State Consumer Disputes Redressal Commission
Sumana Dutta (Paul) vs The Chief Executive Officer, Bharati ... on 8 May, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/224/2013 1. Sumana Dutta (Paul) 24/3/1A, Tantipara Lane, P.O. - Santragachi, P.S. Shibpur, Dist. Howrah, Pin - 711 104. ...........Complainant(s) Versus 1. The Chief Executive Officer, Bharati Airtel Ltd. Infinity Building, 7th Floor, Sector-V, Salt Lake City, P.S. - Electronics Complex, Kolkata - 700 091. 2. The Chief Executive Officer, Bharti Airtel Ltd. Bharti Cresent, 1, Nelson Mandela Road, Vasant Kunj, New Delhi - 110 070. 3. The Advisor, Telecom Regulatory Authority of India Regional Office, Kolkata, Plot No.XI - 5&6 (Gr. Floor), EP-GP Block, Sector-V, Salt Lake City, Kolkata - 700 091. ............Opp.Party(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Complainant: In-Person., Advocate For the Opp. Party: Mr. Atish Ghosh., Advocate ORDER 08.05.2015 JAGANNATH BAG, MEMBER
This complaint has been filed under Section 12 (1) (a) of the Consumer Protection Act, 1986 on grounds of alleged deficiency in service as well as unfair trade practice on the part of the OPs. causing, interalia, financial loss, harassment and mental agony.
The Complainant's case, in brief, is as follows:
The Complainant obtained a pre-paid mobile connection (No. 9831152717) in December 2006 from OP Nos. 1 and 2. On 23.07.2013 a set of printed papers containing the list of incoming and outgoing calls to and from the said mobile phone of the Complainant covering the period from 16.05.2013 to 16.06.2013 was found in front of her home. The Complainant believed that OP Nos. 1 and 2 ' publicised the call list for some unfair motive'. Such call list was never asked for by the Complainant . As the call list was published , the Complainant had to face many unwanted questions from her husband at home, as a result of which, her mental and family peace was shattered . The course of events following disclosure of the call list by the O.Ps was such that she could not attend her place of work, being the office / chamber of Sri A.K. Paul, Ld. Advocate and Tax Consultant . She was terminated from service. The Complainant expressed her grievance through e-mail dated 31.07.2013 . On being requested by the Customer Services Department of OP Nos. 1 and 2, she sent through e-mail dated 10.08.2013 her mobile particulars. She registered a complaint with Chatterjee Hat Investigation Centre , Shibpur , Howrah on 12.08.2013. vide GDE No. 548 dated 12.08.2013. OP No.1 and OP No.2 did not take any action in regard to her e-mail massage. The Adviser, Telecom Regulatory Authority of India, Regional Office , Kolkata, was approached with a complaint on 12.08.2013. The Complainant's husband filed a Matrimonial Suit bearing No. 648 of 2013 alleging, inter alia, that she used to receive call or make call to many people from the mobile phone and sought divorce . The Complainant's husband in his Matrimonial Suit No. 648 of 2013 stated that he had collected the call list of the Complainant. The OPs having taken no action towards redressal of grievance of the Complainant, she approached the Consumer Affairs Department and the latter advised her for filing a statutory complaint . Accordingly, the Complainant has filed the present complaint asserting that by way of disclosing the call list of her mobile phone without her consent or request, the OPs have caused deficiency in service and manifested unfair trade practice which ultimately resulted in her loss of job, turmoil at family, harassment and mental agony. She has prayed for direction upon OP No.1 and OP No.2 to pay a sum of Rs. 12,00,000/- as compensation for financial loss due to termination of service , a sum of Rs. 34,00,000/- on account of compensation for defamation and Rs. 50,00,000/- account compensation for causing harassment and mental agony in putting her matrimonial life on ruin.
OP No.1 and OP No.3 vide their petition filed on 06.01.2014 questioned about maintainability of the case. While OP No.1 contended that they being Licensed Telecom Services Provider enjoyed the status of Telegraph Authority and any dispute concerning any telephone line , appliance or apparatus arising between the Telegraph Authority and the person for whose benefit , the line , appliance or apparatus is or has been provided, shall be determined by arbitration and as such the complaint is liable to be dismissed in limine. The petition being separately heard on contest , it was decided that the dispute in question was maintainable and the OPs were directed to submit written version.
OP Nos. 1 and 2 submitted the written version wherein they denied all material allegations save as are matters of record and specifically admitted. It has been contended, inter alila, that the dispute under consideration relating to the telecom service, i.e., Mobile connection is not adjudicable by the Consumer Forum in view of Section 7(B) of the Indian Telegraph Act which provides for determination of such dispute by an arbitrator to be appointed by the Central Government. It has been stated that the alleged grievance of the Complainant may be the subject matter of cyber adjudicator but not the present Forum in reference to Sections 43, 43A and 46 read with Section 61 of the Information Technology Act. The averment of the Complainant that the call list was found at the door step of her house has been denied. It is further contended that as per the electronic evidence available in the log and other storage media , the OP had once on 20th July 2013 supplied call information in the form of CDR upon requisition by competent authority empowered under relevant provisions of law / rules there under (Paragraph 31 of the W.V).
The Complainant submitted by an affidavit that the complaint petition together with annexure thereto should be treated as evidence. Questionnaire against the evidence of the Complainant, replies to the questionnaire furnished by the Complainant , the evidence filed by OP Nos. 1 and 2 , questionnaire against the evidence of the OPs , replies to the questionnaire , and the BNA filed by OP Nos. 1 and 2 among other documents have been gone through.
The Complainant in person and Ld. Advocates appearing for OP Nos. 1 , 2 and 3 have been heard.
The Complainant in person submitted in course of hearing that as a consumer she suffered huge financial loss with termination of her service , harassment and mental agony as the OPs, particularly, OP Nos.1 and 2 disclosed the call list in respect of her mobile phone. No evidence could be produced by the OPs showing that she had requested for copy of the call list. Privacy of calls sent or received through her mobile phone was divulged in unauthorized manner which is a clear deficiency in service. Further, no reply to her e-mail message dated 31.07.2013 read with her e-mail message dated 09.08.2013 was given by the OPs, making her suffer from mental agony and harassment . She stated that she had explicitly put her case in writing in the petition of complaint as well as in her written statements in reply to the written version of the OPs and other documents placed along which should be taken into consideration towards issuing direction upon the OPs for payment of compensation and costs.
Ld. Advocate appearing for OP Nos. 1 and 2 submitted that the Complainant made false allegation that the OPs caused placing of 14 printed pages of call list pertaining to her mobile phone. No proof or explanation as to how the OPs could be blamed for making the call list put in front of the Complainant's house was submitted. In the e-mail dated 31.07.2013 , it was clearly stated by the Complainant that her husband was supplied with a copy of call list but as there could be no evidence in support of her statement she put the complaint in a different way saying that the call list was found in front of her house. The Complainant did not specify the exact location of her home, 3 different addresses being noted as her residence namely, 24/3/1A Tatipara lane, as noted in the cause title or Kamrangu P.O. Jorhat , Andul , District Howrah or P.C. Roy Road, Jorhat , Sakrail , Howrah as in voter I.D. Card. How she got the printed copy of the call list is beyond prudent comprehension, as no clue could be given by the Complainant. There is no indication in the complaint as to the intent and purpose of the OPs in doing so. It is no where in the complaint that she was sure about the alleged act of the OPs in causing the copy of the call list put in front of her home. To the contrary, the Complainant stated vide paragraph 27 of her complaint that her husband had collected the call list which was noted in the Matrimonial Suit filed against her. Mere disclosure of call numbers without text of the calls can not be a matter of serious concern for any person and in the present case , this allegedly happened with the Complainant that with the disclosure of the call list her mental condition was disturbed and she remained absent from her place of work. How her husband collected the copy of the call list can not be a matter of concern for the OP. It is a fact on record as stated in the Matrimonial Suit that the Complainant is an agent of TATA AIG and then how she could have suffered financial loss by the alleged disclosure of the call list has not been made out in clear terms. There is no question of any unfair trade practice, on the part of the OPs. The claim of Rs. 94,00,000/- is just frivolous and the complaint is liable to be dismissed with heavy cost.
Ld. Advocate appearing for the OP No.3 submitted that as proforma OP the Advisor, Telecom Regulatory Authority of India is an unnecessary party and in no sense they belong to the category of service provider in relation to an individual customer availing telecom service. The complaint does not lie against them and as such the complaint may be dismissed.
Decision with Reasons Upon perusal of the petition of complaint together with other records and having heard all parties, the following points are taken up for consideration:
Is the Complainant a consumer under the Consumer Protection Act?
Is the complaint maintainable under the provisions of the Consumer Protection Act?
Is there any deficiency in service or unfair trade practice on the part of the OPs?
Is the Complainant entitled to compensation and costs as prayed for?
Point No.1 The Complainant has obtained a telecom service connection (Mobile No. 9831152717) from OP Nos. 1 and 2 and such service has been availed on payment of consideration due. There is no dispute that the service provider receives payment for the service and therefore, the Complainant enjoys the status of a consumer as defined under Section 2(d) 1 of the Consumer Protection Act.
Point Nos. 2, 3 and 4:
These three points are taken up together for brevity of discussion of relevant facts and consideration.
The Complainant's grievance is that OP Nos. 1 and 2 divulged the record of calls of her mobile phone and thereby caused troubles for her. In her e-mail message dated 31.07.2013 to the OPs she alleged that the service provider disclosed her privacy and showed her private SMS and call list to her husband as a result of which she faced some trouble in her family. So, she wanted to know within 7 days why the OPs disclosed the call list. As the mobile connection number was not mentioned in the e-mail, the reply message from one Priya Sharma , Customer Services , Bharti Airtel Services, was sent on 10.08.2013 with the request to provide the valid contact number and Airtel Mobile No. The Complainant on the same date sent her contact number and Airtel subscriber number i.e., 9831152717 through e-mail. The very next day i.e., on 11.08.2013 the Complainant lodged a written allegation before the Chaterjee hat I.C, Howrah, that the Airtel Service Provider disclosed her private call list without her consent that caused serious tension and problem for her. On 12.08.2013 she wrote to the Advisor, Telecom Regularity Authority of India, Regional Office , Kolkata about her grievance mentioning that her husband was given a call list. On 13.08.2013 the Complainant in her letter addressed to the Joint Secretary, Consumer Affairs Department, alleging that in the last week of July 2013, Airtel Company published a printed copy of call list of her Mobile connection and such copy was found in front of her house. That has caused a lot of problems in her family. Her e-mail dated 31.07.2013 was not satisfactorily replied to by Airtel Authority and hence, a compensation of at least list 1 crore Rupees was demanded from Airtel Company. In reply to her letter , Deputy Assistant Director , Consumer Affairs and FBP Department advised her to file a complaint before this Commission, as their office, being in no position to award compensation of one crore Rupees, tries to resolve Consumer disputes through mediation only. In the said circumstances , the Complainant filed the present complaint.
The fact goes that the Complainant in her e-mail message dated 31.07.13 wanted to know from the service provider OPs why the call list in question was disclosed to her husband, but in her present complaint it has been stated that the call list was found in front of her home and there is every reason to believe that the OPs 1 and 2 published the call list for some unfair motive ( Para -13 of complaint petition). There appears some contradiction between the contents of the e-mail massage dated 31.07.2013 and the Consumer complaint filed on 31.09.2013. It is not clear if she herself or her husband found the call list in front of her home. In any case , there can not be any denial that the call list has come out from the lag of record of the service provider OP who in their evidence stated vide Paragraphs-10 and 11 that DSP, Special Intelligence Group, Counter Insurgency Force , West Bengal Police having issued one requisition through e-mail sig@ policewb.gov.in for call details of the number 9831152717 on 20.07.13 for the period from 16.05.2013 to 16.06.2013, the call details were provided to the said DSP, Special Intelligence Group . Such admission on the part of the OPs is made in their written evidence filed on July 2, 2014.
It is apparent that the query raised by the Complainant vide her e-mail dated 31.07.2013 read with e-mail dated 10.07.2013 as to why the call list was disclosed and to whom could have been readily replied to with the information available with them. That did not happen. The OP service provider preferred to stay silent then and subsequently decided to divulge the information in not so clear manner in the W.V. but, thereafter, in clear terms in their evidence. A consumer has certainly the right to seek relevant information pertaining to the service availed from the service provider and the service provider is bound to furnish such information at the earliest opportunity if not otherwise barred by any rule. In the present case it is found that the OP service provider by keeping information about passing call list to DSP Special Intelligence Group reserved with themselves for long without assigning any reason whatsoever manifested deficiency in service. Had the OPs sent a reply stating that the call list was transmitted on 20.07.2013 to the DSP, she could have got opportunity to get the fact verified for her satisfaction and further course of action, if any. The deficiency in-service on the part of the OPs lies in withholding the actual information which could be readily passed on to the Complainant. The fact that the call list in question was transmitted to the Deputy Superintendent of Police, Special Intelligence Group, Counter Insurgency Force, West Bengal and the allegation of the Complainant that the disclosure of the call list by the OP Service holder otherwise than in response to her request is no doubt a very important point.
The Complainant has submitted that because of disclosure of the call list which was allegedly supplied to her husband and / or found in front of her home she suffered a lot of problems. But there is hardly any evidence in support of her allegation, as the OPs stated that the matrimonial suit was filed by her husband who in citing the copy of the open call list raised untoward question putting stigma on her character and causing defamation. But, as pointed out by the Ld. Advocate appearing for OP Nos. 1 and 2 during hearing , the Complainant's husband categorically stated in the matrimonial suit that he collected the call list . How and when her husband collected the call list was neither got verified nor attempted to be ascertained in any manner. Relevant facts should have been brought to the light. Further the matrimonial suit filed on 31.07.2013 has been linked to the alleged disclosure of the call list . There is no evidence showing that such disclosure of the call list to her husband was made by the OPs. We are not convinced that the Complainant has proved her point in this regard. Hence, her claim for compensation on the issue of disclosure of the call list by the OP Nos. 1 and 2 deserves no consideration.
The Complainant's allegation about unfair trade practice in the present case appears to have not been explained in any manner. Hence, her claim for relief on the ground of unfair trade practice on the part of OP Nos. 1 and 2 also deserves no consideration.
It is true that OP No.3 is not the service provider to individual consumer under the Telecom Regulatory Authority of India Act and no specific complaint lies against them in the present case.
However, going by the fact that the OP Nos.1 and 2 had deficiency in service in not providing reply to the e-mail query of the Complainant dated 31.07.2013. read with the e-mail dated 09.08.2013 we are inclined to hold that for such deficiency a sum of Rs. 20,000/- shall be paid along with a cost of Rs. 5,000/- for dragging the Complainant into this consumer complaint. Hence, Ordered that the complaint be and the same is allowed in part. The OP Nos. 1 and 2 are directed to pay a sum of Rs. 20,000/- as compensation and Rs. 5,000/- as litigation cost within 40 days from the date of this order failing which, the entire amount of Rs. 25,000/- shall carry an interest @ 8% p.a. from this date till full realization.
MA/ 508/2014 stands disposed of.
[HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER