Punjab

Ludhiana

CC/23/266

Rakesh Kumar Singla - Complainant(s)

Versus

M/s Fastway Transmissions Pvt.Ltd - Opp.Party(s)

Munish Gupta

06 Oct 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 266 dated 10.07.2023.                                                        Date of decision: 06.10.2023.

 

Rakesh Kumar Singla son of Sh. Sham Lal, resident of H. No.239-240-XG, Rishi Nagar, backside Kalimata Mandir, Ludhiana.                                                                                                                                     ..…Complainant

                                                Versus

1. Telecom Regulatory Authority of India, Mahanagar Doorsanchar Bhawan (next to Zakir Hussain College), Jawaharlal Nehru Marg, (Old Minto Road), New Delhi-110002.
2. M/s. Fastway Transmissions Private Limited having its Office situated at The Grand Walk Mall, 5^th Floor, Opp. Gurdev Hospital, Ferozepur Road, Ludhiana through its Authorized Signatory vide board resolution dated 12.11.2022.
3. Soni Cable, House No.209-XG, Rishi Nagar, Ludhiana.                                                                                                          …..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Rakesh Kumar Singla with Sh. Munish                                                           Gupta, Advocate.

For OP1                         :         Complaint against OP1 was not admitted vide                                             order dated 15.05.2018.

For OP2                         :         Sh. Abhishek Sharma, Advocate.

For OP3                         :         Service of respondent Soni Cable already                                                    dispensed with vide order dated 27.01.2023                                                          passed by Hon’ble State Commission.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

 

1.                Shorn of unnecessary details, the facts of the complaint are that the complainant obtained a fastway cable connection by paying security of Rs.1,000/- to the authorized dealer of the opposite parties namely Sony Cable, Rishi Nagar, Ludhiana for more than one year. At the time of obtaining the connection, the owner of Sony Cable asked that Rs.1,000/- is the security amount and fastway box installed in the house of the complainant is the property of fastway and the complainant has no right over it. However, the complainant noticed that it was a second hand box and was not a fresh piece. On objection, the owner of Sony Cable asked that you are no one to say to install new box and it is his responsibility to provide problem free services. According to the complainant, in the month of December 2016, the problem arose in the box and it stopped working. The complainant raised a complaint to Sony Cable, who after checking, removed the box on 23.12.2016 by saying that he will come within a day or so but he did not back for a long period of 17 days and even did not respond. After 18 days, the complainant reported the mater to Fastway Broadcast at helpline No.92170-92170 who told that Sony Cable has not reported the matter to them. Rather, owner of Sony Cable is demanding Rs.200/- on account of repair charges, which the complainant not liable to pay as per guidelines of TRAI. The complainant sent a legal notice dated 06.02.2017 to the opposite parties to pay him compensation of Rs.5,00,000/- and to resume his services immediately. On receiving the legal notice, the opposite parties disconnected the other cable connection of the complainant installed in the same premises. The complainant reported the matter on helpline No.92170-92170 where the complainant was told his payment is due. The complainant told them that he had already made payment through cheque then he was told to raise his concern with Soni Cable. However, opposite party No.3 openly proclaimed that as you have sent legal notice to me, now we will meet in the court itself and even did not return the security amount to the complainant, which amounts to deficiency in service and unfair trade practice on the part of the opposite parties. The complainant further stated that he got another legal notice dated 02.03.2017 upon the opposite parties but they did not respond which constrained the complainant to file a consumer complaint title Rakesh Kumar Singla Vs TRAI, Fastway and Soni Cable. However, since after 15.08.2017, the setup box of Fastway connection is not working regarding which the complainant made several complaints but to no avail. The complainant served a legal notice dated 20.09.2017 upon the opposite parties for making a compensation amount of Rs.5,00,000/-. However, the opposite parties disconnected the service from 13.04.2018 but no response was received to the complaints made by the complainant. The complainant has suffered mental pan, agony, harassment and humiliation on account of unfair trade practice and deficiency in service on the part of the opposite parties. In the end, the complainant prayed to issue directions to the opposite parties to pay compensation of Rs.80,000/- along with litigation expenses of Rs.10,000/-. Further the complainant prayed to waive off the service charges that he is not liable to pay any service charges from 15.12.2016 to the date of resuming the service.

2.                The complaint No.280 of 2018, filed by the complainant was allowed exparte by the Camp Court at Ludhiana vide its decision dated 15.09.2022. Opposite party M/s. Fastway Transmission Private Limited preferred First appeal No.1055 of 2022 before the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh which was allowed vide order dated 19.05.2023 vide which the orders dated 23.10.2018 and 15.09.2022 passed by this Commission were set aside. The Hon’ble State Commission further directed this Commission to decide a fresh after hearing the argument and by considering the respective evidence so produced by the parties and further directed to decide the case expeditiously as early as possible preferably within a period of three months as the case was of the year 2018. 

                    Accordingly, on 10.07.2018, Mr. Munish Gupta, Advocate appeared and filed power of attorney on behalf of the complainant. Sh. Gaurav Prabhakar, Advocate appeared and filed memo of appearance on behalf of opposite party No.1 on 18.07.2023 and he further filed power of attorney along with written statement, affidavit and documents on behalf of opposite party No.1 on 28.07.2018. Service of opposite party No.2 Soni Cable has been dispensed with vide order dated 27.01.2023 by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh. 

3.                In its written statement, the appearing opposite party by taking preliminary objections, assailed the complaint on the ground of concealment of the material facts; the complainant being estopped by his own act and conduct; maintainability of the complaint etc. The opposite party stated that it is a private limited company duly incorporated under the Companies Act, 1956 and is engaged in the business of carriage and placement agreements with the broadcasters in relation to cable network. The opposite party further stated that it owns and operates a Cable V network in Punjab and other surrounding areas in the cities of Punjab and its business operations includes receiving signals from the broadcasters of various television channels and diffusing or redistributing such television channels by means of coaxial Cable and/or optical fiber cable and associated equipment to affiliate’s affiliated/controller/franchisee cable network for reception by multiple subscribers and in around the area. The opposite parties averred that there is not a single averment in the complaint against it and all the allegations are pertaining to opposite party No.3 Sony Cable TV who was a local cable operator of opposite party No.2 working in the area of complainant and is responsible for providing services to the complainant as per the agreement dated 28.06.2016 signed and executed by opposite party No.2 and 3. Moreover, there is no principal and agent relationship between opposite party No.2 and opposite party No.3 i.e. Sony Cable TV rather both are working on P2P basis (Principal to Principal).Clauses of the agreement clearly specifies “Scope of Work and along with Rights, Responsibilities and Obligations of Business Affiliate i.e. Sony Cable TV LCO meaning thereby it is the duty of the Sony Cable TV to provide grievance redressal mechanism, Sony Cable TV who was  Local Cable Operator (LCO) shall provide resolution of the technical complaint after the receipt of fault, repair or change faulty accessories and wire or even visit the spot for resolution of complaint. The appearing opposite party stated that the complaint is liable to be dismissed qua it. The opposite party further stated that from the contents of the complaint, it perused that the alleged dispute in hand was relating to set-top box installed at the premises of the complainant by opposite party No.3 i.e. Sony Cable TV and further the complainant alleged that he came to know that the said box was second hand and it was not a fresh piece. The complainant objected the same to Sony Cable TV but it did not install new set-top box and the complainant further alleged that said set-top box stopped working regarding which complaint was made to Sony Cable TV who did not visit the premises of the complainant and even did not communicated his complaints  to appearing opposite party and further demanded Rs.200/- as repair charges. According to the opposite parties all the allegations attributed to opposite party No.3 and there is not a single allegation against it regarding alleged deficiency in service.

                   On merits, the opposite party reiterated the crux of averments made in the preliminary objections. The opposite party has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of legal notice dated 20.09.2017, Ex. C2 to Ex. C4 are the copies of postal receipts and closed the evidence.

5.                On the other hand, the counsel for opposite party No.1 tendered affidavit Ex. RA of Sh. Vishal Sabherwal, Vice President Operations of opposite party No.1 and submitted documents Ex. OP1 is the copy of resolution, Ex. OP2 is the copy of certificate of registration, Ex. OP3 is the copy of memorandum of association, Ex. OP4 is the copy of articles of association, Ex. OP5 is the copy of agreement, Ex. OP6 is the copy of certificate under Section 65-B of Indian Evidence Act, Ex. OP7 is the copy of judgment dated 07.12.2021 passed by this Commission in complaint No.650 of 2018, Ex. OP8 is the copy of judgment dated 16.06.2022 passed by the Camp Court at Ludhiana in consumer complaint No.RBT/CC/17/265 and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and affidavit produced on record by both the parties. We have also gone through written arguments submitted by the complainant.

7.                The complainant claimed himself to be a public spirited person, has been a loggerhead with opposite party No.2 and 3 and filed successive three consumer complaints on 10.04.2017, 07.05.2018 and 25.10.2018, out of which first and third complaint had already been decided while the present one is being adjudicated upon. Following are the grievances which have been raised by the complainant through these consumer complaints with regard to two cable connections and its set top boxes stated to have been installed more than one year from the date of filing of the present complaint:-

(i)      That the opposite parties installed second hand set top box instead of new;

(ii)     In the month of December 2016, the set top box stopped working resulting in removal and taking away of set top box by opposite party No.3 on 23.12.2016 which was reinstalled after 18 days by opposite party No.3 and the complainant paid Rs.200/- as repair charges;

(iii)    After the receipt of legal notice dated 06.02.2017, the opposite parties had illegally disconnected the second cable connection of the complainant installed within the same premises. Even the security deposits were not returned.

(iv)     The complainant served another legal notice and claimed compensation for non-resumption of his services.

(v)      After 15.08.2017, set top box has not been working and the complainant’s repeated requests orally as well as in writing failed to evoke any response.

                   It is evident that the grievance of the complainant essentially pertains to malfunctioning of set top boxes.

8.                The complainant filed the first complaint No.RBT/CC/17/265 on 10.04.2017 and raised grievance listed at serial No.i to iv hereinbefore and made a prayer for compensation of Rs.80,000/- for harassment and litigation expenses of Rs.10,000/- and also made prayer that he is not liable to pay any service charges from 15.07.2016 to the date of resumption of service and claimed waiver from the payment of charges.

                   The Ld. Predecessor of this Commission partly allowed the complainant and dismissed the claim against opposite party No.1. Opposite party No.3 was directed to refund the repair charges of Rs.200/- along with interest @6% per annum from the date of filing the complaint till realization and opposite party No.3 was directed to pay Rs.2,000/- as compensation and Rs.1,000/- as litigation expenses within 45 days from the date of order dated 16.06.2022 Ex. OP8.

                   It is evident that no relief was granted against opposite party No.2.

9.       The second complaint i.e. present complaint pertains to claim of compensation with regard to malfunctioning of set top box after 15.08.2017. The present complaint was filed on 01.05.2018 although this compliant was decided exparte vide order dated 15.09.2022 by the Ld. Predecessor of this Commission but the same was remanded back to this Commission by the Hon’ble Punjab State Consumer Disputes Redressal Commission, Punjab, Chandigarh vide its order dated 19.05.2023 with direction to this Commission to decide the same afresh.

10.              The third consumer complaint No.650 dated 25.10.2018 was also field on the same set of allegations that of the present complaint by claiming compensation of Rs.80,000/-, litigation expenses of Rs.11,000/- and refund of security of Rs.2200/-.

                   The Ld. Predecessor of this Commission dismissed the complaint against opposite party No.1 (Fastway Transmission) but allowed the refund of amount of Rs.2200/- to the complainant along with interest @7% per annum from the date of complaint till actual payment and also opposite party No.2 was further directed to pay compensation of Rs.4,000/- to the complainant within 30 days vide order dated 07.12.2021 Ex. OP1/7.

11.              A close scrutiny of the prayer of the complainant and the relief granted by the Hon’ble State Commission, clearly shows that the relief claimed in the present complaint has already been adjudicated upon by the Predecessor of this Commission on 07.12.2021 vide order Ex. OP1/7. The matter in issue in the present complaint as well as the decided complaint vide Ex. OP1/7 was directly and substantially which has already attained finality. It is settled law that no person can be vexed twice over same cause of action. Although the bare provisions of Civil Procedure Code with regard to resjudicata are not strictly applicable but the principles enshrined in the concepts of resjudicata and estoppel can be invoked so that this piece beneficial legislation may not be misused by some unscrupulous elements. Except the copy of legal notice dated 20.09.2017 Ex. C1 and the postal receipts Ex. C2 to Ex. C4, the complainant has not tendered any other evidence to substantiate his claim  of malfunctioning of set top box. Even when the consumer complaint No.650 of 2018 and complaint RBT/CC/17/265 were decided during the pendency of this complaint on 07.12.2021 and 16.06.2022 respectively, these facts were not brought into the notice of this Commission by the complainant. Rather these were placed on record by opposite party No.2 when the proceedings resumed after the remand of the complaint. It is the bounden duty of the complainant to discharge the initial onus to prove deficiency in service on the part of the complainant but he has failed to discharge the same.

12.               In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

13.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.   

14.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:06.10.2023.

Gobind Ram.