JAGANNATH BAG, MEMBER

         The present appeal is directed against the Order , passed on 28.10.2014, by the Ld. District Consumer Disputes Redressal Forum, North 24-Parganas, in CC Case No. 328/2014 , whereby the complaint was allowed on contest against the OPs.

          The complaint case, in brief, was as follows:

          The Complainant availed of mobile service of the  OP No.2, namely, Bharti Airtel Ltd., till 10^th March 2013 . The relationship with the OP No.2 became tarnished due to excess bill of the OP No.2. On or about 8^th /9^th March 2013,  he was informed by OP No.1 about portability system with the same number as provided by the other service provider . The Complainant paid the necessary amount by cheque and became a consumer of OP No.1 from 10^th March 2013. He used to pay consideration for the service provided by OP No.1. Simultaneously , the previous service provider , OP No.2 sent bills for the period from 11^th March to 10^th June, which the Complainant neglected to pay as he did not use the service of OP No. 2. All on a sudden OP No.1 disconnected the mobile service on 17.06.2013 with a message that the Complainant should clear his dues with the earlier operator, otherwise the services would be disconnected. There is no dues in respect of OP No.1, still they disconnected the service causing inconvenience to the Complainant. In the said circumstances , the complaint was filed with prayer for direction upon the OP No.1 to connect the service , to pay a compensation amounting to Rs. 50,000/- and to pay cost of litigation. The Complainant also prayed for direction upon OP No.2 to pay compensation of a sum of Rs. 10,000/- for raising vague bills.

          The OPs have contested the case by filing separate W.V. Ld. Forum below having considered the W.Vs along with affidavit-in-chief of the Complainant  and the OPs and also upon consideration of the arguments advanced by the Ld. Advocates of the Complainant and the OPs, observed that  the reasons shown in the evidence and W.V. by the OP No.1 were not satisfactory. As the disconnection caused serious inconvenience to the Complainant,  Ld. Forum below allowed the complaint and directed OP No.1 to connect the mobile service to the Complainant, apart from payment of compensation of Rs. 10,000/- for causing loss and mental agony due to disconnection and Rs. 3,000/- as litigation cost . OP No.2 was directed to pay compensation of Rs. 2,000/- to the Complainant for sending vague bills. 

          Being aggrieved by and dissatisfied with the order of the Ld. Forum below, the OP No.1-turned-Appellant has come up 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 complaint , the petition filed by OP No.1 on the question of maintainability, the W.V. filed by OP No.1, the evidence filed by OP No.1 before the Ld. Forum below etc. which have been perused by us.

          Ld. Advocates appearing for the Appellant and the Respondents have been heard.

          Ld. Advocate appearing for the Appellant submitted that the impugned order is erroneous as there was no deficiency in service on the part of the OP /Appellant. The complaint petition should have been dismissed in terms of Section 7B of the Indian Telegraph Act, as the Ld. Forum did not have jurisdiction to adjudicate the dispute which should have been referred to the arbitrator as provided under Section 7B of the Indian Telegraph Act. Further , it was submitted that the Respondent No.1 / Complainant having requested for porting of his mobile number he was liable to pay off all dues of the Donor Operator, i.e, Respondent No.2, failing which , the Recipient Operator could disconnect the mobile service as per the Telecommunication Mobile Number Portability Regulations, 2009. The Respondent/Complainant  did not clear the outstanding dues of Rs. 883.69  payable to the Respondent No. 2 . No proof of payment of the said dues could be filed by the Respondent / Complainant. The mobile number was disconnected for non-payment of the previous operator’s dues and accordingly the said number was returned to the previous operator, i.e., Respondent No.2. The Appellant acted strictly as per provisions of the Telecommunication Mobile Number Portability Regulations. There was no deficiency in service on the part of the Appellant.

          Ld. Advocate appearing for the Respondent No.1 submitted that he paid the last bill up to 10^th March 2013, to the previous service provider i.e., Respondent No. 2 and since the mobile connection was ported after 10^th March 2013 and he duly paid the bills for the period from 10^th March, 2013 to 17^th June, 2013 . There was no liability on the part of the Respondent / Complainant to pay any bill of his ported Mobile Number to the previous service provider being the Donor Operator.

          Ld. Advocate appearing for the Respondent No. 2 submitted that the order of the Ld. Forum below has not been passed with due adherence to the provisions of the Telecommunication Mobile Number  Portability Regulations, 2009. The Appellant being the Recipient Operator duly sent a notice to the Respondent / Complainant under Sub- Regulation (5) of Regulation 14 for disconnecting the ported number , but the Respondent / Complainant did not settle the dues as a result of which , the mobile service was disconnected but Ld. Forum without consideration of the provisions  of the said Regulations directed the Appellant to provide the mobile service and also directed for payment of compensation and cost. The  direction of the Ld. Forum below upon the Respondent / OP No. 2 for payment of compensation of Rs. 2000/- to the Complainant is not justified. The impugned order deserves to be set aside.

                                                                                           Decision with Reasons :

        The point for consideration is whether the impugned order suffers from any material irregularity or illegality warranting any interference  whatsoever.

          The fact goes that the Respondent /Complainant approached the Appellant /OP for porting of his mobile service which was provided by the previous service provider, namely, Bharti Airtel Ltd., being OP No. 2 / Respondent No.2 herein . The service connection was ported but the same was disconnected with effect from 17.06.2013 as allegedly, the Respondent/Complainant failed to clear outstanding dues of Rs. 883.69 to the OP No.2 . This was, as submitted on the part of the Appellant , in terms of  Regulation No. 14 of the Telecommunication Mobile Number Portability Regulations , 2009 .

          There is no dispute that the Respondent /Complainant paid his mobile service bill of the previous service provider, namely, Bharti  Airtel Ltd. for the period from 11^th February 2013 to 10^th March 2013. That was the last bill of the previous service provider prior to switching over by the Complainant / Respondent  to the Recipient Operator . The Respondent /Complainant availed the service of the Appellant/ OP after 10^th March, 2013 and used to pay consideration for their service . In that case raising of bill , by the OP No.2 / Respondent No.2 , being Donor Operator appears to be unusual in the sense that the said Respondent was no longer the service provider for the Complainant/ Respondent after 10^th March, 2013,  and as such, he  did not pay such bill as he did not use the service of the OP-2/ Respondent No.2. Further, the Appellant / OP did not produce any evidence before the Ld. Forum below showing that they had received any communication from the Donor Operator to the effect that the Respondent / Complainant did not clear any outstanding dues. It has been stated in their W.V paragraph -6 that the said OP / Appellant herein came to know from the 2^nd O.P. that there is an outstanding of Rs. 883.69 of the Complainant  and since the Appellant/OP did not receive any payment proof , the mobile Number was disconnected . How the  Appellant/OP came to know about the outstanding dues has not been stated with  proof .  Ld. Forum below observed that the bills sent by the OP No.2 / Respondent No.2 were ‘vague’ and there is force in such adverse inference.

          The petition of the Appellant / OP on the point of maintainability of the complaint case was decided by the Ld. Forum below on the strength of the communication made by the Government of India , Ministry of  Consumer Affairs , Food and Public Distribution, ( Consumer Protection Unit) vide File No. J-24/11/2014-CPU holding that the disputes between telecom service providers and consumers may be entertained by the Consumer Fora .

          We find no reason to interfere with the impugned order except in regard to the direction of the Ld. Forum below upon the OPs to pay penalty @ Rs.50/- daily in default of non-compliance of other parts of the impugned order within the stipulated period of one month from the date of order, as appeal has been preferred within the statutory limit of 30 days from the date of order. In that view of the matter the appeal may be allowed in part. Hence                                                         Ordered

         That the appeal be and the same is allowed in part on contest. The impugned order is modified to the effect that the Ld. Forum’s direction upon the OPs to pay penalty @ Rs.50/- daily, in case they do not comply the other parts of the order within a month from the date of order, shall stand deleted, while the other parts of the order shall remain unchanged. Parties to bear their own costs.