Delhi

North

CC/23/2023

LOKESH SHARMA - Complainant(s)

Versus

M/S AIRCAM MEDIA PVT LTD - Opp.Party(s)

17 Feb 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.: 23/2023

In the matter of

Lokesh Sharma

S/o Late Shri Kali Prasad Sharma

Off: Ch. No. 246-247 (Basement)

Western Wing, This Hazari Courts

Delhi- 110054                                                       …      Complainant

VERSUS

M/s Aircam Media Pvt. Ltd.

Through its Director/ Authorised Representative   …      Opposite Party No. 1

 

Mr Rajesh Kumar Yadav

Director                                                                …      Opposite Party No. 2

 

Ms Anjul

Director                                                                …      Opposite Party No. 3

 

Ms Kiran

Business Development Manager                            …      Opposite Party No. 4

All at:

E-81, 2^nd Floor

Sector 63, Noida- 201301

 

Present:       Shri Ashwani Kumar Sharma, Ld. Advocate for Complainant along with Complainant.

ORDER

17/02/2023

(Divya Jyoti Jaipuriar)

We have heard the arguments of Shri Aswani Kumar Sharma, Ld. Advocate for the Complainant on the last date of hearing on admissibility of this complaint.

Briefly stated, the Complainant herein, who is an Advocate by profession, allegedly for supporting his friend and candidate namely Shri Manish Sharma, Advocate who was contesting the election for the post of Joint Secretary of Delhi Bar Association, took the services of M/s Aircam Media Pvt. Ltd. for sending bulk messages to the phone numbers provided by the Complainant herein during the period between 12.09.2022 and 25.09.2022. It is alleged by the Complainant that although the payments of Rs. 7,000/-were made to OP3 through UPI transaction. The Complainant further alleges that the OPs have agreed to send bulk messages to the members of DBA as per the list provided by the Complainant, but the OPs failed to send the messages to the intended recipients. As a result, it is alleged by the Complainant that his friend namely Shri Manish Sharma, Advocate, lost the election by just 9 vote and the Complainant lost his integrity and goodwill amongst his friends and fraternity. Thereafter, the Complainant demanded refund of the money from the OP which was allegedly refused. Hence, the Complainant has filed this complainant seeking a direction to the OPs, inter alia to return the price paid i.e. Rs. 7,000/-, pay a compensation of Rs. 1,00,000/- on account of spoiling the goodwill of Complainant, mental harassment & trauma and the legal charges quantified at Rs. 15,000/-.

It is also alleged by the Complainant that the legal notice was also sent to the OPs, which was returned undelivered, but the said legal notice was sent by way of Whatsapp message service, which was duly delivered and read by the OP-4.

There is no document on record that the payment was made to the OP-1 company. The documents on record suggest that the payment was made in the personal UPI ID of the OP-3. Even if OP-3 is said to be office bearer/ director of the OP-1 company, unless payment is not made to the OP-1, it cannot be assumed that OP-3 accepted the payment on behalf of the OP-1 Company. Every entity including OP-1 herein which provides any service to its customers must have a separate bank account in the name of the company and must be having a GST registration number, which must be displayed on the bills so issued by such service provider. In the case in hand, there is no document to suggest that the payment was made to OP-1 or to suggest that OP-3 collected the payment on behalf of OP-1 Company. In absence of such payment receipt, we cannot assume that the service of OP-1 was availed by the Complainant and the payment was made to OP-1. At best, it can be assumed that the Complainant made the payment individually to OP-3 and for availing alleged services.

During arguments we put a query about the terms and conditions of the agreement between the parties and existence of any written agreement between the parties. It was stated that the there was no agreement in writing, but whatever was agreed upon was oral and through message communications between the OP-3 and Complainant. We have gone through the Whatsapp message communication between the Complainant and the OP-4, which is filed along with the complaint. However the said message communication does not indicate the terms and conditions of the agreement. The message interaction also does not indicate that the messages are not being delivered to any of the intended recipient. There is only one message indicating that the message was not delivered on one number of the candidate.

During argument, Shri Sharma placed reliance on the judgment dated 04.05.2021 passed by Hon’ble Delhi State Commission in the matter of ICICI Bank vs Amar Dutt (FA No. 646/2017) in which the liability of the bank was fixed, inter alia, for the reason that the bank failed to send transaction message to the customer. The said order is not applicable in the case in hand as the answering bank was under obligation as per Reserve Bank of India guidelines to send transaction messages to its customers. In the case in hand, there is no such statutory or regulatory obligation. The obligation of the OPs was, at best, contractual in nature, which is not the ratio of the judgment of ICICI Bank (supra).

Ld. Advocate of the Complainant also relied on another judgment dated 28.1.2021 passed by Hon’ble Delhi State Commission in the matter of General manager, Northern Railway vs Himanshu Bohra (FA No. 406/2019) in which the Appellant was found guilty of deficiency of service when the appellant was found to have sent the message regarding non-confirmation/ cancelation of ticket after the time of departure of the train. In the case in hand, it is not the case of the Complainant that the messages were sent after the agreed bulk message campaign period. The Complainant alleges that the messages were not sent completely by the OP. The facts in the case in hand is completely different from the facts in the case of Northern Railway (supra), hence the said judgment will also not help the Complainant.

Further, there is no document on record to show that which numbers were shared with the OPs and how many of them did not receive any message. The Complainant, without placing on record any document, has assumed that the messages were not delivered and for such reason, his candidate lost the election. The result in the election is not dependent on just message campaign and there are other considerations influencing the election results. Hence, we are not convinced with the assumption of the Complainant that his candidate lost election because the   OPs did not deliver the bulk messages as promised. Mere allegation of non-delivery of message without any supporting document is not enough to approach the Consumer Commission.

The proceedings before the Consumer Commission is summery in nature and detailed evidences are not led. Examination and cross examination of parties are not usually permitted in proceedings before Consumer Commission. In order to substantiate his claim of non-delivery of messages, the Complainant has to lead detailed evidence and also examine a number of witnesses. Such exercise is not permissible under the summery procedure. In this context, reliance is placed on the judgment of Hon’ble Supreme Court in the matter of Synco Industries vs State Bank of Bikaner and Jaipur [(2002) 2 SCC 1].

In view of the above, we are not inclined to entertain this complaint and this complaint is dismissed at admission stage itself. However, we grant liberty to the Complainant to approach the Forum/ Court of appropriate jurisdiction, if so advised. While doing so, the Complainants may seek the benefit of the judgment of Hon’ble Supreme Court in the matter of Lakshmi Engineering Works (supra) to explain the delay, if any, if the same is available to him. Needless to say we have not expressed any opinion on the merits of the case and if the Complainant approached any other Forum/ Court, the same shall decide the case on its own merit without being influenced by any of the observations made in this order.

Office is directed to supply the copy of this order to the Complainant as per rules. Office is also directed to return all original documents filed by the Complainant, if any, after keeping certified copies of the same in the record. Thereafter, file be consigned to the record room.

Ordered accordingly.

Office is directed to supply the copy of this order to the parties as per rules. Thereafter, file be consigned to the record room.

Ordered accordingly.

 

 

 

_________________________

Divya Jyoti Jaipuriar, President

 

 

_________________________

Ashwani Kumar Mehta, Member

 

 

_________________________

Harpreet Kaur Charya, Member