State Consumer Disputes Redressal Commission
Nivedita Sharma vs Bharti Tele Ventures on 26 December, 2006
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause(b)of the Consumer Protection Act, 1986) Date of Order: 26 -12-2006 Complaint Case No. CC-09/2006 Ms. Nivedita Sharma . . . Complainant. Astra Law Offices, J-290, Saket, New Delhi-110017. Versus (1) Bharti Tele Ventures . . . Opposite Party No.1 Through Mr. Sunil Bharti Mittal, Chairman & Managing Director, Qutub Ambience (at Qutab Minar), Mehrauli Road, New Delhi-110030. (2) Bharti Tele Ventures, . . . Opposite Party No.2 Qutub Ambience (At Qutub Minar), Mehrauli Road, New Delhi-110030. (3) ICICI Bank Limited . . . Opposite Party No.3 Through Mr. K.V. Kamath, CEO and Managing Director, Shakuntala Apartments, 59, Nehru Place, New Delhi-110019. (4) American Express Bank Ltd., . . . Opposite Party No.4 Through Mr. K.L. Muralidhara, Vice President & Country Manager, A, A1, A2, Enkay Centre, Udyog Vihar, Phase V, Gurgaon, Haryana-22016. (5) Cellular Operators Association of India, 14-Bhai Veer Singh Marg, New Delhi 110001. . . . Opposite Party No.5 CORAM Justice J.D. Kapoor, President Ms. Rumnita Mittal, Member 1. Whether Reporters of local newspapers be allowed to see the judgment? 2. To be referred to the Reporter or not? ORDER
Justice J.D. Kapoor
1. It is very sad and disheartening that inspite of there being lacs of consumers of mobile telephony services being rendered by Cellular Operators, there is hardly anyone who knows that he can take the service providers to task for breach of right to privacy and right to be not disturbed and those indulging in unsolicited commercial communications, SMSs, or telemarketing, with whom they have neither any acquaintance nor intimacy nor any business or official dealings, for creating nuisance and disturbance in their day to day work.
2. In our view, these consumers are either ignorant or indifferent or insensitive to their rights or are nonchalant, as they prefer to suffer in silence, fume and fret and curse the service providers or the persons who indulge in such activities and send tremors of tension and bouts of blood pressure.
3. On the aforesaid premise, we treat this complaint as a complaint filed by the complainant on her behalf and on behalf of numerous other consumers, having the same interest and sufferings, as contemplated by Sec. 12 (c) of the Consumer Protection Act, 1986 and, more so, when the Cellular Operators Association of India of which O.P.1 Airtel, i.e. Bharti Televenture, is one of the members, intervened and sought impleadment as an intervener, and was allowed to be impleaded as Opposite Party No.5, as it wanted to put up a joint front on behalf of other members who are not impleaded as parties to these proceedings.
4. There are two sets of O.Ps.
One is O.P. 1 and 2, who are service providers and O.P. 3 and 4 who are the banks accused of charge of tele-marketing and sending unsolicited commercial communications, calls that include SMSs, or other commercial or marketing messages.
5. Grievances of the complainant, in brief are that, she is a valid subscriber of the GSM Mobile services provided by O.P.1 Bharti Televentures, under the brand name Airtel and that she subscribed to the post-paid services of O.P.1 since year 2000. At the time of taking the connection, inter alia, the complainant was provided with the terms and conditions governing the services to be provided by O.P.1. One of the terms was a privacy clause which is as under:-
We, however, assure you, that Airtel does not disclose your personal information to any other Cellular Service Providers, Banks, Credit Card companies etc. or their agents, affiliates which could lead to invasion of your privacy
6. About a year after, the complainant started getting calls from various banks/financial institutions and other companies for marketing their products and services. Initially such unwarranted calls were ignored but soon the frequency of such calls started increasing and on certain days the complainant received around ten to fifteen such calls causing tremendous disturbance.
7. The complainant lodged a complaint with the customer service of O.P.1, however, there was no response and the menace continued uninterrupted. Thereafter a written complaint was lodged with O.P.1 in which it was clearly emphasized that such unsolicited calls were not only severely disrupting complainants work but also posed a grave threat and jeopardized the safety and security of the complainant due to the sharing of her confidential information such as name, address, financial standing etc. with others.
8. Compelled by circumstances, the complainant lodged another complaint with the customer services department of O.P.1 about the unsolicited calls and SMSs, clearly instructing O.P.1 that the complainant should not receive any such calls or SMSs in future.
9. The lackadaisical attitude of O.P.1compelled the complainant to serve a notice dated 24-12-2004 on O.P.1 demanding damages to the tune of Rs. 10,00,000/- towards the harassment and trauma suffered by the complainant due to constant calls from various banks, financial institutions and other financing companies for telemarketing their products and services. In the said notice, the complainant, apart from expressing her concern about her safety and security as a result of leaking confidential information to strangers, also pointed out that some such callers misbehaved when they did not receive positive response or were questioned as to the source of their information.
10. O.P.1 or its officials made absolutely no efforts at their end to respond to the said complaint/notice and the complainant continued to be harassed by banks, financial institutions, and other business houses soliciting business by telemarketing their products and services.
11. As per contractual obligations of O.P.1 it was bound to maintain the confidentiality of the personal and private information of the subscribers as the privacy statement of the terms and conditions stipulated that Airtel shall not disclose her personal information to any other Cellular Service provider, Banks, Credit Card Companies or their agents, affiliates, that could lead to invasion of her privacy.
12. O.P. 3 even still continues to make unwarranted calls despite clear cut directions from the Supreme Court dated 07-02-2005 for forthwith cessation of such unsolicited calls by banks including O.P.3 and, in fact, on December, 26, 2005 when the complainant was in the midst of an important meeting received a promotional call from one of O.P.4s marketing executive about its loan facilities and on questioning as to the source of such information (personal information) the complainant was informed that they had been given information but refused to divulge the name and number of its senior executive who had a list of people who were to be approached by such promotional calls.
13. That inspite of written assurance given to the complainant, O.P.1 has divulged or caused to divulge confidential information without due authority and consent or permission of the complainant. Further that the complainant was alarmed to learn that callers from O.P. 3 and 4 were aware of the financial standing of the complainant without such data being disclosed to them by the complainant herself.
14. The complainant as a consumer of O.P.1 suffered wrongful financial loss on account of roaming charges and the O.P.1 wrongfully gained by charging the complainant for these calls and also by selling/exchanging the information about the complainant.
15. On the above allegations the complainant has claimed a total amount of Rs. 34,50,000/- on different heads including Rs. 5,00,000/- as compensation for mental agony and harassment. These are as under:-
i) Rs.50,000/- towards call charges for receiving calls on roaming.
ii) Rs.4,00,000/- towards time loss and disruption of work over a continued period of four years.
iii) Rs.10,00,000/- towards jeopardizing the safety and security of the complainant.
iv) Rs. 5,00,000/- towards mental agony and harassment.
v) Rs. 15,00,000/- towards exemplary fine for failure to remedy the situation despite repeated complaints by the complainant as well as clear-cut directions from the Supreme Court.
16. As stated above, Cellular Operators Association of India intervened in the matter to put up a joint front on behalf of all the providers of these services as they happen to be one of its Members and, therefore, O.P.1 has chosen to adopt the pleas and the defences as set out in the reply or intervening application of Cellular Operators Association of India Limited dated 03-07-2006.
17. According to Mr. Parag Tripathi, Ld. Senior counsel for the Cellular Operators, there are four jurisdictional issues which arise in the matter. Firstly, the issue relating to regulating unsolicited calls is covered squarely by Sec. 11 of the Telephone Regulatory Authority of India (TRAI) Act. Secondly, the TRAI has already initiated steps and, after noting the orders of the Commission, issued Consultation Papers on unsolicited commercial communication dated 20-11-2006. Thirdly, the matter is pending before the Supreme Court in a PIL (Para-31 Page-13 of the Impleadment Application) and the Supreme Court is seized of the matter. Lastly, the issue is also being considered by the High Court of Delhi in a Writ Petition filed against the interim order of this Commission dated 27-06-2006, where the matter is now listed for further hearing on December, 07, 2006.
18. There is no dispute that as per confidentiality or privacy clause of the contract the Cellular Operators shall not exchange any subscriber information with other companies nor enter into any such contract or arrangement with any bank or affiliates.
As regards the allegations against the service providers in respect of infringement or violation of right of privacy, which was a term of the contract between the parties while availing service of O.P. 1 and 2, it is contended that information is provided by cellular operators to their associates for their own business purpose, i.e. day to day operation like dispatch of bills etc. and that too is shielded and protected by a confidentiality clause. It is further contended that there are several sources through which parties other than service providers obtain information like, for instance, bank, credit card details of a product and cellular details, hotel use details, high end club use details, on-line purchases etc.
19. According to the Ld. Counsel, at all these places, information is given by consumers including the mobile numbers and this can naturally be accessed or gathered by others without any role whatsoever being played by the service provider. The only limited area where the cellular operators use mobile number is in respect of essential marketing calls, for instance, a reminder on payment of bills etc by SMS or any other service or any limited information concerning services of the service provider. This information is given strictly for the benefit of the consumer.
20. According to Cellular Operators they have already introduced a DND i.e. Do not Disturb, service on their web site which means that any subscriber can access the facility and choose not to be called or sent SMS by cellular operator by making a request on line to the same effect.
21. Ld. Counsel further contended that even here in most instances cellular operators are merely intermediaries and that in most cases there is no method available with the cellular operators to verify the source from which the persons indulging in tele marketing or any other kind of activities by using the numbers of the subscribers of the cellular operating agencies get the information and also which of the calls being sent through its net work at any point of time relate to tele- marketing or not.
22. The short defence raised by O.P. 3 and 4 banks is that they do not provide any service to the consumers of cell phones particularly the complainant and, therefore, there is no relationship of consumer and service provider between the parties. O.P. 3 and 4 provided no service to the complainant nor has undertaken any service. Therefore, the complaint is not maintainable qua them.
23. As against the above version of the O.Ps, the complainant contended that she has received calls from banks (O.P. Bank, ICICI, etc. and that despite complaints from 2003 onwards, O.P. 1 has failed to trace the aforesaid unsolicited calls. Further, O.P. 3 and 4 have tried to mix up the facts with some other case saying that they have not provided any credit card service and therefore no deficiency in service arises on their part. In fact, the allegations against them were only that they have been sending unsolicited calls, SMS etc. and thus creating nuisance and harassment to the complainant.
24. There is no dispute that the complainant falls within the definition of consumer as defined under Sec. 2(1)(d) of the Consumer Protection Act, 1986, by virtue of having availed the service of Cellular Operator from O.P. 1 and 2.
25. O.P.3 and 4 are also equal culprits and beneficiaries by way of unauthorisedly and illegally obtaining the information from O.P. 1 and 2. In this manner, both are substantially earning at the cost of the consumer, i.e. the subscribers and, therefore, any subscriber, who receives unsolicited commercial calls or SMSs, or telemarketing calls or commercial communications without having entered into a contract with these people in this regard, is also a consumer for the purpose of compensation for mental agony and injury caused by these people.
26. As regards the stand taken by O.P. 3 and O.P. 4, they have not disclosed as to how they got the details of information pertaining to the complainant, as the genesis from where they could have obtained the details was only O.P. 1 and 2. It was only after having procured details about the telephone number, financial standing etc. of the complainant from O.P. 1 and 2 that O.P. 3 and 4 offered the pre-approved loan and credit card facilities. They have also not disclosed nor have pleaded that they have obtained the information from some other source, particularly when the complainant had filed an affidavit that she has never dealt with these banks in any manner.
27. The onus was heavily upon the O.P 3 and 4 as to from which source they have obtained the telephone number and other details of the complainant, which they have cavalierly and conveniently avoided to discharge. Similarly, O.P. 1 and 2 have also failed to disclose as to from which other sources O.P. 3 and 4 obtained the information about the complainant which was only with O.P. 1 & 2.
28. So far as the objections of jurisdiction are concerned, these are completely devoid of merit. Matter before the Supreme Court is by way of a PIL, whereas, here the complainant is a specific person, who has suffered immensely at the hands of O.P. 1 and 2 for having committed breach of privacy clause while O.P. 3 and 4 having clandestinely procured the information from O.P.1 as to the telephone number, financial status etc of the complainant and had made several telemarketing calls, SMSs, unsolicited calls etc. and they still are continuing with the calls as the complainant has filed the details of these calls made by these banks inspite of the fact that interim orders were passed on two occasions by this Commission that no service provider shall disclose information to the banks or financial institutions or to any unauthorized person and telemarketers shall not make calls or send SMS to any consumer as they are vicariously as well as directly liable for these acts. At the same time it had also directed the Chairman of TRAI to check and regulate this menace.
29. There is no gainsaying the fact and it is well within everybodys knowledge including the regulatory authority known as TRAI that such calls are received at odd hours and most of the time during professional and personal engagements of every kind and thereby is gross and grave interference in the right of privacy of a person, as such unsolicited calls not only cause immense nuisance but unnecessary financial loss to the subscriber when they attend such calls even when they are on national or international roaming as these involve roaming charges also.
30. It is a matter of grave concern that such confidential information of subscribers is being traded without their knowledge or consent and service providers like O.P.1 have entered into arrangements with banks, financial institutions etc. to pass on details of its subscribers for financial benefits to the tune of crores of rupees. This exchange of data or selling or bartering of information is clearly contrary to the agreement and its terms and conditions and amounts to unjust enrichment by the O.Ps. Such exchange of information becomes even more ominous in the wake of recent data theft by an employee of a BPO Company in India, which clearly showed that confidential information can be easily sold out to anybody for money. Receiving such calls during professional and personal engagements not only harasses but also unduly interferes with the right to privacy of the complainant and such unwarranted calls also cause unnecessary financial loss to the subscribers when they attend such calls on national and international roaming.
31. It is not that the regulatory authority, i.e. TRAI is not aware of this problem, which has spread like epidemic but TRAI has not been able to arrest this. It has not taken any effective steps or measures in this regard and, therefore, we do not find any escape from arriving at the conclusion that Cellular service providers, banks, financial institutions and other companies who market their products through telemarketing and the TRAI, who always turn a blind eye to these problems, are jointly, severally and vicariously liable. Theirs is an unholy trinity. TRAI knows the problem well but it did not wake up till this Commission pulled it up by its interim order dated 27-09-2006. So much so, Consultation Papers were issued by TRAI pursuant to the Order of this Commission and this shows the enormity of the problem and inaction on their part for such a long time. Some of the extracts from their Consultation Paper presented before us bear testimony to this conclusion of ours, are as under:-
The Authority has received numerous subscriber and consumer complaints about unsolicited calls and SMSs. The consumer resentment and dissatisfaction has been very loud and have found expressions at various fora. A large number of subscribers find that such calls are a nuisance and inconvenient since they encroach on the called partys time and often interfere with the called partys activities. Additionally, such calls disturb the privacy of the subscriber.
That the mobile telephony service providers and telemarketers are violating the law by using the personal data of the subscriber for their business purpose through their telecommunications services. They are not allowed to do so in the light of Sec. 427 and 513 of The Indian Telegraph Rules, 1951.
Sec. 513 dealing with illegal or improper use, inter alia, provides that (2) No telex connection shall be used for sending or receiving messages other than those originating from or meant for a subscriber subject to the fact that messages of associates or subsidiaries of a subscriber firm may be sent or received with the previous permission of the telegraph authority.
Specifically, the Authority considering international experiences, recommended that, issues relating to privacy and unwanted telemarketing calls could be addressed through the provision of exclusion of the numbers of those customer who do not want their telephone numbers listed in the directory services and through appropriate legislative and other measures.
The Authority has been receiving a large number of complaints about unsolicited calls by telemarketers. The Authority has also received a number of complaints from consumers that they receive many unsolicited SMSs from their service providers regarding promotional offers, value added services/premium rate services such as ring tones, quizzes, tele-voting, and so on.
Any unsolicited intervention in their person life is an intrusion of the subscribers privacy and imposes a cost on the called party in terms of time and effort to respond to the call.
32. Deficiency in service is writ large in this case as the information about the complainant was solely in possession of the O.P. 1 and 2 and was clandestinely exchanged and shared by it with O.P. 3 and 4. Deficiency in service as defined by Sec. 2 (1)(g) of the Consumer Protection Act, 1986 means:-
any fault, imperfection, shortcoming or inadequacy in the quantity, nature and manner of performance which is required to be maintained by or under any law 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;
33. There was a pious obligation on O.P.1 and 2 by way of confidentiality clause as referred above that they would not disclose the personal information to any other cellular service provider, banks, financial institutions, credit card companies etc. etc. violation of which could lead to invasion of privacy of the consumer.
34. Whenever confidential information of a subscriber or consumer is traded or furnished without the knowledge or consent of the consumer to persons who is neither acquaintance nor a friend nor has any business relationship with the subscriber, both the service provider as well as the person who procures this information by way of unscrupulous methods are guilty for the offence of deficiency in service and unfair trade practice which, inter alia, means:-
falsely represents that the services are of a particular standard, quality or grade.
35. There is no other inference to be drawn than that the service provider like O.P. 1and 2 had entered into an arrangement with O.P. 3 and 4 and with some other financial institutions to pass on the details of information of its subscriber for financial benefits as there are lakhs of consumers who receive such calls and they use the telephone and have to pay unnecessarily for the calls for which they were not supposed to pay nor were these calls meant for them. Such exchange of data or bartering of information amounts to sale of information and is in complete and total violation of the terms and conditions of the contract, particularly, the confidentiality clause. By such unauthrosied and clandestine act, both the main service providers as well as the users of information become unjustly rich.
36. To say that O.P.3 and O.P.4 had procured the information about the complainant from sources other than that of O.P.1 and O.P.2 like bank, credit card, hotel use details etc. is too much, as if O.P.3 and O.P.4 had set detectives upon the complainant to see whether she has any bank account or credit card or had been staying at hotels. Easy and convenient source was that of O.P.1 and O.P.2 and none else.
37. So much so, the makers of unsolicited commercial communication, such as SMSs, telemarketing calls, etc., like O.P. 3 and 4 are aware of the financial standing of a person, information of which was only with O.P. 1 and 2 and with no other person, in the instant case.
38. Since we have treated this complaint as a complaint filed on behalf of numerous consumers running into lacs and since the Cellular Operators Association of India has intervened on behalf of O.P. 1 and 2 and all other Cellular operators and since the financial loss and injury is being suffered by a large number of consumers who are not identifiable conveniently, we, as a deterrent and to stop this evil, feel inclined to impose heavy punitive damages upon the O.Ps because of care-a-fig-for attitude and their having continued to indulge in these activities inspite of Supreme Court having issued notice in a PIL in 2003 and our observations and directions made in various orders passed from time to time:-
(i) Penalty of Rs. 50 Lacs (Fifty Lacs) is imposed upon O.Ps 1-2 Airtel and O.P.5 - Cellular Operators Association of India jointly and severally.
(ii) Penalty of Rs. 25 Lacs (Twenty Five Lacs) is imposed upon O.P.3 ICICI Bank and O.P.4 American Express Bank, to be shared by them equally.
(iii) We further award a compensation of Rs. 50,000/- (Fifty Thousand) to be paid to the complainant by the O.Ps, out of which O.P.1, 2 and 5 shall pay Rs. 25,000/- (Twenty Five Thousand0) jointly or severally and O.P.3 and O.P.4 shall pay Rs. 25,000/- (Twenty Five Thousand) in equal shares.
39. Punitive damages shall be deposited in favour of the State Consumer Welfare Fund (Legal Aid).
40. Before parting, we give the following directions to service providers and direct bankers, finance companies and other persons indulging in telemarketing and direct the TRAI to take all possible steps to control this evil, as the ultimate responsibility lies over it:-
(i) Cellular Operators Association of India (OP No.5) is hereby directed to inform all its Members to immediately withdraw the list of subscribers and their mobiles telephone numbers provided by them to banks, finance companies or any other agencies or persons and give them directions in writing that they shall not use this information for any purpose whatsoever and also by way of telemarketing.
(ii) All those agencies, banks, financial institutions or persons who are having their own directories for this purpose who are neither their subscribers nor their clients, shall disband those directories forthwith.
(iii) Every such subscriber who suffers this agony, harassment and nuisance shall be entitled to a minimum compensation of Rs.25,000/-, who has and is suffering as the complainant has suffered, as and when he approaches the Consumer Forum in this regard.
(iv) To bring in more competition, better coverage for the area with another service provider, lower rates and unsatisfactory or bad customer service with the current service provider, TRAI is directed to bring in NUMBER PORTABILITY RULE, as prevalent in the USA and other countries, so as to avoid the subscribers to change their phone number and thereby informing every now and then hundreds of friends, colleagues, relatives about the new phone number.
(v) TRAI shall establish a National Do Not Call Registry, which shall apply to all the marketers; specifically prescribing that commercial telemarketers cannot call a subscriber if that number is on the Registry. On establishment of such Registry, the subscribers will be called upon to register their telephone numbers by publicizing such a Registry in the newspapers and through Internet and messages free of cost.
41. A copy of this order, as per statutory requirement, be forwarded to the parties free of cost and thereafter the file be consigned to record.
42. Copy be sent to the following:-
i) The Chairman, TRAI, TRAI House, A-2/14, Safdarjung Enclave, New Delhi 110029.
ii) Presidents of all the District Fora.
iii) National dailies for the benefit of Consumers at large and information of service providers and companies indulging in telemarketing and unsolicited commercial and other calls, SMSs etc. etc. (Justice J.D. Kapoor) President (Rumnita Mittal) Member HK (Correct copy)