Punjab

Ludhiana

CC/20/347

Smt.Kamlesh Sharma - Complainant(s)

Versus

Unique Identification Authority of India - Opp.Party(s)

Anurag Prashar Rep

28 Mar 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:  347 dated 10.12.2020.                                                       Date of decision: 28.03.2024. 

Smt. Kamlesh Sharma aged about 72 W/o. Late Sh. Harish Prashar, through her son Sh. Anurag Prashar, about 44 years son of Late Sh. Harish Prashar, H. No.89, Walia Colony, Haibowal Kalan, Ludhiana.                                                                                                                                ..…Complainant

                                                Versus

1. Unique Identification Authority of India, Government of India its Chairman/Managing Director, Bangla Sahib Road, Behind Kali Mandir Gole Market, New Delhi-110001.
2. Naresh Kumar Chauhan, Enrollment Operator, unique Identification Authority of India, Yes Bank branch, Ferozepur Road, Ludhiana-141001.                                                                      …..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. MONIKA BHAGAT, MEMBER

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Anurag Prashar, legal heir of complainant in                                         person.

For OP1                         :         Sh. Rakesh Bhatia, Advocate.

For OP2                         :         None.

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that the complainant, Smt. Kamlesh Sharma being an old lady and senior citizen was suffering from hypertension and other old age ailments. On 23.06.2020, she personally applied for biometric update in Aadhar Card No.381507560968 through OP2 enrolment agency vide update request No.0646/00173/30316 and also deposited Rs.100/-. OP2 only took face biometrics captured without took Iris, fingures biometrics.  On raising objection, OP2 said that all biometric has been captured and the complainant can download Aadhar Card after one week. The complainant stated that after 15 days, she checked online status but the same shown download error due to an incomplete biometric without Iris and fingers. The complainant again personally visited OP2 who told that earlier updation not complete due to finger scan and she had to apply again. The complainant refused to pay extra as it was OP2 who did not upload the complete biometrics captured, which is a violation of customer right. The complainant further stated that finding no other option, she had to pay double charges for biometrics captured due to negligence of OP2. The photograph of acknowledgement of updates given by OP2 vide no.0646/00173/30316 dated 23.06.2020 and vide No.0646/00173/30498 dated 10.07.2020. The complainant made a complaint to OP1. The complainant further stated that double charging for Aadhar biometrics updation is clear violation of consumer rights, which amounts to deficiency in service and unfair trade practice on the part of the OPs and she is entitled to compensation for mental agony. In the end, the complainant prayed for issuing direction to the OPs to refund the double charges charged and to pay compensation of Rs.1,00,000/- as well as litigation expenses.

2.                Upon notice, OP1 appeared and filed written statement and assailed the complaint by taking preliminary objections  and submissions on the ground of maintainability; the complainant is not a Consumer under Section 2(d) of the Consumer Protection Act; suppression and concealment of material facts; the complaint has not come to court with clean hands; the complainant has no locus standi to file the present complaint; lack of cause of action etc.

                   OP1 averred that it does not provide any goods and services under Consumer Protection Act. Rather it is a statutory function of UIDAI to issue Aadhar number to resident of India without taking any consideration. Non-generation of Aadhar is not a consumer dispute. Even the Aadhar Card of a resident is generated on the basis of documentary proof submitted by the resident at the time of enrolment Further the objective of Aadhar Card is only to empower residents of India with a unique identity and to provide a digital platform to authenticate anytime and anywhere. 12 digit identification number is issued to a resident after he or she undergoes the process of Aadhar enrolment by submitting his/her demographic and biometric information. After that it can be used to authenticate the resident through various modes of authentication as per Aadhar Act, 2016 and regulations framed there under. Further in order to achieve the primary object of identity proof, there are various checks and balances to avoid any duplication. OP1 further stated that the complainant was issued Aadhar card by the authority on 05.05.2013 on the basis of information provided by her.

                   On merits, OP1 reiterated the crux of averments made in the preliminary objections and facts of the case. OP1 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.      

3.                OP2 filed separate written statement and assailed the complaint by taking preliminary objection  on the ground of maintainability. OP2 stated that he has discharged his official duty so assigned to him by Government of India. He was working on Software provided by Government of India and nothing in personal capacity has been done by him.                          

                   On merits, OP1 averred that the complainant while approaching for preparing Aadhar Card filled form in her own handwriting on 23.06.2020. She herself did not choose for biometric update and only Rs.50/- were charged from her vide receipt dated 23.06.2020. Biometric of eyes were obtained and the said documents were uploaded on the software provided by Government of India but same was rejected due to reason of non-matching of biometric. The complainant again approached office of OP2 and filled another form dated 10.07.2020 and this time she ticked biometric update column by paying fees of Rs.100/- as prescribed by Government of India. OP2 further stated that thereafter, complete biometric of complainant were taken by him as per the form filled by the complainant and said biometric stood automatically updated on the software. According to OP2, it was the complainant who herself filled the form dated 23.06.2020 by not choosing to provide photo, finger print, IRIS. OP2 denied any violation of consumer rights as alleged. OP2 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                The complainant filed rejoinder to the written reply of the OPs by reiterating the facts mentioned in the complaint and controverted those mentioned in the written statement. However, the complainant averred that she visited OP2 for Demographic update for her mobile number on 23.06.2020 who charged Rs.50/- as per Annexure-R2 attached with written statement but she was wrongly charged Rs.100/-. Further her Demographic update could not be completed on 23.06.2020 due to error at the OPs end (fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in relation to the updating service carried out by OPs) constituting deficiency in service which was later completed on 10.07.2020 by the OPs in the subsequent visit of the complainant after again taking full charges without adjusting the previous charges which again constituted deficiency in service.

5.                In evidence, the complainant through her son Sh. Anurag Prashar tendered her affidavit as Ex. CA and reiterated her averments of the complaint. The complainant also placed on Ex. C1 copy of acknowledgment of update dated 23.06.2020, Ex. C2 is the copy of  acknowledgement of update dated 10.07.2020 and closed the evidence.

5.                On the other hand, the learned counsel for the OP1 tendered affidavit Ex. RA1 of Sh. Prem Kumar Thakur, Deputy Director of UIDAI, Regional Office SCO No.95-98, Sector 17-B, Chandigarh along with document Annexure-1 is the copy of judgment passed in First appeal No.380 of 2019, Annexure-2 is the copy of office memorandum dated 09.05.2020 and closed the evidence.

                   OP2 did not tender any evidence despite sufficient opportunities. Even none has been appearing on behalf of OP2 since 11.04.2023.

6.                During the proceedings of the case, Anurag Prashar moved an application to implead him as legal heir of complainant Smt. Kamelsh Sharma as she had expired on 05.02.2023. Reply to said application was filed by OP1 with prayer to dismiss the said application. This Commission vide its order dated 15.11.2023 allowed the application  and the case was adjourned for filing amended title, which was accordingly filed by the complainant on 08,.12.2023.

7.                 We have gone through the complaint, affidavit and annexed documents and written statement along with affidavit and documents produced on record by the both parties.

8.                At the very outset, the counsel for OP1 contended that the complainant is not a Consumer under the Consumer Protection Act nor non-generation of Aadhar is a Consumer dispute. On the other hand, representative of the complainant specifically pleaded in rejoinder that non-completion of demographic update of the complainant constituted deficiency in service and the Consumer Protection Act applies to OP1 as well.

9.                We have weighed the contentions raised by the legal heir of the complainant as well as counsel for OP1.

10.              The Consumer Protection Act is a beneficial legislation and its preamble specifically provides that under this Act, authorities has been established for timely and effective administration and settlement of Consumer disputes and for all the matters connected therewith or incidental thereto for protecting the interest of Consumers only. There is a Latin maxim “State pro public lote inter pre tatur” which means that statue made for pubic good must be liberally construed. In National Insurance Co. Ltd. Vs Harsolia Motors and others 2023 LiveLaw SC 313 passed in Civil Appeal No.5352-5353/2007 decided on 13.04.2023, the Hon’ble Supreme Court of India has made the following observations:-

“Consumer Protection Act 1986-The Act, 1986 is a social benefit oriented legislation and, therefore, the Court has to adopt a constructive liberal approach while construing the provisions of the Act – The provisions of the Act, 1986 thus have to be construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit oriental legislation.”

Accordingly, the following sections which are relevant to the adjudication of matter in controversy are reproduced as under:-

                   “2(7) “consumer” means any person who –

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and include any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.”

Explanation. -For the purposes of this clause, -

(a) the expression "commercial purpose " does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

 (b) the expressions "buys any goods " and "hires or avails any services " includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

“2(11) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any aw for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes-

1. any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and
2. deliberate withholding of relevant information by such person to the consumer……

2(42) “service” means service of any description which is made available to potential users and includes, but not limited to, the provision  of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”

The general definition of ‘service’ is of wide amplitude. Further the Consumer Protection (General) Rules 2020 section 2(b) defines “public utility service” which includes services like transport, postal, telegraph, telephone or broadband service besides power, light and water etc. The services have been further labeled as establishments as defined in Section 2(19) of the Consumer Protection Act. The central as well as State Government by itself or through its statutory bodies discharges various functions as public utility entities. So the service rendered by such public utility entities stands included in ‘service’ as defined in Section 2(42) of the Consumer Protection Act and they are amenable under this Act in case any deficiency in service is shown by its official while discharging its officials functions.

                   Reference can be made to 2019(3) Apex Court Judgments 252 (SC) in Punjab Urban Planning & Development Authority (Now Glada) Vs Vidya Chetal whereby the full bench of the Hon’ble Supreme Court of India has made the following observations in para No.10 and 20 of the judgment:-

“10.  Sovereign functions like judicial decision making, imposition of tax, policing etc, strictly understood, qualify for exemption from the Act, but the welfare activities through economic adventures undertaken by the Government or statutory bodies are covered under the jurisdiction of the consumer forums. Even in departments, discharging sovereign functions, if there are subunits/wings which are providing services/supply goods for a consideration and they are severable, then they can be considered to come within the ambit of the Act.

20.     At the cost of repetition, we may note that those exactions, like tax, and cess, levied as a part of common burden or for a specific purpose, generally may not be amenable to the jurisdiction of the Consumer Forums. However, those statutory fees, levied in lieu of service provided, may in the usual course be subject matter of Consumer Forum’s jurisdiction provided that there is a ‘deficiency in service’ etc.”

11.              Undoubtedly, OP1 which is a statutory body established under the provisions of Aadhar Act, 2016 in order to empower the citizen of India with unique identity on digital platform. Annexure-R2, an office Memorandum dated 09.05.2020 issued by Government of India enlists the rates of fee/charges to be collected from the residents at all Aadhar Kendras and Aadhar Sewa Kendras across country, the tabulated form of which reads as under:-

So admittedly, OP1 is providing certain services free of cost as well as certain services by charging prescribed fees. So certainly these paid services, being the non-sovereign functions discharged by the official of OP1 falls within the ambit of definition of service. Since the complainant has availed the services by paying prescribed fees so she is a Consumer within meaning of Section 2(7) of the Consumer Protection Act, 2019 and is competent to raise the Consumer dispute against the OPs for rendering deficient services.

12.              The counsel for OP1 has referred to a judgment titled as Unique Identification Authority of India and another Vs Sehajpreet Singh passed by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh in First Appeal No.380 of 2019 decided on 09.07.2020.     We have gone through above cited judgment and it is respectfully submitted that the said citation is not applicable to the facts and circumstances of the present case as the Hon’ble State Commission has specifically observed in para 12 of the said judgment as under:-

“12. ……. In this case, the complainant has not produced on record any receipt or evidence that OPs received any consideration for processing his enrolment for Aadhaar. Whereas from Ex.C-3, it clears that enrolment for Aadhar is free of cost. In these circumstances, the dispute raised by the complainant in the complaint does not constitute a consumer dispute and he does not fall under the definition of 'consumer' as contained in Section 2(1) (d) of the Act.”

13.              Adverting to the merits of this case, the complainant a senior citizen and woman (now deceased) visited OP2 and availed the service for biometric update by paying an amount of Rs.100/- as demanded by OP2 and it was for OP2 to ensure that the biometric updation was cleanly taken so that it may not result in any mismatch. OP2 only captured face but the photo, finger prints and IRIS were not taken. When the complainant became aware of the mismatch she had to visit again for the same biometric updation and had to shell out a fees of Rs.100/- again. The OPs have not referred to or produced any rules or regulations to show that in case of mismatch, the OPs were well within their rights to charge fees for subsequent attempt to rectify the mismatch. As such, the act and conduct of the OPs amounts to deficiency in service and adoption of unfair trade practice.

14.              The OPs claimed to have a robust grievance redressal mechanism for the complaints raised by its users of the services provided by the OPs. It boasts of having online website of UIDAI, Toll Free number 1947 or through E.mail at

15.              As a result of above discussion, the complaint is partly allowed with direction to the OPs to pay a composite compensation of Rs.20,000/- (Rupees Twenty Thousand only) to the son of the complainant within 30 days from the date of receipt of copy of order, failing which the OPs shall be liable to pay interest @8% per annum from the date of order till actual payment.  Liability of the OPs shall be joint and several. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

16.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President  

Announced in Open Commission.

Dated:28.03.2024.

Gobind Ram.