(The complainant filed this complaint before this State Commission against the opposite parties praying for the direction to cease and desist from indulging in unfair trade practice and to pay a sum of Rs.25,00,000/- towards compensation for his ordeal and many kinds of suffering caused by their deficiencies and unfair trade practices and to pay a sum of Rs.3,00,000/- towards loss of privacy and to pay a sum of Rs.3,00,000/- towards wastage of time, nuisance, discomfort and distractions from important activities and to pay Rs.4,00,000/- towards sleep deprivation and to pay Rs.5,00,000/- towards adverse physical health impact and to pay Rs.5,00,000/- towards harassment, mental agony and annoyance and to pay Rs.5,00,000/- towards being victimized by aggressive sales pressures, pestering, menace, insults and violation of basic right not to be disturbed and to pay costs. This complaint coming before us for final hearing on 5.3.2014 and hearing the arguments on either side and perused the records and passing this following orders :)
A.K. Annamalai, Judicial Member
1. The complaint filed under section 12 and 17 of the Consumer Protection Act.
The complainant alleging deficiency of service against the opposite parties praying for the directions to desist from indulging in unfair trade practices by soliciting various mode of way through the telephone, mobile and online media to involve he complainant in their business inspite of the complainants specific requests for not making such attempts claiming damages for a sum of Rs.25,00,000/- in all by categorizing for the troubles caused and to pay Rs.3,00,000/- each for loss of privacy and wastage of time and nuisance and to pay Rs.5,00,000/- each towards adverse physical health impact, harassment, mental agony and annoyance, victimized by aggressive sales pressures, pestering, menace, insults and violation of basic right not to be disturbed.
2. The case of the complainant is briefly stated as follows :
The complainant being the customer and account holder as well as credit card accounts holder linked to the bank account with the opposite parties and the opposite parties sold their Health Plus Credit Card with two add-on cards for the family members facility till September 2011 and without the consent of the complainant withdrew the scheme arbitrarily and unilaterally and prematurely and replaced with Platinum Plus Credit Card in August 2009 and thereby the opposite parties thrusting an unsolicited replacement credit card pestering and pressurizing the complainant by torturing and harassing him with many frequent aggressive promotional phone calls and e-mails to use their credit card. From October 2010 onwards he has been intensely pressurized, disturbed by way of and harassed by hundreds of promotional telephone calls and e-mails from various marketing offices and credit card divisions of the opposite parties to his telephone numbers, including his mobile number inspite of specific registration for the avoidness of service by registering œdo not call service? which was informed by their E-mail dated 15.12.2010 and even after they have been sending promotional e-mails by 3rd party products for which they are not giving any assurance of quality, fair price such as warranties and other necessary undertakings for such activities by luring buy products by paying money from their HDFC Bank and Credit card accounts without mentioning their responsibilities and accountabilities towards fulfillment of rules, terms and conditions by way of unfair trade practices and thereby the opposite parties are in deficiency of service by adopting unfair trade practice for the promotional sales activities by pressurizing the consumer by affecting their personal rights in disturbing manner through phone calls, mobile communications and e-mail messages inspite of registration of do not call service. The complainant sent a notice to the opposite parties on 16.8.2011 and acknowledged the same by the opposite parties on 18.8.2011 but failed to response. Hence the complainant filed this consumer complaint praying for the above reliefs from the opposite parties.
3. The opposite parties denied the allegations of the complainant in their written version stating that only with the consent and knowledge of the complainant the existing credit care was replaced and Platinum Plus Credit Card in August 2009. The complainant had not filed any documents for the proof of stop using his HDFC Bank Credit Cards from July 2009. In his e-mail dated 9.6.2011 he agreed his willingness to enhance the existing credit limit of the Platinum Credit Card without any fee or charges. He registered the œDo not Call Registry? only in the month of December 2010 but he received called in the month of October 2010 having no substance. The complaint do not have any barring relating to the year 2006 and on the ground of limitation the complaint is dismissed. The allegations of the aggressive marketing of the opposite parties during the period between January 2012 and April 2012 are all only after the consent of enhancement of the usage of Platinum Credit Card Limit for future use. In contradictory statements are made by the complainant. The opposite parties have not made any Phone calls at the odd hours as alleged by the complainant after 15.12.2010. They have not violated any of the norms and guidelines issued by the Reserve Bank of India. There is no evidence on record to establish any unfair trade practice as alleged by the complainant. The Banking Ombudsman rightly closed the complaint on proper application of banking rules. No reply of the complainants notice dated 16.8.2011 is not willful or wanton. Before giving reply the complainant filed a pre matured complaint before the Ombudsman which was subsequently closed on merits on 11.01.2012. The compensation claim was not in accordance with the provision under Sec.14 (1) (d) of the Consumer Protection Act and not established. The complainant approached this commission with tainted hands and suppression of facts and hence the complaint is to be dismissed.
4. In the complaint enquiry both parties have filed their proof affidavits and on the side of the complainant Ex.A1 to A19 were marked. No documents on the side of the opposite parties are filed.
5. The following points for consideration are :
1. Whether the opposite parties have adopted unfair trade practice by making unnecessarily aggressive SMs calls, telephone, e-mails etc in order to lure the complainant in spending money through the HDFC Bank Credit Card Accounts inspite of his specific requests registered for œDo not Call Service? even after 15.12.2010?
2. Whether those alleged business calls by means of various media, telephone calls services, mobile phone service etc are violative or personal privacy against the rules and norms prescribed ?
3. Whether the complainant is entitled for the damages of Rs.25,00,000/- as compensation due to the many kinds of sufferings caused and deficiency of service and unfair trade practice over several months as per the breakup of compensation claiming under various heads claimed in Para 28( c ) of the complaint?
4. To what relief ?
6. POINT NOS.1 and 2 : In this complaint enquiry the complainant being an account holder and also having credit card facilities and with other card benefits availing the service from the opposite party from the year 2005 onwards having aggrieved by the nonstop method of pestering and pressurizing the complainant with frequent aggressive promotional phone calls and e-mails to use their credit card and for soliciting to purchase various products for which no warranty, guarantee or credit worthiness of those goods to be purchased by using through opposite partys credit cards inspite of his specific requests registering for do not call service during the month of December 2010 and till the date of complaint the complainant being tortured in such a way by sending such e-mails, communications etc which are alleged to his personal rights privacy violation as per the Trai, rules and Reserve Bank guidelines in this regard which forced the complainant to seek relief for restraining to cease and desist from indulging in such unfair trade practices and pay compensation through activities undergone by the complainant.
7. The opposite parties have simply denied the allegations by contending that only the complainant had requested for enhancement of his credit card facilities and on his own request such facilities were given and the sending of e-mails and other communications are all using or violation of rights to privacy and the contradictory statements on various stages only to prove that he had filed this complaint to harass the opposite party for his wrongful gain. The do not call service registration has been informed by the opposite party by their e-mail letter dated 15.10.2010 and it is alleged that they have not made any phone calls at the odd-hours as alleged by the complainant and they do not call the same for his mobile was registered only on 2.11.2011 and the opposite party being banking authorities under the provisions Banking Regulations Act 1949 as per the guidelines of Reserve Bank of India at any point of time, they have not violated and following procedure strictly as per the guidelines and thereby they are not in any unfair trade practice or deficiency of service.
8. While considering both sides contentions in this regard and on perusal of the documents under Ex.A1 to A19 relied upon by the complainant and from the statement of the opposite parties and their written submissions and version it is admitted that they were sending various communications, letters making telephone calls etc for the purpose of commercial business promotion nature in order to lure the complainant to utilize their various credit cards for those purchases and thereby annoyed with the same, the complainant was compelled to register do not call service and accordingly it was admitted by the opposite party that such register was confirmed in their e-mail letter dated 15.12.2010 which was confirmed by the documents under Ex.A5 dated 15.12.2010. subsequently as far as mobile phone disturbance is concerned also on 2.1.2011 under Ex.A9 it is registered for no voice and no SMS by the BSNL authority for the registration of phoneNo.94435 69828 admittedly of the complainant and the number is registered in NCPR and under Ex.A10 also the complainant expressed the unwarranted calls received by him through the mobile number dated 26.4.2011 which was replied on 27.4.2011 by the opposite party regretting the disturbance etc which various communications relating to the same. The complainant contended that though he is not expected to register such Do not call service and Do not call Register when he had not opted for any service for receiving such commercial calls communications etc and inspite of the same from the communications received relied upon by the complainant it is clear that only on the compulsion of the opposite parties such registration was made under Ex.A5, A9 and Ex.A10 and inspite of the same even after that those subsequent days also he had received somany communications, e-mails etc mostly based on the commercial promotion sales purpose for purchasing various kinds of goods , cosmetics, garments travels etc and those were all not denied by the opposite parties. Further the complainant had even taken the matter to the banking Ombudsman by way of complaint as per the document Ex.A11 in which regarding the subject matter of the complainant in Sl.No. 6 and 7 it is mentioned as follows :
œ6. Subject matter of the complaint
Complaint against HDFC Bank for their several promotional and unnecessary nuisance phone calls and not addressing genuine grievances in this regard effectively and within reasonable time-all such acts are in violation of their undertaking and assurances; and for their non-adherence to Code of Banks Commitments to Customers and RBI Guidelines.
œ7. Details of the complaint :
Several Promotional Phone calls received at Odd hours from various offices of HDFC Bank despite, and in violation of, their undertakings and assurances.
Non-adherence to the fair practices code as adopted by the bank and non-adherence to the provisions of the code of Banks commitments to customers issued by Banking codes and standards Board of India and as adopted by the HDFC Bank:
Violation of the directives issued by the Reserve Bank in relation to banking and other services.
Non-observance of other directions or instructions of the Reserve Bank as may be specified by the Reserve Bank for this purpose from time to time.
Summary of the complaints and copies of correspondences as recorded in the Notice dated 16.8.2011, enclosed with this complaint, contains the background, chronology of events and full details of the issues / grievances and 7 courts of gross deficiencies in support of the points mentioned above in Points 6 and 7.?
For which the Ombudsman acknowledged the complaint under Ex.A12 and the order was passed by the Ombudsman under Ex.A13 dated 11.1.2012 in which in para 3 it is observed as follows :
œIn view of the clarifications furnished by the bank and considering that they have regretted the inconvenience caused to you and given assurance as above, we advise having closed your complaint under clause 13 (a) of Banking Ombudsman Scheme, 2006 (Scheme), which reads as under:
œThe Banking Ombudsman may reject a complaint at any stage if it appears to him that the complaint made is not on the grounds of complaint referred to in clause 8?
Please note that a complaint closed under the above clause is not appealable under the Scheme and that you are free to approach any other grievance redressal for a, as you deem fit, to redress your complaint?
From these details it is clear regarding the allegations the clarification was sought for by the Ombudsman from the opposite parties bank and the bank also regretted the inconvenience caused and also confirmed they have also taken necessary steps to ensure such promotional calls will not be made in future. From these undertaking it is clear that there were such promotional calls made earlier, before this order passed by the Ombudsman. The complainant being a senior citizen argued the matter on his own as contended that the opposite parties have categorically given undertaking that they will not send commercial communications such as phone calls,SMS and e-mails and inspite of the same even after notice under Ex.A16 dated 16.8.2011 and 18.8.2011 acknowledged by the opposite parties and having made various correspondences from 6.8.2010 to 18.9.2012 as per Ex.A17 and sending such communications and was admitted to be used and troubled in the same manner repeatedly pressurized to buy various products having unknown quality and value for this he had filed a bunch of e-mails communications about 350 in number approximately under Ex.A19 for the perusal of this commission and those details were not denied or disproved by the opposite parties except the denial in the written version alone without any separate documents. The complainant also relied upon various citations regarding the orders passed against the opposite parties relating to the unfair trade practice as reported under Ex.A18.
1. Delhi State Commission, Order in CC 09/2006
2. Supreme Court. Order in Civil Appeal No.10706 of 2011
3. TRAI orders / Notification dated 23.09.2013 (Holding HDFC Bank guilty of Unsolicited Commercial Communications)
4. RBI Orders / Circulars dated 21.11.2005 and 1.7.2009
5. Legal opinion on spam e-mails by Asia Law “ Titus and Co. October 2007.
6. Mumbai Consumer Forum Order on 14.10.2011 in which HDFC Bank was involved in promotional harassment by phone calls.
and also relied upon News paper report in the Hindu dated 23.09.2013 and 24.09.2012 regarding the news report relating to the unfair trade practice regarding telemarketing by various banks including the opposite parties HDFC Bank. Further the complainant also relied upon the Reserve Bank of India Circular relating to the Credit Card operation of the bank dated November 21, 2005 and 1.7.2009 in which under the Head of Protection of Customer Rights relating to personal privacy it is mentioned as follows:
œCustomers rights in relation to credit card operations primarily relate to personal privacy,¦?
Jul 01, 2009
œCustomers rights in relation to credit card operations primarily relate to personal privacy, clarity maintaining confidentiality of customer information and¦
The card issuing bank /NBFC should maintain a Do Not Call registry (DNCR)¦ The intimation for including an individuals telephone number in the Do Not Call Registry (DNCR) should be facilitated through a website maintained by the bank / NBFC or on the basis of a letter received from such a person addressed to the bank / NBFC¦.
The card issuing bank/ NBFC should ensure that the Do Not Call Registry (DNCR) numbers are not passed on to any unauthorized person/s or misused in any manner.?
From these details it is proved by the complainant that the opposite parties in total violation of their undertakings they have been harassing and troubling with hundreds of communications continuously for the long period even after notice and after registered Do not call Service Registry? through the phone calls and communications and also by way of mobile communications without taking care of the undertakings except to send communications for regretting for the inconvenience they never bothered for the stoppage of such activities causing mental agony, disturbance violations of privacy and also serious affecting of system of computer wound to the complainant due to dumping of volumes of communications for the purpose of telemarketing commercial products luring the complainant to purchase those goods by using their credit card, debit card would also certainly amounts to violation of personal privacy of the customer and against Reserve Bank of India Guidelines and also Trai Rules and especially when the complainant himself requested for such stoppage of communications by the registering Do not call service facility even after that the opposite parties have continued their practice in such a way would certainly amounts to unfair trade practice which is to be condemned. The complainant to prove the same has filed various records for promotional advertisements, e-mails and SMS received during the period for various dates from 24.9.2012 to 22.2.2013 under Ex.A17 which are all communicated to the complainant by e-mail address which was not denied by the opposite parties except to plead no such communications were made during odd-hours which itself would prove their admission for sending such communications continuously other then odd hours which is not a responsible reply or reflecting the character of the reputed bank. For the foregoing discussions and reasons stated , we are of the view that the opposite parties adopting unfair trade practice by making unnecessarily aggressive promotional telemarketing calls, SMS and e-mails and caused continued nuisance creating discomfort and destruction and deprivation of privacy of causing stress and pain to the complainant and thereby the complainant is entitled for suitable relief against the opposite parties and compensation for the same and the opposite parties are to be directed to desist them not such unfair trade practice and these points are answered accordingly.
8.POINT NO.3 : The complainant has prayed for a compensation of Rs.25,00,000/- for the trouble and sufferings due to unfair trade practice of the opposite parties by way of unsolicited communications, phone calls, mobile calls etc by categorizing the compensation of Rs.3,00,000/- each for loss of privacy (2) towards wastage of time, nuisance, discomfort and distractions, e-mail jamming and other calls waiting (3) Rs.4,00,000/- towards sleep deprivation over several months, (4) Rs.5,00,000/- towards adverse physical health impact such as headache, migraine, eye irritation, muscle fatigue, irritability, inability to concentrate on more important matters (5) to pay Rs.5,00,000/- towards harassment, mental agony and annoyance (6) Rs.5,00,000/- towards victimized by aggressive sales pressures, pestering, menace, insults and violation of basic right not to be disturbed and for costs. While considering these prayers are concerned even though the complainant categorized compensations under various heads the impact of entire claims is based on the harassment and annoyance caused by way of sending unsolicited commercial communications in order to lure their customer by making use of their Credit cards and other various cards issued by the opposite parties to purchase all those things for which they are not taking any responsible regarding the worthyness of goods to be purchased by way of commercial telemarketing and only for the goods to be purchased for the boost of those business of selling of various products and only for the purpose to make the customer purely to use their cards for the purpose of increasing banking transaction business through credit cars would certainly make the complainant become vexed, harassed and disturbance during un timely and odd hours would cause stress, mental agony, physical impact etc. For all those the complainant should be compensated in a proper manner and thereby we are of the view that he could be compensated by way a sum of Rs.3,00,000/- in toto and also entitled for costs and this point is answered accordingly.
9. POINT NO.4 : In view of the Point Nos. 1 to 3 that the complainant is to allowed and thereby the complaint is allowed and accordingly
In the result, the complaint is allowed and the opposite parties are directed jointly and severally U/s 14 (f) of the Consumer Protection Act, 1986 to discontinue the unfair trade practice and not to repeat them in the process of aggressive sales pressurizing, pestering and sending through frequent phone calls by torturing and harassing the complainant with many frequent aggressive promotional phone calls and e-mails to use their credit card and other cards of their bank with immediate effect and the opposite parties are directed jointly and severally to pay a sum of Rs.3,00,000/- as compensation to the complainant for making harassment and torturing with many frequent aggressive promotional phone calls, e-mails by violating his right to privacy inspite of do not calls service availed which is not expected to register even when no such service was opted by him the opposite parties are directed to pay a sum of Rs.10,000/- as costs to the complainant
These directions for payments shall be complied within a period of 6 weeks from the date of this order.