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unsolicited calls from banks/financial institution, like ICICI, UTI, HSBC, HDFC etc. for tele-marketing their products and services.- complaint =

 unsolicited calls from banks/financial institution, like ICICI, UTI, HSBC, HDFC etc. for tele-marketing their products and services.- complaint =

 A complaint filed for unsolicited calls claiming heavy damages before the state commission – State commission converted the complaint as a representative suit – Cellular Operators Association was also impleaded after that – interim orders given with specific directions against all respondents – writ filed before High court – High court quashed the same – writ appeal is filed in Supreme court – allowed with directions to file an appeal before the National commission but not writ – in mean while an exparte orders passed by State commission as there is no stay from High court – Hence this appeal – Appeal is partly allowed

no complaint can be converted as a representative suit on behalf of all consumers  = 

 Nor did the provision in Section 12(C) give the State Commission the power to convert, of its own accord, an individual complaint into a representative suit. Per contra, learned counsel for respondent/complainant has argued that the Cellular Operators Association of India (COAI) had consciously chosen to implead itself before the State Commission on behalf of all cellular operators and did not limit itself to the case of the appellants/opposite parties. We find ourselves in full agreement with this argument. The fact remains that the matter was contested by the COAI on behalf of all cellular operators and that the affidavit of the COAI did not limit itself to answering the complaint of an individual. Therefore, the above contention of the appellants that the State Commission had wrongly converted an individual complaint into a representative suit,  is rejected.

evidence can be taken on affidavit – other side can insist for cross exam =

Thus, it is clear from the above provisions that the Act, permits the reception of evidence by various Consumer Fora on affidavits but when the party insists that he wants to cross-examine the deponent of the affidavit to prove that the affidavit cannot be relied upon, natural justice requires  that permission to cross-examine the witness should be given. Therefore, Consumer Forum has to settle the dispute on the basis of evidence adduced by the complainant and the opposite party, in case the opposite party has disputed or denied the averments made against it in  the complaint.

 

  Orders

Therefore, in our view, contentions of the appellants on the ‘disputed question of fact’ remains relevant only to the extent of the claims of the complainant as an individual and her eligibility to receive compensation for the same.

37.       We hold that the complainant has not been able to discharge this burden of proof. Admittedly, calls and ‘SMS’ from the Airtel had ceased after two written complaints were made to that Company. Further, no evidence was brought before the State Commission to show that Airtel had continued to share personal information of the complainant with banks and financial institutions, from whom she continued to receive unsolicited calls and SMS. Complainant also claimed that she had ‘confirmed information’ about arrangements of service providers like Airtel with banks and financial institutions to share subscriber details. But, no evidence was led before the State Commission in this behalf.

 38.      In view of the details considered above, these appeals are partly allowed against the order of the State Commission in Complaint Case No.CC-09/2006, passed on 26.12.2006. Award of compensation of Rs.50,000/- (Rupees Fifty Thousand only)  under para 38(iii) of the impugned order is set aside. 

The other directions contained in paras 38 and 39 are left undisturbed. 

The contents of para 40 of the impugned order shall be treated as recommendations and not directions of the Commission.

 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

                                 FIRST APPEAL NO.52 OF  2012

 (Against the order dated 26.12.2006   in Complaint No. 09/2006

 of the State Commission, Delhi)

1.     Cellular Operators Association of India

14, Bhai Veer Singh Marg,

New Delhi – 110 001

2.       Bharti Airtel Ltd.

(Formerly Bharti Tele-Ventures Ltd.)

Through Authorized Signatory

Bharti Crescent,

1, Nelson Mandela Road,

Vasant Kunj, Phase-II,

New Delhi – 110 070.                                    ….. Appellant (s)

Versus

1.       Nivedita Sharma

W/o Shri Anil Sharma

R/o A-30/9, Phase-I,

DLF Qutab Enclave,

Gurgaon, Haryana

2.       ICICI Bank Ltd.

Through CEO and Managing Director

Sakuntala Apartments, 59, Nehru Place,

New Delhi – 110 019.

3.       American Express Bank Ltd.

Through Vice President & Country Manager

A, A1, A2, Enkay Centre,

Udyog Vihar, Phase-V,

Gurgaon, Haryana- 122 016.                         …Respondents

                                 FIRST APPEAL NO.55 OF  2012

 (Against the order dated 26.12.2006   in Complaint No. 09/2006

 of the State Commission, Delhi)

ICICI Bank

Through its Authorized Signatory

Having its Registered Office at

Landmark Race Course Circle,

Vadodara – 390 007.

Regional office at:-

ICICI Bank Tower

NBCC Place,

Bisham Pitamah Marg,

New Delhi – 110 003.                                               …….. Appellant (s)

Versus

1.      Nivedita Sharma

Astra Law Offices

J-290, Saket

New Delhi – 110 017.

2.     American Express Bank Ltd.

Through Vice President & Country Manager

A, A1, A2, Enkay Centre,

Udyog Vihar, Phase-V,

Gurgaon, Haryana- 122 016

3.     Bharti Airtel Ltd.

Qutub Ambience (at Qutub Minar)

Mehrauli Road,

New Delh – 110 030.

4.     Cellular Operators Association of India

14, Bhai Veer Singh Marg,

New Delhi – 110 001                                      …….Respondent(s)

                                FIRST APPEAL NO.109 OF  2007

 (Against the order dated 26.12.2006   in Complaint No. 09/2006

 of the State Commission, Delhi)

American Express Bank Ltd.

A, A1, A2, Enkay Centre,

Udyog Vihar, Phase-V,

Gurgaon, Haryana- 122 016                                     …….. Appellant

Versus

1.         Nivedita Sharma

Astra Law Offices

J-290, Saket

New Delhi – 110 017.

2.       Bharti Airtel Ltd.

(Formerly Bharti Tele-Ventures Ltd.)

Qutub Ambience (at Qutub Minar)

Mehrauli Road,

New Delhi – 110 030.

3.       ICICI Bank Ltd.

Sakuntala Apartments, 59, Nehru Place,

New Delhi – 110 019.

4.       Cellular Operators Association of India,

14, Bhai Veer Singh Marg,

New Delhi – 110 001.

5.       Telecom Regulatory Authority of India,

TRAI House,

A2/14, Safdarjung Enclave,

New Delhi – 110 029.  

                                 FIRST APPEAL NO.49 OF  2010

 (Against the order dated 26.12.2006   in Complaint No. 09/2006

 of the State Commission, Delhi)

ICICI Bank

Through its Authorized Signatory

Having its Registered Office at

Landmark, Race Course Circle

Vadodara – 390 007

Regional office at:-

ICICI Bank Tower

NBCC Place,

Bisham Pitamah Marg,

New Delhi – 110 003.                                               …….. Appellant

Versus

1.      Nivedita Sharma

Astra Law Offices

J-290, Saket

New Delhi – 110 017.

2.     American Express Bank Ltd.

Through Vice President & Country Manager

A, A1, A2, Enkay Centre,

Udyog Vihar, Phase-V,

Gurgaon, Haryana- 122 016

3.     Bharti Airtel Ltd.

Qutab Ambience (at Qutub Minar)

Mehrauli Road,

New Delh – 110 030.

4.     Cellular Operators Association of India

14, Bhai Veer Singh Marg,

New Delhi – 110 001                                      …….Respondent(s)

BEFORE:

HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

           HON’BLE MR. VINAY KUMAR, MEMBER

In FA No 52 of 2012

For the Appellant(s)              :   Mr. Rahul Malhotra, Advocate for ICICI

Bank Ltd.

For the Respondent(s)          :   Mr. Yajkesh Anand and Mr. Nimit Mathur,

Advocates for R-1

In FA No 55 of 2012

For the Appellant(s)              :   Mr. Sanjeev Kumar Thakur, Advocate

for COAI.

Ms. Manjul Bajpai, Advocates for COAI

For the Respondent(s)          :   Mr. Rahul Malhotra, Advocate for ICICI

Bank Ltd.

Mr. Yajkesh Anand and Mr. Nimit Mathur,

Advocates for R-1

 

In FA No 109 of 2007

For the Appellant(s)              :   Mr. Rahul Malhotra, Advocate for ICICI

Bank Ltd.

For the Respondent(s)          :   Mr. Yajkesh Anand and Mr. Nimit Mathur,

Advocates for R-1

In FA No 49 of 2010

For the Appellant(s)              :   Mr.Shanshak Bhushan, Advocate for

Mr. Aditya Narayan, Advocate

For the Respondent(s)          :   Mr. Rahul Malhotra, Advocate for ICICI

Bank Ltd.

Mr. Yajkesh Anand and Mr. Nimit Mathur,

Advocates for R-1

 

Pronounced on :  4th October, 2013

 

ORDER

 

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

Since all the above noted appeals arise out of common order dated 26.12.2006, passed by State Consumer Disputes Redressal Commission, New Delhi  (for short, ‘State Commission’) all these appeals are being disposed of by present common order.

2.       Brief facts are that complainant – Ms. Nivedita Sharma-Complainant  (Respondent No.1 herein) filed a complaint before the State Commission on the allegations that she is a valid subscriber of the GSM mobile services provided by Bharti Tele-Ventures-Appellant No.2/O.P. No.1 (in F.A. No.52 of 2012)  under the brand name, Airtel. The complainant subscribed to the post-paid services provided by it since the year 2006.  At the time of taking the connection a kit was provided to the complainant which inter alia included terms and conditions governing the services to be provided by Airtel to the complainant as a subscriber. It is alleged that about  a year after subscribing to the post paid connection, complainant started getting calls from various banks/financial institutions and other companies for marketing their products and services. Initially such unwarranted calls were ignored; however, soon the frequency of calls started increasing and on certain days the complainant used to receive around ten to fifteen calls causing tremendous disturbances. The complainant lodged a complaint with the customer service of the Airtel. There was however, no response of these complaints and  the menace continued uninterrupted.

3.       Thereafter a written complaint was lodged with the Airtel. In the said complaint, complainant clearly emphasized the fact that such unsolicited calls were not only severely disrupting complainant’s work but also posed a grave threat & jeopardized safety & security of the complainant, due to the sharing of her confidential information such as name, address and financial standing etc. That compelled by such circumstances, the complainant lodged another complaint with the Customer Service Department of the Airtel about the unsolicited calls & SMS. The complainant clearly instructed the opposite party that the complainant should not receive any such calls or SMS in future. In  response to such complaint, even though the SMS from the Airtel ceased, the calls and SMS from banks/financial institution continued unabated.

4.       The lackadaisical attitude of the Airtel compelled the complainant to serve a notice on it,  vide its letter dated December 24, 2004 claiming damages to the tune of Rs.10,00,000/- (RUPEES TEN LACS ONLY) towards the harassment & trauma suffered by the complainant due to constant calls from various banks/financial institutions and other financing companies for tele-marketing their products and service. In the said notice, the complainant categorically reiterated its concern that such unsolicited calls not only disrupted complainant’s work but also gravely jeopardized the complainant’s safety and security. Additionally, the complainant pointed out that such calls caused a lot of mental distress/strain as a lot of such callers misbehaved when they did not receive positive response or were questioned as to the source of their information. Further, vide the aforesaid notice, the complainant demanded the Airtel to restrain with immediate effect from providing any further information to any one regarding complainant’s personal information like mobile number, name, address or other such details and requested it to recall all information provided to such banks/companies or to any other company dealing with such data.

5.       It is also alleged that Airtel or its officials have made absolutely no effort at their end to respond to the said complaint. The complainant continues to be harassed by such banks /financial institutions etc.

6.       It is further stated that as per the contractual obligations of Airtel, it was clearly bound to maintain the confidentiality of the personal and private information of the subscribers. The Privacy Statement clearly stipulates;

“We however, assure you, that Airtel does not disclose your personal information to any other Cellular Service Provides, Banks Credit Card companies etc. or their agents, affiliates which could lead to invasion of your privacy.”

 

7.   That despite assurances from Airtel,  the complainant is still being harassed by unsolicited calls from banks/financial institution, like ICICI, UTI, HSBC, HDFC etc. for tele-marketing their products and services.

8.       It is also alleged that ICICI Bank-Appellant No.2 (in F.A. No.55 of 2012)/Opposite Party No.3, continues to make unwarranted calls, despite the clear cut directions from the Supreme Court’s order dated February 07, 2005, wherein the Supreme Court directed the forthwith cessation of such unsolicited calls by banks, including opposite party no.3. In fact, on December 26, 2005, the complainant during the course of a meeting received a promotional call from an executive, named Shweta from American Express Bank Ltd.-appellant (in F.A. No.109 of 2007)/Opposite Party no.4, marketing its loan facilities. On being questioned as to the source of such information (mobile number of the complainant ) complainant was informed that they have been given information but refused to divulge the name and number of its senior executive, who had a list of people, who were to be approached for such promotion.

9.       That it is a matter of grave concern that such confidential information of the subscriber is being traded without their knowledge/consent. The complainant has confirmed information that service providers, like Airtel have entered into arrangements with banks, financial institutions to pass on details of its subscribers for financial benefit to the tune of crores of rupees. The complainant submits that the parties must be directed to state on oath as to the exact nature of such arrangement and the benefits derived therefrom.

10.     It is further stated by the complainant that said fact was confirmed by an executive from Opposite Party No.3/ICICI Bank Ltd., who substantiated that the complainant’s personal details, like mobile number, address and name etc. had been divulged by Airtel and that such information was being constantly exchanged between service providers, on one hand and banks/financial institutions, on the other hand for mutual benefits or financial gains. That this fact was also highlighted in the article titled “Mobile Subscribers seek government intervention to check telemarketing”  in Tribune dated October 02, 2005;

      “Enquiries reveal that some of the private companies have illegally procured lists of mobile subscribers from the employees of the Spice, Airtel, BSNL and Reliance, and are using them to contact consumers as part of the marketing strategy. Though officials of the cellular companies deny these allegations, but the facts remains that even the Spice and Airtel are sending SMS to the customers of each other to woo towards their network.”

11.     That such disclosure besides being violative of the terms of the contract is also an invasion of the complainant’s fundamental right to privacy under Article 21 of the Constitution. That this issue recently came into highlight due to the PIL filed by Dr. Harsh Pathak, alleging that undesired calls for promotion of business by various companies not only harassed the citizens but also amounted to the violation of their right to privacy. The Court recognizing the menace created by such unsolicited calls, issued notices to private mobile service providers like Hutch, Reliance, Idea including Airtel. The court also issued notices to banks like City Bank, HSBC, Standard Chartered Bank including ICICI Bank Ltd. barring them from making such unsolicited calls.

12.     That the said fact came to light in the aftermath of Supreme Court issuing notices to banks and mobile phone companies, barring them as well as telemarketers from making such nuisance calls. Despite specific orders from the Hon’ble Supreme Court barring such telemarketing, the opposite party no.3 & 4-ICICI Bank Ltd. and American Express Bank Ltd. respectively,  continue to willfully disobey the orders of the court amounting to contempt of court.

13.     That this exchange of data or selling of information is clearly contrary to the agreement and its terms and conditions and amounts to “unjust enrichment” by the opposite parties. That, in spite of the written assurance given to the complainant, the opposite party has divulged/caused to divulge confidential information without any due authority & without complainant’s consent/permission.

14.     That it is even more alarming that even the financial details of customers are being divulged without their information. The complainant was alarmed to learn that the callers from Opposite Party No.3 & 4 were aware of the financial standing  of the complainant, without such data being disclosed to them by the complainant herself. That the said exchange of information becomes even more ominous in the wake of the recent data theft by an employee of a BPO company in India. The said incident clearly showed that confidential information can be easily sold out to anybody for money.

15.     That receiving such calls during professional engagement not only harasses but also unduly interferes with the right to privacy of the complainant. Such unwarranted calls also cause unnecessary financial loss to the subscribers when they attend such calls on national & international   roaming.

16.     That the complainant as a consumer to Airtel has suffered wrongful financial loss on account of roaming charges and Airtel has wrongfully gained by charging the complainant for these calls and also by selling exchange the information about the complainant.

17.     That the complainant seeks to claim;

Rs.50,000/-  – Towards call charges for receiving such calls on roaming (for last years)

Rs.4 Lakhs  – Towards time loss & disruption of work over a continued period of four years.

Rs.10 Lakhs  – Towards jeopardizing the safety & security of the complainant.

Rs.5 Lakhs – Towards mental agony & harassmentRs.15 lakhs – Towards exemplary fine for failure to remedy the situation despite repeated complaints by the complainant as well as clear cut directions from the Supreme Court.

18.   That, the opposite parties have jointly and severally through acts and omissions violated the right to privacy of the complainant under Article 21 of the Constitution, committed breach of contract  & breach of trust to the complainant’s detriment, peril and financial loss.

19.     That therefore in the facts and circumstances of the present case and in the interest of justice, it was prayed that the State Commission should direct;

                   a.          The opposite party to pay exemplary damages to the tune of Rs.34,50,000/- (Rupees Thirty Four Lacs Fifty Thousand only) towards the peril, harassment, mental agony, financial loss suffered by the complainant;

                   b.         Restrain the opposite parties from making   unwarranted calls and causing further harassment to the complainant;

                   c.          That the opposite party be held liable to pay interest @ 12%  p.a. till  the date of actual payment;

                    d.          Any other or further order as may be passed by the State Commission in the interest of justice and in the present facts and circumstances of the case.”

20.     State Commission, vide order dated 1.5.2006 took cognizance of the complaint and passed an ex parte interim order. The operative portion of which read as under;

“8.  We hereby take cognizance of this complaint by admitting it and issue notice to the OP Nos. 1 to 4 to facilitate them to give their reply within 30 days from the date of receipt of the notice.

                   9.       We hereby, by interim order direct all the service providers of mobile phone services not to disclose any personal information in their possession including the mobile phone number to any unauthorized person including the Banks, financial institutions, finance companies as it is a breach of “Privacy Statement” and undertaking and may invite the cancellation of their licence as no stranger can possess such information without being provided by the service provider who alone is in its possession.

                   10.  At the same time all unauthorized persons including the Banks, financial institutions, finance companies and any other persons who are not supposed to be in possession of the information of the subscribers including the mobile phone number are restrained from making calls or sending SMS to any consumer as they are vicariously, as well as directly liable for these acts.

                   11.  It is common knowledge that whenever a consumer tries to dial the number from where such calls or SMS are

                   received, the obvious response is that the number does not exist. This is a very serious matter for Regulatory Authorities. Consumers at large may bring to the notice of the Regulatory authorities by providing them such numbers and Regulatory authorities shall take stringent action under the law.

                   12.  Copies of this order be sent for publication in newspapers as a notice to all the service providers/Banks/financial institutions/companies/persons who are engaged in this activity. They shall comply with the order forthwith failing which they may face proceedings

                   u/s 25 and 27 of the Consumer Protection Act, 1986.”

21.     Appellant-Cellular Operators Association of India (for short as ‘COAI’) (in F.A. No.52 of 2012)  filed an application for impleadment as a party in the complaint case filed by the complainant. Application for impleadment was allowed by the State Commission vide its order dated 4.7.2006, which read as under;

“An application for impleadment as OP No.4 has been moved by Cellular Operation Association of India of which all the major service providers of cellular services are members. By way of interim order dt. 1.5.06 we had directed the cellular service providers not to disclose any personal information in their possession including the mobile phone number of any unauthorized persons including the Banks, financial institutions, finance
companies etc. as it is a breach of ‘Privacy Statement’. In view of the interim order we allow the application. Cellular Operation Association of India shall be treated as OP No.5. The complainant has filed a news report published in Times of India with the title ‘flood of blank calls from mobile companies’ issued on 3.4.06.

        We take judicial notice of this title. Concerned OPs shall react to this alongwith the replies to the complaint. Re-list on 11.8.06.”

22.     Thereafter, vide order dated 27.9.2006 passed by the State Commission, it treated the complaint of the complainant having been filed under Section 12 (c) of the Consumer Protection Act, 1986 (for short, ‘Act’)  on behalf of numerous consumers having similar interests and  reiterated  the earlier interim order passed by it. Relevant portion of this order state as under;

“4.         We hereby call upon all the consumers of service providers of all such services to send their complaints in writing to this Commission if they are still receiving unsolicited calls and messages either directly or through service provider or the banks, financial institutions, or any other agency so as to find out the violation or non-compliance of our interim order.

          5.          Counsel for the respondent contends  that service providers of mobile telephone service have DND (Do not Disturb)  service which is limited and which deals with the messages emanating from the service provider in respect of new service information, billing etc. These are the only message that emanate from the service provider and if any consumer requires that the same should not be sent, he is entitled as of his right that he be put in the DND category. Once that happens no message from the  telephone operator is sent on that number.

          6.          In our view, such a mechanism evolved by the service provider itself clearly defines their strategy to augment their business as the consumer may reply in the process or respond and reply is treated as chargeable calls. If service providers want their consumers to be put on DND service, they shall on their own invariably write to each and every consumer to seek response whether he wants to be put on DND service and if so in respect of what kinds of message or calls.

          7.          While  re-iterating our interim order dated 25.5.2006, we hereby make the following directions to all the service providers of mobile telephone in the city as well as banks, financial institutions and any other agency who is engaged in making   unsolicited calls and messages to those consumers with whom they have no contract of any kind in this regard;

                   (i)             That every service provider shall write to their consumers whether he is interested on being put on DND i.e. (Do not disturb) service vis-à-vis their calls/messages and if so as to what kind of calls and message a consumer wants to be put on this service. Till such a communication is sent by the service providers to their consumers and response is received, the service provider  shall not make any call or send any message including  reminding about the telephone bills i.e. due date of payment etc. or informing about the new service as they should do so by sending letters giving details of such services as the contract is only payment of the bills on receipt of bill containing details of all the calls made by the consumers so as to allow the consumer to raise any objection if the calls shown are correct or not. Sending a bill by way of message calling upon the consumer to make the payment is against the terms of the contract as such message creates disturbance, inconvenience and mental agony to the consumer when he is busy in the meeting or in some other urgent work or in the office or any other place.

                   (ii)         All the banks, financial institutions or any other kind of agency are hereby directed not to send unsolicited calls or messages to the consumers of the service providers with whom they have no contract of any kind whatsoever in this regard as this phenomenon is causing lot of inconvenience, mental agony and harassment to the consumers of service providers of mobile telephones. Presumption would be raised that they have obtained the information from the service providers as to the details of the consumers as well as mobile telephone number and for this the service provider or the banks, financial institutions shall be deemed to be severally and jointly liable.

8.   It is made clear that if in future any violation or non-compliance of this order is brought to the notice of this Commission by any consumer of any service provider of such service, it would be treated as failure or omission to comply with the order and shall invite not only heavy punitive damages but sentence of imprisonment as provided u/s 27 of the Consumer Protection Act, 1986 for a term which shall not be less than one month but which may extend to three years or with fine which shall not be less than two thousands rupees but which may extend to  ten thousand rupees, or with both. Chief Executive Officers of the service providers, banks and the financial institutions shall be liable for this punishment.

9.      Copy be sent to the parties and particularly to the Cellular Operators Association of India, 14, Bhai Veer Singh Marg, New Delhi – 110 001 impleaded as OP on its suo-moto intervention.

10.   Copy be sent to Chairman, TRAI for regulating the telephone numbers of senders of unsolicited calls and messages by informing them that they should  register their number with them as whenever consumer wants to find out the details of the senders of message/call response is that this number does not exist.

11.        A copy of this order be sent to all National Dailies for the benefit of large number of consumers and also to the service provider.”              

23.     Order dated 27.9.2006 was challenged by the Cellular Operators Association before High Court of Delhi by filing (Civil Writ Petition No.16332-34 of 2006). Delhi High Court, vide its order dated 6.11.2006, stayed order dated 27.9.2006 passed by the State Commission. The Court also directed for impleadment of Telecom Regulation Authority of India as a party and adjourned the matter for 7.12.2006. Order dated 6.11.2006 of Delhi High Court, read as under;

“Issue notice to the respondents to show as to why rule D.B. be not issued returnable on 7th December, 2006.                                         Respondent no.1 appears in person and accepts notice. Notice be issued to respondents No.3 & 4. Notice be served dasti in addition. Service shall be effected not later than a week from today.

             Taking into account the nature of the issue raised in this writ petition which relates to tele-marketing calls  affecting almost all the holders of cell phones it will be appropriate to join the Telecom Regulatory Authority of India (TRAI) as party W.P. (C) 16332/2006 and this Court at the request of the petitioner will deal with the issue of unsolicited telemarketing. Accordingly TRAI is joined as  respondent No.5. Amended memo of parties be filed and notice be also issued to respondent No.5 alongwith a full set of papers.

             Reply be filed by the respondents within two weeks from today. Rejoinder, if any, within one weeks thereafter. Respondents No.3 & 4 in their reply shall disclose the source of information based on which the tele-marketing calls were being made on their behalf.

             Mr. Harish Salve states that “Do not disturb” message shall be sent to all the subscribers of petitioner No.1.  Learned counsel for the petitioner further states that the petitioner will take steps to implead such banks and other companies who make unsolicited telemarketing calls to its subscribers;

          CM No.13371/2006 (Stay)

                       Issue notice, returnable on 7th December, 2006.

             In the meanwhile, the operation of the impugned interim order dated 27.9.2006 passed by the learned State
Commission, New Delhi, is stayed.”

 

24      Thereafter, on 7.12.2006 Delhi High Court passed the following order;

 

         “The issue of the concerned unsolicited telemarketing calls which affected the subscribers of Cell Phone services are

currently being addressed by TRAI which has now been joined as respondent No.5. The learned counsel for the respondent No.5/TRAI has handed over a Consultation paper on Unsolicited Commercial Communication dated 20th November, 2006 and states that TRAI is in the process of finalizing the issues which arise pursuant to the aforesaid concern. In the meanwhile, the learned counsel for the petitioner states that as per the order of this Court dated 6th November, 2006  he will join the Indian Bank Association also as a party. While
finalizing its recommendations on unsolicited commercial communications, the TRAI will also hear respondent No.1. It is stated by the learned counsel for the TRAI that one of the consultations is fixed for tomorrow. Accordingly, the respondent No.1 is permitted to address her concerns to the TRAI tomorrow i.e. 8th December, 2006.

                   List on 8th February, 2007.”

25.     In the meanwhile, State Commission vide impugned order dated 26.12.2006, allowed the complaint. Relevant portion of which states;

“38.    Since we have treated this complaint as a complaint filed on behalf of numerous consumers running into lacs and since the Cellular Operators Association of India has intervened on behalf of O.P. 1 and 2 and all other Cellular operators and since the financial loss and injury is being suffered by a large number of consumers who are not identifiable conveniently, we, as a deterrent and to stop this evil, feel inclined to impose heavy punitive damages upon the O.Ps because of ‘care-a-fig-for’ attitude and their having continued to indulge in these activities in spite of Supreme Court having issued notice in a PIL in 2003 and our observations and directions made in various orders passed from time to time:-

(i)     Penalty of Rs. 50 Lacs (Fifty Lacs) is imposed upon O.Ps 1-2 Airtel and O.P.5 – Cellular Operators Association of India jointly and severally.

(ii)   Penalty of Rs. 25 Lacs (Twenty Five Lacs) is imposed upon O.P.3 – ICICI Bank and O.P.4 – American Express Bank, to be shared by them equally.

(iii)  We further award a compensation of Rs.50,000/- (Fifty Thousand) to be paid to the complainant by the O.Ps, out of which O.P.1, 2 and 5 shall pay Rs.25,000/- (Twenty Five Thousand) jointly or severally and O.P.3 and O.P.4 shall pay Rs 25,000/- (Twenty Five Thousand) in equal shares.

39.     Punitive damages shall be deposited in favour of the “State Consumer Welfare Fund (Legal Aid)”.

40.     Before parting, we give the following directions to service providers and direct bankers, finance companies and other persons indulging in telemarketing and direct the TRAI to take all possible steps to control this evil, as the ultimate responsibility lies over it:-

 

                    (i) Cellular Operators Association of India (OP No.5) is hereby directed to inform all its Members to immediately withdraw the list of subscribers and their mobiles telephone numbers provided by them to banks, finance companies or any other agencies or persons and give them directions in writing that they shall not use this information for any purpose whatsoever and also by way of telemarketing.

                    (ii) All those agencies, banks, financial institutions or persons who are having their own directories for this purpose who are neither their subscribers nor their clients, shall disband those directories forthwith.

                    (iii) Every such subscriber who suffers this agony, harassment and nuisance shall be entitled to a minimum compensation of Rs.25,000/-, who has and is suffering as the complainant has suffered, as and when he approaches the Consumer Forum in this regard.

                    (iv) To bring in more competition, better coverage for the area with another service provider, lower rates and unsatisfactory or bad customer service with the current service provider, TRAI is directed to bring in ‘NUMBER PORTABILITY’ RULE, as prevalent in the USA and other countries, so as to avoid the subscribers to change their phone number and thereby informing every now and then hundreds of friends, colleagues, relatives about the new phone number.

                    (v) TRAI shall establish a National ‘Do Not Call’ Registry, which shall apply to all the marketers; specifically prescribing that commercial telemarketers cannot call a subscriber if that number is on the Registry. On establishment of such Registry, the subscribers will be called upon to register their telephone numbers by publicizing such a Registry in the newspapers and through Internet and messages free of cost.

 

41.     A copy of this order, as per statutory requirement, be forwarded to the parties free of cost and thereafter the file be consigned to record.

 

42.     Copy be sent to the following:-

i)   The Chairman, TRAI, TRAI House, A-2/14, Safdarjung Enclave, New Delhi 110029.

ii)       Presidents of all the District Fora.

iii)      National dailies for the benefit of Consumers at large and information of service providers and companies indulging in telemarketing and unsolicited commercial and other calls, SMSs etc. etc.”

26.     Being aggrieved by the impugned order passed by the State Commission on 26.12.2006, the appellants herein filed Writ Petition (Civil) No. 583 and CM(M) No. 443 of 2007, before the Delhi High Court. The High Court, disposed of all the petitions and set aside the directions contained in the above order of the State Commission. The complainant herein, Nivedita Sharma challenged it before Hon’ble Supreme Court in Civil Appeal No. 10706 of 2011 (Nivedita Sharma Vs. Cellular Operators Association of India & others) which was decided on 7th December, 2011.

The Supreme Court has referred to the provisions in the Consumer Protection Act, 1986 and observed that —

“A reading of the plain language of Section 17 shows that every State Commission has the jurisdiction to entertain complainants where the value of the goods or services and compensation, if any, claimed exceeds Rs.20 lacs but does not exceed Rs.1 crore. By Section 18 the provisions of Sections 12 to 14 and the Rules made thereunder, for the disposal of complaints by the District Forum, have been made applicable for deciding the disputes by the State Commission. Section 19 provides remedy of appeal against the order by the State Commission  in exercise of its powers under sub-clause (i) of Clause (a) of Section 17. If Sections 11,17 and 21 of the 1986 Act which relate to the jurisdiction of the District Forum, the State Commission and the National Commission, there does not appear any plausible reason to interpret the same in a manner which would frustrate the object of legislation.

         

What has surprised us is that the High Court has not even referred to Sections 17 and 19 of the 1986 Act and the law laid down in various judgments of this Court and yet it has declared that the directions given by the State Commission are without jurisdiction and that too by overlooking the availability of statutory remedy of appeal to the respondents

         

We also find that the High Court has taken cognizance of the statement made on behalf of the counsel for the petitioners that their clients would challenge Clause (iii) of para 38 of the State Commission’s  order by filing an appeal  under Section 19 of the Act and the fact that one of the aggrieved parties, namely, American Express Bank Limited has already filed an appeal questioning paragrah 38 (iii) of the order of the State Commission. After having noticed that some of the petitioners were inclined to avail the remedy of appeal against the particular portion of the order passed by the State Commission the High Court should not have entertained the writ petition filed under Article 226 of the Constitution and the miscellaneous petitions filed under Article 227 of the Constitution and directed them to avail remedy of appeal under Section 19 of the 1986 Act.

         

The appeal is accordingly allowed and the impugned order is set aside”.    

While allowing the Civil Appeal, the Supreme Court also permitted the respondents/OPs to file appeal before the National Commission. The National Commission has been directed to decide the matter without being influenced by the observations of the High Court in the Writ Petition.  The appeals presently being considered in this order have been taken up in keeping with the above directions of the Apex Court.

27.       We have heard the learned counsel for the parties at length. All the parties have also submitted written arguments in support of their contentions. We have carefully gone through the entire record and perused the written arguments also.

28.       At the outset, we may point out that one of main plea taken in these appeals on behalf of the appellants is that, the State Commission has proceeded on presumptive adhoc adjudication without giving any finding of facts. No evidence has been led on the disputed question of facts. It is further stated that on the issue of jurisdiction of the State Commission, parties were invited to address the Commission, whereas the
State Commission proceeded to decide the complaint as a whole. The approach of the State Commission is perverse and without jurisdiction as the impugned order was passed in utter haste without waiting for the outcome of the pending writ petition wherein the interim order dated 27.9.2006 was stayed and the matter was listed for 08.02.2007.

29.       It is also argued on behalf of the appellant that the complaint was filed by an individual but the State Commission has converted it into a representative suit. The provision in this behalf in Section 12(C) of the Consumer Protection Act, 1986 requires  the complaint to be filed on behalf of “numerous consumers having the same interest”. It was argued that no such case was made out in the complaint, as filed before the State Commission. Nor did the provision in Section 12(C) give the State Commission the power to convert, of its own accord, an individual complaint into a representative suit. Per contra, learned counsel for respondent/complainant has argued that the Cellular Operators Association of India (COAI) had consciously chosen to implead itself before the State Commission on behalf of all cellular operators and did not limit itself to the case of the appellants/opposite parties. We find ourselves in full agreement with this argument. The fact remains that the matter was contested by the COAI on behalf of all cellular operators and that the affidavit of the COAI did not limit itself to answering the complaint of an individual. Therefore, the above contention of the appellants that the State Commission had wrongly converted an individual complaint into a representative suit,  is rejected.

30.       Section 13(2) and (3) of the Act state;

“ 13 (2).    The District Forum shall, if the complaints admitted by it under section 12 relates to goods in respect of which the procedure specified in sub-section (1) cannot be followed, or if the complaint relates to any services,—

(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;

(b) where the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute,—

(i)       on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or

(ii)      ex parte on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum.

 

 

(3)   No proceedings complying with the procedure laid down      in sub-sections (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with.”         

31.       Whereas Section 18 of the Act states;

           “18. Procedure applicable to State Commissions.—The provisions of Sections 12, 13 and 14 and the rules made thereunder for the disposal of complaints by the District Forum shall, with such modifications as may be necessary, be applicable to the disposal of disputes by the State Commission.”

32.       Sub-section (3) of 13 of the Act is a barring provision, stating that when the proceedings have been conducted in compliance with the procedure laid down in-

(a)    sub-section (1), and

(b)    sub-section (2)

They shall not be called in question,-

(i)        in any Court,

(ii)       on the ground that the principles of natural justice have not been complied with.

33.       However, the above provision need not, however, be mistaken as statutory exclusion of the principles of natural justice, since due care has been taken both in sub-sections (1) and (2) to require the opposite party to make his defence.

34.       Thus, it is clear from the above provisions that the Act, permits the reception of evidence by various Consumer Fora on affidavits but when the party insists that he wants to cross-examine the deponent of the affidavit to prove that the affidavit cannot be relied upon, natural justice requires  that permission to cross-examine the witness should be given. Therefore, Consumer Forum has to settle the dispute on the basis of evidence adduced by the complainant and the opposite party, in case the opposite party has disputed or denied the averments made against it in  the complaint.

35.       It has been contended on behalf of the appellants that the impugned order was passed by the State Commission without recording any evidence. It is alleged that the State Commission has violated the mandatory provisions in Section 13 of the Act read with Section 18 thereof. On this question of evidence, in our view the impugned order needs to be considered in two somewhat distinct parts. The first would be in relation to the individual complainant and the second in relation to the consumers of telecom service, as a class. As per record, on 4.7.2006, the State Commission allowed the application of the ‘COAI’, to be impleaded as a respondent. Thereafter, on 27.9.2006, it decided to treat the matter as an application under Section 12(1)(c) of the Act. With this, the question of burden of proof got divided in two parts; one in relation to the individual complainant and the other in relation to the consumers at large.

36.       In so far as the class action under Section 12(1)(c) of the Act is concerned, the affidavit of ‘COAI’ brings it out as an existing major consumer concern, already receiving attention of the ‘COAI’ and  the Regulator. The reply of the ‘COAI’ before the State Commission has been adopted by the other OPs. It is not the case of the appellants that the problem of unsolicited calls and messages did not exist. It is also not their case that the magnitude of the problem had not acquired alarming proportions. It is not denied that  the ‘COAI’ and the ‘TRAI’ were working on positioning an effective mechanism to address the problem. ‘COAI’ did not file any written statement and relied only on their application for impleadment. Significantly, its intervention was on behalf of all Cellular Operators and not merely the OPs. Therefore, in our view, contentions of the appellants on the ‘disputed question of fact’ remains relevant only to the extent of the claims of the complainant as an individual and her eligibility to receive compensation for the same.

37.       We hold that the complainant has not been able to discharge this burden of proof. Admittedly, calls and ‘SMS’ from the Airtel had ceased after two written complaints were made to that Company. Further, no evidence was brought before the State Commission to show that Airtel had continued to share personal information of the complainant with banks and financial institutions, from whom she continued to receive unsolicited calls and SMS. Complainant also claimed that she had ‘confirmed information’ about arrangements of service providers like Airtel with banks and financial institutions to share subscriber details. But, no evidence was led before the State Commission in this behalf.

38.      In view of the details considered above, these appeals are partly allowed against the order of the State Commission in Complaint Case No.CC-09/2006, passed on 26.12.2006. Award of compensation of Rs.50,000/- (Rupees Fifty Thousand only)  under para 38(iii) of the impugned order is set aside. The other directions contained in paras 38 and 39 are left undisturbed. The contents of para 40 of the impugned order shall be treated as recommendations and not directions of the Commission.

39.       The appeals stand disposed of in above terms accordingly.

40.       Parties shall bear their own cost.

…………………..………..J

     (V.B. GUPTA)

      PRESIDING MEMBER                                                   

 

…………………..………..

     (VINAY KUMAR)

      MEMBER

Sg.

 

 

 

 

 

 

 

 

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