Goa

South Goa

CC/79/2017

Shri.Sebastiao A.T.Gonsalves - Complainant(s)

Versus

Managing Director Idea Cellular Limited & anr. - Opp.Party(s)

Mr. Edward J.Fernandes

28 Apr 2023

ORDER

Complaint filed on: 31/10/2017

 Complaint disposed on: 28/04/2023

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SOUTH GOA AT MARGAO

 

CORAM:   SHRI SANJAY MOTIRAM CHODANKAR, PRESIDENT

SMT. NELLY PEREIRA E D’SILVA, MEMBER

SHRI JAYSON RODRIGUES, MEMBER

 

Complaint No. 79/2017

 

Shri Sebastiao A.T. Gonsalves,

Major, s/o late Shri Nazareth Teles,

R/o. H. No. 132, 2nd Daddio, Telaulim,

Navelim, Salcete, Goa, 403707                                      ..........Complainant

 

                V/s.      

 

1. Managing Director,

Idea Cellular Limited,

Suman Tower, Plot 18, Sector 11,

Gandhinagar, Gujarat, 382011.              ......Opposite Party-1 (OP1)

 

2. Idea Cellular Limited,

Suman Tower, Plot 18, Sector 11,

Gandhinagar, Gujarat, 382011.              ......Opposite Party-2 (OP2)

 

3. Managing Director,

Acotel Interactive India Pvt. Ltd.,

Office 504, 5th Floor,The Avenue

Opp. The Leela, International Airport Road,

Andheri (E), Mumbai,

Maharashtra 400039.                             .....Opposite Party-3 (OP3)

 

4. Acotel Interactive India Pvt. Ltd.,

      Office 504, 5th Floor,The Avenue

      Opp. The Leela, International Airport Road,

 Andheri (E), Mumbai,

 Maharashtra 400039.                       .       ......Opposite Party-4 (OP4)

 

5. Chief Executive Officer (CEO)

Vodafone Idea Limited,

Suman Tower, Plot 18, Sector 11,

Gandhinagar, Gujarat, 382011.              ......Opposite Party-5 (OP5)

 

6. Vodafone Idea Limited,

Suman Tower, Plot 18, Sector 11,

Gandhinagar, Gujarat, 382011.               ......Opposite Party-6 (OP6)

 

• Advocate Shri E. Fernandes appears for Complainant. None present for Complainant at the time of Judgment.
• Advocate Shri D. Bhardwaj present for Opposite Party-5and 6 at the time of hearings, arguments and Judgment.
• Other Respondents either deleted / amalgamated or absent.

 

 

JUDGEMENT

(Per Mr. Jayson Rodrigues, Member)

 

1. This Judgment and Order shall dispose of the Complaint filed under Section 12 of the Consumer Protection Act, 1986 (Now Section 35 of the Consumer Protection Act, 2019) [for short “The C.P. Act”].

 

The brief facts of the case are as under:

 

2. This is a case involving a prepaid cellular phone subscriber (Complainant) who claims to have been subscribed to extra paid services without his consent in 2017. It is relevant to note that telecom operator Idea Cellular Limited has merged with telecom operator Vodafone and is now operating under the telecom operator name Vodafone Idea Limited as of August 31, 2018. Acotel Interactive India Pvt. Ltd. and Idea Cellular partnered to launch skill-based mobile gaming services to mobile users in India, along with other digital products and services. The Complainant alleges that he was subscribed to the "Skillderby Gaming Service", "Bollywood Diary", and "Game Mania" subscriptions through Flash SMS sent by the operators, without his voluntary consent. The Complainant had also sent an SMS to unsubscribe from the services, but continued to receive messages and charges. The Complainant seeks relief and compensation for mental harassment caused. OP5 & OP6 (OP1 & OP2 prior to merger)  argued that Value-Added Services (VAS) cannot be activated automatically and are optional third-party services provided by mobile companies that cannot be activated until the subscriber opts for them. The OP5 &OP6 submits that the Complainant's issue was over a legally deducted amount of Rs.126/- only, which was reversed as a gesture of goodwill, and additional talk time of Rs.124/-, thus a total credit of Rs.250/- was initiated the same year 2017 itself after duly informing the Complainant.

		SUBSCRIPTION SERVICE
Skillderby Gaming	70.00	Bollywood Diary	21.00	Game mania	35.00
		Total INR	126.00

 

3. The case of the Complainant is that he is a prepaid subscriber of cellular phone services offered by OP2 and has been using a smart phone bearing number 7776801379 for more than the last five years. OP1 was responsible for conducting the day-to-day business activities of OP2, which affects its customers. The Complainant has stated in his complaint that he does not have a copy of the form that he had submitted while subscribing to the prepaid cellular connection of OPs. The complaint is related to the alleged subscription of extra paid services by the OPs without the Complainant's consent. The Complainant has pointed out that a "Flash  SMS" is defined as SMS that does not keep a record on the phone of the recipient and has a peculiar characteristic that the user of the phone has to "deal" with it FIRST before he can continue with the normal use of the phone. There is no record in the Complainant's phone email account, which shows that he had voluntarily subscribed to any of the extra paid services offered by the OPs. Hence it is likely that the so-called subscriptions, which were allegedly availed by the Complainant, were done via Flash SMS's sent by the OP's. On 31/08/2017, at 12.25 p.m, the Complainant received two SMS's from number 54300 informing him about the activation of "Skillderby Gaming Service". Similar SMS repeated on 04/09/2017 for "Bollywood Diary" and on 07/09/2017 for “Game Mania” respectively. The Complainant has unequivocally denied that he had subscribed/made a request to subscribe to any of these services. He also sent an email to the OP on 14/09/2017, seeking a refund of ₹ 126/- that had been deducted illegally from his account. Despite his attempts to seek redressal, the Complainant did not receive any response from the OP, which has led him to file a complaint.

 

4. The Complainant has requested this Commission to hold that the OP has indulged in unfair trade practice and/or deficiency of service, order the OP to credit ₹126/- in the prepaid account of the Complainant, order compensation of ₹1,000/- payable to the Complainant for the mental harassment caused to him, and order punitive damages of ₹.5,000/- payable to the Complainant.

 

5. The Complainant has examined himself by filing Affidavit-in-evidence in support of the complaint. He has produced the following documents:

1. E-mail notice of Complainant dated 14.09.2017 at Exhibit ‘25’

2. Details of SMS received/sent by Complainant at Exhibit ‘26’

3. E-mail dated 14.09.2017from OPs to the Complainant at Exhibit ‘27’.

4. Flash SMS/alleged response of Complainant to the Flash SMS at Exhibit

6. Printout of website of OP at Exhibit ‘28’.

7. Printout of website of OP at Exhibit ‘29’.

8. Directions dated 04.07.2011 issued by TRAI at Exhibit ‘30’

9. Directions dated 10.07.2013 issued by TRAIat Exhibit ‘31’.

 

6. The defense of OP1 and OP2 is that the complaint is not maintainable as it is false, frivolous and lacks merit. The OP is a reputable company with a good status in the market. The Complainant, who is the phone subscriber, received an excess bill for value-added services (VAS) charges that he claims he did not request to activate. The OP explains that VAS are optional third-party services that are provided by mobile companies through the internet (WAP) or flash messages, and they cannot be activated unless they are opted for by the subscriber. The OP contends that the Complainant must have used and clicked on the pop-up options to activate the VAS services, which cannot be activated automatically. The OP asserts that the system used by telecom operators is automated, and no manual interference is involved. The activation of VAS services is controlled by the customer, and the OP cannot activate or deactivate them without the customer's consent. The OP claims that the Complainant's consent is recognized under the provisions of the Information Technology Act, and until and unless consent is given, the user cannot proceed to access the said websites. The OP submits that after the complaint was received, it was investigated, and it was found that the VAS services were duly activated by the Complainant and the complaint was closed after informing the same to the Complainant on call. All the VAS services were deactivated and were not renewed. The OP submits that the Complainant's issue was over a legally deducted amount of ₹126/- only, which was reversed as a gesture of goodwill, provided additional talk time of ₹124/-. Thus providing Complainant total credit of ₹.250/- and also duly informing the Complainant about the same. The OP concludes that the activation of VAS is controlled by the customer, and once the consent is given, the liability on the service provider cannot be fastened.

 

7. Shri Swapnil A. Lavtawar, Assistant Manager, of OPs 1 & 2 examined himself by filing Affidavit-in-evidence in defense of the complaint.

 

8. The OP5 & OP6 relied upon the following citations during the final arguments in support of their case:

1. Civil Appeal No. 5728 of 2005 decided on 20.09.2016in the matter of Gyani Chand V/s. State of A.P. passed by Hon’ble Supreme Court of India (2016(4) CCC88(SC).

2. Revision Petition No. 2873 of 2016 decided on 24.01.2017 in the matter of Girish K. Motwani V/s. Airtel Pvt. Ltd. and anr. Passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi (2017(1) CPR 477(NC).

3. Case No. 2790 of 2017 decided on 17.10.2017 in the matter of Kavita Sikka V/s. Oasis Landmark LLP and anr. Passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi (2018(1) CPR 335(NC).

4. FA No. 847 of 2017 decided on 5.10.2018 in the matter of Dr. Uttamkumar SamantaV/s. Vodafone East Limited and Ors passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi (2018(4)CPR 413(NC).

5. FA No. 1565 of 2017 decided on 23.10.2018 I the4 matter of Anriya Project Management Services Pvt. Ltd. and Anr. V/s. Prakash Mehra passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi (2018(4) CPR 616(NC).

6. Copy of Judgment dated 29.12.2022 in Appeal No. 109 of 2018 passed by theHon’ble State Commission, Panaji Goa

7. FA No. 66 of 2019 decided on 29.12.2022 passed by Hon’ble State Commission, Panaji Goa.

8. FA No. 19/2018 decided on 05.03.2018passed by Hon’ble State Commission, Panaji Goa.

 

9. The present matter has been brought before this Commission by the Complainant, who is a prepaid subscriber of cellular phone services offered by OP2, and has been using a Smart phone bearing number 7776801379 for more than the last five years. The Complainant has alleged that OP1, responsible for conducting the day-to-day business activities of OP2, has indulged in unfair trade practices and deficiency of service by subscribing to extra paid services without the Complainant's consent. The OPs have contended that the complaint is false, frivolous and lacks merit, and that the VAS services were duly activated by the Complainant.

 

10. We have heard the arguments of the parties and examined the evidence on record. It is noted that the Complainant has not provided any evidence to prove that the VAS services were activated without his consent. The Complainant has merely alleged that the subscriptions were done via Flash SMS's sent by the OPs. On the other hand, the OPs have submitted that the VAS services were activated with the Complainant's consent, and that the system used by telecom operators is automated, and no manual interference is involved.

 

11.  The activation of VAS services is controlled by the customer, and the OPs cannot activate or deactivate them without the customer's consent. The Complainant's consent is recognized under the provisions of the Information Technology Act, and until and unless consent is given, the user cannot proceed to access the said websites. The OPs are bound to stand by the provisions of the Information Technology Act and the Telecom Regulatory Authority of India (TRAI) Regulations. The OPs have submitted that after the complaint was received, it was investigated, and it was found that the VAS services were duly activated by the Complainant and the complaint was closed after informing the same to the Complainant on call. All the VAS services were deactivated and were not renewed. The OPs have submitted that the Complainant's issue was over a legally deducted amount of Rs.126 only, which was reversed as a gesture of goodwill, and additional talk time of Rs.124 was provided. Thus providing Complainant total credit of Rs. 250.00 and also duly informing the Complainant about the same.

 

12. Based on the facts presented by the OPs and considering the actions taken to rectify the Complainant's issue, it is our opinion that the matter has been satisfactorily resolved. The OPs have demonstrated good faith in their efforts to address the Complainant's concerns, by reversing the deducted amount and also providing additional talk time.   The  total  credit  of   Rs. 250.00 provided to the Complainant is a fair and appropriate resolution to the matter at hand. Furthermore, we find that the OPs have met their obligation to inform the Complainant about the resolution. Therefore, we conclude that there are no further legal issues to be addressed in this matter.

 

13.  The complaint filed against the OPs is dismissed, as the activation of VAS is controlled by the customer, and there is no evidence to prove that VAS services were activated without the Complainant's consent. The OPs are not liable to pay any compensation or punitive damages to the Complainant. The Complainant's request for compensation and for the OPs to credit Rs.126/- in the prepaid account of the Complainant is also dismissed, as the OPs have already reversed the amount. Also, there is no evidence to show that Complainant was mentally harassed by the OPs.

 

14.  In conclusion, this Commission would like to emphasize that consumers have the right to receive high-quality services and be safeguarded from unjust trade practices. Nonetheless, in this particular case, the Complainant has been unable to furnish convincing evidence to support any claim of service inadequacy on the part of the OPs. It is incumbent upon consumers to exercise prudence when availing of services and to carefully read and understand the terms and conditions before subscribing to any service.

 

15.   In view of the above, we dismiss the complaint with no order as to costs.

 

Pronounced in open Court. Proceedings closed.

 

 

 

                                                                                                                    (Mr. Sanjay Motiram Chodankar)

                                                                  President

 

 

 

                                                                (Ms. Nelly H. Pereira e D’Silva)

                                                                Member

 

 

 

                                                                     (Mr. Jayson Rodrigues)

                                                                                                                                                Member