Delhi

StateCommission

A/401/2015

ASHUTOSH JHA - Complainant(s)

Versus

VODAFONE MOBILE SERVICE LTD. - Opp.Party(s)

07 Dec 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision:07.12.2018

 

 

First Appeal No.401/2015

(Arising out of the order dated 13.07.2015 passed in Complaint Case No. 90/2015 by the District Consumer Disputes Redressal Forum (VII), Sheikh Sarai, New Delhi)

 

 

Shri Ashtosh Jha,

S/o Prof. Surendra Jha,

R/o RZ-10H, Dharampura Colony,

Najarfagh, New New Delhi                                                         …..Appellant

 

Versus

 

Vodafone Mobile Services Ltd.,

C-48, Okhla Industrial Area, Phase-II,

New Delhi.

 

ALSO AT:

 

A-19, Mohan Cooperative Industrial Estate,

Mathura Road, New Delhi .                                                    .….Respondents

 

 

CORAM

 

Justice Veena Birbal, President

 

 

1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?

 

Justice Veena Birbal, President

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, the “Act”) against order dated 13.07.2015 passed by the Consumer Disputes Redressal Forum (VII), Sheikh Sarai, New Delhi (in short, the “District Forum”) in Complaint Case No.90/2015 whereby the aforesaid complaint has been dismissed being not maintainable.
2. Briefly the facts relevant for the disposal of present appeal are that a complaint under Section 12 of the Act was filed by appellant herein i.e. complainant before the District Forum stating therein that he had been using an Idea pre-paid mobile connection No.9911588191 for several years.  It was alleged due to certain issues, appellant/complainant intended to change his cellular service provider. It was stated that since respondent/OP was providing the facility of ‘number portability’, appellant/complainant was inclined to avail the said service as it enabled a user to retain his original number while changing the cellular service provider. It was stated that in the first week of February, 2014 appellant/complainant had applied online in order to avail the portability facility from the respondent/OP. It was stated that on 12.02.2014 one Mr. Lalit visited the office of the appellant/complainant as service agent of the respondent/OP. Thereupon, appellant/complainant filled up the number portability form and submitted all relevant document to the said service agent of respondent/OP. The appellant/complainant also paid an amount of Rs.250/- towards number portability charges. It was alleged that after 6-7 days appellant/complainant received a confirmation code from the respondent/OP, which confirmed the portability from Idea mobile services to the cellular services of respondent/OP. It was alleged that around 22.02.2014, appellant/complainant had received one SMS from respondent/OP  informing him that  their executive could not verify about the address given by appellant/OP   and had submitted a negative report, as such outgoing

 

 

 

calls and internet services from the appellant/complainant’s phone number were to be stopped immediately. The appellant/OP had reported the matter to the Customer Care centre of respondent/OP. It was alleged that on enquiry it transpired that the respondent/OP had entered incorrect address of the appellant/complainant, due to which his address could not be verified and outgoing and internet services were stopped by respondent/OP.  It was alleged that despite lodging the complaint, nothing was done by the respondent/OP, rather respondent/OP informed the appellant/ complainant that his request for change of address would                                              take some time. Appellant/OP informed respondent/OP that he never made such a request. However, no satisfactory answer was given by respondent/OP. It was alleged that thereafter appellant/complainant visited the Vodafone store, Lajpat Nagar, wherein it was informed that appellant/complainant number portability service will start from zero i.e. he had to fill the form again and the entire formalities for the number portability were to be done again from starting point. It was alleged that the employee of respondent/OP also demanded Rs.250/- towards service charges. It was alleged that appellant/complainant had visited the customer care service centre of respondent/OP, but nothing was done. Left with no option, appellant/complainant also sent a legal notice to respondent/OP on 05.03.2014. It was alleged that services of the appellant/complainant were resumed on 06.03.2014, however, respondent/OP charged entire month bill for the same.  Thereupon, appellant/complainant alleging deficiency in service on the part of respondent/OP filed a complaint before the District Forum seeking directions to respondent/OP to pay compensation of                 Rs. 5 Lacs towards damages for mental and physical harassment suffered by him and to discontinue alleged unfair trade practices.

3. Ld. District Forum, relying upon the judgment passed by Hon’ble Supreme Court in General Manager, Telecom v M. Krishanan & Anr., (2009) 8 SCC 481 dismissed the complaint at admission stage.
4. Aggrieved with the aforesaid order, present appeal is filed.\
5. Ld. Counsel for appellant/complainant has contended that present is not a case of billing dispute.  It is submitted that controversy is stoppage of services i.e. the outgoing and internet services by the respondent/OP due to wrong noting of address of appellant/complainant by employees of respondent/OP. It is contented that appellant/complainant had to suffer mental agony and harassment.  Ld. Counsel for appellant/complainant has further submitted that in view of the judgment passed by three Member Bench of National Commission in Bharti Hexacom Ltd. v Komal Prakash, RP No.1228 of 2013 decided on 02.05.2014, the District Forum is competent to entertain the disputes between individual telecom consumers and telecom service providers.   
6. On the other hand, it is submitted on behalf of the respondent/OP that the ld. District Forum has rightly relied upon the judgment of General Manager, Telecom v M. Krishanan & Anr and prayed for dismissal of the appeal.
7. We have heard the Counsel for parties present and perused the material on record.                 
8. In the judgement of Bharti Hexacom Ltd. v Komal Prakash (supra), it is observed by the National Commission that after order of Apex Court in M. Krishnan (supra) case, Ministry of Communication and I.T. vide letter dated 24.01.2014 clarified that powers of Telecom Authority are not vested in private telecom service providers and Section 7B of Indian Telegraph Act is not applicable. The relevant portion of aforesaid judgement is reproduced as under:

 

“We may also note that the main point on which notice in this revision petition was issued was with regard to the maintainability of the complaint, in view of the judgement of the Hon’ble Supreme Court in General Manager, Telecom v. M. Krishnan & Anr. (MANU/SC/1597/2009 : (2009) 8 SCC 481).  However, subsequently, vide a letter dated 24.01.2014, the Government of India, Ministry of Communication & IT, while responding to the communication received from the Secretary, Department of Consumer Affairs, Government of West Bengal on 07.10.2013, in relation to the Hon’ble Supreme Court’s judgement in M. Krishnan (supra), has clarified that the said decision involved a dispute between the Department of Telecommunications (DoT), which was a “Telegraph Authority” under the Indian Telegraph Act, as a service provider prior to the hiving off of telecom services into a separate company, viz., Bharat Sanchar Nigam Limited (BSNL).  However, as the powers of a “Telegraph Authority” are now not vested in the private telecom service providers, as is the case here, and also in, the BSNL; Section 7B of the said Act will have no application and, therefore, the Forums constituted under the Consumer Protection Act, 1986 are competent to entertain the disputes between individual telecom consumers and telecom service providers.  In the light of the said clarification, the complaint before the District Forum was clearly maintainable and the objection of the petitioner in this regard is bereft of any merit.  For the aforesaid reasons, the revision petition is dismissed.”

 

9. In R.P. No.865 of 2013 titled Reliance Communications Ltd. v. Beena Menon decided on 19.11.2014, National Commission after discussing judgement of Delhi High Court in J.K. Mittal v. Union of India reported in AIR 2012 Delhi 94 held that OP does not fall within purview of Telegraph Authority; so, Section 7B of Telegraph Act was not applicable.  
10. The National Commission in Vivek Bhardwaj v Vodafone Essar East Ltd. & Others, 2016 SCC online NCDRC 1851 after relying upon Bharti Hexacom Ltd. (supra) 3 Member Bench judgement of National Commission and other judgements referred above held that the Fora constituted under Consumer Protection Act are competent to entertain disputes between individual telecom consumers and telecom service providers.
11. In view of above discussion, we find the District Forum committed error in dismissing the complaint on the ground that the complaint was not maintainable.  Accordingly the appeal filed by appellant/complainant is allowed and impugned order dated 13.07.2015 passed by the District Forum in CC No.90/2015 is set aside and matter is remanded back to the District Forum for deciding the complaint on merits as per law.
12. Parties are directed to appear before the District Forum on 19.01.2019.

13.              A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum for information. Thereafter the file be consigned to record room.      

 

 

 (Justice Veena Birbal)

President

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