cccccPBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of January 2013
Filed on : 25/01/2012
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 55/2012
Between
V.I. Mathew, : Complainant
4A, Praseeda Apartment, (By Adv. Rajesh Thomas,
Opp. Fire Station, Gandhinagar, No. 41/3792, C2, 1st Floor
Kadavanthara, Carmel Centre, Banerji road,
Ernakulam-682 020. Kochi-682 018)
And
1. M/s. Dish T.V. India Ltd., : Opposite parties
Corp. Office at FC-19, (1st O.P. By Adv. K. Anil Kumar,
Sector 16-A, Noida, Ambady)
U.P. 201 301
rep. by its Managing Director. (2nd O.P. absent)
2. M/s. Shyam Electronics,
MG Road, Pallimukku,
Ernakulam, Kochi-682 018.
rep. by its Manager.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
Fascinated by the assurances of the representative of the 2nd opposite party the complainant purchased a Dish T.V. for getting specific T.V. channels from the 2nd opposite party on 04-02-2011 at a price of Rs. 3,250/-. The device was manufactured by the 1st opposite party. The service personnel of the 2nd opposite party erected the same at the premises of the complainant. Thereafter the complainant had been paying the recharge fees till 19-08-2011. The opposite parties unilaterally discontinued the availability of two contracted channels viz. Jai Hind T.V. and Amrita T.V. In spite of repeated requests and reminders from the complainant the opposite parties failed to reinstate the same. Thus the complainant is before us seeking direction against the opposite party to continue with the T.V. channels service as promised and to refund the amount paid by the complainant with interest from 04-02-2011 together with compensation and costs of the proceedings. This complaint hence.
2. The version of the 1st opposite party is as follows:
The 1st opposite party is a license provider of DTH services under the brand name Dish T.V. The complaint is not maintainable in this Forum, since there is an arbitration clause in the agreement entered into between the complainant and the 1st opposite party. The allegation of the complainant regarding unilateral discontinuation of the two channels is completely unevented on the basis of the liability that the availability that the availablity of these two T.V.Air channels rests with Doordarsarn. Since the Doordarsan removed the service from their plat form the complainant will not be able to receive the same. In that case it can not be considered as a deficiency on the part of the opposite party.
3. In spite of receipt of notice from this Forum the 2nd opposite party opted to remain absent for no reasons stated. The complainant was examined as PW1 and Exbt. A1 was marked. Neither oral nor documentary evidence was adduced by the 1st opposite party. Heard the counsel for the contesting parties.
4. The points that arose for consideration are as follows:
i. Whether the complaint is maintainable in this Forum?
ii. Whether the complainant is entitled to get resumed the T.V.
channels which he had been enjoying earlier and which was
promised to him?
iii. Whether the complainant is entitled to get refund of the
amount with interest. ?
iv. Whether the opposite parties are liable to pay compensation
and costs of the proceedings to the complainant. ?
5. Point No. i. The contention raised by the 1st opposite party is that since there is a clause in the agreement to the effect that any dispute arising between the parties should be referred to the Arbitrator, it should be honoured and hence this Forum is lacking jurisdiction to entertain the complaint. The Hon'ble Apex Court in Fair Air Engineers Vs. N.K. Modi 1996 CTJ 749 (SC) (CP) held that “even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to certain deficiency of service, then the existence of arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency”. In the light of the above finding, we do have jurisdiction to proceed with this complaint and we do so. Flimsy attitude which would wrong the consumer can not be accepted by this Forum whatsoever especially when the same is sustained by the above finding of the Hon’ble Appex Court mentioned.
6. Point Nos. ii & iii. Ext. A1 series communications goes to show that the complainant purchased a Dish T.V. from the 2nd opposite party which was manufactured by the 1st opposite party at a price of Rs. 3,250/- on 04-02-2011. According to the complainant he had been promptly getting the service through the device but only till 19-08-2011 and the complainant maintains that on 20-08-2011 the opposite parties unilaterally discontinued the availability of two important channels that is Jai Hind TV. and Amrita T.V. According to the 1st opposite party they are entitled to deactivate the service when the complainant fails to pay the subscription amount. But the same has not been substantiated in any way. The 1st opposite party contented that they have got every right to deactivate channels without issuing notice to the customers as per the terms and conditions in the agreement entered into the customers and service provider. The same contention is without any right to do so since the rule of law prevails which disentitles them to proceed further if allowed would cause catastrophic consequences which can not be allowed by any stretch of imagination. The unilateral discontinuation of the two important channels that too without issuing notice to the complainant amounts to deficiency in service on the part of the opposite parties to which they are answerable. Since the 1st opposite party expressed their inability to provide the specified channels due to the change of plat form of Doordershan the further direction to the 1st opposite party to provide the same is unsustainable in law because the same is only due to inadequacy in service. In that case a direction to the opposite parties to refund the price of the dish T.V. with interest at the rate of 12% p.a. to the complainant is enough to abate the agony of the complainant
7. Point No. iv. A consumer is entitled to get the services as promised. A lack in which would definitely calls for compensation which has been proved in this case. We fix it at Rs. 5,000/- not to mention which includes the costs of the proceedings.
8. In the result, we partly allow the complaint and direct as follows:
i. The opposite parties shall jointly and severally refund Rs. 3,250/- to the complainant with interest at the rate of 12%
p.a. from the date of receipt till realization.
ii. The complainant is directed to return the dish T.V. erected at
his premises to the opposite parties simultaneously at the
cost and carriage of the opposite parties.
iii. The opposite parties shall jointly and severally also pay Rs.
5,000/- to the complainant towards compensation and costs
of this proceedings for the reasons stated above.
The above said order shall be complied with within a period of 30 days from the date of receipt of a copy of the order failing which the compensation amount shall carry interest @ 12% p.a. till realization.
Pronounced in the open Forum on this the 30th day of January 2013.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of letter
Opposite party’s Exhibits : : Nil
