UTPAL KUMAR BHATTACHARYA, PRESIDING MEMBER
This Appeal u/s 15 of the C.P. Act, 1986 was filed by the Appellant/OP No.1 targeting the judgment and order dt. 19.02.2016 passed by the Ld. District Forum in complaint case No. 91/2015 allowing the complaint on contest against the OP Nos. 2 and 3 and ex-parte against OP No.1.
The OPs were directed to facilitate and restore /activate the portability of the mobile connection No. 9434005626 within 3 weeks from the date of the impugned order.
That apart, the OPs were made liable to pay compensation and litigation cost to the tune of Rs. 10,000/- and Rs. 5,000/- respectively in equal proportion within the same period of 3 weeks .
The Complainant was allowed liberty to execute the order as mandated in the C.P. Act, 1986 in case of non- compliance of the impugned order and in that case , as directed further, each set of OPs would be liable to pay fine at the rate of Rs. 100/- per diem to the Complainant from the date of the impugned order till compliance of the order in toto.
The facts of the case , in a nutshell, were that the Respondent No.1 / Complainant took a mobile phone from BSNL, Tamluk, Purba Medinipore bearing No. 9434005626 and got the same activated on 26.12.2002 . The said Respondent No.1/Complainant, MD of two organizations namely, Blue Star Civil Engineering Co. Pvt. Ltd. as well as MD of Novel Engineering and Technical works Pvt. Ltd. applied for mobile number portability of the said connection from Respondent /OP No. 2, the Donor Operator, to the instant Appellant/OP No.1 , the Recipient Operator by submitting filled in Customer Agreement Form (CAF). The Application was received on 26.07.2014 by the Appellant / OP No.1 and the connectivity was transferred as per proposal on 04.08.2014 but , the Respondent No.1 / Complainant could not enjoy the continued service of Appellant /OP No.1 due to previous dues with the Respondent /OP No.2 in respect of the subject mobile remaining outstanding . The Respondent /OP No. 2 who deactivated the subject mobile number w.e.f 25.08.2014 had subsequently issued the conditional no due certificate on 29.09.2014 but prior to that , being aware of the information about the outstanding dues as mentioned above , the Appellant/OP No.1 had permanently deactivated the number on 08.09.2014 sending the same back to the Respondent /OP No.2 . The deactivated subject connection could not be brought to life on repeated persuasion and number of correspondences made by the Respondent No.1 / Complainant to both the telephone service providers , that is , Appellant/OP No. 1 and Respondent /OP No.2. Such deficiency in rendering service , as alleged , put the Respondent No.1 / Complainant to serious business loss as he could not keep contact with his clients , customers and relatives . Such an awkward position prompted the aggrieved Respondent No.1/Complainant to file the compliant case . The impugned order arose out of the same.
Heard Ld. Advocates appearing on behalf of all sides . The Ld. Advocate appearing on behalf of the Appellant/OP No.1 submitted that the Ld. District Forum had exceeded its jurisdiction by entertaining the complaint as the Indian Telegraph Act, u/s 7(b) did not provide any jurisdiction and authority to the Ld. District Forum to adjudicate such matters. As submitted , there is plethora of judgments passed by the Hon’ble Apex Court and Hon’ble National Commission to that effect .
The Ld. Advocate continued that the Forum below had erred going contrary to the decision of the Hon’ble Supreme Court reported in 2009 AIR SCW 5631 wherein Hon’ble Supreme Court observed that the telecom disputes relating to billing , line or apparatus should be referred to Arbitration which, since had not been reversed by any other Bench , was , as submitted , became the law of the land as of now and accordingly , binding upon all courts within the territory of India.
As submitted that the Appellant/OP No.1 , on receipt of the proposal for mobile number portability in respect of the subject mobile phone , needed to obtain clearance towards no dues in respect of the said mobile phone with the donor operator , the Respondent /OP No.2 on the instant occasion.
The Ld. Advocate went on to submit that the Donor Operator , being the Respondent / OP No.2, on being requested to send the clearance towards the proposed mobile number portability in respect of the subject mobile , informed the Appellant/OP No.1 towards outstanding amount of Rs. 700/- in respect of the said mobile.
Referring to the e-mail at page 80, the Ld. Advocate submitted that the Respondent /OP No. 2 , being the Donor Operator , intimated through the said e-mail that there was outstanding dues in respect of the subject mobile and an NPD (non payment disconnect) request was made on 25.08.2014 .
As submitted , the Ld. District Forum erred in understanding that as per provisions laid down in the Telecommunication Mobile Number Portability Regulations , 2009, a subscriber should be bound to pay all dues to the Donor Operator pertaining to the Mobile Number sought to be ported till its eventual porting and that in the event of non-payment of any such dues to the Donor Operator, the ported mobile number should be liable to be disconnected by the recipient operator .
The Appellant/OP No.1 , the recipient operator on the instant occasion , did exactly in the lines of the above guidelines, disconnecting the ported mobile number on 08.09.2014 , long before 29.09.2014 when the conditional no dues certificate was issued by the Respondent /OP No. 2. Thus, as continued, there was no deficiency on the part of the Appellant/OP No.1.
The Ld. Advocate went on to submit that the Ld. District Forum further erred in not considering the fact that since the mobile number portability was not done upon the subject mobile number by the Appellant /OP No.1 , it was natural that the Appellant /OP No. 1 would not have the related records on the instant issue under their custody.
As submitted , the Respondent No.1 /Complainant applied to Appellant /OP No. 1 for mobile No. portability on 04.08.2014 and the said service connection was ultimately deactivated by Respondent /OP No. 2 on 25.08.2014. The Respondent No.1 / Complainant , as pointed out , by a communication dt. 12.01.2015 demanded from the Respondent /OP No. 2 a new SIM for the alleged mobile number. Making reference to Appellant /OP No. 1 and to Respondent / OP No. 2 for mobile number portability and for new SIM respectively against the same mobile number one after another indicated that the Respondent No.1 / Complainant was trying to sail two boats at the same time.
The Ld. Advocate, with his above submission, prayed for the Appeal to be allowed setting aside the impugned judgment and order against the Appellant /OP No.1.
Ld. Advocate appearing on behalf of the Respondent No.1/Complainant, in his very brief submission, informed the Bench that his client is now at a loss as to the action to be taken on his part for reactivation of the subject telephone.
As submitted, the subject phone was dead as of now for want of desired action on behalf of both the Appellant/OP No.1 and Respondent /OP No. 2 at the right time. The no objection, however, as contended, could be obtained from the Respondent /OP No. 2 with much toil on 29.09.2014 but the phone was subjected to prior deactivation on 08.09.2014 by the Appellant/OP No.1.
The Ld. Advocate concluded saying that his client had to face serious mental agony and physical harassment because of the height of deficiency in rendering services by the Appellant/OP No.1 and Respondents/OPS 2 and 3 and prayed for dismissal of the Appeal affirming the impugned judgment and order.
The Ld. Advocate appearing on behalf of the Respondents /OP Nos. 2 and 3 submitted that there was no deficiency on the part of his clients who did not issue no objection as there was outstanding dues in respect of the subject mobile. The no due certificate, however, was issued only after the payment of the entire outstanding dues was made in respect of the said subject mobile.
Perused the papers on record . With the passing of days , the telecom sector has undergone a metamorphosis . It is no longer run directly by a Department of the Government . It is , rather , run by the BSNL which is a public sector company registered under Companies’ Act , 1956 and Vodafone is a Private Sector Company. Both the companies are service providers in the above perspective and since the matter relates to rendering of service only, the Consumer Forum has authority and jurisdiction to adjudicate the issue.
Further on perusal of record, it came apparent that the Respondent No.1 / Complainant preferred a proposal for mobile number portability from Respondent/OP No. 2 , the Donor Operator to the Appellant / OP No.1 , the recipient operator on 04.08.2014 . The BSNL Authority, due to non-payment of dues , deactivated the connection on 25.08.2014 but Respondent No.1/Complainant again made communication to the Respondent /OP No.2 for allocating a new SIM in respect of the same number .
I have verified the record and seen that the communications subsequent to 04.08.2014 were mostly made to Respondent /OP No.2 and not to Appellant/OP No.1 to whom the mobile number portability was proposed for. It is, therefore, an obvious inference that the Respondent No.1 / Complainant , being captive of indecision , sailed two boats at a time.
Moreover , the record itself was sufficiently indicative that the Appellant /OP No.1 had reasons for not acceding to the proposed mobile number portability in respect of the subject connection. The Appellant/OP No.1 , as appeared , was handicapped towards deactivating and return the subject mobile number as he, in terms of the provisions laid down in Regulation 15 (4) of the Telecommunication Mobile Number Portability Regulations 2009, was not supposed to entertain the proposed portability unless the dues he had with Respondent /OP No. 2 , the Donor operator , was cleared by the Respondent No.1 /Complainant.
The impugned order too , as it appeared , did not elaborate in so many words , the reasons for making the Appellant/OP No.1 vicariously liable for the alleged deficiency .
The facts and circumstances narrated above, led me to believe that the Appeal has merit for being favourably considered.
Hence,
Ordered
That the Appeal be and the same is allowed in part without costs . The Appellant/OP No.1 is exonerated from complying with the directions passed upon him in the impugned order . The impugned order stands modified accordingly.
