CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM.
Present
Sri. Santhosh Kesavanath P. President
Smt. Bindhu M. Thomas, Member
Sri. K.N. Radhakrishnan, Member
CC No 373/09
Thursday the 30th day of June, 2011
Petitioners : 1)Jose Mathew.C
Cappil, Arunapuram PO, Pala.
2) Issac Cherian,
Thalakulam House, Mutholy PO
Puliyanoor, Kottayam.
3) Jaise Cherian,
do-do-do-
4) Joffy George,
Puthiyathu House, Kozhuvanal PO
5) Dolly George
do-do-do
6) Madhukumar KS,
Thazathuputhenpurackal House
Karoor PO
7) Joseph Mathew,
Valiyamyladiyal House,
Kozhuvannal PO
Puliyanoor, Kottayam.
Vs.
Opposite party : Vodafone Essar Cellular Litd,
II Floor, JCI Building, Kanjikuzhy,
Muttambalam PO, Kottayam
(Adv. D.Zaibo)
ORDER
Smt. Bindhu M. Thomas, Member
The complainant’s case is as follows.
The complaint is about the unfair trade practice committed by the opposite party and the opposite party’s act of not providing the offered price and withholding of the final results of Diwali scheme because the scheme has not been conducted at all. The opposite party announced the Diwali contest and promised prizes to 500 subscribers. The pre paid subscribers were asked to recharge for Rs.100/- or more. To know more about the said scheme the subscribers were advised to SMS Diwali to 111-Vodafone Cellur Ltd customer care toll free number. It was not mandatory for subscribers to send the SMS but simply added as a source of additional information. An SMS of Diwali to 111 evoked an automated reply. “Hello! Get a chance to get your house painted for free courtesy Vodafone &Dulux. Just recharge with Rs.100/- or more and answer the question that will follow”. The petitioners recharged for Rs.100/- on different days through the retailer Mr. Joffy George, M/s Corner Shop, located at Cappil Building, River View Road Pala. But no question followed. There the complainants contacted the call centre and phone No.111 and requested to register a complaint. A complaint was made to the Nodal Officer who too has not responded either by registering the complaint or settling the matter till date. The Asst.Manager, Customer service, Kottayam of Vodafone Mr. Krishnan C.K along with Mr. Gopakumar Retial Head, Kottayam visited the first complainant to know more about the scheme offered by the company and collected the necessary details. Mr. Leo RSM Pala, Vodafone was also appraised of the scheme but has not responded till date. Hence the complainant filed this complaint claiming the following reliefs.
1) Implementation of the scheme and delivery of product to the complainants
2) Reimbursement of costs in filing of this complaint Rs.1500/-
3) Exemplary fine on the company which may be made payable to “Voice” 441 Jangpura, Mathura Road, New Delhi 110 014.
The opposite party entered appearance and filed version with the following main contentions.
1) The complaint is not maintainable either in law or on facts. The complaint is not maintainable as relief sought is on a gratuitous basis. Complainant did not pay for the relief sought in the complaint. The gratuitous basis cannot be the cause for the complaint. The complainants admittedly have charged their recharge coupons for their usages.
2) The Vodafon Diwali contest has been promoted by Vodafone corporate office and has been promoted and Germined in Mumbai. It is true that a gift scheme has been promoted by the company through its corporate office for all India subscribers and scheme was run through the corporate office.
3) The scheme is through the automatic recorded system and the entries made thereby in which no manual interaction has been possible as per the scheme whoever has duly applied for the scheme was given the benefit of the process to get the gift which will be entitled on compliance of the guidelines specified therein.
4) The answers on making the entry will be processed in Mumbai and based on the same as per due draw of lot and the winner will be selected. The allegation of the complainants is that one Madukumar K.S did not get the question even after recharging. It is highly cogent to notice that by alleging a case of one Madhukumar 8 others also filed the complaint without any cause of action for them personally.
5) In all cases where due procedures were complied by the subscriber without fail; the questions shall be delivered by computer system. If the questions were not delivered, complainant ought to have contacted the responsible company officials directly, if he was serious on the alleged grievance. As per the scheme, the number of persons had applied for the gift without any complaints from any corner. The scheme was duly completed and gifts were given to such winners as well.
6) Even the complaint with respect to the alleged cause of action has been raised before this Hon’ble Forum much belatedly after 45 days. There was huge number of applicants for the gifts. To all the applicants’ questions were duly delivered. It is for the complainants to prove that he has made due request for the questions. At any rate it is confirmed that on all requests for questions as per the prescribed formality, questions were delivered.
7) The complaints can be seen apparently mischievous and the relief sought as of delivery of prizes is without any basis which is baseless and irrelevant. The relief sought of cash equivalent of 491 prizes to be given to an organization like “voice” shows the complaint is prompted with malafides.
8) In the complaint alleged as one of Madhukumar, not only 9 complainants seek relief, but want to make illegal enrichments on 491 prizes. Apparently complainants have no cause of action. Hence the complaint is apparently mischievous. All the complainants including Madhukumar received reply questions on sending SMS to 111 as per the complaint itself. hence the complaint does not even disclose a cause of action. Hence the opposite party prayed to dismiss the complaint with costs to them.
Points for determination are:
i) Whether there is any deficiency in service or unfair trade practice on the part of opposite parties?
ii) Reliefs and costs?
Evidence in this case consists of affidavits filed by both parties and Exts.A1 to A and Ext.B1 to B.
Point No.1
It is not in dispute that the opposite party conducted a Vodafone Diwali contest. It is also not in dispute that the pre paid customers had to recharge for Rs.100/- or more to participate in the said contest. In this instant case the 1st complainant submitted that the complainants had recharged for Rs.100 on different days through the same retailer so as to participate in the Diwali scheme. The complainants alleged that no question was received by them until 30/10/09 on which the scheme was closed. Where as the opposite party’s counsel admitted that all the complainants were in the list of competitors eligible to be counted in the lucky draw. The aforesaid admission clearly proves that all the complainants had recharged for Rs.100/- or more.
The opposite party contented that the scheme was conducted and on closing the competition 500 winners were selected through draw of lot but none of the complainants was lucky enough to be selected in the draw of lot. Challenging the aforesaid contention the complainants filed IA696/10 seeking a direction of the Forum to the opposite party to place before it the following details.
1) The SMS records ( date, time and contents of all SMS received and sent by the petitioners during the period when the contest was open)
2) Time, date and venue of draw
3) Name and designation of person who conducted the draw
4) Name and designation of person who drew the lots
5) Date of painting of the houses of each of the winners
6) Date and media in which winners list are was published etc
It is significant to note that the opposite party has pathetically failed to produce the aforementioned details before the Forum. In our view this failure itself is a clear proof of a complainant’s allegation that the alleged scheme has not been conducted all. The opposite party further contented that no amount collected from the complainants as a consideration for participating in the scheme. The opposite party next contented that the recharged amount is not a consideration and the complainants have received full value of talk time for the recharges they have done. The 1st complainant argued that if the Diwali scheme was for the general benefits of the subscribers, then the scheme should have been opened to one and all and not to the chosen few who recharged for Rs.100/- or more. In our view the conditions of recharging for Rs.100/- or more for participating in the Diwali contest is with a view to promote the business interest of the opposite party. In this case the subscribers might have recharged for Rs.100/- or more during the said period only because they were lured by the prize offered by the opposite party. We are of the opinion that the acts of opposite party are unfair and deceptive.
As the opposite party failed to produce documents to prove their license of operation in all India level, the SMS records, the mode of selecting prize winner and the details regarding whether the winners’ house were painted or not all prove that the scheme was not at all implemented for which the opposite parties are liable to compensate. From the facts and circumstances we hold the opposite party guilty of indulging in unfair trade practice by adopting unfair and deceptive method to promote their business interest directly as well as indirectly. Point no.1 is found accordingly.
Point No.2
In view of the findings in point no.1 the complaint is ordered as follows.
As there is nothing on record to prove that the opposite party had implemented the Diwali scheme, and considering that the said acts of the opposite party affected the petitioners, punitive damage of Rs.30,000/- as provided in subsection 1(d)of section 14 of Consumer Protection Act is imposed on the opposite party. The above mentioned damages amounting to Rs.30,000/- will be paid to the petitioners. The petitioners can either divide the said amount equally among themselves or pay the said amount to ‘VOICE’. The opposite party will also PAY Rs.1500/- to the petitioner as litigation cost. Further as provided in Section 14(1)(f) of the Consumer Protection Act, the opposite party is directed to discontinue such unfair trade practice forthwith and not to repeat it.
This order will be complied with within one month of receipt of the copy of the order failing which the awarded sums will carry interest @ 9% per annum from date of order till realisation.
Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this Thursday the 30th day of June, 2011.
Smt. Bindhu M. Thomas, Member Sd/-
Sri. Santhosh Kesavanath P. President Sd/-
Sri. K.N. Radhakrishnan, Member Sd/- Appendix
Documents of the complainant
Ext.A1-photocopy of the news item on the page
Ext.A2-Photocopy of emails sent to various officers of Vodafone
Ext.A3-Copy of relevant regulations quoted above.
By Order,
