Naavi.org

A Kannada TV Channel namely BTV News channel has reported a sting in which the tampering of auto meters has been discussed in great detail.  A TV debate has been presented today ( 15th October 2014) where the issue is being discussed.

One of the views expressed by panel members is that legal action should be taken on manufacturers of tamperable meters as well as the mechanics who tamper the meter and the drivers. Panel members are also expressing regret that the law is not stringent enough and even when caught the persons responsible are getting away with fine of Rs 500/- or less.

The news report is showing how chips are being introduced in the digital meters so as to make it run faster than what they should. It is being reported that around 1 lakh meters in Bangalore are susceptible to tampering and not less than 50% of these have already been tampered with. Such autos are estimated to be over charging about Rs 10-15 for each trip. The loot therefore is estimated to be around Rs 20-30 lakhs per day.

The TV debate is also presenting one of the meter manufacturer who claim that his meter is tamper proof but there are other meters in the market which are tamperable and the Government has not shown any inclination to encourage the use of tamper proof meters.

Considering the enormity of the problem, it is necessary to clarify that tampering of digital meters is a Cyber Crime and falls under Section 66 of Information Technology Act 2000/8. It is also an offence under IPC as “Assistance to Cheat”. The punishment under Section 66 is 3 year imprisonment and fine upto Rs 5 lakhs. It is therefore stringent enough to send shivers to drivers.

Hence it is not correct to say that the law is not strong. Perhaps the Police is not interested in applying strong laws. Also the traffic police may not have adequate exposure to cyber laws and hence have never thought of invoking the law.

While the tampering mechanic is directly responsible for  causing the electronic system (Digital Meter) to behave in a manner it is not intended to and therefore liable for Section 66, the driver would be also equally liable since he owns the meter and commercially benefits by the tampering.

Unfortunately it may be difficult to make the manufacture of the tamperable meters liable. But the Government may try to encourage tamper proof meter manufacturers and ensure that other meter manufacturers fall in line.

I hope the Police Commissioner in Bangalore will explore how ITA 2000/8 can be applied in all cases of Meter tampering .

Naavi

There was an article in DNA today titled “Flipkart’s Big Billion Day paves way for e-comm regulation” drawing attention to the possibility of a new E Commerce Regulation.

Naavi.org strongly opposes this attempt to tie down E Commerce in a new regulatory framework. Presently E- Retailing is under the same regulation as Brick and Mortar Retailing (BMR) except for the fact that communications between the consumer and the retailer occurs in electronic documents which are regulated by the provisions of ITA 2008. (Information Technology Act 2000 as amended in 2008).

While the BMRs have been miffed by the grand sale achieved by Flipkart on October 6th, they have no right to speak on behalf of the E Consumer.  The apology of the Flipkart promoters was to the  E Consumers and if there are any issues regarding customer service it is some thing that the consumers need to sort it out with Flipkart.

All India Dealer’s Association has no role to poke its nose in the matter. At best it is the Consumer Rights organizations (Only those who understand E-Consumer Rights) can stand up and make a comment.

It is my personal observation that Flipkart has been handling consumer complaints fairly efficiently by following an easy return policy in case of disputes. In terms of delivery they are super efficient. Hence their consumers donot have much of complaints.

On the Big Billion day there could have been problems arising out of early sell out of super discounted offers because there could have been such a demand. We often see such sell outs in the case of high demand limited supply products such as airline tickets, cinema tickets, cricket match tickets etc. Consumers will take these disappointments in their stride.

If there have been booking of such orders, money received and subsequently cancelled for wrong reasons, they can be checked through an E-Audit of transactions.

Recently I had such an experience in Amazon.in and I did voice my displeasure since they had collected payment. However they refunded within the next 48 hours and hence the response was not wholly unreasonable. As  consumer I would have been happy if they had added a small discount coupon for my next purchase to reduce my disappointment but Amazon.in did not have such vision. I am not aware if Flipkart had similar instances and if so, whether they tried to provide any such incentives to keep the dissatisfied customers happy. As a Netizen Consumerist, I would fight for such benefits rather than complaining that Flipkart gave huge discounts.

Brick and Mortar retailers should also recognize that special day sales are not uncommon in the physical society in the form of Exhibition sales, Clarence Sales or Diwali, Dussera, New Year sales etc.  Consumers throng the shops on those days  some times creating stampedes requiring Police to intervene and maintain law and order.

Has the Government intervened in such cases and questioned the discounts offered? If not why should Government be worried about the Flipkart sale?

Brick and Mortar retailers have to also remember that their markets are distinctly different though some overlap cannot be ruled out. If Competition act has to be invoked, the interested stake holders are other online retailers such as Snapdeal or Amazon and not the members of the All India Dealer’s association.

If the All India Dealer’s Association uses its political contacts with BJP try to interfere in E Commerce legislation, it will be a tragedy and a big blow to Narendra Modi’s vision of Digital India.

The All India Dealer’s Association as well as the Brick and Mortar Retailers should realize that they have certain strengths of their own which actually make them more powerful than the E-Retailers. In fact it will be a travesty of truth if we consider that “Flipkart” enjoyed  a “Dominant” status and hence comes under the ambit of unfair trade practices.

If the Brick and Mortar traders so desire, they can always have an E-Tailing division so that they can enjoy both the online and offline trading opportunities. If they fail to do so, it only indicates that they lack the necessary business acumen and they cannot expect regulation to support their inefficiency.

Observers of Internet are aware that when Amazon developed itself an online book seller, it did put other leading offline book stores into reverse gear. It took some time for Barnes and Noble and others to accept the changes and devise their own strategies to survive and grow.

We are seeing similar developments in the  Retail sector in India and this should not be curbed by any special legislation.

Present legislation on unfair trade practices as well as frauds when read along with ITA 2008 are adequate to deal with any E-Retail regulation issue.

Naavi

Also Read: Flipkart Success invites jealous backlash

Recently, I came across an article on the web discussing how a criminal conviction or trial proceedings can produce evidence for a civil compensation. (Related Article). This was regarding a proceeding in Canada. The points raised here appeared to be relevant in India in Cyber Crime cases and hence the following comments can be made.

In many of the Cyber Crime Cases we come across a Civil and Criminal dispute being tried in different fora simultaneously. For example, the Police may pursue a bank fraud case while the victim may invoke Adjudication under ITA 2008.

Normally, a criminal case takes a longer time and a stronger evidence (Beyond Reasonable Doubt) to result in conviction. But a civil proceeding under the special provisions of adjudication and Cyber Appellate Tribunal (CAT) can be completed much quicker. Also these judicial process in adjudication being of the enquiry commission type, it is more victim friendly.

Though victim compensation can also be provided by a criminal court, traditionally the criminal courts in India are reluctant to go deep into evaluation of financial compensation which may involve opportunity loss or gain, interest and litigation expenses etc. (There could be exceptions such as the recent prevention of corruption case of J Jayalalitha where the session’s judge did take the trouble to make proper estimate of the wrongful gain the accused might have made). Also the criminal cases are pursued by the state and the public prosecutors and the victim’s interest may not always be a priority.

Hence where a civil remedy is separately available, the victim   always prefers to explore such alternate remedies. This is mostly true in Cyber Crime cases.

It may be recalled that in the land mark Umashankar Vs ICICI Bank adjudication case, the adjudicator’s verdict was that the Bank was liable for paying compensation to the victim for the fraudulent loss suffered by him. At the same time Tamil Nadu police was (and is) pursuing the criminal case against the identified ultimate fraudster. An issue was raised by the undersigned with the Tamil Nadu police that it should pursue the case of criminal negligence and complicity by ICICI Bank and its officials in the light of the positive findings of the Adjudicator.

However, TN police hesitated and did not proceeded even to conduct a proper enquiry and take up investigation against any of the officials of the Bank.

At least in future, Police should take advantage of the availability of an earlier civil compensation verdict where it is relevant.

Of course this argument would not apply to Karnataka where the IT Secretary acting as an adjudicator has actually jeopardized the system of criminal justice also by holding in effect that Section 66 of ITA 2000/8 cannot be invoked by a Corporate victim nor any person can invoke Section 66 on a Company. This can also extend to many other sections of ITA 2000/8 and make the act completely redundant in the State.

Unfortunately in the absence of an operating CAT, the decision of the Adjudicator remains a precedent since more than 2 years. It is disappointing that the judicial authorities such as the Karnataka High Court and the Administrative bodies such as the Government have not yet observed the highly undesirable criminal justice system that is now prevailing in Karnataka in the domain of Cyber Crimes on account of this decision. As otherwise they would have taken proactive steps to correct the same.

Karnataka Government now has on its hands the opinion of the Law department as well as the Cyber Crime Police that the subject decision of the Adjudicator is not correct but is yet to take a proactive action to correct the situation. Mr Siddaramaiah the honourable Chief Minister of the State is himself a law graduate and can personally appreciate the correctness or otherwise of the decision without any expert opinion but unfortunately the matter has not yet come to his attention.

The Karnataka Judiciary which covered itself with glory in the J Jayalalitha case would do well to bestow its attention on what Naavi.org has been stating time and again that in the absence of a corrective action, the said decision  has renedered Karnataka a “Cyber Crime Haven”.

Let this Diwali shed light on the situation and some positive action by the Karnataka Government and or Karnataka High Court.

(Details of the Adjudication Decision referred to here is available in several earlier discussions in this site: Plight of Cyber Crime Victims in Karnataka:: Will the CM of Karnataka respond?)

Naavi