant apparently failed to meet, leading to the disconnection in October 2016.

The opposite parties allegedly failed to provide direct communication to the complainant regarding the need to opt for a technology switch, which resulted in the illegal disconnection and reassignment of the phone number. This action significantly impacted the complainant's business, leading to a claimed loss of over Rs. 10 lakhs due to customers' inability to make contact via the mobile number.

The complainant stated that this sequence of events constitutes a deficiency in service and unfair trade practice by the opposite party, particularly given the absence of reasonable professional care in managing the service transition. Consequently, the complainant seeks redress from the commission, requesting the restoration of the mobile number, compensation of Rs. 10 lakhs for the business losses incurred, an additional Rs. 2 lakhs for the deficiency of service, and reasonable interest and costs of the proceedings.

2)       Notice

The Commission sent notices to the opposite parties, who subsequently appeared and submitted their versions.

3)       The Version of The Opposite Parties

The complainant had a postpaid mobile connection from Reliance Communications Ltd, which was disconnected, leading to the filing of the complaint. Here's the essence of the opposite parties' defense:

1. Denial of Allegations: The opposite parties deny all the allegations made in the complaint except for those expressly admitted. The opposite parties stated that the complaint is not maintainable either in law or on facts.
2. Disconnection of Service: The opposite parties admit that the complainant had a CDMA mobile connection since 2005 but deny that it was illegally disconnected. The opposite parties attribute the disconnection to the complainant's failure to respond to a directive from the Telecom Regulatory Authority of India (TRAI) and subsequent advertisements regarding the transition from CDMA to 4G technology.
3. Regulatory Compliance: The opposite parties provide evidence of regulatory approval for the transition to 4G and compliance with TRAI's directives, including public advertisements in local languages and directives for customers to opt for 4G or port to another provider.
4. Communication to the Complainant: The opposite parties claim that they communicated the need to switch from CDMA to 4G to all customers, including the complainant, through SMS, calls, and public notices. The complainant's inaction led to the termination of the service and the allocation of the mobile number to another customer.
5. Legal and Regulatory Justification: The Supreme Court judgment and the Indian Telegraph Act to argue that the forum does not have jurisdiction over telecom disputes, suggesting that the complaint under the Consumer Protection Act is barred.
6. Denial of Deficiency and Unfair Practice: The opposite parties assert that there was no deficiency in service or unfair trade practice on their part. The opposite parties contend that the complainant is not a consumer under the definition provided by the Consumer Protection Act because the service was availed for commercial purposes.
7. Conclusion and Denial of Relief: The opposite parties conclude that there is no basis for the complaint, deny any deficiency in service, and stated that the complainant is not entitled to any compensation or relief sought in the complaint. The complaint is an attempt to extract an exorbitant amount from the company without any bona fide cause of action.

The response from the opposite parties highlights a legal and procedural defense, focusing on regulatory compliance, proper communication, and legal interpretations of consumer rights within the telecom sector.

   4) . Evidence

The complainant did not file a proof affidavit but submitted the three documents with the complaint to the commission.

1. A photostat copy of the letter sent by the complainant to the opposite party on December 7, 2016.
2. A photostat copy of another letter from the complainant to the opposite party, dated December 8, 2016, accompanied by the bill from September 9, 2016.
3. A photostat copy of the response letter from the opposite party to the complainant, dated January 6, 2017.

The opposite parties did not file a proof affidavit but submitted the five documents.

1. The office copy of the letter dated 06-06-2016 issued to the Department of Telecommunications (DoT) by the 1st opposite party.
2. The office copy of the acknowledgment dated 7 - 6 - 16 issued by the Telecom Regulatory Authority of India (TRAI).
3. The photocopy of the direction dated 24-06-2016 issued by the Telecom Regulatory Authority to the 1st opposite party.
4. The photocopy of Paper advertisement in Malayalam language.
5. The Photocopy of Paper advertisement in English language.

5)       The main points to be analysed in this case are as follows:

i)        Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?

ii)       If so, whether the complainant is entitled to get any relief from the side of the opposite party?

iii)      Costs of the proceedings if any?

6)       The issues mentioned above are considered together and are        answered as follows:

                  The complainant did not present themselves before the commission, nor was any evidence presented on their behalf. The case had been scheduled for the complainant's evidence since January 16, 2020. Despite the commission's notice on March 28, 2023, urging the complainant to appear and present evidence, there was a consistent failure to attend subsequent hearings. Although the his representative requested additional time to present evidence on April 17, 2023, there was no subsequent appearance, and no evidence has been submitted to date. Given the complainant's sporadic attendance and failure to provide the requisite evidence, the commission is left with no choice but to proceed with the judgment based on the evidence at hand. The complainant's repeated absence and failure to submit a proof affidavit or to make further appearances indicate a disinterest in pursuing the case.

           In the catena of decisions, it has been established that the burden of proof lies with the complainant to demonstrate negligence or deficiency in service by presenting evidence before the commission. Mere allegations of negligence are insufficient to support the complainant's case. Consequently, the complainant has failed to prove any deficiency in service or negligence on the part of the opposite parties.

In the case of SGS India Ltd Vs. Dolphin International Ltd 2021 AIR SC 4849 held that:

“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a Judgement of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4, this court held that the burden of proving the deficiency in service is upon the person who alleges it. “

In a series of decisions, it has been established that the burden of proof lies with the complainant to demonstrate negligence or deficiency in service by presenting evidence before the Commission. Mere allegations of negligence are insufficient to support the complainant's case. As stated in the case of SGS India Ltd Vs. Dolphin International Ltd (2021 AIR SC 4849), "the onus of proof of deficiency in service is on the complainant in complaints under the Consumer Protection Act." It is the complainant who approached the Commission, and without any proof of deficiency, the opposite parties cannot be held responsible for deficiency in service.

          In conclusion, the Commission finds that the complainant failed to provide sufficient evidence to substantiate their claims of deficiency in service or negligence by the opposite parties. Therefore, the complaint is dismissed, and no relief is granted to the complainant.

            We have decided not in favour of the complainant on all the issues mentioned above. After careful consideration, we found that the case presented by the complainant is meritless. As a result, the following orders have been issued.

ORDER

Based on the aforementioned circumstances, the Commission has determined that the contentions raised by the complainant lack merit. As a result, the complaint is dismissed. No cost.

Pronounced in the Open Commission this is the 27^th day of March 2024.

Sd/-                  

D.B.Binu, President

                                                                     Sd/-                  

                                                V.Ramachandran, Member

                                                                            Sd/-                  

                                         Sreevidhia.T.N, Member

Forwarded by Order

Assistant Registrar        

APPENDIX

Complainant’s Evidence

1. A photostat copy of the letter sent by the complainant to the opposite party on December 7, 2016.
2. A photostat copy of another letter from the complainant to the opposite party, dated December 8, 2016, accompanied by the bill from September 9, 2016.
3. A photostat copy of the response letter from the opposite party to the complainant, dated January 6, 2017.

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