ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under Section 12 of the Consumer Protection Act 1986 for the deficiency in service and to pay a sum of Rs.1,743/- towards no service given to the complainant and Rs.3,500/- for the amount spent to get the fresh TV connection, further OPs to pay Rs.10,000/- towards legal notice charges and cost of the complaint and further pay Rs.50,000/- towards damages for mental agony and delay caused to the complainant along with interest and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The Brief facts of the complaint is that the Complainant  Is a subscriber of  OP company and has obtained two cable network connection   over the years from the OP, one of which is connected to the house where his family resides and another to the ground floor of same building  where his mother lives.  Complainant’s  Hathway account is registered under account No.1025308378 and same is connected with mobile  No. 9448394786 and email id:ttsomasundr17@gmail.com,.  Further the OP company provided two “Set Top” boxes as primary No.VC 000025941410 and secondary No.VC000073677817. Since the complainant is a  member, he has been paying Rs.650/- per month as service charges to the OP company regularly. Since the complainant has paid his subscription up to 18^th  February 2019, and he wanted to renew  for further month 19.2.2019 to 18.3.2019. Instead of receiving subscription amount OP has given an option of selecting the required channels through filling a online plan request form as instructed in the said app.  Accordingly, complainant filled the form and submitted and the same was accepted and generated through app the amount shown was Rs.529.82.  Though it was shown Rs.529.82 the complainant paid Rs.700/- through online.

3.     Even after acceptance of subscription amount which was successfully debited for the period up to 18^th march 2019,  OP company stopped broadcasting TV channels except Government relay.  Further complainant has stated that there is another eight days of subscription amount lying with the OP company for the period of February 2019. Thereafter, complainant again selected the Hathway Bouquet form and paid Rs.393/- through on line on 12.2.2019, in total Rs.1,093/- has been paid to the OP’s account.  Collecting  amount from the customer and not proving service is a clear case deficiency of service.

4.     It is contended that the Complainant made several phone calls  and messages to the representatives of OP company to resume TV channels.   But OP companies representative did not provide proper response to get rid of this issue. Ultimately complainant got issued legal notice to the Ops.  On receipt of legal notice dated 07.03.2019,  the Branch manager and other staff came to the complainant’s office and heard  the grievances of the complainant. After hearing difficulties, the branch manager assured that the problem will be resolved as soon as possible, further, he was also assured  that   on receipt of  approval from the Mumbai corporate office, immediately  connection  will be  resumed.  Even after due assurance from the OP’s  officials, they have not resolved the issue. Hence complainant was forced to opt for another Dish connection on 24.02.2019 on paying another Rs.3,500/- from Tatasky company.

5.     Therefore the Ops have utterly failed  to give proper and timely services to the complainant, thereby Ops have committed deficiency in service, hence they are liable to reimburse the loss incurred by the complainant. Hence complainant  issued  a legal notice  calling upon the  Ops  to compensate the losses incurred by the complainant.  Inspite of receiving legal notice, Ops have neither replied nor complied the demand made by the  complaint.  Hence this complaint.

6.     Upon issuance of notice, OPs appeared through their counsel filed its version. 1^st OP Hathway Cable and Datacom Limited is one of India’s leading internet service  provider and not a cable T.V service provider.  Cable TV service is provided by M/s. Hathway Digital Private Limited, who has not arrayed as OPs to this complaint On this ground alone, it is contended that, the above complaint liable to be dismissed for non-joinder of necessary party.  Further submitted that  as per the guidelines issued by Hon’ble Telecom Regulatory Authority of India all the cable TV subscribers were mandated to move to a new Tariff/Regulatory regime recorded by way of the Telecommunication (Broadcasting and cable) services interconnection (Addressable systems) Regulations, 2017. The Telecommunication (Broadcasting and Cable) services (Eight) (Addressable Systems) Tariff order 2017  and the Telecommunication (Broadcasting and Cable ) Services  standards of quality of service and Consumer  Protection (Addressable systems), Regulations 2017 (“Regulations”).

7.     It is contended that, 1^st OP states that by way of press release dated 28^th December 2018, TRAI announced  the implementation of new regulatory regime from 1^st February 2019, apart from this,  other directive/provision are also mandatory to the customer  for choosing channels. Again TRAI has called press meeting on 12^th February 2019 addressing to the public at large to give clarification/caution to the subscribers with regard to the unwarranted switch off and inconveniences which will cause   to the subscriber and also explained how to avoid such unwanted issues. At this press meet, the option for choosing channels  by the subscriber was also extended. Further the distribution platform operators (DPOs) were given an option to shift the subscribers to  Best Fit Plan , in case,  the subscriber has  failed to exercise his option to choose channels.   Further, the said option was given only to the subscriber who failed to exercise their choice of channels and not for those who intentionally did not want to opt the  channels as per the press release dated 28-12-2018 and 12-02-2019.

8.     In the present case the complainant has failed to select the channels of his choice even though he has paid subscription amount of Rs.700/- on12.02.2019 and such an option should   opt only at the time of making payment. Thus, due to failure on the part of complainant to choose the channels he was shifted to DD mandate channel and the amount paid by him were accounted accordingly.  Further the complainant without verifying his pending wallet balance again paid Rs.393/- to  his account number 1025308378, hence, there is  gross negligence on the part of the complainant in selecting the list of channels of his own choice as per the TRAI guidelines. The cable T.V and Broadcasting service have shifted to a new regime in compliance with the guidelines of TRAI and accordingly Hathway Digital Pvt. Ltd was acting well within the parameters of the guidelines set by the TRAI for the provisions  of signals of TV channels to subscribers.  OP company  never interrupted the service and  provided the service as per the complainant’s choice only. Further complainant has failed to contact customer support team to obtain proper guidelines to select his own TV channels but, he has not done so. It is his part of  mistake.  Hence there is no negligence on the part of Ops and  deserve to be dismissed. 

9.     In order to prove the case, both parties filed their affidavit evidence examined themselves as PW-1 and RW-1 and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

10.   Our answers to the above points are:-

POINT NO.1 :   In the Affirmative

POINT NO.2 :   Partly in the affirmative.

                        For the following.

REASONS

POINT No.1:-

11.   On perusal of the complaint, version evidence and documents of both side, it is clear that  the Op No.1 is multi-System Operator  and distributor of cable networks in various parts of the country and has branch office in Bangalore also.   The complainant availed cable service from the OPs. Since the complainant is a  member, he has been paying Rs.650/- per month as service charges to the OP company regularly. Since the complainant has paid his subscription up to 18^th February 2019, and he renewed from 19.02.2019 to 18.03.2019. Instead of receiving subscription amount OP has given an option of selecting the required channels through filling an online plan request form as instructed in the said app.  Accordingly, complainant filled the form and submitted and the same was accepted and generated through app the amount shown was Rs.529.82.  Though it was shown Rs.529.82 the complainant paid Rs.700/- through online. Thereafter, complainant again selected the Hathway Bouquet form and paid Rs.393/- through on line on 12.02.2019, even after acceptance of subscription amount of  Rs.1,093/-   for the period  up to 18^th march 2019  the OP company has stopped broadcasting of commercial TV channels except Government relay.  Complainant made several phone calls  and messages to the representatives of OP company to resume TV channels. But no person from OP company provided proper response to get rid of this issue. Ultimately complainant got issued legal notice to the Ops.  

12.   After receiving notice from the forum Ops have appeared and contended that that Hathway Cable and Datacom Limited is one of India’s leading internet service  provider and not a cable T.V. service provider.  Cable TV service is provided by M/s. Hahway Digital private Limited, who has not arrayed as OP to this complaint, on this ground alone the above complaint may be dismissed. If really Hathway Cable and Datacom Limited wants to justify the above statement, it would discard its  responsibility over the issue raised by the complainant at one stretch but they have not done so,   and it would not have been necessary to  give detailed  objection for the allegations made by the complaint. Further the said Datatcom Limited has not stated anywhere in its objection that they would not have any internal relation with the Hathway Digital Private Limited Company, hence this forum has to draw the inference  that the Hathway Cable and Datacom limited  and Hathway Digital Pvt. Ltd are functioning  under one high level management under one roof as separate entity. Being a sister concern Hathway cable and Datatcom limited could have been transfered the issue to the concerned entity.  Datacom limited has not done so.

13.   Further OP has taken contention that  TRAI has called  press meet and has given the option for choosing channels  by the subscriber was also extended. Further the distribution platform operators (DPOs) were given an option to shift the subscribers to  Best Fit Plan , in case,  the subscriber has  failed to exercise his  option to choose  channels.   Further, the said option was given only to  the subscriber who were failed  to exercise their choice of channels and not for those who intentionally did not want to opt the  channels as per the press release dated 28-12-2018 and 12-02-2019.  In the present case the complainant has paid the subscription till 18^th March 2019 and have not received the coverage of T.V. channels even though the Online Plan Request Form has been filed in accordance with the instructions given in the concerned app. As per the  press conference message from the TRAI the distribution platform operators (DPOs) were given an option to shift the subscribers to  Best Fit Plan.   in case,  the subscriber has  failed to exercise his  option to choose channels. In the present case, complainant also deprived of the opportunity to choose channels, under the circumstances burden is casted on the  DPOs  to shift the subscribers to the best plan without  any interruption in the T.V  broadcast. It is gross violation of TRAI  Regulations.   Hence Ops have failed to provide proper and timely service hence complainant is forced to opt for another dish connection by paying  Rs.3,500/-.  As Such the ops have infringed the subscribers right  and are liable to pay damages for harassment and for deficient service. Accordingly we answer to the POINT NO. 1 IN THE  AFFIRMATIVE.

POINT No.2: 

14.   It is note worthy to mention that, the complainant has paid  subscription amount of Rs.700 + 393 for the period of 19.02.2019 to 18.03.2019  to the O.Ps with an intention to avail uninterrupted telecasting of TV channels. O.Ps  are bound by the terms and conditions as agreed upon. If any reasons, they failed to perform their part of duty, they have no right to retain the money of the complainant. O.Ps failed in their responsibility and the complainant proved not only deficiency in service on the part of O.Ps and whereas O.Ps without refunding the amount to the complainant, amounts to unfair trade practice also.

15.  Under the circumstances, we hold O.P are jointly and severally liable to pay the amounts paid by the complainant i.e. Rs.1,093/- as shown in the Ex.P4 and P5 along with interest at the rate 12% per annum from the date of receipt of amount till payment of the same. Further the complainant has claimed compensation of Rs.50,000/- towards physical and mental harassment. No concrete evidence has been placed in that respect. Inspite of it, having paid the subscription, hoping for the uninterrupted telecasting of T.V channel, they have lost their mental peace, put to mental tension, physical strain and financial loss and disappointment in not able to see their favourite channels. Hence, we are of the opinion that if a sum of Rs.5,000/- towards damages if awarded to the complainant and Rs.3,000/- towards cost of proceedings and litigation expenses, would meet the ends of justice. Hence we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1.  The complaint is allowed in part with cost.

2. OPs are joint and severally hereby directed to pay a sum of Rs.1,093/- to the complainant along with interest at the rate 12% per annum from the date of receipt of amount till payment of the entire amount.

3. Further OPs are hereby directed to pay to the complainant a sum of Rs.5,000/- towards damages for physical and mental strain and Rs.3,000/- towards cost of the litigation expenses.

4. OPs are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this commission within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month f rom the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 7^th   day of AUGUST 2021)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copies of the receipts issued by the OP to complainant.

Ex P2: Copy of the subscription details.

Ex P3: Copy of the online plan request form.

Ex P4 & 5: Copies of the receipts.

Ex P6: Copy of the email of  payment acknowledgment.

Ex P7: Copy of the email of  payment acknowledgment and details.

Ex P8: Copy of the call history details

Ex P9 & 10: Copy of the SMS details

Ex P11: Copy of the legal notice dated 07.03.2019

Ex P12: Copy of the postal receipt and acknowledgments.  

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Ravishankar.M.C, Authorized Signatory

Copies of Documents produced on behalf of Opposite Party/s

Ex R1 & R2: Copy of the press release dated 18.12.2018 & 12.02.2019.

Ex R3: Copy of the receipt dt:12.08.2019.

MEMBER                        PRESIDENT

RAK*