Order-17.
Date-14/02/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the Complainant in short is that he has been availing the service of Vodafone since the pretty long time and his cell phone no. 9830123854 had been the official number with pre paid connection and his number has been forwarded to all his clients for regular contacts. The Complainant took the postpaid connection of the OP in 2013 keeping the same number intact. But, in the month of January,2014 he travelled abroad to United States of America and in order to keep the mobile connection intact in Kolkata i.e. the aforesaid number 9830123854 was requisitioned with the OPs for keeping in safe custody at the Park Street Office. The officials of OP No. 1 advised the Complainant to follow the necessary procedure and to deposit Rs.600/- as charges for keeping the number in safe custody.
The Complainant paid an amount of Rs.600/- and also adhered to the instructions of the officials of OP No. 1 for one year. On 11.01.2014 the Complainant travelled to USA for the schedule jobs, all on a sudden, the cousin of the Complainant informed the Complainant for the first time in June,2014 that someone else is picking up subject phone with the number 9830123854 which was supposed to be in safe custody of the OP. The Complainant emailed to the Appellate office of Vodafone in November 13, 2014, through his official mail id detailing grievances. The Complainant also mailed to various time times to Vodafone, but received no positive reply. Ultimately, OP No. 2 informed the Complainant in writing on 30.12.2014 that the said no. was assigned to a new industrialist on 12. 04.2014 and the said number can not be reverted back to the Complainant. The Complainant was spellbound and claimed the number back vide series of e-mails but to no good.
The Complainants has alleged deficiency of service against the OPs. Hence, this case.
OPs have contested the case in filing w.v. contending inter alia that the case is not maintainable in its present form and prayer. It is also stated that as per guideline of TRAI a Mobile Number whose Bills are not paid nor any activity done is sent to suspension after a period of 90 days and after 15 days the number is deactivated and allowed to be re-allocated to a new customers. It is stated that the payment of charges for safe custody was not reflecting in the system of the OP and as such the said number was not considered as a number kept under safe custody. It is also stated that OP No. 1 admittedly offered the Complainant with premium numbers which are priced at Rs. 25,000/- free of charges as the number could not be returned to the Complainant since it has been allotted to a new Customer. The Complainant has not accepted the offer of the said premium number.
It is also stated that the dispute is not maintainable in the present form and if the Complainant has any problem, he may agitate the matter before the Statutory
Arbitrator to be appointed under section 7(b) of the Indian Telegraph Act. It is alleged that the Forum has got no jurisdiction to entertain the complaint. It is stated that the Instant Complaint is frivolous and vexatious and the same be dismissed.
Point for Decision
1) Whether the case is maintainable in Consumer Fora?
2) Whether the OP is deficient in rendering services to the Complainant ?
3) Whether the Complainant is entitled to get the relief as prayed for?
Decision with Reasons
We take up all the points together for decision for the sake of brevity and convenience.
The OP has argued that the Consumer Forum has no jurisdiction to entertain the case in its present form. Regarding maintainability we say that the Power of Telephone Authority is not vested or available to Private Telecom Services provider including BSNL. The Director General of Post & Telegraph is the Telephone Authority as envisaged in section 3 under clause 6 of the Telegraph Act. The matter has also been dealt with in details in a decision by Hon’ble High Court MP (C) 8285/2016 and CM No. 21319/2016.
We do not think that Section 7-B of Indian Telegraph Act is applicable because the power of Telegraph authority is not vested or available to private service providers including BSNL and Telegraph authority meaning the Director General of Post and Telegraph. The recourse of Section 7B is applicable in case a dispute between the consumer and the Telegraph Communication Authority which OP is not. The consumer complaint accordingly is sustainable before the District Consumer Fora.
We have perused the documents and records, namely, photocopy of receipt of Rs.600/- for safe custody payment, photocopy of application for safe custody payment, photocopy of legal notice, photocopy of e-mails on different dates and other documents on record.
It appears that the Complainant availed a post paid connection with Vodafone since 2013 and he had been a regular user of Vodafone Cell Phone Services. It also appears that the Complainant travelled USA in the month of January,2014 and before going he approached the OP to keep the mobile connection active and intact in Kolkata being No.983923854 for keeping in safe custody at the Park Street Office of Vodafone. The officials of the said office advised him to pay Rs.600/- as charge for keeping the number in safe custody for the year to that effect. The Complainant also paid Rs.600/- on 11.01.2014 for safe custody of the said number for a period of one year commencing on 01.01.2014 and terminate on 10.01.2015. We find that Complainant also file application in writing on the said date. As such, we think that the subject number was supposed to be in safe custody till 10.01.2015. Admittedly, the said number was reactivated in the system and it was allocated to a new customer. We think that it is sheer deficiency of service on the part of the OPs. OPs have taken the plea that the payment of safe custody charge was not reflected in the system of the OP party and as such the said number was not considered as a numbere kept under safe custody. We think that such plea is not tenable. The OPs have taken an amount of Rs.600/- from the Complainant as against the safe custody of the said number. If it is not reflected in the system of the OP, the deficiency lies with on the OP.
Quality and standard of service has to be decided on the anvil of definition provided by Section 2(1) (g) which means any fault, imperfection, short-comings or any inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. It is the duty of the OP to keep the subject number as a number under safe custody. The failure to do so and allocation of the number to a new customer means short-comings, fault imperfection inadequacy in the quality, nature and manner of performance which OPs are supposed to maintain but failed.
In our considered opinion and as it appears from the document on record, we think that the OPs have been deficient in rendering services to the Complainant causing a lot of inconvenience and suffering to the Complainant. We think that the Complainant needs to be compensated as such apart from the substantive relief as prayed for.
Consequently, the case merits succeeds.
Hence
Ordered
That the instant case be and the same is allowed on contest against the OPs.
OPs are jointly and severally directed to revert the number being 9830123854 to the Complainant within one month from the date of this order, apart from litigation cost of Rs.l0,000/-.
OPs are also jointly and severally directed to pay an amount of Rs.25,000/- as compensation for causing harassment, mental agony to the Complainant within the said stipulated period.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that case OP shall be liable to pay penal damage at the rate ofRs.5,000/- per month to be paid to this Forum till full and final satisfaction of the decree.
