Dish TV India Limited, FC-19, Sector 16-A, Film City, Noida (UP),– 201 301, through Mr. Sopan Ghosh, Manager-Legal.

                                                                                                .…Appellant

                                                Vs.

1.       Hanny Gandhi resident of House No.2234, Sector 21-C, Chandigarh – 160 022.

2.         Mr. Vipin, Head Smart Services, House No.6 (Basement), Sector 16-A,          Chandigarh – 160 016.

                                                                                                …. Respondents

 BEFORE:    JUSTICE SHAM SUNDER, PRESIDENT

                        MRS. NEENA SANDHU, MEMBER

Present:          Sh. Manish Jain, Adv. for the appellant.

                        Respondent No.1 in person.

                        Respondent No.2 already ex parte.

 MRS. NEENA SANDHU, MEMBER

      This is an appeal filed by the appellant/Opposite Party No.1 against the order, dated 28.12.2011 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as District Forum only) vide which, it allowed the complaint in the following manner:-

“13.  In the light of the above observations, we feel that the present complaint succeeds against the opposite parties and we direct the opposite parties to refund the amount of Rs.13,020/- along with interest @8% p.a. from the date of respective deposits till it is actually paid. The complainant is also awarded Rs.5,000/- as compensation on account of mental agony and harassment. She is also awarded costs of litigation to the tune of Rs.5,000/-.

14.   The above said order shall be complied within 30 days of its receipt; thereafter, the opposite parties shall be liable for an interest @18% per annum on the aforesaid amount except for the cost of litigation.”

2                                Briefly stated, the facts of the case, are that Complainant, allured by the advertisement of opposite party No.1, in print and electronic media and assurance given by them of quality uninterrupted services, purchased a suitable antenna for the Dish TV from M/s. Paras Traders, SCO No.75, Sector 30C, Chandigarh on 7.8.2008 for a sum of Rs.800/- vide Invoice No.514. It was stated that the engineer of the   Opposite Parties installed antenna on 9.8.2008 and the complainant paid him Rs.3090/- at that time..  It was further stated that the complainant wanted to avail of the same service on another TV Set, in her household, and, as such, one more connection under the name ‘Child Connection’ was subscribed, on 17.9.2008 for a period of 10 months and a payment of Rs.2990/- was made. It was further stated that the said Set Top Box provided by opposite party No.2, had some inherent problem, and did not become operational immediately. On repeated requests, it could become functional only after 20.9.2008, and that too on the Demo Set Top Box, used by the technicians of opposite party No.2. It was further stated that the opposite parties, after having taken full payment of the second connection, took away the new Set Top Box against receipt No.47307 dated 20.9.2008 and installed a Demo Box. It was further stated that the demo equipment was in a deplorable condition and took signal from a limited buttons, on the remote control and despite assurance by the   Opposite Parties, the same was not replaced by them, for almost two months. It was further stated that only when she asked for disconnection, the   Opposite Parties, installed the new set of box on 15.11.2008 and assured her that 2 months viewership would be extended on the second connection. It was further stated that despite 12 months validity period of the first connection and the extended two months viewership on the second connection, the Opposite Parties, arbitrarily disconnected both the connections on 1.8.2008 prior to the expiry of validity period, without any notice or intimation and she was forced to pay a fee of Rs.100/- as penalty for a period of just five days gap, and that too, for no fault on her part. It was further stated that both the connections were renewed w.e.f. 6.8.2009 and an amount of Rs.5700/- was paid. While subscribing for these connections, an additional Ala Card Recharge Benefit Scheme was offered and it was clearly mentioned that the said connections would continue for more than 12 months time. It was further stated that an SMS was received by the complainant on her mobile phone disclosing the next recharge date as 14.9.2010. But she noticed on VC No. 01506387580, that the due date for recharge was shown to be 18.6.2010, prior to the actual period of 14.9.2010.To avoid any inconvenience she visited opposite party No.2. but instead of addressing her grievance, they totally deactivated one connection on 21.6.2010 and the second one on 23.6.2010, without any notice or intimation, whereas she was entitled for a continuous uninterrupted viewing of the channels up to 14.9.2010. It was further stated that this illegal, arbitrary and unjustified act of the   Opposite Parties amounted to deficiency in service, indulgence into unfair trade practice and caused mental agony and physical harassment to the complainant. Hence this complaint was filed.         

3                                Reply was filed by Opposite Party-1, wherein, it took up preliminary objections, with regard to the maintainability of the present complaint as the agreement, between the complainant as well as opposite party No.1, contained an arbitration clause and, as such, any dispute between the parties was to be dealt by the Arbitrator only. It was stated that the complainant made payment to Opposite Party No.2, for recharge of his package but Opposite Party No.2, failed to send correct request to the answering Opposite Party, for recharge of the pack of the complainant. Hence Opposite Party No.1, was nowhere involved in the deficiency, in service. It was further stated that it was the duty of opposite party No.2, to intimate opposite party No.1, about the activation of different subscriptions as demanded by the complainant and, as such, if there was any delay or incomplete information made available to opposite party No.1, it could not be held liable for the actions of opposite party No.2. It was further stated that Opposite Party No.1 provided complete services and full benefit of the packages, taken by the complainant, and also full support as and when required. It was further stated that at no point of time, the complainant ever made any request or complaint to opposite party No.1. It was further stated that the complainant was continuously in touch with opposite party No.2, for all her requirements of renewal of subscription and the replacement of STB. The Demo STB was also provided by opposite party No.2, so as to keep the connection running. It was further stated that there was no deficiency, in service, on the part of  Opposite Party No.1 nor it indulged into unfair trade practice. The remaining allegations were denied, being wrong.

4                    Despite due service, none appeared on behalf of Opposite Party No.2, hence, he was proceeded against ex parte vide order dated 28.9.2010.

5                    The parties led evidence, in support of their case.

6                    After hearing the complainant in person, Counsel for Opposite Party No.1, and on going through the evidence and record, the District Forum allowed the complaint, as stated, in the opening para of this order

7                    Aggrieved by the order, passed by the District Forum, the appellant/Opposite Party No.1 has filed the instant appeal. 

8                    We have heard the Counsel for the appellant, respondent No.1 in person,  and, have perused the record, carefully.

9                     During the course of arguments, the complainant sought recall of order dated 7.3.2012, passed by this Commission, vide which, the application for condonation of delay of 9 days as per the office report, in filing the appeal, was allowed and the
delay was accordingly condoned. However, in view of the judgment passed by a three Judge Bench of the Hon’ble Supreme Court of India in case of Rajeev Hitendra Pathak and others vs Achyut Kashinath Karekar and another IV(2011)CPJ 35(SC), this Commission has no power to review/recall its own order. Therefore, this contention being contrary to the principle of law, laid down, in the aforesaid case, is rejected.

10                            The Counsel for the appellant, assailed the order of the District Forum on the ground that there was no deficiency in rendering service, on the part of the appellant, as the complainant had enjoyed the services for one year, and then got converted it into individual connection. It was further submitted that the complainant paid the subscription charges for one year, in advance, which clearly showed that she was totally satisfied with the services provided by the appellant. It was further submitted that the complainant from the very beginning had been approaching Opposite Party No.2, for redresssal of her grievance, and the appellant could not be held responsible for the same, as she never complained to the appellant.  It was further submitted that, reduction in subscription period was also due to mis-communication between respondents No.1 and 2, as the appellant activated the service as per the request received from Opposite Party No.2.  He further submitted that the complainant had paid a sum of Rs.12580/-, but the District Forum erred in directing the refund of a sum of Rs.13,020/-.

11                The complainant on the other hand, submitted that she opted to avail of the services provided by the appellant/Opposite Party No.1, and accordingly submitted the signed Subscription Application Form (for short SAF) and on the basis thereof, connection in question was installed by Opposite Party No.2, who is authorized agent/representative for the sale/franchises of Dish TV India on 09.08.2008, to whom the complainant paid the subscription fee of Rs.3090/-. She further submitted that on 17.09.2008, another connection was taken under the scheme named as “Child Connection” by paying Rs.2990/- (Annexure C-3), for a period of 10 months.   As per the complainant, she could not get the uninterrupted service as assured by the Opposite Parties, since the day of its installation, due to which she had to make frequent complaints to Opposite Party No.2 from time to time.  As per the complainant, on 06.08.2009, she paid the renewal fee of Rs.5700/- vide Annexure C-6  for both the connections. While subscribing for these connections an additional Ala Card Scheme was offered, wherein it was clearly mentioned that the said connections would continue for more than 12 months provided the request for activation must be made within 15 days of recharge. But OP No.2, despite knowing this fact fully well, failed to make request for activation within 15 days of recharge, and OP No.1, abruptly disconnected the connections, without giving her prior information/notice. Therefore, both the   Opposite Parties  were deficient in rendering service.

12                            After giving our thoughtful consideration, to the contentions advanced by the parties, and on going through the record, we are of the considered opinion that the appellant/Opposite Party No.1, was definitely at fault by disconnecting the connection before the due date, without giving any notice or prior intimation. Otherwise also, Opposite Party no.1 being the principal is responsible for the act and conduct of its agent i.e. Opposite Party No.2. Since the services provided by the   Opposite Parties to the complainant were not satisfactory right  from the very beginning , she vide e-mails C-10 (colly) dated 18.9.2008, 20.9.2008, 23.9.2008, 24.9.2008, 7.10.2008, 8.10.2008 and 23.10.2008, sent to them, repeatedly requested them to discontinue the add-on connection and refund the money. Even the set top box provided by the Opposite Parties for the Dish Connection was faulty. On complaints having been made by the complainant again and again, Demo top set was provided by the technician of the   Opposite Parties, after taking away the new set-top box of the second connection of the complainant. It was only after the complainant asked for the disconnection of the second connection, that a new set-top box was provided on 15.11.2008, by the   Opposite Parties. Even it was proved that the first connection of the complainant was disconnected by the   Opposite Parties, before the expiry of the period of validity. Not only this, even before the expiry, of the enhanced two months viewership of the second connection, the same was also disconnected, by the   Opposite Parties arbitrarily on 1.8.2008. After payment of penalty, the connections were got renewed. Later on, some channels, on both the connections of the complainant, were blocked by the   Opposite Parties, arbitrarily. All the aforesaid acts of the   Opposite Parties amounted to complete deficiency, in rendering service and indulgence into unfair trade practice. The District Forum was also right in holding so.   

13                 However, we find merit in the contention of the Counsel for the appellant that the complainant had paid Rs.12580/- which fact is evident from the receipts, C-1, C-2, C-3, C-6, attached with the complaint. Therefore, the complainant was only entitled to the refund of Rs.12580/- . The order of the District Forum is modified to this extent.

14                The District Forum granted interest @8% P.A. from the respective dates of deposits. The complainant used both the connections for about one year, though she was not satisfied with the services provided by the   Opposite Parties. The complainant has already been held entitled to the refund of the amount of Rs.12580/- as subscription and installation charges, for deficiency in rendering service by the   Opposite Parties. In these circumstances, respondent No.1/complainant, is held entitled to interest @8% P.A. on the amount of Rs.12580/-, from the date of filing the complaint i.e. 17.8.2010, and not from the respective dates of deposits. The order of the District Forum is modified to this extent also.  

15                The penal interest @18% P.A. granted by the District Forum, in our considered opinion, is highly excessive. In our considered opinion, the penal interest, if granted @10% P.A. from the date of default, as mentioned in para No.14 of the impugned order dated 28.12.2011, till realization, shall be fair, reasonable, and adequate. The order of the District Forum is modified to this extent.

16                            For the reasons mentioned above, the appeal is partly allowed with no order as to costs, and the order of the District Forum is modified to the extent, as indicated above. Remaining part of the impugned order shall remain intact.

17                            Copies of this order be sent to the parties, free of charge.