Order-14.
Date-22/12/2016. .
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in short, is that he was the subscriber of the Vodafone Company having No.9830086158 in his name from 30-07-2012 to 18-08-2015. The complainant wrote to the Nodal, requesting them to provide him call details of the no. 9830086158 from January, 2015 to August, 2015, on 06-04-2016 and expressed his willingness to pay whatever reasonable price the OP may ask. OP declined to provide the call details citing flimsy ground and that there was lot of email exchanges between the complainant and the OP, thereafter. Ultimately the complainant got frustrated with the replies of the OP and wrote the last E-mail to OP on 22-04-2016 but in vain. Complainant has prayed for providing him with the call record of his No. 9830086158 for the period January, 2015 to August, 2015.
OP has contested the case in filing written version contending, inter alia, that the case is not maintainable in law and in Consumer Forum and Forum has no jurisdiction to try this case. It is also alleged that the complainant is not a consumer within the meaning of C.P. Act,1986. It is also alleged that there is no relationship of consumer and the service provider at the time when consumer alleges deficiency of service. It is stated that the complainant had subscribed to a Vodafone prepaid connection and the mobile no. 9830086158 was registered in his name. The said connection was registered in the name of the complainant from 30-07-2012 to 18-08-2015. Thereafter, the complainant ported his name out of Vodafone’s network and a deactivation request was sent to the OP. The complainant ceased to be a Vodafone customer on and from 18-08-2015. It is stated that as per Company’s specification for “Prepaid Itemized Bills” as available on Vodafone’s website, Prepaid Itemized Bills are available only for a period of 6 months from previous month. It is clear that the connection in question was not within the purview of Vodafone’s network at the time of making request for itemized bill and was well after above mentioned 6 months period. OP refused the request of the complainant stating that the complainant was no longer using the aforesaid connection and same was then registered in the name of a third person and therefore, for security reason, the complainant could not be given for the call details on the said number. This OP has prayed for dismissal of the case in limini.
Points for Decision
- Whether the case is maintainable before Consumer Forum?
- Whether the OP has been deficient in rendering service to the complainant?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
Ld. Lawyer appearing for the side of the OP has argued that the Consumer Fora 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 providers including BSNL. The Director General of Post and Telegraph is the Telegraph 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 Delhi High Court in W.P.(c) 8285/2010 and C.M. No.21319/2010, date of decision 06-02-2012 we do not think that Section 7B of Indian Telegraph is applicable because the power of Telegraph Authority is not vested or available to private Telecom Service providers including BSNL and Telegraph Authority means the Director General of Posts and Telegraph. The recourse to Section 7B in case of disputes between consumers and private service providers and BSNL would not be available. Bar u/s.7B could have applied had the dispute arisen between the telegraph communication authority which OP is not. The consumer complaint accordingly is very well maintainable before the District Consumer Forum.
We have perused the documents on record i.e. namely Xerox copy of petition of complaint in South Bidhannagar P.S. Case No.102 of 2015 u/s.498A/406/384/325/34 of IPC, filed against Indranil Mukherjee (complainant in this case), Xerox copy of the order in G.R. Case No.610 of 2015, Xerox copy of V-search, Xerox copy of View Status Change History of subscriber Indranil Mukjherjee (complainant) as filed from the side of the OP. Complainant has not filed any document save and except the notice of Office of Assistant Director, Consumer Affairs.
According to Section 2(1)(d)(ii) of the C.P. Act, 1986, a ‘consumer’ means “any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person”. A person is said to be a ‘consumer’ at the time when such person hires or avails of a service and other pays consideration or the sum or promised to pay consideration at a later date.
‘Deficiency’ is defined in Section 2(1)(g) as “any fault, imperfection, shortcoming or 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 appears that the complainant had subscribed to Vodafone’s prepaid connection and his Mobile No. 9830086158 was registered in his name. The said connection was registered in the name of the complainant from 30-07-2015 to 18-08-2015. Thereafter, the complainant ported out his number out of Vodafone Network and a deactivation request was sent to the OP. Thereafter the complainant ceased to be a Vodafone Customer or a customer of the service of the OP on and from 18-08-2015. It also appears that subsequently on 06-04-2016 i.e. more than 7 months after the complainant stopped using the services of the OP, the complainant approached the OP and requested for call details and or itemized bill of the aforesaid connection of the complainant for the period from January, 2015 to August 2015. It also appears that as per company’s specification for ‘Prepaid Itemized Bill’ as available on Vodafone’s website, Prepaid Itemized Bill is available for the period of 6 months for previous months. As per guidelines of Telecom Regulatory Authority of India (TRAI), “it will not be obligatory on the part of the service provider to provide information for any period beyond a period of six months preceding the date of request”. So, we think that OP is not under any obligation to provide the call records of the subject mobile no. 9830086158 for the period January, 2015 to August 2015 as per the Guideline of TRAI. The complainant ceased to be a consumer of the OP in August, 2015 but he made the request for the itemized bill after more than 7 and ½ months after ceasing to be a consumer of the OP. From a conjoint reading u/s.2(1)(d)(ii) and 2(1)(o) of C.P. Act, it can be said that in order to make it a case of deficiency of service, a complainant must prove that he was a consumer of service at the time of grievance and or deficiency complained is alleged to have occurred. In other words, there must be a relationship of a consumer and service provider at the time when the consumer alleges deficiency of service.
We are, however, given to understand that a Criminal Case being GR Case No.610/2015 (arising out of South Bidhannagar P.S. Case No.102/2015) is pending before the Ld. ACJM at Bidhannagar South 24 Pgs.(N). In CRR No.2289 of 2016 arising out of the impugned order dated 23-06-2016 passed by Ld. ACJM, Bidhannagar, High Court has been pleased to direct the service provider including OP to preserve the data in those mobile numbers including the subject mobile number. In view of such order of the Hon’ble High Court, we feel inclined to direct the OP to act accordingly.
In result, the case succeeds.
Hence,
Ordered
That the instant case be and the same is allowed on contest.
OP is directed to provide the call record of the subject mobile being no.9830086158 for the period January, 2015 to 18th August, 2015 to the complainant as against charges or the fees as per norms if not destroyed meanwhile within one month from the date of this order. i.d., complainant will be at liberty to put the decree into execution.
No order as to cost.
