DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Hanny Gandhi resident of House No.2234, Sector 21-C, Chandigarh – 160022.

                                                                   ---Complainant.

V E R S U S

1.    Dish TV India Limited, FC-19, Sector 16-A, Film City, Noida, India – 201301.

2.    Mr. Vipin, Head Smart Services (Sale/Franchisee-Dish TV India Ltd.), HouseNo.6, Basement, Sector 16-A, Chandigarh – 160016.

---Opposite Parties.

BEFORE:          SH. LAKHMAN SHARMA               PRESIDENT

MRS.MADHU MUTNEJA             MEMBER

                    SH.JASWINDER SINGH SIDHU          MEMBER

Argued By:          Ms. Hanny Gandhi, complainant in person.

                    Sh. Sardevinder Goyal, Advocate for OP No.1.

                    OP No.2 already exparte.

PER JASWINDER SINGH SIDHU, MEMBER

1.           Complainant has filed the present complaint against the Opposite Party, on the grounds that the complainant on being attracted by the advertisement of opposite party No.1 in print and electronic media planned to buy a connection and for the same purchased a suitable antenna for the Dish TV from M/s. Paras Traders, SCO No.75, Sector 30C, Chandigarh on 7.8.2008 for a sum of Rs.800/- vide Invoice No.514. The complainant contacted opposite party No.2 for installation of the said antenna as well as the activation of its services immediately. It is mentioned in the complaint that on repeated calls to opposite party No.2, an engineer visited on 9.8.2008 to install the antenna and was paid Rs.3090/- vide receipt No.4663156 at the time of installation.

2.           The complainant wanted to avail the same service on another TV Set in her household. As such, one more connection under the name ‘Child Connection’ was subscribed on 17.9.2008 for a period of 10 months and a payment of Rs.2990/- vide receipt No.4756965 was paid. Copies of both the receipts have been annexed as Annexures C-2 and C-3 respectively. The complainant has categorically stated that the said Set Top Box provided by opposite party No.2 had some inherent problem and did not become operational immediately and on repeated requests, could become functional only after 20.9.2008, and that too on the Demo Set Top Box used by the technicians of opposite party No.2. It is alleged by the complainant that opposite parties having taken full payment from the complainant for the second connection took away the new Set Top Box and installed a Demo Box instead. While taking away the new set top box had handed over receipt No.47307 dated 20.9.2008, which is annexed as Annexure C-4. The complainant further mentions that the demo equipment was in a deplorable condition and took signal from a limited buttons on the remote control. The demo set top box was not replaced by the opposite parties for almost two months and the complainant was left to deal with the old demo set top box, even though when she had paid the money for a new one.

3.           While replacing the old set top box and on the complaint of irregular signals, the complainant was offered an extended viewership of two months period and the same was to be extended on the subscription which was effective from 17.9.2008 to 20.9.2009. It is also alleged that the second connection of the complainant too was not working in a proper manner and another demo set top box was installed  to keep the connection working.

4.           The complainant claims that though she was offered an extended viewership of two months time but both the connections were arbitrarily disconnected on 1.8.2009 without any notice or intimation from the side of the opposite parties. The complainant further claims that she was forced to pay a fee of Rs.100/- as penalty for a period of just five days gap and that too for no fault on her part. That both the connections were renewed w.e.f. 6.8.2009 and an amount of Rs.5700/- vide receipt No.9736 (Annexure C-6) was paid. While subscribing for these connections, an additional Ala Card Recharge Benefit Scheme was offered and it was clearly mentioned that the said connections would continue for more than 12 months time. An SMS was received by the complainant on her mobile phone disclosing the next recharge date as 14.9.2010, which according to the complainant was surprising for her as it did not allow her a viewership of complete 12 months time. The complainant personally visited Sector 16 office of opposite party No.2 along with the receipts issued by them. It is also alleged that instead of addressing her grievance in a proper manner, totally deactivated one of the connection on 21.6.2010 and the second one on 23.6.2010 without any notice or intimation whereas she was entitled for a continuous uninterrupted viewing of the channels up to 14.9.2010.

5.           The complainant aggrieved of the uncooperative attitude of the opposite parties also served them with a legal notice citing her grievances and demanded the refund of entire money paid to them. On not hearing any answer from the opposite parties, the complainant moved the present complaint and prays for the refund of Rs.13,020/- along with Rs.50,000/- as compensation on account of deficiency in service and harassment. An additional 10% interest on the entire amount is also prayed for by the complainant.

6.           Though successfully served, opposite party No.2 failed to put in appearance and was proceeded against exparte vide order dated 1.3.2011.

7.           However, opposite party No.1 has contested the claim of the complainant and has filed its version/written statement wherein it has taken preliminary objections with regard to the maintainability of the present complaint as the agreement between the complainant as well as opposite party No.1 contains an arbitration clause and as such, any dispute between the two was to be dealt by the Arbitrator only.

8.           On merits, the opposite party No.1 has categorically stated that the entire complaint is based on the money paid to opposite party No.2 by the complainant and it was the duty of opposite party No.2 to intimate the opposite party No.1 about the activation of different subscriptions as demanded by the complainant and as such, if there is any delay or incomplete information made available to opposite party No.1, the opposite party No.1 cannot be held liable for the actions of opposite party No.2.

9.           The opposite party No.1 in Para No.15 of its reply has specifically written and the same is reproduced as under: -

“The entire sequence shows that the complainant contacted the OP#2 from the very beginning and was involved with every affair related to the Dish TV connections of the complainant i.e. from getting the connection installed to the activation of the connection, from getting the STB exchanged from new STB to Demo Box (i.e. on 20./09/2008), from exchange of Demo Box to new STB (i.e. on 15/11/2008), from waiver of the period for the replacement of new STB to Demo Box (i.e. from 17/09/2008 to 20/09/2008) to Replacement of Demo Box to New STB (i.e. 20/09/2008 to 15/11/2008). Thus the complainant did not contact the answering OP even once to file a complaint against either OP#2 or for the problem in the Dish TV connections which in itself is sufficient to prove that the complainant had/has no complaints against the answering OP an it is the OP#2 who was deficient in providing services thereby requiring the dismissal of complaint against the OP#1.”

10.          The opposite party No.1 on merits though has admitted to have received the different subscription amounts against different time period of subscriptions, has clearly stated that at no point of time, the complainant ever made any request or complaint to opposite party No.1. It is also stated that the complainant was continuously in touch with opposite party No.2 for all her requirements of renewal of subscription, replacement of STB, the Demo STB was also provided by opposite party No.2 so as to keep the connection running and furthermore, being the franchisee of opposite party No.1, it was incumbent upon opposite party No.1 to serve its customers in best possible manner. Hence, on the above mentioned grounds, opposite party No.1 prays for the dismissal of the present complaint against it.

11.          Parties led their respective evidences.

12.          Having gone through the entire complaint, version of the opposite party No.1, the evidence of the parties and with the able assistance of the ld. Counsel for the parties, we have come to the following conclusions.

(i)           It is important to address the preliminary objections of opposite party No.1 with regard to the arbitration clause of SAF i.e. Subscription application form under Para No.15 under the heading “Dispute Resolution”. It is clearly mentioned that “Every dispute, difference or question arising in respect of this agreement, shall be referred to the sole arbitration by any person (including an offer or employee of Dish) appointed by Dish in its exclusive discretion and as such, arbitration shall be held in Delhi. These terms and conditions shall be applicable only for India”. It is the settled law that when an answering party has preferred to contest the claim of the complainant by filing a written version, it automatically abdicates its right to invite the complainant to go in for the settlement of its dispute through arbitration. So, we do not find any reason to dismiss the present complaint on this ground.

(ii)          The views of opposite party No.1 as cited in Para 15, Page 5 of its reply laying all allegations of the complainant on the door steps of opposite party No.2 even though the SAF (Subscriber Application Form) attached at Annexure R-2 are totally contradictory to each other. Reason being the subscriber while filling the SAF had actually entered into agreement with opposite party No.1 and not opposite party No.2. We believe that opposite party No.1 has tried to unnecessarily put the blame on opposite party No.2 whereas it was also important to bring on record the actual terms and conditions of an agreement between the opposite parties No.1 and 2, so as to make things crystal clear as to who is responsible to answer the grievances of the complainant. Though it is admitted by opposite party No.1 that all the money collected by opposite party No.2 is immediately informed to its office along with the request for activation of a particular package and the opposite party No.1 subsequently provides for those services. The opposite party No.1 has also failed to convince us on the factor of the consideration amount which either remains with opposite party No.2 in total or is partially conveyed to opposite party No.1. So, under the present circumstances, we believe that the entire process of providing DTH Services through STB was the responsibility of opposite party No.1 and opposite party No.2.

(iii)         In the absence of any reply/version on behalf of opposite party No.2, all the contentions of the complaint go unrebutted against it as in the present complaint, the complainant was regularly communicating with opposite party No.2 and in the absence of any defense on its part clearly shows that there is admission of guilt by opposite party No.2 whereas in the light of above observations, we cannot allow opposite party No.1 to wash its hands off the allegations of the complainant.

13.          In the light of the above observations, we feel that the present complaint succeeds against the opposite parties and we direct the opposite parties to refund the amount of Rs.13,020/- along with interest @8% p.a. from the date of respective deposits till it is actually paid. The complainant is also awarded Rs.5,000/- as compensation on account of mental agony and harassment. She is also awarded costs of litigation to the tune of Rs.5,000/-.

14.          The above said order shall be complied within 30 days of its receipt; thereafter, the opposite parties shall be liable for an interest @18% per annum on the aforesaid amount except for the cost of litigation.

15.        Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

28^th December, 2011.                                                       

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER