CONSUMER DISPUTES REDRESSAL COMMISSION-VII

DISTRICT: SOUTH-WEST

GOVERNMENT OF NCT OF DELHI

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN

CASE NO.CC/454/19

          Date of Institution:-    17.12.2019

          Order Reserved on:- 10.12.2024

                        Date of Decision:-      16.12.2024

IN THE MATTER OF:

Mr.Suryaraj

S/o Shri.Ravinder Singh

Aged About 32 years

Resident of:

H. No. RZ 35A, Gali No.3,

Syndicate Enclave,

Dabri, South-West Delhi

Delhi - 110045

.….. Complainant

VERSUS

Airtel

224, Okhla Phase 3 RD,

Okhla Phase III, Okhla Industrial Area,

New Delhi, Delhi - 110020

.…..Opposite Party

Suresh Kumar Gupta, President

1. The complainant has filed the complaint under section 12 of Consumer Protection Act, 1986 (hereinafter referred to as Act) with the allegations thatcomplainant is a postpaid customer of OP with respect to mobile no.9013205221. The monthly plan is of Rs.556.94/- after addition of GST. On 21.07.2019, a bill of Rs.3650.08/- from 20.06.2019 -19.07.2019 was received from OP with charges of Rs.2695/- for 3488 SMS to local and national numbers in a month. The OP has charged three times for single SMS which shows that OP has cheated the complainant. On 21.08.2021, a bill of Rs.5564.04/- was received from OP from 20.07.2019 -19.07.2019 wherein Rs.1223/- was charged for sending 1735 SMS to local and national number in a month. On 21.09.2019, he received a bill of Rs.6341.72/- for 20.08.2019 -19.09.2019 wherein a sum of Rs.174.50/- was charged for sending 267 SMS to local and national numbers. The monthly rental was reduced to 373.26/- from Rs.399/-. The connection has been disconnected. The use bill has been raised without any reason which has not been corrected despite his various complaints. There is deficiency of service on the part of OP. Hence, this complaint.

2. The OP has filed the reply to the effect that services can be disconnected on default in making the payment of outstanding dues. The complainant has failed to make the payment of Rs.5943.27/- so number was disconnected. The mobile number was subscribed through digital activation by way of authentication through UIDAadhaar number and activated on 01.07.2018. The clause 3 (d) of the terms and conditions says that long SMS exceeding 160 characters will be counted as multiple SMS depending on the basis of information captured by network. The charging for first 160 characters will be for one SMS and any SMS greater than 160 characters will be charged up to next 153 characters and in multiple thereof as a separate SMS in English language. The character length is reduced variably depending upon the language. The technological constraints such as 160 character limit on the messages, the limitation of the alpha numeric character set and the design of mobile devices were closely linked to the emergence of an SMS shorthand, use of abbreviation, etc.Every message that exceeds the character limit will be counted as two. The tariff plan was never charged arbitrarily. The complainant was indulging into unsolicited commercial communication and such kind of communications without being registered as telemarketers or having appropriate approval of the telecom licensers amount to violations of the norms and Telecom Law warranting a stringent punishment. The complainant was provided with itemized bills and there is no error in the bill warranting any change or correction in the bill. There is no merit in the complaint.

3. The complainant has filed the rejoinder wherein he has reiterated the stand taken in the complaint and denied the averments made in the written statement.

4. The parties were directed to file the evidence.

5. The complainant has filed his own affidavit in evidence wherein he has corroborated the version of complaint and placed reliance on the documents the C-1 to C-4.

6. The OP has filed the affidavit of Sh. Amit Bhatia, in evidence wherein he has corroborated the version of written statement and placed reliance on the documentsAnnexure-1.

7. We have heard the Ld. Counsel for the parties and perused the entire material on record.

8. The Ld. Counsel for theOP has contended that complainant is indulging into unsolicited commercial communication through SMSwhich tantamounts to commercial activity and thus does not fall within the ambit of Consumer though Ld. Counsel for the complainant has urged to the contrary.

9. The commercial purpose has not been defined under the Act but it can be deduced from the catena of judgmentsdelivered by Hon’ble Apex Court and Hon’ble High Courts and Hon’ble National Consumer Dispute Redressal Commission.

10. In Laxmi Engineering works vs PSG Industrial Institute (395) 3 SCC 583, it was held by their lordship that whether the purpose for which a person has bought the goods is a commercial purpose within the meaning of definition of expression consumer under the Act is always a question of fact and to be decided in the facts and circumstances of the case.

11. In LilawatiKirtiLal Mehta Medical Trustvs Unique Shanti Developers and Ors.(2020) 2 SCC 265,this Court culled out broad principles for determining whether an activity or transaction is for a "commercial purpose" or not, while holding that though no strait jacket formula could be adopted in every case.

"19. To summarise from the above discussion, though a strait jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is for a commercial purpose":

19.1. The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, "commercial purpose" is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities.

19.2. The purchase of the good or service should have close and direct nexus with a profit-generating activity.

19.3. The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.

19.4. If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of "generating livelihood by means of self-employment" need not be looked into."

12. In Shrikant G. Manti vs. Punjab National Bank, this court observed thus-

“50. It is thus clear, that this Court has held that the question, as to whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, '"commercial purpose" is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities; that the purchase of the good or service should have a close and direct nexus with a profit-generating activity; that the identity of the person making the purchase or the value of the transaction is not conclusive for determining the question as to whether it is for a commercial purpose or not. What is relevant is the dominant intention or dominant purpose for the transaction and as to whether the same was to facilitate some kind of profit generation for the purchaser and/or their beneficiary. It has further been held that if the dominant purpose behind purchasing the good or service was for the personal use and the Consumption of the purchaser and/or their beneficiary, or s otherwise not linked to any commercial activity, then the question of whether such a purchase was for the purpose of "generating livelihood by means of self-employment" need not be looked into."

13. In RohitChaudhary&Anr. VsVipul ltd., (2023) 14 SCR 394, it was held by their lordship that the expression commercial purpose has not been defined under the Act. In the absence thereof, we have to go by its ordinary meaning. Commercial denotes pertaining to commerce (Chambers 20^th Century Dictionary) it means connected with or engaged in commerce, merchentile having profit as the main aim (collin’s English dictionary) relate to or is connected with trade and traffic or commerce in general and is occupied with business and commerce.

14. The dominant purpose of sending the short message service (SMS) has to be seen. If the dominant purpose is a profit motive or promote the product, then such a person will not come within the ambit of “consumer”.

15. We have perused the photocopies of the SMS attached with the complaint. These messages were sent from the mobile number of the complainant by RajkumariJewelers, Gali No.6, Syndicate Enclave, DabriMor, New Delhi. The message dated 04.08.2019 and 05.08.2019 shows that Silver Rakhis are available with RajkumariJewelers. The message dated 12.08.2019 shows that six lucky customers have prize and discount coupons and avail the scheme in order to participate in the lucky draw with RajkumariJewelers.The similar messages find reflection in SMS dated 23.06.2019, 29.06.2019,09.07.2019, 11.08.2019 and 12.08.2019. The message dated 03.08.2019 shows that “shubhkamnay of hariyaliteez” were sent by Rajkumari Jewellers. The messages are on these lines. All the messages are not reproduced.

16. All this shows that the messages were of RajkumariJewelers which were sent through the mobile number of the complainant. The messages were sent for the promotion of the business of RajkumariJewelers which means that this messages tantamount to promotion of sales as well as advertisement of RajkumariJewelers.

17.  The dominant purpose of sending the messages has to been seen i.e. whether thecomplainant has send the messages for promoting the business of RajkumariJewelers. The sending of messages shows that complainant was engaged in the promotion of trade and business of RajkumariJewelers with profit as main aim.The complainant is running business related activity through SMS to promote the business of RajkumariJewelers. This is a purely commercial activity so he cannot be said to be a “consumer” under the Act.

18. The complainant is not a consumer so complaint under the Act is not maintainable.

19. In view of aforesaid discussion, the complaint of the complainant is dismissed.

• A copy of this order is to be sent to all the parties as per rule.
• File be consigned to record room.
• Announced in the open court on 16.12.2024.