SRI BIJAYA KUMAR DAS,PRESIDENT:-
Deficiency in service in respect of illegal deactivation of TV signals under Direct To Home Service (DTH) are the allegations arrayed against ops.
2. Complaint in nutshell reveals that, Complainant’s husband to avail TV programmes under Direct to home service(DTH) opted the TV programmes from TATASKY Ltd., through the local retailer M/S Sheela DTH, Kendrapara (OP No.2) bearing ID No.- 1200337077. Under the different schemes/packages, Complainant’s husband chooses to avail the scheme with a monthly charge of Rs. 285/- on dt. 15/8/2016 which continued till 15th December-2016. On dt. 16/12/2016 the monthly package voucher was recharged for Rs. 285/- vide money receipt No.-7819 which is valid for 30 days and expires on midnight of Dt. 15/01/2017. It is alleged that Ops violating the provisions of the cable Television Networks (Regulations) Act,1995 and without any prior intimation deactivated the TV signals on dt. 3/1/2017. On query by the Complainant’s husband, the Ops answered that on request of the Complainant for viewing more channels which are activated and the monthly tariff rates has been changed from Rs. 285/- to Rs. 615/- and the request for viewing more channel was opposed by the Complainant’s husband. It is also alleged that the Area Manager, asked the Complainant’s husband to deposit Rs. 50/- for reactivation of the signal. Accordingly, Complainant deposited Rs. 50/- on dt. 5/1/2017 and availed the money receipt being No. 8339. Though the signals were reactivated on dt. 5/1/2017 at about 3 P.M. but again deactivated on dt. 6/1/2017. On Complaint of untimely deactivation before Op No.2 dealer and Op No.1, the TV signals were not restored/activated for which the Complainant and her family member sustained emotional pain and mental agony. The cause of action of the instant case arose on different dates, i.e, on dt. 3/1/2017, when the TV signals were deactivated without any Notice and the last cause of action arose on dt. 6/1/2017, when inspite of deposit of Rs. 50/- for reactivation, the Ops once again illegally deactivated the TV signals. The Complaint is filed with prayer that a direction may be given to Ops to refund Rs. 345/- as the Complainant and her family members deprived of watching TV programmes as they are legally entitled to watch, and to pay Rs. 10,000/- as compensation for mental agony and cost of litigation.
3. Upon Noticed, Op No.1,3 &4, TATASKY Pvt. Ltd. appeared into the dispute through their Ld. Counsel and filed written statement, challenging the maintainability of the complaint on grounds that complainant cannot be treated as a ‘consumer’ as defined in C.P.Act, 1986 and the present dispute is not a consumer dispute, as husband of the Complainant namely Mr. Manoj Kumar Satapathy is a subscriber bearing ID No. 1200337077 and Mr. Satapathy is the consumer of Ops. The Op-TATASKY Pvt. Ltd. in their written statement averred that the subscriber Manoj Kumar Satapathy was a subscriber under DTH connection on dt. 13/8/2016 and in the month of October 2016 the continuing monthly packages were changed by adding different packages as opted by the subscriber and the monthly package was Rs. 315/- per month. It is also stated that rate was fixed on Daily Burn Rate (DBR) basis. It is further averred that on a promotional offer to the subscriber to add new pack and it was also informed to the subscriber that if he/she wants to discontinue the subscriber has to make a call on the helpline number. The copy of the statement of accounts dtd. 1/10/2016, 1/12/2016 and 1/1/2017 are filed into the dispute as Annexure Op-1. In the para-wise reply it is stated that in telephonic conversation with the subscriber the new packages were added and the DBR went up to Rs. 20.50 per day against Rs. 9.50 per day. As the DBR went upto Rs. 20.50 per day and the subscribers opening balance was Rs. 62.70, the signals were deactivated for insufficient funds. It is categorically submitted that all times, the subscription account was deactivated due to insufficient balance. In the above circumstances Op-TATASKY Ltd. prayed that no deficiency in service or Unfair Trade practice haves been adopted to harass, the subscriber, hence the complaint be dismissed.
4. On receipt of the Notice M/S Sheela D.T.H. Service, Kendrapara (Op-2) appeared into the dispute and filed written statement formally denying the allegations by stating that Op no.2 is a dealer of TATASKY Pvt. Ltd. authorized to sale the products and recharge the vouchers of D.T.H. services and complainant’s husband purchased a TATASKY DTH on dt. 1/8/2016 vide ID No.- 1200337077 and continued with monthly packager amounting of Rs. 285/-. It is averred that Complainant lodged a complaint on dt. 4/1/2017 showing the money receipt bearing No. 7819 of Rs. 285/-, in support of monthly recharge payment on dt. 16/12/2016, which was valid up to midnight of dt. 15/1/2017, but prior to that the signals were deactivated on dt. 3/1/2017. On Complaint, Op No.2 came to know that the monthly package of complainant has been changed by TATASKY Pvt.Ltd. and enhanced to Rs. 615/- per month. Further the Area Manager (Op-1) advised the complainant to deposit Rs. 50/-, which was compiled by complainant vide money receipt No. 8339 dtd. 5/1/2017. Complainant, once again complaint that the TV signals are deactivated on dtd. 6/1/2017. Op no.2, expressed his inability to comply the grievance and advised the Complainant to approach higher officials of TATASKY Pvt.Ltd. Op No.2 in the circumstances submits that no Unfair Trade Practice or deficiency in service has been committed on his part and the Complaint is liable to be dismissed against Op No.2.
5. Heard the Complainant and case of the Ops on merit, gone through the Complaint, written statement of Ops and the Annexure and documents filed by the Parties. The admitted facts of the case are that complainant’s husband is a subscriber of TATASKY ltd. bearing ID No.- 1200337077 to watch different TV channels under Direct To Home(DTH) services, It is also admitted that TV signals to the Complainant was deactivated on the month of January-2017 inspite of payment for monthly package on dt. 15/11/2016, 16/12/2016 and on 5/1/2017.
Before discussing the factual aspect of the case Op-TATASKY Pvt. Ltd. in their written statement categorically emphasized on maintainability of the Complainant on the grounds that, the Complainant is not a ‘consumer’ as per the C.P.Act.1986 and has no locusstandi to file the Complaint, as the Complainant’s husband is the subscriber of Op-TATASKY Ltd. Further, there is ‘no cause of action’ to file the complaint. On the point of maintainability we are of the opinion that admittedly Complainant’s husband is a subscriber/consumer, who opted for a specific package to avail different TV Channels, TATASKY Ltd. by paying certain ‘Consideration’ Sec.2(d) (ii) of C.P.Act.1986 is very clear in this regard “xxxxxxxxxxxxxx and includes beneficiary of services other than the person who[ hires or avails of ] services for consideration paid or promised, or xxxxxxxxxxx” Sec.2 (b)(i) defines ‘Complainant’ means a ‘consumer’. Now on analyzing the said sections it is crystal clear that Complainant is a beneficiary of the ‘Service’ availed by her husband and under the Act she is treated as a ‘Consumer’ under the capacity of ‘beneficiary’. Our observation is supported by the decision of Honbl’e National Commission, reported in CPR, 2017 Vol.(1) pg-774 in case of Harichand Vs Haryana Vidyut Prasana Ltd. & others. Hence, when Complainant’s wife is a ‘Consumer’ her legal entitlement as Complainant can’t be questioned. The next point of maintainability as raised by the Op-TATASKY Pvt.ltd. that there is no ‘cause of action’ arises to file the present complaint. What is ‘cause of action’ legally it means a ‘bundle of facts’ and cause of action’ under the C.P.Act means ‘The Cause of Action in consumer transactions arises generally at the place where the goods are brought or services are hired, or where the goods are delivered or supplied in case, a product is manufactured, the cause of action may arise at the place where the product is manufactured or at the place where the product is marketed’. Similarly the place where anything is purchased or its price is paid, would provide jurisdiction against. The distant manufacturer and it is not necessary to join the dealer or seller as a party. In the present dispute admittedly Complainant’s husband avail the DTH service provided by the Op-TATASKY Pvt. Ltd. and devices required for availing DTH services and recharging monthly packages were purchased from M/S Sheela DTH(OP-2), Kendrapra and the Office of Area Manager(Op-1) where grievance of deactivation were lodged are located within the Jurisdiction of this Forum. Further, when the Complainant availed the first DTH Service and subsequent monthly recharges and its deactivation as alleged are cause of actions of the instant dispute. Now, it appears the grounds of the maintainability as raised by the TATASKY Ltd. are not substantial grounds to reject the Complaint and in our opinion the case in hand the complaint is maintainable as per the provisions of C.P.Act,1986.
6. Complainant in the complaint alleged that a monthly package of Rs. 285/- was opted under the specific scheme for viewing different channels, which is valid for 30 days from the date of recharge as per the specific scheme of Op-TATASKY. The dispute started in the month of Dec-2016, when an amount of Rs. 285/- was recharged for the said package, which was deactivated on dt. 3/1/17 without any prior informations, though as per the package the validity period of package completes on midnight of 15/1/2017. In support of her version Complainant files attested Xerox copy of money receipt bearing No. 7819 dtd. 16/12/2016.
Countering the allegations Op-TATASKY Ltd. in their written statement averred that on promotional call Complainant opt to add more channels, and accordingly Daily Burn Rates(DBR) were enhanced upto Rs. 20.50 against Rs. 9.50 per day on Dec-2016.
It is the case of TATASKY that as DBR enhanced and after adjustment of the recharge payments for adding more channels the Complainant’s customer account shown insufficient balance inspite of monthly charge. Now the question before the Forum that the plea of the Op-TATASKY that on promotional call complainant opted for adding new channels, accordingly the monthly packages were enhanced and it is the further plea of the Op-TATASKY that Complainant–consumer was given a scope to deactivated the new channels by calling on toll free number, if he/she does not agree with the promotional offer. On the plea of promotional offer for adding new channels ‘consent’ of the customer is legal necessity as enhancement of price is involved. In the present dispute Complainant categorically denies that she has at no point of time ‘consented’ to add more channels as described by Op-TATASKY. When the adding of new channels are disputed, it is the legal obligation of Op-TATASKY to adduce evidence that Complainant-customer opted for adding new channels. No evidence in this aspect is produced before the Forum, even a call details to customers telephone number is not presented for appreciation of the fact. In addition to this , when the promotional call, consent of customer for adding more channels is disputed by complainant and not substantiated by Op-TATASKY, the plea of call to toll free number for deactivation of new channels does not arise. In this case unilateral action of Op-TATASKY Ltd. by adding new channels without ‘consent’ of the complainant can’t be ruled out. If for the shake of argument, it is admitted that Complainant consented and availed more channels without paying the prescribed rate, then can the Op-TATASKY deactivated the signals without serving prior any information/ Notice under the law?
It is alleged in the Complaint petition that Op-TATASKY Ltd. without any prior intimation deactivated the TV signals, which is illegal under cable Television Networks (Regulations) Act,1995 and U/R 10(3) of cable network (Regulations) 2012 Chapter IV which deals with PROTECTION OF CONSUMERS AGAINST IN COMPOSITION OF SUBSCRIPTION PACKAGE clearly defines that no multisystem operator shall take of or discontinue exhibition of any channel without giving prior Notice of 15 days to its subscribes and such Notice shall be published in the local newspaper and displayed through scrolls a TV screen except in case of natural calamities or reasons beyond the control of such multisystem operation resulting on total disruption of service. A single sentence is not averred in the written statement of Op-TATASKY Ltd. in connection to compliance of the said regulations as it is specifically pleaded in the Complaint. That no intimation/Notice was given by Ops prior to deactivation and Complainant E-mail correspondences for redress of her grievance remains unfulfilled, in result present complaint before the Forum. Hence, the deactivation is illegal and deficient in service.
In the facts and positions of law discussed above, it is quite clear that Op-TATASKY Ltd.(1,3&4) have not acted in accordance with the law and the deactivation of TV signals are illegal, arbitrary and unilateral in nature. We, do not see any fault with M/S Sheela DTH Service(OP-2), whose role in the said transaction is very limited, accordingly, we freed Op-2 from any such liability of deficiency in service and Op No. 1.3 &4 TATASKY Ltd. are jointly and severely liable for deficiency in service.
Complainant in her petition states that due to untimely deactivation of TV signals she and her family members including Complainant’s father-in-law who is retired Govt. teacher passes his time by watching TV programmes sustained emotional pain and prays this Forum to refund of Rs.345/-(Rs.295 + Rs.50) the monthly recharge amount along with Rs. 10,000/- as compensation for mental agony and cost of litigation. We feel that there is no parameter to measure the emotional loss of the complainant and her family member and claiming of Rs. 10,000/- is a higher claim, which we, reduce it to Rs. 5,000/-.
Considering the prayer and observation made above, we directed the Op No.1,3&4 TATASKY Ltd. to refund Rs. 345/-(Rs. Three hundred forty five only) and to pay Rs. 5000/- (Five thousand) as compensation for mental agony and Rs. 1000/- as cost of litigation and into to Rs. 6.345/-(Rs. Six Thousand Three hundred Forty Five only) the total ordered amount will be paid within one month of receipt of this order to the Complainant, failing which 6% interest will be charged for the delayed period.
Complaint is allowed in Part, with cost on merit against Ops.
Pronounced in the open Court, this 21th Day of July, 2017.
