Complaint filed on: 20.08.2011

                                                      Disposed on: 03.08.2017

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

CC.No.1542/2011

DATED THIS THE 03^rd AUGUST OF 2017

PRESENT

SRI.H.Y.VASANTHKUMAR, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

Complainant: -                     

Mr.Deepak R (BE, AMIE)

157, 2^nd cross, VHBCS Shankara Mutt-

Kurubarahalli Road,

Mahaa lakshmee pura

PO-560086

Bengaluru

By Adv Sri.K.S.Sridhar

V/s

Opposite parties:-    

1. M/s Vodafone Essar

South Ltd

(rep. by Customer

service Manager)

Block-1 (ground floor)

Prestige Blue Chip

9 Hosur Highway,

Bengaluru-560029

By Advocates

M/s. Gururaj & Associates

2. M/s. SG Telesystems

(rep. by Proprietor/ Owner/Manager)

‘Sapthagiri Complex’,

312/A-1, 6^th main

(1^st ‘A’ cross), (next to

Bank of India),

3^rd stage, 4^th block, Basaveshwaranagara,

Bengaluru-560079.

By Advocates

M/s. Acara Law Chambers

ORDER

Under section 14 of consumer protection Act. 1986.

SRI.H.Y.VASANTHKUMAR, PRESIDENT 

            The Complainant has been alleging the deficiency in service against the Opposite party no.1 M/s. Vodafone Essar South Ltd. and Opposite party No.2 M/s. SG Telesystems in between 01.09.2010 and 17.07.2011 in not updating status of his sim card 9620061761 to the DND register with in the stipulated time and has claimed the compensation amount of Rs.2 lakhs.

          2. The case of the Complainant in brief is that after purchasing sim card from the Opposite party No.2 dealer on 16.12.2009 bearing no. 9620061761 requested to register it in DND register so as to avoid unwanted calls, SMS from tele marketers. As per the TRAI regulations had to maintain such complaint of DND activation not only in NDNC register but also in NCPR register within 30 days from his request. He received unwanted calls, SMS from tele marketers in more than 20 occasions against the TRAI regulations and such deficiency in service in controlling them amounts to unfair trade practice. The Opposite parties did not monitor the DND activation nor enquired such tele marketers but were giving evasive answers to him. The Opposite parties though empower to take action have become unprofessional and highly manipulated against their own advertisements and failed to protect his interest and privacy and such practice of Opposite parties amounts unethical activities, despite his repeated complaints about unsolicited calls through e-mails. The Opposite parties did not take care about his case and requests. He browsed and learnt that his number instead of updating in January 2009 was shown in the NDNC register from July 2011 and it becomes clear violation of TRAI regulations. Because of unsolicited calls and SMS he was disturbed in attending his professional work and while doing his other activities with his relatives and customers.  Hence he is entitled to get the compensation and accordingly filed this complaint.

          3. The Opposite party No.1 has filed the version contending that this forum has no jurisdiction in view of section 7B of Indian Telegraph Act. His earlier complaint CC.1106/2010 came to be dismissed on 16.08.2010 by first additional district Consumer Forum, Bengaluru. DND facility will be provided after 45 days of the request and not from 30 days as alleged. Whenever the Complainant furnished the list of numbers of alleged tele callers, they were all blocked and duly attended with information given to him as admitted in interrogatories in the earlier case. The tele marketers and other service providers cannot be controlled by it. The Complainant being associate with spiritual organization, few bankers and also advertising in classifieds of weekly, filed this case on false, frivolous, vexatious and malafide intention. The uncalled tele marketers are to be controlled only through concerned operators as per TRAI regulations and not by him. There is no deficiency in its part in providing service to the Complainant. The complaint is liable to be dismissed.

          4. The Complainant and the officials of Opposite parties filed their affidavit evidences. The Complainant has relied on Ex-A1 to Ex-A35 documents. The Opposite parties have relied on Ex-B1 & Ex-B2 documents. Written arguments were filed by the Complainant and the Opposite party no.1. Arguments were heard. Perused the relied on decisions.

          5. The consumer disputes that arise for consideration are as follows:

1. Whether the Complainant establishes the alleged deficiency in service by the Opposite parties relating to DND request of his sim card ?
2. To what order the parties are entitled ?

6. Answers to the above consumer disputes are as under:

1) Negative

2) As per final order – for the following      

REASONS

          7. Consumer Dispute No.1: The undisputed facts revealed that the Complainant purchased the SIM card of Opposite party no.1 through Opposite party no.2/dealer on 16.12.09 and it is bearing no.9620061761. He issued the notice/Ex-A1 through email dtd.18.07.11 to both the Opposite parties alleging deficiency in their service, though he appropriately complied with the mandatory procedure of filling up prescribed format in getting DND registration with a request that his mobile number should not be used for telemarketing and that his number should be updated in NDNC website (National Do Not Call Register) stating that his allegations against Opposite party no.1 was pertaining to the period from 01.09.10 to 17.07.11 i.e. for the period of 10½ months.

8. In the said complaint/Ex-A1 itself he has made allegations that he received 100 unsolicited promotion SMS, 200 unsolicited promotional calls and reported 57 such telemarketers who sent SMS to him and 54 such marketers who sent the calls and still repeatedly he is receiving the such calls against the assurances by the Opposite party no.1 and thereby there is deficiency in service which is against the TRAI regulations also which empowers him to demand compensation of Rs.2 lakhs within 10 days.

9. The Complainant is mechanical engineer who came with first class in July 1991 and became the associate member of Institution of Engineers as per Ex-A4 & A5. In support of his allegations he has relied on Ex-A1 to A35 documents produced at various stages. His grievance is that though the SIM card status was to be updated in DND register within 30 days of his request, the Opposite party no.1 updated it from July 2011 only, neglecting his claim against the TRAI regulations.

          10. The Opposite parties no.1 & 2 have contested the case separately. The Opposite party no.1 has relied on Ex-B1 & B2 documents questioning the maintainability of this complaint on various grounds. They have furnished the copy of the order in CC.No.1106/2010 dtd.16.08.10 of the first additional district Consumer Forum at Bengaluru, wherein the Complainant has made the similar allegations against the Opposite parties. The Opposite party no.1 has also relied on interrogatories/Ex-B1 and reply given by the Complainant as per Ex-B2 therein, contending that the Complainant has suppressed the material facts including the fate of his first complaint of the same period.

          11. The Complainant nowhere has stated about the reasons for not disclosure about the fate of the first complaint. In Ex-B1/interrogatories the Complainant has answered to question no.1 that he has given his mobile number to some banks and co-operative banks and has received unsolicited promotional calls from them. Likewise he has answered that he had given his resume to reputed job website and received alert calls from them. Without stating the number of enterprises to which he has given mobile numbers he has answered that he has disclosed his mobile number to some religious and spiritual organizations. While answering to the question no.4 has stated that after the filing of the said complaint CC.No.1106/2010 he never received any unsolicited promotional SMS/calls for many weeks, though he suffered from such calls starting from 16.12.09.

12. Ex-A31 is the copy of his pre-paid customer information form wherein he has signed with date 11.12.10. In Ex-A32 he has furnished all the particulars starting from 18.07.11 till November 2016 in addition to Ex-A6, and it cannot be taken in to account after the date of filing of the complaint. Ex-A6 list starts from 01.09.10 till 17.07.11. He has mentioned in various columns about the details of such SMS/calls with last column about the dates informed to Opposite party no.1. There is no further mention that whether such calls repeatedly came to him after intimating to the Opposite party no.1. In Ex-A7/email, he has mentioned that he has got some UCC sms and requested to block those telemarketers. Through Ex-A8 dtd.12.09.10, the Opposite party no.1 informed him to send sms as DND to 1909 so that all his telemarketing calls and the messages will be stopped. The Complainant through Ex-A9 dtd.11.10.10 requested to furnish his DND registration particulars. The Opposite party no.1 through Ex-A10 dtd.21.10.10 informed that even after he placing his account on DND, calls are being received.

13. Ex-A31 shows that he has submitted the application on 11.12.10 but has been claiming his right for the previous periods of his application and hence such email transactions need not be looked in to. Hence his contention that he received such unwanted sms from 01.09.10 also cannot be accepted as the deficiency in service of the Opposite party no.1. The Complainant has filed the memo admitting the date of the applied from as 11.12.10 specifically stating that it was eight months prior to filing of the present petition. So it is clear that the Complainant has approached this court with unclean hands by furnishing most of the documents relating to before or after the concerned period.

          14. The Opposite party no.1 has contended that the TRAI regulations namely Unsolicited Commercial Communications Regulations 2007 was with effect from 05.07.07, wherein 45 days was the waiting period to activate the sim number in NDNC register. But the TRAI regulations again amended in 2010 by reducing such waiting periods, wherein the regulations no.6,7,8,9 show that the earlier subscriber of NDNC register are not required to re-register under amended 2010 regulations and after the expiry of three months from the last change of his request, member can change his preference in accordance with law.

15. As borne out in the records out of 10½ months of the stated period, the Complainant has not received any UCC calls for more than 7 months. The Opposite parties have contended that UCC calls are found to be originated from the network register and unregistered telemarketers and as per the email of the Complainant himself most of telemarketers are all from unregistered category and in such circumstances, the Opposite parties have no control over such telemarketers except to block their numbers whenever the Complainant requests with particulars and the same is done by them promptly even as admitted by the Complainant.

16. When 2010 amendment is in force there is no necessity for looking in to the notifications of earlier period and such notifications are produced as per Ex-A22. The Complainant has gone to the extent of producing 2010 notifications as per Ex-A23, 2011 notifications as per Ex-A24 but without explaining of the facts how it is applied to this complaint against the Opposite party no.1.

17. Ex-A28/guidelines for customers itself it is clearly stated that whenever he received unsolicited commercial communications, he can make a complaint furnishing the particulars within 3 days from the date of receipt of such commercial communications. Ex-A6 list shows that the messages at serial no.1 & 2 received on 01.09.10 and on 05.09.10 were reported on 09.09.10. The serial no.12 shows that the messages of 16.09.10 and of 18.09.10 were reported on 11.10.10. The serial no.13 shows that the messages of 03.11.10 was reported on 19.11.10. Such reports show that the Complainant has not reported within the stipulated period as per the guidelines and thereby has no right to expect the alleged efficient service from the Opposite party no.1.

18. The above observations are very clear that the Complainant instead of focusing his problem and the alleged deficiency in service with the Opposite parties has explained in exaggerated version in his complaint and improved his version when he was asked to file the complaint in proper terms and has produced documents most of which are irrelevant. He could have explained the reason for filing second complaint relating to the incidents of the same period. April 2010 incidents are mentioned in the judgment of the earlier complaint in CC.No.1106/2016 dtd.16.08.10 and this complaint is filed on 20.08.11 mentioned it as the period from 01.09.10 to 17.07.11 but reiterating the same facts starting from the date of his purchasing of SIM in December 2009. His alleged application Ex-A31 shows 11.12.10 as the date of filing of the same and nowhere it is mentioned in the complaint. On the other hand he has gone to the extent of making allegations about the period previous to that application. Hence the contentions of the Opposite party no.1 that the Complainant has come to the court with clean hands and has concealed the material facts to seek the equitable relief [II (2013) CPJ 176 NC], the intentional absence to explain about the first complaint by the Complainant disqualify him to get the relief to fill up the lacunas [III (2012 CPJ 500] and hence his complaint becomes liable to be dismissed [I (2013) CPJ 13A NC] cannot be brushed aside.

19. The Complainant has impleaded the Opposite party no.2 from where he purchased the SIM card and has not placed any cogent evidence to connect him with the alleged deficiency in service. The Opposite party no.2 sold the SIM in December 2009 and according to the Complainant then itself he had given the requisite format seeking privileges and the said privileges being the subject matter of the first filed case have already been determined. There is no allegation against the Opposite party no.2 that another format was given through Opposite party no.2 to the Opposite party no.1. Hence the Opposite party no.2 becomes unnecessary party and complaint becomes bad for misjoinder of party. The Opposite party no.2 has no role what so ever in the said transaction and hence the case is liable to be dismissed against Opposite party no.2.

20. Ex-A7 to A11 are the email transactions relating to September to November 2010 which is earlier period of Ex-A31 format dtd.11.12.10 and hence no importance can be given. In Ex-A8 the Opposite party no.1 has informed to send sms as DND to 1909 so that all his telemarketing calls and messages would be stopped. In Ex-A9 the Complainant has stated that the list attached by him probably belongs to miscellaneous telemarketers who has not been registered with Vodafone and therefore has been getting UCC from these miscellaneous marketers. In Ex-A10 the Opposite party no.1 has informed that it has forwarded to the concerned respective operators to take needful action. The Complainant through Ex-A11 again sought the information as to what date of October 2010 settings came in to effect.

21. Ex-A12, A13 are the alleged phone calls informations which cannot be relied on, wherein he has informed that if he starts sms DND to 1909/1900 the unsolicited sms coming to his mobile would be stopped. All these facts disclose that the Complainant started interaction to find faults and such process can be dealt by the TRAI authority only and not by the consumer forum as provided under section 7B of IT Act. Such interactions are subject matter of the day to day processes had to be dealt between the Complainant and the service provider before the appropriate authority as observed in appeals no.1949/2011, dtd.02.08.11 and appeal no.4578/2010, dtd.29.03.11 of our Hon’ble State Commission and also as observed in 2009 AIR SCW 5631.

22. It is not the case about the difference in bill amount etc., or about the external affairs of the Opposite party no.1 regarding financial transactions, so as to say that it does not come under the purview of section 7B of IT Act. His case is that 30 days is the stipulated period for DND activation is changed by the amended act and he has not produced any supporting documents to show that he has complied as per the amended act. The email transactions show the proper monitoring of the Opposite party company and where they did not succeed or neglected to do their responsibility is not established by the Complainant. Because of the disposal of the first complaint he had no right to contend again that he has been facing problem since December 2009 itself after admitting that no such complaints arose after filing of his first complaint. The cause of action starts when he starts complying the provisions on his behalf expecting compliance of the needful action by the Opposite parties and no cogent evidence is adduced in this regard. When himself has admitted that miscellaneous unregistered telemarketers cannot be controlled easily as they do not come under the control of the service providers he cannot expect that the Opposite party had to dealt them also, giving no scope for their interference. In the result the Complainant has failed to establish the Consumer Dispute no.1 and accordingly it is answered in the negative.  

          22. Consumer Dispute No.2: In view of the findings of Consumer Dispute No.1 the Complainant deserves to get the following:

ORDER

          The CC.No.1542/2011 filed by the Complainant is hereby dismissed. No order as to costs.

          Supply free copy of this order to both the parties. 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 3^rd August of 2017).

Documents marked on behalf of Complainant:

Document marked on behalf of Opposite party no.