FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, MEMBER.

The case of the complainant, in short, is that the complainant was a prepaid  subscriber of the OP by using mobile Phone connection . The OP illegally and unilaterally deducted Rs.5/- per diem on and from July 27, 2016 several times towards the value added till the balance became zero and as a result of which the complainant suffered huge professional and monetary loss. The complainant sent SMS to STOP as suggested in the messages of deduction, but that did not work. For this illegal deduction the complainant severed all relations to Op and opted for another carrier for the service. Thereafter the complainant served a legal notice to the upon the Op demanding to pay a sum of Rs. 5,00,000/- (five Lakhs) only to the complainant  for monetary loss, damages for deficiency of service and harassment and mental agony caused thereby . Despite the serving legal notice through his Ld. Advocate, the OP remained silent.

OP contested the by filing W/V contending inter alia that the case is not maintainable in law, baseless and devoid of any merit. In accordance with the documents filed by the complainant shows that as per request of the complainant Value Added Service (VAS) was activated on 28.07.2016. But when a request for de-activating the vas was received by the OP, it was processed and subsequently the same service was de-activated and the money was refunded. After that day it is very evident that the further de-activation requests sent by the complainant were not delivered to the OP. Thus , no request of de-activation was received by the OP and therefore the VAS was active as requested by the complainant . As such the reliefs as claimed by the complainant are miss-conceived. According to the Clause No. 39.20 of the License Agreement issued by the DOT , the licensee shall archived  all commercial Records / Call Detail Record (CDR) / Exchange Detail Record (EDR) / IP Detail Record (IPDR) with regard to the communications  exchanged on the network for at least one year for scrutiny by the licensor for security reason . Therefore, the OP does not have records as being older than one year to validate the claims of the complainant .

To prove their case both the parties have adduced evidence on affidavit. They have also filed questionnaires and reply vis-à-vis relevant documents in support of their respective cases. . BNAs are also filed by the both the parties We have examined the entire material on record  and given a thoughtful consideration to the arguments advanced before us . 

On perusal of the record it is found that OP filed an application registered as MA No. 245/2019 on 04.07.2019 supported by affidavit praying for necessary direction upon the complainant to amend the cause title of the complaint petition as the OP has merged with Idea  Cellular and thus all the liabilities of the OP i.e. M/S Vodafone  Mobile Services Ltd has been transferred to the newly entity named Vodafone Idea Ltd . In this regard the complainant filed an application supported by an affidavit praying for amendment of the complaint petition which was registered as MA No. 357/2019 . Amended copy of the complaint petition was filed by the complainant on 30.08.2019.

Fact remains that the complainant was a pre-paid subscriber of the OP by using Mobile Phone being No. 9830485574 .  It is also admitted that Rs.5/- per diem was deducted on and from 28.07.2018 towards Value Added Service (VAS). There is no dispute that the complainant  sent messages to the OP to stop that said service to the OP between 27.07.2016 - 03.08.2016 . Documents on record shows that subscription of MVILLAGE was activated on the complainant’s number on 27.07.2016 as requested at 12.05 PM  and the same was valid till 28.07.2016 and 1 days rental of Rs.5/- had been deducted.  Next day i.e. on 28.07.2016 it has been renewed . The complainant SMS STOP to the toll free number 155223 and the pack was deactivated on 28.07.2019 .

It appears from the material on records that the said value added pack was activated on complainant’s number on 27.07.2016 as request and the same was valid till 28.07.2016  and an amount of Rs.5/- was deducted as I day rental from the current balance. The said service again renewed on  28.07.2016 with same charge and it was clearly mentioned that the said service will get renewed on next day i.e. on 29.07.2016 . On request of the complainant the said service was deactivated on 28.07.2016 and the service charge of Rs.5/- was refunded . Again on 29.07.2016 the same value added pack was activated on complainant’s number mentioning ‘as requested’.  The same message it was suggested that “To deactivate SMS STOP to or call 155223(toll free).”  After that the renewal of the pack was going on till 03.08.2016. The complainant send STOP message to the said toll free number which was not delivered.  Ld. Advocate for the OP argued that as per TRAI directives no value added services can be activated without the consent/request of the customer.  TRAI has clearly specified that :

The service provider cannot activate any value added service, whether chargeable or free of charge , without the explicit consent of a customer . In case the subscriber seeks to unsubscribe the value added service within 24 hours if the VAS is more than a day or within 6 hours where the service is for a day , from the time of its activation , the service provider has to  deactivate the value added service and adjust  or refund the deduction made , if any .

The OP deactivated the service and refunded the money on request of the complainant as per rules regulations of TRAI on 28.07.2016 . Therefore again activation of the said value added service  on 29.07.2016 cannot be possible without complainant’s consent as per TRAI directives . Moreover there is no such document is adduced by the complainant which shows that the complainant made any call to there toll free number to deactivate the said service . WE found logic in this submission .

The complainant seeks an inquiry into the loss against the OP. Ld. Advocate for the complainant submits that according to the Clause No. 39.2 of the Licensee Agreement issued by the Department Of Telecommunication , the Licensee shall maintain all commercial records/Call Detail Record / Exchange Detail Record /IP Detail Record with regard to the communication exchanged on the network . Such records shall be archived for at least one year for scrutiny by the Licensor . Licensor may issue directions/instructions from time to time with respect to CDR/IPDR/EDR . As such , the OP do not have records as being older than year to validate the claims of the complainant . It is observed that cause of action arose on July 2016 and the instant case is filed on26.06.2018 ..i.e. on the verge of limitation period from the date of occurrence for the reason best known to him .

Therefore, no unfair trade practice or negligence of service on the part of the OP is found. As well as the complainant failed to establish his case with specific evidence.

In result, the case merit fails .

Hence

ORDERED

That the case be and the same is dismissed on contest against the OPs. However  there will be no order as to costs.

Dictated and corrected by me.