COMPLAINT FILED: 28-03-2009 <br /> DISPOSED ON: 11-02-2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 11TH FEBRUARY 2010<br /> <br /> PRESENT :-SRI. B.S.REDDY PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> COMPLAINT NO.725/2009<br /> <br /> <br /> COMPLAINANT <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> P.T.Jacob,<br /> s/o.Late P.O.Thomas,<br /> Aged about 76 Years,<br /> R/at No.43, 6th Cross,<br /> St.Thomas Town,<br /> Bangalore – 560 084.<br /> <br /> Party in Person<br /> <br /> V/s.<br /> <br /> OPPOSITE PARTY M/s. Tata Sky Limited,<br /> P.O.Box No.2424,<br /> Hebbal,<br /> Bangalore – 560 024.<br /> <br /> Advocate – Sri.M.C.Thimmaiah<br /> <br /> <br /> O R D E R<br /> <br /> SRI. B.S.REDDY, PRESIDENT<br /> <br /> The complainant filed this complaint seeking direction to Opposite Party (herein after called as OP) to restore the deleted channels with immediate effect or to reduce the monthly charges for deleted channels at the same rate at which they are charging for these channels in the new package from the complainants package from the dates these channels were deleted from the complainants package or to refund all the money paid (Rs.6,400/-) and remove the complete equipment from the house of complainant. <br /> <br /> The case of the complainant to be stated in brief is that:-<br /> <br /> 2. The complainant has taken the connection of Tata Sky DTH on 17-04-2008 to view the channels given in their South Jumbo Pack of the Ops brochure on payment of Rs.350/- per month. So far, the complainant has paid Rs.6,400/- including the cost of DigiComp of Rs.1,500/-. In July’2008 2 channels were deleted from the package. After complaint through customer service executives; OP restored one channel and reduced the monthly charges to Rs.310/-. The positions of deleted channels subscription are indicated below.<br /> <br /> Sl.<br /> No. Name of Channel Location in the <br /> Brochure Date of Deletion<br /> 1. India Vision South Starter Pack July’2008<br /> 2. Rajya Sabha South Starter Pack July’2008<br /> 3. Ten Sports South Value Pack Sept’2008<br /> 4. ESPN South Starter Pack Oct’ 2008<br /> 5. Star Sports South Starter Pack Oct’2008<br /> 6. Star Cricket South Starter Pack Oct’2008<br /> 7. Zone Reality South Value Pack Sept’2008<br /> 8. BBC Entertainment South Jumbo Pack Sept’2008<br /> <br /> Even after the complainant paid for all the channels initially except Item No.1, OP demanded extra payment to view the channels for items 3 to 6 and 8. The charges for viewing the sports channels (03-06) as a separate package are Rs.80/-. The channel BBC entertainment of South Jumbo Pack is included in a new package and charged Rs.45/-. The complainant has brought these anomalies to the notice of the OP through their customer service centre but the response was very poor. The complainant has written 3 letters on 19-11-2008, 03-12-2008 and 12-01-2009 requesting OP to restore all the deleted channels or reduce the monthly charges for all the deleted channels at the same rate for which they are charging for these channels in the new package covering these channels. OP has replied for the only letter dated 19-11-2008 explaining the reasons for the deletion without mentioning anything about reduction of the monthly charges or restoration of all the deleted channels. Other two letters are not replied. As per the news item appeared in column 1 of page 9 of the Times of India dated 13-03-2009. DTH operators have been prohibited from changing the composition of their subscription packages during the first six months; they will also have to reduce the subscription charges, if any channel is removed. Hence the complaint claiming the reliefs stated above. <br /> <br /> 3. On appearance OP filed version contending that the complaint is false, frivolous, and vexatious in nature, the same is liable to be dismissed. The various changes that are made keeping in mind the interest of larger consumer on all India basis. The channels are removed from the various packs, the prices of which were also reduced and then offered in separate add-on packs for the consumers’ freedom of choice and viewing convenience. The stipulated notices as required under law were also given to the complainant intimating the forth coming changes. Clause 5.4 of Subscription Contract provides that OP has a right to withdraw any content without liability and without notice to the complainant. The content provided by the OP to the subscriber / complainant is supplied by independent broadcasters who are not under the control of the OP. The complainant has prior to availing the service agreed and acknowledged this fact by way of Clause 5.5 of the subscriber contract. The grievance of the complainant is not a deficiency in quality of service availed by him. The change in channels is acknowledged and agreed as nature and manner of delivering DTH services under the subscriber contract. Therefore such changes will not amount to deficiency and no cause of action arises qua the OP. In terms clause 17.4 of the subscriber contract the complainant had acknowledged and accepted that the OP could interrupt, suspend, deactivate, cancel, modify or refuse to provide the service or any part of it for the reasons stated therein. There is no price restriction placed on DTH operators and the exclusive jurisdiction in relation to the disputes that arise in respect of rates and tariffs is statutorily vested in the Telecom Regulatory Authority of India (TRAI) by virtue of Section 11 (2) of the TRAI Act, 1997. The TRAI Act, being special legislation, by virtue of Section 3 of the Consumer Protection Act of 1986, this Forum is not competent to hear or adjudicate the present complaint. The Set top Box provided by the OP, complaint meets the requirement of interoperability under DTH license. The said Set Top Box can be used for availing the services of other DTH service providers. Therefore, subscriber who is not willing to continue with the OP’s DTH services and want to avail the services of other service providers may use the same STB for availing new services. All the letters written by complainant have been duly replied. The news item published in the times of India dated 13-03-2009 has prospective effect and not retrospective. Hence it is prayed to dismiss the complaint with costs. <br /> <br /> 4. OP filed by way of reply additional version, for the complaint filed by the complainant contending that till date the complainant is being provided with the services of the OP in compliance with the relevant regulations of the TRAI framed under Telecom Regulatory Authority of India Act, 1997 as amended. The allegation of the complainant regarding the deletion of the channels from the initial package is false and denied. It is submitted that the complainant was provided with each and every channel in observance of the relevant regulations of the TRAI. It is submitted that “India Vision” was deactivated after informing the complainant and due to carriage of extremely low viewer ship. The intention to drop the said channel was published in newspapers across the country on 05.05.2008. The complainant was not paying for the said channel as admitted in para 4 of the complaint. The channel “Rajya Sabha” was never deactivated and the same was and continues to be available to the complainant by selecting Active Doordarshan through the active button on the Tata Sky remote. Further “Zone Reality” has been withdrawn by the concerned broadcaster for reasons better known to them without adequate notice to the OP. In view of the same OP is constrained to discontinue the signal of Zone Reality TV on its DTH platform. The same was informed to the complainant vide letter dated 22.11.2008. In terms of clause 17.4 of the subscription contract, the complainant has acknowledged and accepted that the OP reserves the right, without any liability whatsoever to the complainant to interrupt, suspend, deactivate, cancel, modify or refuse to provide the service or any part of the service for the reasons stated therein. Further submitted the BBC, Ten sports, ESPN, Star Sports and Star Cricket were never deleted or deactivated from the initial package provided to the complainant. The said channels were active and provided to the complainant without any charges up till 2nd December – 2008. The same is evident from the billing statement of the complainant. It is submitted that the add on packs were created in the month of September – 2008 and old consumers who were subscribers of the OP for more than six months, were charged for the add on pack, but the new consumers who were subscribers for less then six months were provided these channels through add on pack at no cost in obedience of the TRAI regulations. The statement of account of the complainant since May – 2008 ill June – 2009 clearly shows that OP provided all the channels opted by the complainant during the first six months in which the complainant’s subscription to the DTH services were activated and no additional amounts were charged. The add on pack for the sports channel was provided free of cost in compliance with the TRAI regulations. OP has provided all the sports channels and the BBC news channel to the complainant till 03.12.2008 from 17.04.2008 i.e. the date of installation. The paid add on packs were introduced after the completion of seven months from the date of installation. <br /> <br /> 5. The complainant filed affidavit by way of evidence to substantiate the complaint allegations and produced the documents. The legal counsel of OP filed affidavit evidence and additional affidavit evidence and produced documents. Both the parties filed written arguments. Arguments heard on both sides. <br /> <br /> 6. In view of the above said facts, the points now that arise for our consideration in the complaint are as under:<br /> <br /> Point No.1:- Whether the complainant has proved <br /> the deficiency in service on the part of<br /> the OP?<br /> <br /> Point No.2:- If so, whether the complainant is <br /> entitled for the relief now claimed?<br /> <br /> Point No.3:- To what Order?<br /> <br /> 7. Our findings on the above points are: <br /> <br /> Point No.1:- Negative. <br /> Point No.2:- Negative. <br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 8. It is not in dispute that the complainant had taken the connection of Tata Sky DTH on 17.04.2008 to view the channels given in South Jamboo pack of the broucher given by OP, on payment of Rs.350/- per month. The grievances of the complainant is in the month of July – 2008 “India Vision and Rajya sabha; in the month of September – 2008 ten sports “Zone Reality”, BBC entertainment, in the month October – 2008 ESPN, Star Sports, Star Cricket, were deleted from the package and for viewing those deleted sports channels as the separate package the complainant was required to pay additional sum of Rs.80/-. For viewing BBC entertainment in a new add on package additional charge was Rs.45/- was required to be paid. Thus OP violated regulations 9 of the direct to home broadcasting services (Standards of Quality of Service and Redressal of Grievances) regulations 2007 issued by Telecom Regulatory Authority of India (TRAI). The complainant claims that as a subscriber in April – 2008 he was entitled to receive all channels of the package till October – 2008 for six months. OP was not entitled to increase the charges for a subscription package for a minimum period of six months as per the regulations. By deleting the above said channels from the package and making the complainant to pay additional cost for viewing the deleted channels in add on package. OP has increased the charges for subscription package. Thus it is contended that the deletion of channels from the package and making the complainant to pay additional charges to view the deleted channels in add on package by OP is deficiency in service. <br /> <br /> 9. It is not in dispute that the complainant has executed the subscription contract while availing DTH connection from OP. The terms and conditions in corporated in the said subscription contract are binding on both the parties. Clause 5.4 of the subscription contract provides:<br /> <br /> Upon notice to You, We reserve the right, at any time, without prior notice and without liability to You to; (i) replace or otherwise withdraw Packages or Content, (ii) change or reduce the number of hours of any Content; (iii) blackout any Content; (iv) modify the prices for the Service or any part of the Service. <br /> <br /> Clause 5.5 provides:<br /> <br /> You acknowledge and agree that the Content provided by Us as part of the Service is being supplied by other parties and availability of Content is outside Our control. <br /> <br /> Clause 17.4 provides:<br /> <br /> We reserve the right, without any liability whatsoever to You, to interrupt, suspend, deactivate, cancel, modify or refuse to provide the Service or any part of the Service, (i) if We determine, in Our discretion, it is necessary under any Law; (ii) due to a failure or degradation of any facilities, equipment or systems used to provide the Service; (iii) to combat any acts of piracy, fraud or misuse of the Service; (iv) due to any act beyond Our control; and (v) for any legitimate business purpose. In the event of an interruption, suspension or deactivation of the Service, We may, in Our discretion, reactivate the Service subject to any conditions that We may require from time to time. <br /> <br /> 10. As per clause 5.4, 5.5 and 17.4 of the subscription contract OP has been conferred discretion to remove any channels from the package for the reasons stated therein. Clause 19.1 of the subscription contract provides that the subscription contract will be governed and construed under the laws of India. The TRAI regulation on which the complainant is relying upon was very much in force as on the date of execution the subscription contract. The complainant has voluntarily agreed for the terms of the subscription contract and executed the same. In view of the same the complainant cannot insist the OP to comply the TRAI regulations for providing all the channels under the package for a period of 6 months. <br /> <br /> 11. The complainant entered into an agreement with OP on 17.04.2008 availing the services of OP and he was entitled for all the channels of the package for a period of 6 months as per TRAI chapter 2 regulation 9 till 16.10.2008. “India Vision” channel was deleted from the package after informing the complainant; due to carriage of extremely low viewer ship and the intention to drop the said channel was also published in the news papers across the country on 05.05.2008 as stated by OP. Moreover the complainant was not paying for the said channel as admitted in para 4 of his complaint. In view of the same the complainant cannot have any grievance of the deletion of the said channel from the package. The channel ‘Rajya Sabha’ was never deactivated and the same was and continues to be available to the complainant by selecting Active Doordarshan through the active button on the Tata Sky remote. Therefore the case of the complainant that channel Rajya Sabha was removed from the package in the month of July – 2008 cannot be accepted. The channel “Zone Reality” has been withdrawn by the concerned broadcaster without any notice to the OP; as such OP is constrained to discontinue the said channel on its DTH platform. OP cannot be blamed for the discontinuation of the said channel.<br /> <br /> 12. With regard to the channels Ten Sports, BBC entertainment, ESPN, Star Sports, Star Cricket are stated to have been deleted from the package in the month of September and October – 2008. Till 16th October – 2008 the complainant was entitled to make use these channels in the package. So for two months the complainant was required to pay additional charges for these channels by viewing add package; if it is accepted that OP has removed these channels from the package. <br /> <br /> 13. In the additional version filed by OP it is contended that all these channels were made available to the complainant without charging any additional amount. In support of the same the billing statement of the complainant is produced. After going through the billing statement of the complainant it becomes clear that OP has not charged any extra amount for sports platinum ADJ pack for the period from 01.09.2008 to 31.10.2008 the disputed period. There is no merit in the contention of the complainant that he has not at all viewed these channels as those channels were not available to him, hence in the billing statement no amount is shown towards the charges of viewing the same. In our view the very fact that the billing statement showing no amount being charged for these channels is sufficient to hold that OP has not charged any additional amount for the complainant for viewing these channels. Under these circumstances we are of the view that the complainant failed to prove the deficiency in service on the part of the OP. In view of the same the complainant is not entitled for the reliefs claimed. The complaint is liable to dismissed. Accordingly we proceed to pass the following: <br /> <br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is dismissed. In view of nature of dispute no order as to costs. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 11th day of February 2010) <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> s.n.m. <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />