As per Hon’ble Member Shri Avinash V. Prabhune.

1.          The complaint is filed u/s Section 12 of the Consumer Protection Act 1986 regarding deficiency of services on the part of the Opposite Party (OPs) related to the services for Direct to Home (in short ‘DTH’) TV connection provided at Complainant’s premises.

2.         According to the complaint of the Complainant, Complainant has obtained Direct to Home (in short ‘DTH’) TV connection from OPs by paying subscription for Ala Carte Pack. The validity of the subscription was upto 20^th March 2019 as displayed on Set Top Box (STB) but it was displayed as 20^th September 2019 on the website of OP. On 6^th March 2019, all selected paid channels were discontinued suddenly by OP without giving intimation to Complainant. Complainant sent emails protesting actions of the OP but no satisfactory reply was provided by OP. On the 8^th May 2019, Complainant received message/mail from OP informing that the connection would be disconnected on 15^th May 2029 so Complainant sent mail on 9^th May 2019, requesting OP to provide list of channels & charges for all channels available with OP. The STB was disconnected on 15^th May 2019. Complainant alleged deficiency in service & unfair trade practice committed by OP due to breach of TRAI guidelines & ethical business practice. Complainant, being senior citizen, had to suffer mental anguish & had to approach Consumer Forum for redressal of his grievance. Complainant had prayed for paying compensatory Costs of Rs 5000/- per month till finalisation the suit. Complainant claimed punitive damages/Costs of Rs 9,90,000/- with directions to pay 1% to Complainant & remaining 99% to charitable institution chosen by Complainant. Complainant further demanded to issue directions to OP to provide online channel selector/monthly charge calculator on their website.

3.         Commission issued notices to O.P.s after registering Complaint.   

3.1        Counsel of the O.P.2 filed written statement on dt 26.07.2019 & filed application dtd 26.07.2019 for deleting name of the Chairman, Tatasons Limited, OP No 1, from the Complaint. After hearing both sides, the said application was allowed by this Commission vide order dtd. 23.10.2019 & Complainant was directed to delete name of the OP 1 from the Complaint.

3.2.      O.P. 2 filed detailed written statement alongwith 11 documents. OP 2 denied all allegations of the Complainant & submitted that actions taken by OP 2 were in accordance with the regulations/directions issued by Telecom Regulatory Authority of India (in short,’TRAI’)from time to time. According to ‘the New TRAI Regulations, subscribers were permitted to pay only for those channels that they want watch, therefore, Subscribers were required to make choice of channels/bouquets by 31^st January 2019 but said deadline was extended upto 31^st March 2019. The necessary changed regime was widely advertised in the public domain so that Subscriber can choose channels timely & avail uninterrupted services of the Distribution Platform Operators (in short ‘DPO’. It was also directed that if subscriber fails to choose channels/bouquets within specified time then DPOs, OP2 was under obligation to migrate such subscriber to a ‘Best Fit Plan’ and credit remaining balance amount paid against earlier tariff into subscriber’s account on pro-rata basis.

3.3        OP 2 admitted that Complainant has been availing services of Op 2 since October 2006. OP 2 further submitted that Complainant had paid Rs 2976/- on 12^th March 2018 & Rs 80/-on 14^th March 2018. Complainant was liable to pay Rs 245/- per month as per his requirements for paid channels. Complainant’s account was to remain active upto 20^th March 2019 after deduction of monthly charges from the advance payment effected by Complainant. OP 2 informed Complainant to make choice but Complainant did not make any choice. OP 2, on 6^th March 2019, migrated Complainant to ‘Best Fit plan’, which comprised of Free to Air Promo pack & FTA basic plan. Complainant sent service request on 6^th March 2019, which was immediately replied by OP 2 on 6^th March 2019 with guidance for selecting & subscribing to the Channels/bouquets as per his choice. OP 2 further alleged that Complainant’s dispute is meritless as Complainant had failed to make choice of channels/bouquets under new regulations & Complainant refused to do so despite of requests from OPs Executives.

3.4        OP 2 submitted that OP has subscriber base of about 15 millions customers, therefore, it is practically impossible to address individually for the issues raised by the Complainant. The executives of OP had provided all help to Complainant in best possible manner to resolve dispute but Complainant continued to make false accusations by using undignified language. OP 2 further submitted that all financial transactions & bills are clear/transparent & available on website of OP. OP 2 informed Complainant to pay subscription amount as balance amount of the Complainant’s account was to exhaust on 16^th May 2019 but Complainant failed to deposit amount, therefore, Complaint’s account was deactivated  due to insufficient balance w.e.f 16^th may 2019.

3.5.       OP 2 submitted parawise reply denying all allegations of the complainant. OP 2 submitted that Complainant himself is responsible for the present situation. OP 2 prayed to dismiss present false, frivolous, vexatious complaint under Section 26 of The Consumer Protection Act, 1986 by imposing compensatory costs upon the complainant.

4.         Complainants filed written say/rejoinder (Affidavit) on dt.21.08.2019 repeating contents of the complaint & denied contentions of the OPs. Complainant submitted that contents of Exhibit G filed by OP were never received as registered phone number with OP 2 was of his landline. Complainant raised question about the non recognition of subscriber Id 4 days prior to deactivation of service on 15.05.2019 by OP. Complainant enclosed Exhibit E1 to E8 with rejoinder demonstrating past conduct of the OP 2. Complainant retaliated deficiency in services of OP & prayed for allowing complaint.

5.               Heard Ld counsels for both parties. Perused Complaint, Written statements, documents, rejoinder & additional documents. Both parties have filed written notes of arguments. We record our findings for the reasons given below.

          FINDINGS AND REASONS

            S.N.       Points                                    Finding

            1     Whether Complainant is Consumer

& Complaint is maintainable?                    Yes.

            2     Whether the complainant has established   

                  Deficiency in services of OP No 2.              Yes.

            3     What Order ?                      As per Final Order.

AS TO THE POINT NO. 1 – (Complainant as Consumer & maintainability of Complaint))

6.         It is evident in the matter that Complainant, subscriber ID 10000166513, has obtained Direct to Home (in short ‘DTH’) TV connection from OPs by paying subscription for Ala Carte Pack. It can be seen from Annexure 2 & 3 filed with complaint that the validity of the subscription was upto 20^th March 2019 as displayed on STB but it was displayed as 20^th September 2019 on the website of OP. As per Complainant, On 6^th March 2019, all selected paid channels were discontinued by OP without giving intimation to Complainant. Complainant sent emails protesting actions of the OP but no satisfactory reply was provided by OP. Finally, on 15^th May 2019, the connection was disconnected by OP2, therefore, present dispute arose between both parties. Complainant preferred present complaint before this commission. In view of the above, Complainant is ‘Consumer’ within the meaning 2(1)(d) of the Consumer Protection Act 1986 & OP 2 is service provider providing DTH ‘services’ within the meaning of 2(1)(o) of the Act, therefore, this Commission has jurisdiction to decide present consumer complaint; we answer point No.1 in Affirmative.

AS TO THE POINT NO. 2 (Deficiency in Services of OP No. 2)

7.         The controversy in the present matter revolves with the claim of Complainant regarding breach of TRAI guidelines & adoption of unethical practice by OP No 2.  It can be seen from Annexure 2 & 3 filed with complaint that the validity of the subscription was upto 20^th March 2019 as displayed on STB but it was displayed as 20^th September 2019 on the website of OP. It is clear from the Annexure 2 that Complainant account balance on 14.03.2018 was Rs 3068/- & with Rs 248/- monthly subscription next recharge due was displayed as 20.03.2019 so next due date shown as 20.09.2019 appears to be incorrect. OP 2 has not given any satisfactory justification for the said discrepancy.

7.1        The regulations & directions issued by TRAI are clear. OP 2 was certainly under legal obligation to implement same in letter & spirit. It is matter of records that as per ‘the New TRAI Regulations, subscribers were permitted to pay only for those channels that they want to watch, therefore, Subscribers were required to make choice of channels/bouquets by 31^st January 2019 but said deadline was extended upto 31^st March 2019. Subscriber has an option to choose channels timely & avail uninterrupted services of the DPO. It was the duty of the DPO, OP2 to inform & update Complainant about the changed regime but it can be seen in the present case that on 6^th march 2019, OP2 has arbitrarily migrated Complainant’s account to ‘Best Fit plan’ without any intimation or obtaining any consent from the Complainant. In fact, TRAI has given liberty to the Complainant/subscribers to effect changes as per his choice on or before 31^st March 2019. OP 2 had liberty to migrate Complainant only after 31^st march 2019 if Complainant had failed to provide any choice or to migrate early with consent of the Subscriber. Moreover, subscription validity of Complainant’s account was upto 20^th March 2019 so Complainant had every right to continue with old paid channel choice upto validity period. Complainant could have taken appropriate decision regarding further recharging of the account or migration of account. The following press release issued by TRAI on 12^th Feb 2019 for ‘Implementation of New Regulatory Framework for Broadcasting and Cable Services’ are noteworthy.

TRAI Information note the press on 12^th Feb 2019 for ‘Implementation of New Regulatory Framework for Broadcasting and Cable Services’

3. A few cases have been reported recently where pay channels of the subscribers who have not exercised the options have been deactivated. Such incidences are causing hardship to the subscribers. The Authority has been emphasising time and agam that no inconvenience should be caused to subscribers while they are migrated to the new framework.

4. In view of the above issues and to assess to status of implementation of new framework, a meeting of all DTH operators and major Multi System Operators (MSO) were convened in the TRAI office on 11.02.2019. The operators informed that implementation of migration is in full swing and they stated that subscribers who have exercised their option have been migrated to new framework. They are making all efforts to reach out to remaining subscribers. They further assured that in no case any inconvenience would be caused to any subscriber in the whole migration process.

5. The Authority noted that though the new framework promotes consumer choice and enables the subscribers to pay for what they wish to view but 'non-exercise of the option' should not create any inconvenience to the subscribers. Accordingly, the Authority requests all DPOs to create 'Best Fit Plan' for its subscribers who have not exercised their options yet.

6. The 'Best Fit Plan' shall be designed based on Consumers' usage pattern and language spoken. It should preferably be a blended combination of various Genres, while making 'Best Fit Plan' for a subscriber, DPOs should ensure that payout per month of the 'Best Fit Plan' generally does not exceed the payout per month of existing tariff plan of the subscriber.

7. DPOs should continue to provide various user-friendly methods to subscribers to exercise their choice. These methods may include personal contact by Local Cable Operator, calling on Call Centre Number, using Mobile Apps or through Website. DPOs should also continue to generate awareness among the subscribers regarding new Regulatory framework, its benefits and methods to exercise the option to choose the channels of their choice

8. The Authority further reiterates that subscribers who have taken long term packs will continue to avail the services for the contracted period. However, they have freedom to choose the channels of their choice under the new regulatory framework and in case if they exercise this option, money for the remaining period shall be adjusted for their future use.

9. In view of the larger public interest, the Authority directs all DPOs that those subscribers who do not exercise their options shall be migrated to a 'Best Fit Plan'. The subscribers' old plan shall continue till either subscriber exercise hisj her option, or he j she is migrated to the 'Best Fit Plan'. The Authority hereby, vide this press release, extends time up to 31st March 2019 for exercising the option by such subscribers who have not exercised option yet. Subscribers will be free to change their 'Best Fit Plan' at any date and time on or before 31st March 2019 and DPOs shall convert their 'Best Fit Plan' into the desired pack (channel/Bouquet) within 72 hours from the time choice exercised by the Subscriber. It is clarified that there will be no 'lock-in period' for the subscribers till 31st March 2019 who has been migrated to 'Best Fit Plan' by DPOs.

OP 2 had not provided any submissions regarding fulfilling the above requirement, especially No 6. In the present case, Commission does not find that OP 2, while migrating Complainant’s account, had designed Best fit plan considering Complainant’s usage pattern, otherwise present dispute could have been avoided at much early level & even without escalating the issue upto this commission. 

7.2        It can be seen that Complainant strongly protested against the actions of OP 2 & adopted various means, such as contact with local representative, online customer care, office visit, to resolve present dispute but OP 2 did not pay proper attention & finally discontinued services for Complainant’s account on 15^th May 2019 citing insufficient balance in the account. OP 2 had also admitted on records that Complainant has been availing their services since year 2006. It is felt that considering long association of the Complainant with OP2, OP 2 ought to have taken proactive consumer friendly measures in the present case to resolve issue. It is also felt that if OP 2 had informed & updated Complainant about the requisite charges & changed regime then Complainant would have deposited required amount so as to avoid final disconnection.

7.3        It can be seen from the email communications attached by both parties that Complainant had sent 2 emails on 6^th March 2019, which was replied by OP 2 executive on 6^th march 2019. Complainant had emails on 9^th May, 11^th May & 12^th May 2019, which were replied by OP 2 executive on 11^th & 12^th May 2019 but OP 2 failed to give any satisfactory explanation for non recognition of subscriber Id although Complainant’s account was active on 11^th & 12 May 2019 before final disconnection on 15^th May 2019. It appears to be system problem at OP 2 end.

7.4        OP 2 had submitted that its executive sent email (Exhibit E)on 17^th March 2019 to Complainant but still Complainant did not make any selection of Channels & replied on 18^th March 2019. Complainant had not enclosed those two emails with complaint. Looking into the contents of the above emails, we find some merits in the submissions of the OP 2. It cannot be ignored that Complainant is well educated person conversant with IT/Digital systems. Complainant remained suspiciously silent on the disputed issue of selection of channels as per new TRAI regulations. In fact, as per new regime, Complainant was also under obligation to select channels/bouquets before 31^st March 2019 or to accept Best Fit plan implemented by OP 2.       

7.5        It can be seen from 4 months Accounts statement i.e. from 01.01.2019 to 30.04.2019 enclosed by OP 2 that charges were properly levied by OP 2 after migration of account to Best Fit plan for Complainant. It is true that migration was disputed & without consent of the Complainant, therefore, Complainant was deprived from viewing his selected paid channel for the period beyond 6^th March 2019. OP 2, in para 3(f)of written statement, had clarified that Complainant had not subscribed to any long duration pack under previous tariff regime. Complainant had also not rebutted the said fact, therefore, OP 2 submission appears to be correct.

7.6        OP 2 has enclosed Hon’ble High Court, New Delhi order dtd 15.05.2019 in CM Appl No 22194/2019 in W.P. (C) No 4135 /2017, wherein, directions were given related to show cause Notice dtd 23.01.2019 & directions issued vide letter dtd 01.05.2019 by TRAI were kept in abeyance. Moreover, Hon’ble Supreme Court in the matter of ‘Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. Vs. Central Bureau of Investigation,(2020) ibclaw.in 33 SC’, had held that whatever stay has been granted by any court including the High Court automatically expires within a period of six months and unless extension is granted for good reason within the next six months, the trial Court can proceed in the matter. Moreover, OP 2, in written statement filed on 26.07.2019 before this commission, para 2(f) had submitted that challenge to TRAI Regulation before Hon’ble High court, New Delhi is not stayed, therefore, TRAI Regulations were implemented from 3^rd July 2018. Therefore, we do not find any hurdle in passing appropriate order for compensation individual case of this complaint.

7.7        It can be seen from the communication exchanged between both parties that Complainant is aggrieved by the services of OP in the past. The documents enclosed with rejoinder by Complainant on 21.08.2019, Exhibit E1 to E 8 are the emails communication during the period 16.09.2013 to 09.06.2017, which has no direct relevance with the present dispute.

In view of the above discussions, the failure of OP 2 in adhering TRAI guidelines & providing services is established in the present case, which amounts to deficiency in services as per Section 2(1)(g)of The Consumer Protection Act 1986,therefore, we answer point No.2 in Affirmative.

8.         The Complainant had claimed compensatory costs of Rs 5000/- per month with 10% incremental rise per month till finalisation of the suit. The Complainant further claimed sum of Rs 9,90,000/- as punitive damages for the mental anguish suffered by Senior citizen due to deprivation of services, out of which 1% to be paid to Complainant & remaining 99% to be paid to charitable institution. Complainant further demanded to issue directions to OP to provide online channel selector/ monthly charge calculator on their website. The demand of the Complainant is largely exorbitant & without any justification for the same. No doubt, OP 2 was deficient in providing services but Complainant is also somewhat responsible for not resolving dispute at early stage when OP 2 had informed developments due to TRAI regulations & offered to select channels as per choice of the Complainant, therefore, OP 2 alone cannot be blamed. However, Complainant, being senior citizen & hardship suffered by him, is entitled to get reasonable compensation & Costs for physical, mental anguish in the present matter. According to us, Rs.10,000/- on account of compensation is just and proper in facts and circumstances in this case.

9.         It is matter of records that Complaint against OP 1 was deleted as per order dtd.23.10.2019 of this commission.

10.  In view of the above discussions, we proceed to pass following final order.

FINAL ORDER

1)   Complaint is partly allowed.

2)   OP No. 2 is directed to pay Rs.10,000/- to the Complainant towards mental & physical agony in the matter.

3)   OP No. 2 is directed to pay Rs.5,000/- to the Complainant towards Costs.

4) OP No. 2 is directed to comply with order within 30 days from the receipt of order.

5) Certified copy of this order be supplied to both the parties.