"Vodafone had failed to discharge its obligation and acted with imperfection, shortcoming or inadequacy in the nature and manner of purpose, which is required to be maintained by it under the regulations," observed S R Khanzode and Dhanraj Khamatkar in their order yesterday.
"Thus, deficiency in service within the meaning of section 2(1)(g) of the Act is well established as against Vodofone," the forum members further said while dismissing an appeal filed by Vodofone against the consumer court judgement.
Dr Ashish Gala, who practices in suburban Mulund, had registered with Vodofone on the "Do not Call list". Yet, he got calls from various companies following which he filed a complaint with the service provider on August 30, 2008, saying Vodofone should have ensured that he did not get the calls.
Vodofone argued that it was not deficient in service as under Telecom and Solicited Commercial Communications Regulations, 2007, there is no positive obligation on them to stop unsolicited commercial calls.
In fact, Vodofone said, Telephone Regulatory Authority of India did not contemplate and acknowledge the fact that such communication or unsolicited communication calls cannot be stopped entirely.
Vodofone further contended that as per explanatory memorandum issued to clause 16 of the Regulations, 15 days time is provided for a subscriber for making the complaint to his service provider in respect of unsolicited commercial communications. However, the complainant, Dr Gala, had failed to make any such complaint within a fortnight.
The doctor's complaint on August 30, 2008, in respect of three such calls dated July 31, 2007, August 2, 2007, and February 19, 2008 was filed much beyond the stipulated 15-day period and hence this could not cast upon them any obligation for not stopping such calls, Vodafone pleaded.
Vodafone submitted that clause 16 of the regulations provides the procedure and, ultimately, action is to be taken against establishment who had generated such unsolicited commercial calls, which in the instant case was the opponent HDFC Bank Ltd.
An e-mail was sent by Vodafone to Dr Gala seeking details of the calls made to him and he replied to the company on the same day enumerating the details sought by them.
The State Consumer Forum noted that it is not the case of appellant, Vodafone, that since 15 days period was over in respect of the information supplied, their data was destroyed and they could not trace the originating assessed provider for taking further action as per regulation 16 of the Regulations.
The Forum noted that the 15-day period is also by way of explanation and not incorporated in the regulations. After furnishing said information as per re-reply on September 2, 2009, no further action was taken by Vodafone as contemplated
under regulation 16(2)(c) by forwarding the complaint including the call details record and other information and documents in respect of the complainant, Dr Gala.
"Under the circumstances, they failed to discharge their obligation under the said regulations," the Forum noted in their order while dismissing the appeal filed by Vodafone.
The State Forum ordered Vodafone to pay Rs 20,000 compensation to Dr Gala in addition to Rs 5,000 costs as ordered by the district forum.
Besides, in regard to the appeal, the Forum also ordered the service provider to bear its own costs and give Rs 10,000 costs to the doctor.