PER:HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Complainant Sri Supriyo Raychaudhury to assail the final order/judgement being Order No.12 dated 25.07.2018 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-I (in short, Ld. District Forum) in Consumer Complaint No. 259/2017 whereby the complaint lodged by the appellant under Section 12 of the Act was dismissed on contest without any order as to costs.
The Appellant herein being Complainant lodged the complaint before the Ld. District Forum asserting that he is a subscriber to Opposite Party No.2 as Local Cable Operator (LCO) under Network Service of OP No.1 GTPL, Kolkata Cable and Broadband Pariseva Ltd. as Multi System Operator (MSO). The complainant being subscriber under the OPs started enjoying the cable signals through his rental Set Top Box (STB) since December, 2012 and till 22.06.2017 he enjoyed uninterrupted basic services. However, in the mid night on 22.06.2017, the television set of the complainant was completely damaged. Thereafter, the said STB was taken by OP No.1 for necessary repairing but could not done. Thereafter, a new STB free of cost provided to the complainant but the said Set Top Box could not function the television set. Hence, the appellant approached the Ld. District Forum with prayer for several directions, viz. – (a) to direct the OP No.1 to return the old STB; (b) to direct OP No.1 to furnish receipts for payments made to them towards price of new STB; (c) the OPs be directed to ensure continuous and uninterrupted service of the channels subscribed by the complainant; (d) to direct the OPs to pay Rs.1,00,000/- as compensation for harassment and mental agony.
The Respondents/Opposite Parties by filing a written version disputed the claim and it has been categorically mentioned that the complainant cannot be categorised as ‘consumer’ within the meaning of Section 2(1)(d) of the Act. It has further been stated that as there was no deficiency in services on the part of them, the complaint should be dismissed.
On evaluation of materials on record, the Ld. District Forum by the impugned order dismissed the complaint, which prompted the complainant to come up in this Commission with the present appeal.
The Appellant, who appeared in person has submitted that the Ld. District Forum has passed the impugned order without considering the fact that he has proved the allegations against the respondent but the Ld. District Forum without placing reliance to the materials before it has dismissed the complaint and as such the impugned order should be set aside and the complaint should be allowed.
Per contra, Mr. Hirak Sinha, Ld. Advocate for the Respondents has contended that on account of non-functioning of STB, a new STB was provided to the appellant free of cost and, therefore, the appellant cannot be categorised as ‘consumer’ within the meaning of Section 2(1)(d) of the Act. He has further contended that despite installation of new STB, the functioning of the television set could not be started and as such there may be defect in the television set and when there is no document whatsoever to show that the television set is in order, the Ld. District Forum has rightly dismissed the complaint. Therefore, the impugned order should not be interfered with.
We have given due consideration to the submission made by the parties to the appeal and scrutinised the materials on record.
Undisputedly, the Appellant was a subscriber under the Respondents, who was enjoying the cable signals through the STB since December, 2012. There is no allegation that from the month of December, 2012 till the date of occurrence i.e. on 22.06.2017 there was any interruption in the basic service. When the television set of the complainant was damaged and the STB was not functioning, the respondents provided another brand new STB at free of cost. Moreover, the respondents did not charge any subscriber fees from 23.06.2017 to 04.08.2017 as the appellant failed to see any programme in his TV on account of repair of TV set.
Therefore, when it appears that the respondents had provided a brand new Set Top Box to the appellant totally at free of cost, a question comes as to whether the appellant will be categorised as ‘consumer’ as defined in Section 2(1)(d) of the Act. For proper appreciation of the matter, it would be pertinent to have a look to the definition contained in Section 2(1)(d)of the Act which runs as follows:
“Consumer means any person who –
- buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other then the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
- hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose”.
Explanation:- for the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”.
The forgoing provisions make it abundantly clear that consumer means a person who buys any goods for a consideration or hires or avails of any services for consideration. Since, a brand new STB was supplied to the appellant by the respondents at free of cost and further when there is no guarantee period for the STB installed earlier the complainant cannot be categorised as ‘consumer’.
Considering the fact that when the Appellant is not a ‘consumer’, there is hardly any reason to enter into the merits of the case. The Ld. District Forum though dismissed the complaint on merit but we find that the Ld. District Forum should not have considered the merit of the case as one new Set Top Box was provided to the appellant at free of cost.
In the result, the appeal is dismissed on contest. There will be no order as to costs.
The impugned order is hereby affirmed.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information.
