Chandigarh

StateCommission

CC/99/2023

Pankaj Chandgothia - Complainant(s)

Versus

The Coffee Bean & Tea Leaf - Opp.Party(s)

Advocate (In person)

28 Dec 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	99 of 2023
Date of Institution	:	12.09.2023
Date of Decision	:	28.12.2023

 

Mr. Pankaj Chandgothia, aged 54 years S/o Late Sh. R. S. Chandgothia, Flat No.204, Dahlia Block, Amravati Enclave, Panchkula – 134105.

 ...Complainant

Versus

 

1. The Coffee Bean & Tea Leaf-Sec 10, M/s Vision Hospitality Solutions, SCO No.13, Sector 10D, Chandigarh – 160011 through its Owner/Manager.
2. M/s Vision Hospitality Solutions, 380, Industrial Area-II, Chandigarh – 160002 through its Partner/CEO.

…..Opposite Parties

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   SH. RAJESH K. ARYA, MEMBER

 

ARGUED BY:-

Sh. Pankaj Chandgothia, complainant in person.

Sh. Sunny Abrol, Operation Manager of the opposite parties.

 

PER  RAJESH  K. ARYA, MEMBER

Brief facts:

                   On 04.09.2023, the complainant, while returning from the Hon’ble High Court had to meet his Clerk Raj Kumar who at that time was in Sector 10, Chandigarh. The said Clerk requested the complainant to meet him in the market opposite Hotel Mountview. Accordingly, the complainant reached the area and while waiting to meet the Clerk, went to opposite party No.1 Coffee Shop to have Coffee. It is the grievance of the complainant that while placing the order at the counter of the said shop, the cashier asked him to give his mobile number in order to place the order. When enquired by the complainant, the cashier told that it was their policy to take the mobile number of consumers for marketing purposes and messaging and without giving the mobile number, he would not be able to issue the bill or take the order. Perforce, the complainant disclosed his name and mobile number and thereafter, the said cashier of opposite party No.1 took the order and issued bill and handed the complainant ordered cold coffee.

2]                It has been stated that immediately upon issue of the bill by the opposite parties, the complainant received another message on his mobile stating that the S Loyalty Wallet of the complainant has been successfully loaded with 19.15 loyalty points, which would expire on 03.11.2023 and the loyalty wallet balance was 19.15 – Petpooja. It has further been stated that such messages violate the consumer rights as they amount to “Dark Patterns” which are looked down upon by the Government of India and the government says that no person including any platform shall engage in any dark pattern.

3]                It is the case of the complainant that on the pretext of taking the order and issuing bill, the opposite parties obtain the personal details of consumers and retain it in their database for marketing and other purposes and the said data is prone to leakage or hacking which results in further harassment of the complainant by way of unwanted calls and unwanted solicitation. It has further been stated that many such companies even sell their data to desirous parties and therefore, profit at the expense of the consumers.

4]                It has further been stated that Government of India, Ministry of Consumer Affairs, Food and Public Distribution, Department of Consumer Affairs has issued a notification dated 26.05.2023 to all the retailers and  sellers association, which also include the opposite parties, to the effect that insisting on mobile number during the sale of a product as a pre-requisite mandatory condition, even when a consumer opts not to provide the same, is a violation of their rights and constitutes unfair trade practice under the Act. It has further been stated that under Section 72-A of the Information Technology Act, 2000, disclosing personal information of a person including mobile number obtained at the time of sale, without her/his consent or in breach of a lawful contract, to any other person, is a punishable offence. It has further been stated that by imposing a mandatory requirement to provide mobile number, consumers are often forced to share their personal information against their will, after which consumers are often flooded with marketing and promotional messages from retailers, which they did not even opt for at the time of purchasing the product. It has further been stated that restricting consumers to buy products or to return, exchange, and refund or resolving consumer grievance solely on the ground that the consumer has not shared her/his mobile number, constitutes unfair trade practice under the Act. It has further been stated that in the absence of breach of any other terms and conditions of sale, mere non-sharing of phone number cannot be a ground to deprive consumers from exercising their rights under the Act. 

Relief claimed by the complainant:

5]                Alleging above act of the opposite parties as wrongful sale of goods, deficiency in rendering service, unfair trade practice and unfair contract, which do not stand the scrutiny of law, legal validity or any sanctity, the complainant has filed the present complaint seeking directions to the opposite parties to cancel the bill, Annexure C-1 and refund the amount of ₹383/- charged therein; delete the data including his name and mobile number from its electronic data and not to use it any further for promotional or marketing purpose; pay ₹20,000/- as compensation for mental and physical harassment; pay ₹1,00,000/- as deterrent and punitive damages to be dedicated to the welfare of consumers and citizens; discontinue the unfair trade practice of taking personal details including mobile numbers of its customers on the pretext of issuing bills; pay ₹10,000/- as legal costs.

Reply of opposite parties.

6]                While contesting the complaint on merits, the opposite parties, in their reply, have stated that the mobile number is taken voluntarily/ consensually from the customer for the purpose of Loyalty Program for the customers. It has further been stated that the opposite parties do not misuse the data provided by the customers and use the same only for the benefit of the customers. The opposite parties also placed on record voluminous dates i.e. list of mobile numbers against which the Loyalty Points are credited and redeemed from 1^st September 2023 onwards. Alleging no deficiency in rendering service or unfair trade practice on their part, the opposite parties prayed for dismissal of the complaint.

7]                The parties led evidence in support of their cases.

8]                We have heard the contesting parties and have gone through the entire record of the case and the written arguments.

Observations/findings of this Commission:-

9]                The purchase of cold coffee by the complainant on 04.09.2023 at opposite party No.1 – shop; providing personal details i.e. name and mobile number by the complainant to the cashier at the counter of opposite party No.1 on the said date for the purpose of issuing bill is not in dispute. It is also not in dispute that the personal details were obtained by opposite party No.1 for the purpose of issuing bill and for Loyalty Program. The only grievance of the complainant that while placing the order at the counter of the said shop, the cashier asked him to give his mobile number in order to place the order and when enquired, the said cashier told that it was their policy to take the mobile number of consumers for marketing purposes and messaging and without giving the mobile number, he would not be able to issue the bill or take the order.

10]              Thus, the only question to be decided by this Commission is as to whether the opposite parties could call for personal details of the complainant, a consumer, against his wish, at the time of placing the order for the aforesaid alleged purposes. Our answer to this question is in the negative for the reasons to be recorded hereinafter. It may be stated here that Government of India, Department of Consumer Affairs, showing its concern with regard to grievances being registered on the National Consumer Helpline (NCH) about many retail stores compelling the consumers to submit their mobile number before purchasing a product, has issued clear cut instructions vide instructions/circular bearing No.D.O. No.J24/34/2023-CPU dated 26.05.2023 has observed that in case of denial to provide the same, consumers were, in many cases, denied their rights under the Consumer Protection Act, 2019 by retailers either declining to sell the product or  service and/or also rejecting any refund. It has further been observed that insisting on mobile number during the sale of a product as a pre-requisite mandatory condition, even when a consumer opts not to provide the same, is a violation of their rights and constitutes unfair trade practice under the Act. Quoting the provisions of Section 2(9) of the Act, which defines “Consumer rights”, Sub Sections 46 & 47 of Section 2 of the Act defining “unfair contract” and “unfair trade practice” and further provisions of Section 72-A of the Information Technology Act, 2000, as per which, disclosing personal information of a person including mobile number obtained at the time of a sale, without her/his consent or in breach of a lawful contract, to any other person, is a punishable offence, the Government further observed that by imposing a mandatory requirement to provide mobile number, consumers are often forced to share their personal information, against their will, after which consumers are often flooded with marketing and promotional messages for retailers, which they did not even opt for at the time of purchasing the product. It further goes on to observe that restricting consumers to buy products or to return, exchange, and refund or resolving consumer grievance solely on the ground that the consumer has not shared her/his mobile number, constitutes unfair trade practice under the Act. Not only this, it has been further observed that in the absence of breach of any other terms and conditions of sale, mere non-sharing of phone number cannot be a ground to deprive consumers from exercising their rights under the Act. The Department taking a serious note of the situation, urged upon to suitably advise the retailers that mobile number of the consumers should not be taken without their express consent at the time of sale of any goods or services and providing the same should not be made a mandatory pre-condition for sale.

11]              It is apposite to mention here that on 18.09.2023, at the time of issuing   notice   to   the  opposite  parties      in the present complaint, this Commission restrained the opposite parties from taking any personal details from the customers. However, bare perusal of voluminous record with dates i.e. list of mobile numbers against which the Loyalty Points are credited and redeemed from 1^st September 2023 onwards, placed on record by the opposite parties transpires that despite specific directions issued by this Commission not to take any personal details from the customers, the opposite parties did not stop their practice and are still carrying on with their same practice, which is total non-compliance of the orders passed and against the instructions/circular bearing No.D.O. No.J24/34/2023-CPU dated 26.05.2023 of Government of India, Department of Consumer Affairs vide which, the retailers have been advised that mobile number of the consumers should not be taken without their express consent at the time of sale of any goods or services and providing the same should not be made a mandatory pre-condition for sale. Thus, the opposite parties despite our clear cut interim directions, continued with their practice of obtaining mobile numbers and hence, indulged into unfair trade practice. It is not mandatory for customers to furnish their mobile numbers to a retailer to generate a bill. However, customers often feel pressured by retailers who insist on having their contact number to complete transactions. They don't have a choice to say no in many situations. Most people desist this ritual as they fear their number might get leaked, which could make them a victim of unsolicited spam calls or even worse, their number might get exposed to crooks amidst the rise in online scams. Laws such as data protection or privacy regulations may specify the conditions under which personal information can be collected and used. Retailers must comply with these laws to avoid engaging in unfair trade practices. Informing customers about the reason for collecting their mobile number and how it will be used is essential. Obtaining the customer's consent before collecting personal information is a fundamental principle of privacy protection. Customers should have the option to provide or withhold their information based on their comfort level. Retailers should implement appropriate security measures to protect the personal information they collect. However, in the instant case, the mobile number of the complainant obtained by opposite party No.1, against complainant’s wish, was shared to opposite party No.2 for Loyalty Program offers. There is no assurance of any data protection at any level. Personal information such as mobile number is very vital and it can create havoc, if it reaches in wrong hands as vital information of every kind is linked with the mobile number. This includes details about the person who owns or is assigned the mobile number. It may include the subscriber's name, address, and other contact details provided during the registration process. Mobile numbers can be used to track the approximate location of a device, especially when it is in use. Even Bank Accounts are also linked with the mobile numbers and One Time Password (OTP) are also received on registered mobile numbers. Access to this information is typically governed by privacy laws and regulations and any unauthorized access to someone's mobile information without his/her consent is generally considered a breach of privacy. Therefore, the fundamental right to privacy of the complainant has been breached by the act of the opposite parties. Thus, by collecting personal information i.e. mobile number from the complainant, without his explicit consent, infringed the privacy rights of the complainant and by doing so, they also indulged into deceptive practices. In case titled Mr. ‘X’ Vs. Hospital ‘Z’, Appeal Civil No.4641 of 1998 decided on 21.09.1998, the Hon’ble Supreme Court of India recognized the right to privacy as a part of the right to life and personal liberty guaranteed by Article 21 of the Constitution. It may also be stated here that the right to privacy has been given the status of fundamental right by tracing it to Articles 14, 19 and 21 of the Constitution of India by a nine Judge Bench judgment of Hon’ble Apex Court in a landmark judgment in case titled ‘Justice K.S. Puttaswamy (Retd.) & Anr.  v. Union of India and ors.’, Writ Petition (Civil) No.494 of 2012, decided on 26.09.2018. The key conclusions from the judgment on Justice K.S. Puttaswamy (Retd) (supra), are extracted hereunder:-

• The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.
• ...right of privacy cannot be denied, even if there is a miniscule fraction of the population which is affected. The majoritarian concept does not apply to Constitutional rights...
• Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India.

 

In view of above facts and circumstances of the case and the law on the subject, we deem it necessary to direct the opposite parties, firstly to delete the personal information of the complainant from their electronic database and secondly, to strictly act in accordance with the instructions/circular bearing No.D.O. No.J24/34/2023-CPU dated 26.05.2023 of Government of India, Department of Consumer Affairs. 

12]              Further this act of the opposite parties amounts to ‘dark patterns’ practices, as per Guidelines for Prevention and Regulation of Dark Patterns, 2023, recently notified by Central Consumer Protection Authority vide Notification dated 30^th November 2023. Section 2(1)(e) of these guidelines defining “dark patters” reads thus:-

“(e) “dark patterns” shall mean any practices or deceptive design pattern using user interface or user experience interactions on any platform that is designed to mislead or trick users to do something they originally did not intend or want to do, by subverting or impairing the consumer autonomy, decision marking or choice, amounting to misleading advertisement or unfair trade practice or violation of consumer rights;”

 

Further as Section (4) of these guidelines clearly prohibits any person including any platform from engaging in any dark pattern practice.  Not only this, as per SPECIFIED DARK PATTERNS, ANNEXURE 1, appended to these guidelines, Illustration (4) under the heading “Forced action”, in sub-clause (e), it is stated as under:-

“(e) forcing a user to share details of his contacts or social networks in order to access products or services purchased or intended to be purchased by the user;”

 

Therefore, by forcing the complainant to share his personal details without his express consent, the opposite parties indulged into “dark patterns” practice in addition to unfair contract and unfair trade practice.  

13]              We would also like to add here that since it is not the complainant’s case that there was anything wrong with the goods bought and consumed by him, which in the instant case was ‘cold coffee’, or the same was spurious, therefore, no case is made out to order refund of its price. However, the complainant is entitled to compensation on account of proven unfair trade practice on the part of the opposite parties in obtaining his personal details like name and mobile number at the time of placing the order, which definitely infringed his right of privacy.

Decision of this Commission:-

14]              For the reasons recorded above, the complaint is partly accepted and the opposite parties, jointly and severally, are directed as under:-

1. to immediately delete the personal information of the complainant from their electronic database and wherever reflected in their records and not to indulge in unfair contract & unfair trade practice and “dark patterns” practices;
2. to strictly act in accordance with the instructions/circular bearing No.D.O. No.J24/34/2023-CPU dated 26.05.2023 of Government of India, Department of Consumer Affairs and not to obtain mobile number & personal details of the customers without their express consent;
3. to pay consolidated compensation of Rs.2,500/- for causing mental agony and physical harassment to the complainant on account of adoption of unfair trade practice within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% p.a. from the date of default i.e. after expiry of 30 days’ period till realization.
4. to deposit an amount of Rs.10,000/- in the Consumer Legal Aid Account bearing No.32892854721 maintained by this Commission in State Bank of India, SCO No.15, Sector 7C, Madhya Marg, Chandigarh (IFSC: SBIN0003246), within a period of 30 days, from the date of receipt of a certified copy of this order.

15]              Pending applications, if any, stand disposed of accordingly.

16]              Certified copies of this order be sent to the parties free of charge forthwith.

17]              File be consigned to Record Room after completion.

Pronounced

28.12.2023.

 [RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 (RAJESH K. ARYA)

MEMBER

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