PRESENT SRI P.V. NAGESWARA RAO, M.A., LL.M., PRESIDENT

Thursday, 30^th September 2010

 

Neelaturi Narayana, S/o Pitchaiah, aged 29 years,

R/at H.No. 11/221, Gandhinagar, Mydukur – 516172,

Kadapa District.                                                                       ….. Complainant.

 

Vs.

 

1) Vodafone Essar South Ltd., Rep. by its Manager,

2) Vodafone Stores, Rep. by its Manager, Near NTR Circle,

                                                                                                                                     

 

This complaint coming on this day for final hearing on 27-9-2010 in the presence of Sri G. Trivikram Singh, Advocate, for complainant and Sri Ajay Kumar Veena, Advocate for R1 and R2 and upon perusing the material papers on record, the Forum made the following:-

 

 

 

1.                Complaint filed under section 12 of the Consumer Protection Act 1986.

 

2.                The brief facts of the complaint are as follows:- The complainant is working as Carpenter at his home town i.e. Mydukur of Kadapa District.   He is a customer of Vodafone and his mobile No. is 9966325932. On 10-2-2010 the complainant has received a message from Vodafone alerts (VA) i.e. Respondents 1 & 2, inviting to participate in a game to win Nokia phone Rs. 5,000/- or plasma T.V. by answering the questions mentioned in the message. It was also indicated in the said message to give answers through SMS to their number 57272 charging Rs. 3/- per SMS. Having attracted to the offer from Vodafone alerts (VA), the complainant sent SMS by giving answer to the question imposed by them. Accordingly, the complainant has received second message from Vodafone alerts indicating Great shot keep going and maximize your chance to the winner of             Rs. 10,00,000/-.   Again the complainant has received another question in the same message and he sent answers through SMS with a view to win                     Rs. 10,00,000/- offered by the Respondents for each SMS Respondents charged  Rs. 3/- from the account of the complainant and for each correct answer the Respondents added 10 points in the game account for winning Rs. 10,00,000/-. The complainant has sent 26 SMSs to the Respondents game number 57272 and he was charged with Rs. 78/- excluding service tax of  Rs. 22/- from his account in total. The complainant has secured a score of 220 points for his correct answers.   The complainant has participated in the game from 10-2-2010 to 11-2-2010. Though the complainant has been sending correct answers to the questions sent by the Vodafone alerts, he could not see the ultimate stage of the game. After sending 22 correct answers through SMSs to Vodafone alert, the complainant vexed with the continued game show and sent on SMS to give particulars. In turn he has received one SMS on 11-2-2010 at about 07.42.13 p.m indicating “invalid key” to know your chemistry with your partner and how to impress him and make it more exciting.  SMS NAME < Ur Name > to 57272 Rs. 3/- SMS. Eg. Name Riya.   The complainant could not understand the purpose of receiving the above said message and followed the instructions given by the Respondents and sent his name. On that he is received a ridiculous response from Respondents i.e. Vodafone alerts (VA) at about 07.50.38 p.m that was a 26^th message received by the complainant from the Vodafone alerts.   In the said message it was also indicated win Rs. 1,00,000/- on new year, SMS win to 57272 Rs. 3/- per SMS. He also received another message on the same day at about 08.42.20 p.m indicating to participate in a new game by name “Dhamaka 2010”. It was also mentioned to play and win amazing prices worth Rs. 10,00,000/- and also from Vodafone alerts mentioned a question to answer. The total received SMS from Vodafone alerts and filed along with this complaint.  The complainant could understand the malafied intention of the Respondents. In the first instance the Respondents attracted the complainant to win Rs. 10,00,000/- for the next stage without any intimation they have changed the game. In 25^th message one “N” has communicated to the complainant and he fixed the game price as Rs. 1,00,000/-. The complainant tried to get proper explanation from customer care of the Respondents for stopping / changing the game show with out intimation. The complainant approached R2 and informed him about his grievance. But, the R2 utterly failed to give proper explanation for stopping the game show pertaining to Rs. 10,00,000/-. As per first message of Respondents for each correct answer the complainant will win               Rs. 5,000/- and the complainant has given 22 correct answers, he won              Rs. 1,10,000/-. Through this type of games the Respondents are earning crores of rupees from the general public. This type of practice of the Respondents has to be curbed by the Hon’ble Forum by imposing huge fine towards compensation to the customers. The attitude of the Respondents caused mental agony apart from financial loss to the complainant.  The Respondents are liable to compensate loss sustained by the complainant and they are liable to pay compensation for damages.   Hence, the complainant filed this complaint praying (1) to give prize money 220 points won by the complainant by giving 22 correct answers, (2) to pay           Rs. 20,000/- towards the damages for causing mental agony and physical strain, 3) to pay Rs. 1,000/- towards costs of the complaint. 

 

3.                The Respondents filed a counter stating that the complaint is neither just nor maintainable either in law or on facts.  All the allegations made in the complaint are hereby denied except those which are specifically admitted herein and the complainant is put to strict proof of the same.  The Opposite parties denied the allegations made in para – 1 of the complaint and put the complainant to strict proof of the same.  The Opposite parties denied the allegations made in para – 2 of the complaint at the outset, the Opposite parties submit that the contents was run by its content partner J9 mobile and the Vodafone cannot be made responsible for the same. The content partner J9 mobile is necessary party to this proceedings or else the complaint stands to vitiate being unsustainable in law.   Without prejudice to the said fact, the Opposite parties further submit that the complainant had voluntarily participated in the contest which is subject to terms and conditions. The said terms and conditions  are posted on its content provider website www.J9mobile.com.  The game contest is open to all mobile subscribers of Airtel, BSNL, Vodafone, Reliance, Spice, Tata Indicom, Idea, MTNL, Aircel, etc., Hence, it is clear that not only the subscribers of this Respondent but also the subscribers of other network mobiles are also eligible to contest the game shop and accordingly the game show was conduced as per the terms and conditions.   The Opposite parties denied the allegations made in para – 3 & 4 of the complaint. It is submitted that as per the terms and conditions of the contest “Damaka 2010” this is a limited period contest; the contest would start on 4^th February 2010 and end by 31-3-2010. The contest is open every day between 12 midnight to next day 12 midnight.   The participants are eligible for prize worth of Rs. 10,00,000/- including daily and mega prizes. Daily winners shall be taken out of the draw of lots.   To be eligible for daily draw the participants shall score a minimum of 30 points per day. It is further submitted that, the contest was not stopped / changed nor was the prizes amount altered. The ultimate stage of the game will happen only when the contest closes i.e. 31-3-2010. The complainant participated in the contest only for 2 days.  The complainant was not disqualified, but the points scored by him are less than that of the winner of mega prize. The points scored by mega prize winner are 52290.  The Opposite parties denied that the SMS details filed by the complainant. The content of SMS no where indicates that for each correct SMS the contents are eligible for Rs. 5,000/-. The contestants are eligible for daily prizes taken out of draw of lots subject to scoring minimum of 30 points per day. The terms and conditions of “Dhamaka 2010” are filed by the Respondents.  The complainant failed to secure adequate points for winning the mega prize as per the terms and conditions of the game show, he is not entitled for any prize much less as claimed by him in the complaint. There is no unfair trade practice on the part of the Respondents nor there is deficiency of service on the part of the Respondents as falsely highlighted by the complainant with oblique motives. At any stretch of reality, the complaint is not maintainable in law.  The Opposite parties submit that there is no cause of action for filing the present complaint. The Opposite parties prays this forum to dismiss the complaint with exemplary costs. 

4.                On the basis of the above pleadings the following points are settled for determination. 

i.                   Whether the complainant is entitled to the relief as prayed for?

ii.                 To what relief?

 

5.                On behalf of the complainant Ex. A1 & A2  were marked and on behalf of the respondents Ex. B1 is marked.  Oral arguments were heard from both sides.

 

6.                Point No. 1.  Ex. A1 is the cover handed over by the Respondents to the complainant after getting cell phone connection. Ex. A2 is the attested copy of inbox messages received from Vodafone net work mobile No. 9966325932. Ex. B1 is the Photostat copy of Dhamaka 2010 with terms and conditions. 

 

7.                As could be seen from the documentary evidence the complainant is the customer of R1 and R2 i.e. Vodafone, Essar South  Ltd., Hyderabad having its branch office at Kadapa (R2). It is also a fact that the complainant is using his mobile phone 9966325932 and availing services of R1 and R2. It is also a fact that the complainant received a message from Vodafone alerts inviting him to participate in the game as stated by the complainant.   It is also a fact that in response to the SMS received from Vodafone alerts the complainant sent answers to 26 SMS to the given number of Vodafone alerts. The Respondents net work deducted Rs. 3/- per SMS in total Rs. 100/- including Rs. 22 towards service tax from the account of the complainant. The contention of the complainant that he answered 22 correct answers and he won Rs. 1,10,000/- was vehemently objected by the Respondents stating that the complainant participated in the game only for 2 days and he scored less than minimum points of 30 per day. The winner of mega prize scored 52,290 points. As per terms and conditions (Ex. B1) there is no mention that the contestants are eligible for Rs. 5,000/-. The other contention of the respondent is that the contestant was run by its contestant partner J9 mobile and the Vodafone cannot be responsible for the same. The complainant has not added J9 mobile as necessary party as such the complaint is unsustainable in law. This contention of the respondent is not conveniencing for the solitary reason that the complainant is the consumer of R1 and R2 and the so called game was sent to the complainant through the net work of Respondents 1 & 2 for running the game, in question there is an agreement between the Respondents and J9 mobiles. This contact between J9 mobiles and the Respondents are not known to the complainant, as such there is no need of adding J9 mobiles as necessary party in the proceedings. In view of the contention of the Respondents that the complainant scored less than 30 points (minimum) he is not entitled for any prize money. The complainant failed to substantiate his contention on this issue convincingly as such there is no reason to disbelieve the contention of the Respondents. 

 

8.                The complainant main prayer is to give prize money for 220 points worth of Rs. 1,10,000/- that comes under the prize distribution  and money circulation interms of “competition Act 2002” and it is not within the jurisdiction of this Forum. It is a fact that the complainant incurred an amount of Rs. 100/- by way of sending answers through SMS and he is entitled for this amount. Unfortunately the complainant has not claimed this amount as such there is no scope on this issue to award compensation to the complainant by this forum. Though he is the customer of R1 & R2 and failed to substantiate his claim which falls under prize distribution and Money Circulation within the perview of “Competition Act 2002”, as such he deserves no consideration in his favour. 

 

9.                Point No. 3 In the result, the complaint is dismissed without costs.

 

                   Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open forum, this the 30^th September 2010

 

 

 

Witnesses examined.

For Complainant    NIL                                                  For Respondent :    NIL

Exhibits marked for Complainant : -  

 

Ex. A1         Cover handed over by the Respondents to the complainant after

Ex. A2         Attested copy of inbox messages received from Vodafone net work

 

 

Ex. B1 is the Photostat copy of Dhamaka 2010 with terms and conditions. 

 

 

 

1)     Sri G. Trivikram Singh, Advocate, for complainant.

2)     Sri Ajay Kumar Veena, Advocate for R1 & R2.

 

2) Copy was dispatched on      :

3) Copy of delivered to parties :