Per Hon’ble Mr.S.R.Khanzode, Presiding Judicial Member
This appeal takes an exception to an order dated 14/10/2011 passed in consumer complaint no.CC/09/789, Dr.Ashish M.Gala v/s. Vodafone Essar Ltd. and another passed by District Consumer Disputes Redressal Forum, Mumbai Suburban. It is a complaint against the appellant –M/s.Vodafone Essar Ltd. (herein after refereed as ‘Vodafone’) for not rendering service to stop the unsolicited commercial communications to which respondent/ complainant specifically complained on 30/08/2008 consequent to his registration under “Do not call (D.N.C.)”. Forum partially allowed the consumer complaint holding that appellant -Vodafone is deficient in service and directed to pay it compensation of `20,000/- and `5,000/- as costs to the complainant. Feeling aggrieved thereby, this appeal is preferred by the Vodafone.
Heard both the parties. Perused the record. Main thrust of the appellant -Vodafone is on two aspects. Firstly, they are not deficient in service since even under Telecom and Solicited Commercial Communications Regulations, 2007 (‘Regulations’ in short), there is no positive obligation on them to stop unsolicited commercial calls. In fact, the Telephone Regulatory Authority of India (‘TRAI’ in short) did not contemplate and acknowledged the fact that such communication or unsolicited communication calls cannot be stopped entirely. It is further contended that as per the regulations, explanatory memorandum issued to clause 16 of the Regulations, 15 days time is provided for a subscriber for making the complaint to his service provider in respect of unsolicited commercial communications and the complainant/subscriber namely, Dr.Gala failed to make any such complaint within 15 days. His complaint dated 30/08/2008 in respect of three such calls dated 31/07/2007, 02/08/2007 and 19/02/2008 since made much beyond the 15 days period, could not cast upon them any obligation for not stopping such calls.
At the third instance, it is submitted that clause 16 of the regulations provides the procedure and, ultimately, action is to be taken against establishment who has generated such unsolicited commercial calls in the instant case, opponent no.2 - HDFC Bank Ltd.
Referring to the communication by E-mail dated 30/08/2008 by the complainant to appellant -Vodafone, it specifically refers to the unsolicited commercial calls received from telemarketing like HDFC, ICICI, CITI Bank, Barclays Bank and gave three instances viz. 1. Mr.Nitin –Tel. 30093207 on 31/07/2007 at 3.33 pm
2. Mr.Anup- Tel.30093389 on 02/08/2007 at 5.10 pm
3. Ms.Nafisa-Tel-66419900 on 19/02/2008 at 5.59 pm
This Email was acknowledged by appellant Vodafone on 02/09/2008 and gave reply to the complainant as under:-
“Dear Dr.Gala,
Thank you for your email dated 30/08/2008, regarding NDNC service o 9820147415.
We tried contacting you on your above Vodafone number but were u
We confirm that the NDNC service has been updated on the account
We request you to kindly revert to us with the below mentioned detail take it up with the respective service provider.
· Number from where call received.
· Date of call
· Time of call
· Content of the call
In case you need any further assistance, do call or email us, we’ll do
Happy to help,”
On the same day i.e.02/09/2008 complainant-Dr.Gala further re-replied to appellant Vodafone giving the particulars of telephone numbers of Telemarketers and the other details listing about 8 instances therein. It is not the case of appellant Vodafone that since 15 days period was over, in respect of the information supplied, their data was destroyed and they could not trace the originating assessed provider for taking further action as per regulation 16 of the Regulations. 15 days period is also by way of explanation and not incorporated in the regulations. After furnishing said information as per re-reply dated 02/09/2009, supra, no further action is taken by the appellant Vodafone as contemplated under regulation 16(2)(c) by forwarding the complaint including the call details record and other information and the documents in respect of the complainant Dr.Gala. Under the circumstances, they failed to discharge their obligation under the said regulations or in other words, they acted with imperfection, shortcoming or inadequacy in the nature and manner of purpose, which is required to be maintained by them under the regulations and, thus, deficiency in service within the meaning of section 2(1)(g) of the Act is well established as against them. From this point of view, award of compensation of `20,000/- and the costs of `5000/- as per the impugned order cannot be faulted with. Thus, finding the appeal devoid of any substance, we pass the following order:-
ORDER
Appeal stands dismissed.
However, in the given circumstances, appellant Vodafone to bear its own costs and shall pay `10,000/- as costs to the respondent- Dr.A.M.Gala.
Pronounced on 10th May, 2013.
