Quorum: Smt. D.K.Khosa Member.<br /> Dr. H.L.Mittal Member.<br /> <br /> Present: Sh. P. Betab counsel for the complainant.<br /> Sh. P.L. Chowdhry counsel for opposite party No.1.<br /> Opposite party No. 2 exparte.<br /> <br /> ORDER<br /> Mangat Arora complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 requiring the opposite parties to stop the unwanted calls and messages and if in urgency the customer is called manually and not through talking machine and to pay Rs. 1,00,000/- as compensation for mental agony, harassment, illegal deduction to the complainant with cost of the complaint. <br /> 2. The complainant averred in his complaint that he is the holder of mobile No. 098140-14937 so he is a consumer of the opposite parties. The complainant is an Advocate and practicing in District Courts, Faridkot. The opposite parties send unnecessary messages and vexatious calls many a times daily from various numbers and harass the complainant. The complainant noted some of the calls i.e. at about 5.41 P.M. on 27.2.2007 from No. 98554-78761, at about 5.17 P.M. on 28.2.2007 from No. 98554-78874, at about 11.34 A.M. on 1.3.2007 from No. 98554-44716, at about 3.55 P.M. on 1.3.2007 from No. 98554-78894 etc. as detailed in the complaint. These calls is daily routine of the opposite parties and the complainant has no option except to suffer harassment from these calls as these calls are made mechanically and are only to be heard ;and nothing can be said by the complainant. The opposite parties intentionally send calls by changing sending number and every time when the complainant tried to contact the sender number it was replied that the same number does not exist. Similarly the complainant receives an average of 4 to 8 messages ;daily from the opposite parties which are also meaningless for the complainant and he suffer daily in receiving those messages. When he receives these calls some times he was busy in his professional work in different courts, sometimes he was even driving and these unwanted calls and messages create too much problem fro the complainant and even can be cause of accident. He does not like caller tunes so the complainant never requested for caller tunes to the opposite parties but on 26.2.2007 at about 1.51 P.M. the complainant received a message from the opposite parties that the request of the complainant received for activation of caller tunes and the same will be activated. What to talk of request the complainant even does snot like caller tunes sos the complainant tried to contact the opposite parties on their service No. 98140-12347 many times to know the true position and to stop the opposite parties from activating caller tunes but every times the machine of the opposite parties replied that all the customer care executives are busy. The opposite parties in activating the caller tune is only to extract Rs.30/- per month and this amount was deducted by the opposite parties from the account balance of the complainant. After two days the complainant learnt about the procedure to stop the caller tune and on 28.2.2006 the complainant sent a command to the opposite parties at no. 678 to stop the caller tune and inspite of reply the caller tune is yet going on and the opposite party has also deducted Rs.6/- more for stopping of caller tune. In the evening of 28.2.2007 the opposite parties stopped out going facility from the mobile of the complainant without any information and warning and it was only after the search of 3-4 hours the complainant knew that the out going facility has been barred due to fact that the complainant has not furnished his identity with the opposite parties. The fact is that about 10 days earlier from the barring of out going facility the opposite parties had noted complete address of the complainant and the representative of the opposite parties one Sikh young man had taken the identity proof (Ration Card) from the complainant. Due to unjust barring of out going facility the complainant had to suffer business loss and mental harassment. The customer care executives remained not reachable inspite of several attmpts and it was in the morning of 2nd March 2007 the out going facility was restored. The complainant has requested many times to the opposite parties to stop the vexatious calls and messages, to stop the caller tune, to repay the amount illegally deducted for caller tune but in vain and the opposite parties continuously harassing the complainant. The grief is not only of the complainant but every customer is victim of the misdeeds of the opposite parties. It is deficiency in service and trade mal practice on the part of the opposite parties to harass the complainant. The complainant had to suffer financial loss and harassment due to the deficiency in service and trade mal practice of the opposite parties. The complainant approached the opposite party No. 2 many times for removal of his grievance but to no effect. Hence this complaint. <br /> 3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 9.3.2007 complaint was admitted and notice was ordered to be issued to the opposite parties. <br /> 4. On receipt of the notice the opposite party No. 2 not appeared despite of service so the opposite party No. 2 was proceeded against exparte vide order dated 26.4.2007. The opposite party No. 1 appeared through Sh. P.L. Chowdhry Advocate who filed written reply on behalf of the opposite party No. 1 taking preliminary objections that the complaint is not maintainable as no cause of action has accrued to the complainant to file the present complaint and the complaint has been filed with malafide intention. The only grievance is regarding the promotional SMS sent by the opposite party No. 1 to the mobile of the complainant but the only intention behind it is to educate the subscriber. The opposite party No. 1 is carrying on its business on a highly competitive world where all the companies are trying to out pace each other by coming up with innovating products on daily basis, sos the company tries to educate the customers by sending messages and by making interactive voice response calls so that the customers can enjoy best services offered by the opposite party without bothering them to visit the answering opposite party. The answering opposite party has taken care of those customers who do not wish to avail these services by way of DND facility and the person who is really not interested in availing such calls is free to enter to this scheme which the complainant has never done. So if the subscriber is really undesirous of any such facility he is free to avail the free of cost facility to debar all such educating calls, but in the present case no such request was ever made by the complainant to the opposite party No.1. In the present set of circumstances no deficiency of service can be attributed to opposite party No. 1. On merits the opposite party No. 1 is submitted that the messages are sent only withs the intention to educate the customer about the new schemes and in case any customer is not interested in availing this facility the customer is free to opt for Do Not Disturb facility by logging on to the website of the opposite party No. 1 i.e. www.spiceindia.com, and after that no promotional message will be sent to its mobile, but in this case the complainant has not availed such facility. The complainant is still free to avail the DND facility and his grievance will be redressed automatically. The complainant is at liberty to not to pick the mobile while busy in his professional work or while driving. The service of caller tune was activated on the mobile of the complainant on 26.2.2007 by the complainant himself. It is correct regarding the charging of Rs.30/- as service charges for the activation of Spice Caller Songs Service activated by the complainant. The complainant was duly informed about this vide SMS dated 26.2.2007. The complainant has been rightly charged Rs.6/- per min for deactivation of the service as per the rules. The outgoing calls on the mobile of the complainant was never barred by the opposite party No. 1 and only an SMS message was sent to him on 22.2.2007 about contact to your nearest Spice Showroom with your photo and ID Proofs. This process was only in compliance to the regulations issued by Department of Telecommunications, Govt. of India for the re-verification of the customers. The message was sent to all the customers and not to the complainant alone. The complainant has not made any request to the opposite party No. 1 for stopping of promotional messages by availing DND facility. So there is no deficiency of service can be attributed to opposite party No. 1 rather the complainant is harassing the opposite party No. 1 by filing the present complaint on incorrect facts. So the present complaint may kindly be dismissed with costs.<br /> 5. Both the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence of affidavit of complainant Ex.C-1, supplementary affidavit of complainant Ex.C-2 and closed his evidence. <br /> 6. In order to rebut the evidence of the complainant the opposite parties produce in their evidence affidavit of S.K. Garg Vice President (Finance), M/s. Spice Communications Ltd. C-105, Phase VII, Industrial Area, Mohali and details of SMS from 30.12.2006 to 3.3.2007. <br /> 7. We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file. Our observations and findings are as under.<br /> 8. Learned counsel for the complainant has submitted that <br /> the complainant had been receiving unwanted and vexatious messages and calls from the opposite parties. The opposite parties have started caller tune on the mobile of the complainant arbitrarily without any demand of the complainant. The opposite parties also have stopped outgoing call facility of the mobile of the complainant about 3-4 hours. So the complainant is entitled to the damages on account of mental tension and harassment. <br /> 9. Learned counsel for the opposite party no. 1 has submitted that the complainant could debar the unwanted calls and messages by using Do Not Disturb facility. The outgoing calls have not been debarred by the opposite party. The caller tune has been activated only on the instance of the complainant. So there is no deficiency of service on the part of the opposite party. <br /> 10. From the perusal of the file it is made out that there is no record if the complainant have used Do Not Disturb facility for debarring unwanted calls and messages to be received on the mobile phone of the complainant. <br /> 11. It is not on the file if the opposite parties arbitrarily have introduced caller tune. It is only possible if the user of the mobile phone makes a request to activate the same. So the opposite parties cannot be held responsible for this activity. <br /> 12. It is not on the file if the opposite parties have arbitrarily without any information have stopped outgoing facility for 3-4 hours of the mobile phone of the complainant. <br /> 13. From the above noted facts and circumstances it is made out that there is no deficiency of service on the part of the opposite parties. The opposite parties cannot be held responsible for any vexatious messages and calls if have been received by the complainant. Even there is no such record of receiving of the vexatious messages and calls. So the affidavit of the complainant Ex.C-2 is not helpful to the complainant in this regard in any manner. <br /> 14. In view of the aforesaid facts and circumstances the complaint filed by the complainant being devoid of merits is dismissed. There is no order as to costs due to peculiar circumstances of the case. Copies of the order be sent to the parties free of costs. File be consigned to the record room. <br /> Announced in open Forum:<br /> Dated: 22.1.2008<br /> <br />