Per Justice Mr.S.B. Mhase, Hon’ble President
Heard Mr.E.P. Keshwani, Advocate for the appellant.
2. This appeal is directed against the order dated 09/12/2010 in consumer complaint No.173/2009 which was passed by District Forum, Central Mumbai.
3. The appellant is original opponent while respondent No.1 is the original complainant. The complainant is having a Mobile No.9820262135 with Relationship No.1.4125178. The complainant/respondent was receiving Sale Promotional Calls and therefore, the respondent had registered his name with the appellant under the “National Do Not Call Registry” maintained by the Government of India through the Telecom Regulatory Authority of India (TRAI). In spite of this registration by the respondent, appellant had sent several Sale Promotional Calls to the respondent. Therefore, respondent had made grievance to the appellant-Company. Appellant-Company instead of stopping said Sale Promotional Calls informed the respondent that the appellant cannot stop the information being given to him by Sale Promotional Calls. Therefore, Sale Promotional Calls continued against the will and wish of the respondent/complainant. Therefore, the respondent/complainant filed above referred consumer complaint before the District Forum. Said complaint was allowed and appellant/opponent was/is directed to stop said Sale Promotional Calls and SMS being sent to the respondent/complainant. For compliance of this order, period of one month is given and by way of compensation `1,500/- and towards costs `1,000/- are directed to be paid. This order of the District Forum is challenged before the State Commission by the appellant/opponent.
4. Learned Counsel for the appellant has admitted that name of the respondent has been registered in the “National Do Not Call Registry” and in spite of that appellant had sent and is sending said Sale Promotional Calls and SMS to the respondent. In view of this admitted fact, we initially tried to tell the Counsel for the appellant that the order passed by the District Forum is properly passed and requires no interference. However, Learned Counsel submitted that the appellant is fighting this case for principle and appellant is not ready to pay the amount to the respondent/complainant as directed by the District Forum and thus, he pressed for hearing of the appeal on admission. He invited attention of the State Commission at page-85&86 of the documents to show that the conditions of the Telecom Unsolicited Commercial Communications Regulations, 2007 and relied upon Clause (b) of the Regulation 12 which is as follows :-
“b. One of the key concerns of the Authority while making the regulations was to ensure that these regulations do not, in any way, infringe on the fundamental rights to the freedom of speech and profession, occupation, trade or business as guaranteed in Articles 19(a) and (g) of the Constitution of India. The Aurhority agrees with the view of Reserve Bank of India’s (RBI’s) working group on regulatory mechanism that it might not be advisable to ban all marketing calls, since they are an important marketing tool and a number of people are in favour of receiving calls regarding new products/information updates on existing products. In addition, it is pertinent to note that the telemarketing industry also generates useful employment. Consequently, the Authority has made sure that these regulations do not ban telemarketing as a whole, but only restrict the incidences of unwanted UCC.”
5. Thus, he tried to persuade the State Commission that it is a fundamental right of the appellant and his marketing client and therefore, they are entitled to send Sale and Commercial Promotional Calls and SMS. Therefore, Learned Counsel submitted that the order passed by the District Forum is unjust and not tenable in law. Except this, no other submission was made.
6. We have carefully gone through the papers and the submissions made by Learned Counsel for the appellant.
7. Firstly, we do not agree with the submission made by Learned Counsel. Article 19(a) and (g) of the Constitution of India has guaranteed certain rights but they are rights of the individual and not of the Company. In the present matter, Company is the only appellant. Neither shareholder nor Director of the Company claimed any fundamental rights. Therefore, the Company cannot invoke the protection of Article 19 of the Constitution of India. There is one more reason that as there are rights in favour of individual guaranteed under Article 19 of the Constitution of India, there is equally rights guaranteed to the citizens, namely, to maintain his own privacy and rights of the privacy of an individual cannot be allowed to be encroached upon by any other individual and/or a Company or juristic person. The mobile facility goes upto the Bedroom and even to the toilet and therefore, the uncalled for calls are creating a nuisance and disturbance in privacy of an individual. Therefore, commercial activity or Sale Promotional Calls cannot be allowed to be sent to the consumer unless the consumer wishes to receive them. If the consumer is not desirous of getting such service, such service cannot be thrusted upon the consumer in the name and pretext of fundamental rights of the Company like appellant herein. Even the fundamental rights are not absolute, but there is a reasonable restriction over said rights and the State has that powers and the State has invoked said powers. Therefore, the State had framed Regulations to register the consumer under “National Do Not Call Registry”. Not only that but in spite of that registration, if the calls are received, the machinery has been set up in the said Regulations to impose penalty and punish the Company and the Commercial Agent, who is sending such Sale Promotional Calls. Therefore, since said right is not an absolute right of the appellant-Company which has been reasonably controlled by the Regulations made by TRAI and the Government of India, the appellant cannot claim absolute right to send the Sale Promotional Calls against the will and wish of the customer/consumer.
8. Ultimately, what we find that there is no substance in the appeal. This appeal has been filed only to harass the customer in the name of principle litigation. Under the circumstances, we impose costs of `1,000/- to be credited in the Consumer Legal Aid Fund of this Commission within a period of fifteen days. If the amount is not credited within the stipulated period, the Registrar is hereby directed to issue Certificate of Recovery under Section 25(3) of Consumer Protection Act, 1986 and recover the said amount and deposit it in the said Legal Aid Fund. Appeal stands disposed of accordingly.
Pronounced
Dated 22nd February 2011.
