By Sri. MOHANDASAN.K, PRESIDENT

1.Complaint in short is as follows–

        The complainant is the customer of Dish TV and his customer ID is 49890940.On 07/08/2018, he recharged Videocon D2H for Rs. 199/- through Paytm wallet. But the amount was not available in Videocon account and so the connection was disconnected. The complainant received recharge successful message from Paytm and the amount was deducted from the Paytm Wallet account. The complainant usually recharging through Paytm wallet.   But this experience was first time. The complainant lost the money and so he contacted both opposite parties through the phone as well as Email. The opposite parties rejected the complaint. The complainant produced documents in support of his claim and he prays for appropriate remedy.

2.          On admission of the complaint notice was issued to opposite parties.  The first and second opposite parties filed version. 

3.        The first opposite party submitted the fact that Videocon D2H Limited has been merged with Dish TV India Limited and Videocon D2H limited is not in existence. The same was came in to force on 22/03/2018. The version for D2H Limited is filed by Dish TV India Limited. The opposite party submitted that there is no cause of action and the complainant approached this Commission without clean hands.  It can be seen from the complaint that the complainant availed the services and enjoyed the service still 21/08/2018.  The complainant enjoyed the long duration of the services and recharged its viewing card when it was due and it was kept connected with the services of the opposite party, only because of good, seamless and consumer friendly services which is self-explanatory that the complainant had no grievances nor any complains of deficiency of service.  If he had faced any deficiency in service, he would have chosen to get the services disconnected long back and he would not have continued enjoying the service till August 2018. 

4.       The opposite party submitted that they are engaged in providing world class viewing experience to its customers and upholding the interest of its subscribers in its priority and prime objective. The opposite party diligently provided the complete service to the complainant and thus cannot be held liable for any deficiency in services. 

5.      The opposite party  submitted the recharged process  and  consequent payment confirmation  that is followed thereafter,  in order to  appreciate  the issue in the complaint that is (a) when a Subscriber/Customer intends to recharge its subscription, it does through website by entering its  VC No,  amount  and payment mode like Credit card, Debit card, Net-banking, UPI & wallet,  (b) in furtherance of its recharge process,  an order  ID is generated for the same  on respective Payment  Gateway Vendor Site (Paytm) and an automated/system generated confirmation, with regard to customer’s payment, is sent to the answering opposite party  on real time basis by the Payment Gateway Vendor(Paytm); (c) the opposite party,  after the Subscriber/Customer payment is received,  updated the customer’s ID and generates the billing against  the  Viewing Card Number (VC) on real time  basis ; (d) it is further pertinent to mention  herein  that  if the payment  made by the Subscriber/Customer does not get successful in real time, then the same is updated manually against the VC within 48 hours of receipt of such confirmation from respective Payment Gateway Vendor (Paytm); (e) if any payment which becomes unsuccessful due to any reason  whatsoever, is auto refunded  to the subscriber/customer either by Bank or Payment Gateway Vendor within a period of four  to seven days; (f) In any case,  the answering opposite party  does not collect or receive the subscriber’s payment  made on line ,  against  recharge to its  account  directly,  the successful payment so collected  against the recharge, the Payment Gateway Vendor (Paytm) transfers the amount to the answering opposite party’s  Bank within 48 hours  and the same  gets  settled  within three working days as per the Bank’s  Turn Around Time (TAT).  The complainant herein not given the payment to the opposite party directly and so the complaint is to be dismissed on that ground alone. The opposite party also submitted that the recharge amount so collected is transferred by  Payment Gateway Vendor (Paytm) successfully,  a successful transaction report is downloaded  from the dash board  of Payment Gateway Vendor (Paytm) site  and  the same  is matched with all  auto updated transaction made in previous day.  Any transaction which is successful in Payment gateway vendor’s report but not updated in answering  opposite parties’ account/system, the same is updated manually within 48 hours against subscribers/ Customer’s VC and billing is also generated by system on immediate basis.  It is submitted that during the reconciliation of the accounts of Payment Gateway Vendor (Paytm)  with that  of the  answering opposite party , if it is found  that any amount  against any particular viewing card have not been received  by or  transferred to the answering opposite party’s  account, an outstanding is raised against the customer  ID/Viewing card for the  viewing services  already  given to the customer and  the same is  adjusted  when the subscriber/customer gets  its  VC recharged.  The complainant herein had recharged or Rs.199/- on 07/08/2018, the complainant meanwhile, raised a complaint against the recharge, the Payment Gateway Vendor (Paytm) debited the amount of Rs. 199/- from the consecutive payments to be transferred to opposite party. Hence the submission of opposite party’s that the complainant has not made a party to the Payment Gateway Vendor (Paytm) in the complaint which is a necessary for the disposal of the complaint.  Since through which the complainant has made its payment.   The opposite party herein  had been informed about  receipt of the payment  from the complainant  through an auto generated  report from  Payment Gateway Vendor (Paytm) while the actual payment was not credited  into the account of answering opposite party and consequently the Viewing card (VC)  of the customer  could not be  updated  and the complainant,  meanwhile, raised  a complaint,  the Payment Gateway Vendor (Paytm) started the process of charge back and debited Rs. 199/- from the opposite party .

6.      The opposite party submitted that every subscriber of the opposite party is a valuable customer and so with the complainant as a customer/subscriber, who   is a valuable subscriber of opposite party’s DTH brand Videocon D2H having DTH connection bearing customer Id No. 42682131265.  The opposite party admitted that the complainant had a Videocon D2H connection with customer Id bearing No. 42682131265 installed at his residence of complainant. The opposite party denied that  there is unfair trade  practice  on the part of opposite party, has given deficient service with regard to the amount of Rs. 199/-, caused  any  inconvenience  or mental harassment  or agony to the complainant .  The opposite party submitted  that they are  committed to  extending  its  uncompromising  high quality  services  to its  subscribers/customers  and also  to the complainant.  The opposite party submitted that the complainant has not filed any Bank Account Statement as stated in the complaint.  The complainant is bound to file Bank Account Statement duly stamped from the concerned Bank for the period from the date  of recharge and  till the date,  the complainant were communicated  about the  reversed payment.  The opposite party contented the complainant has not made a party to the Payment Gateway Vendor (Paytm) in the present complaint, through which the complainant has made its payment.  The opposite party denied that  the complainant  has faced any harassment  from the opposite party  and the complainant  is not  at all entitled to any relief  whatsoever  from the Commission  and the complaint is liable to be  dismissed with exemplary costs,  in the best interest of justice.

7.    The 2^nd opposite party filed version stoutly opposing the averments and allegations in the complaint.  The complaint is baseless, frivolous, and deserves to be dismissed. The opposite party submitted that they are the owner of the Website www.paytm.com along with the mobile application named “Paytm”.  The opposite party  inter alia  provides  platform  for  online payment solutions  through  its  website  www.paytm.com or app and  facilitates listings /bookings  by  aggregators directly and /or through its merchants. The opposite party offers  certain digital products  which facilitate  the purchase of  prepaid recharges  for mobile,  DTH, toll  and data  card  as well as  purchase of  movie tickets, bus tickets, hotel reservations,  flight tickets and purchase of  tickets to  amusement  or theme parks etc. 

8.      The submission of the complainant herein is an abuse of process of law and is not maintainable since the complainant has approached the authority by suppressing the material facts.  The complainant has made misconceived and baseless allegations of deficiency in service without any documentary evidence in support of the allegations made in the complaint.  The opposite party submitted that the present complaint stands on the plinth that complainant recharged his Videocon D2H with an amount of Rs.199/-. But despite recharge  being successful, his D2H was disconnected  due to   no  balance  and  the complainant alleged  the said amount of Rs. 199/-was not refunded  to the account of complainant despite waiting  for a significant period of  time.  The opposite party is submitted that at the beginning of the proceedings,   the complainant made only Videocon D2H that is opposite party No.1 as a party. But later as on 07/12/2018, an application was moved to make opposite party No.2 as a party in the proceedings. 

9.      The opposite party submitted that www.paytm.com provides only online market place platform which facilitates the aggregator that is opposite party No.1 in this complaint to display/list all such listing /bookings on opposite party No.2 mobile application and website.  It is submitted that all the listing of DTH recharge  and etc has been provided  by opposite party No.1  directly  and the role of opposite party No.2 is limited to  provide  only online platform  to its  customers including  prepaid charges  in relation to DTH.  The opposite party No.2 as stated  is only  as an intermediary  as defined  under Section 2(w) of the Information Technology Act 2000 and  is exempted by virtue of “Safe Harbor” Clause enshrined under  Sec 79 of  IT Act 2000 from liability for third  party information, data and communication  link made available or hosted by it.   It is submitted that   the Hon’ble Supreme Court of India has also confirmed the position in law that under Section 79 of the IT Act, an intermediary is exempted from any liability arising out of any objectionable listing put on the Website.  The 2^nd opposite party  is an intermediary  as defined  under section 2(w) of Information Technology  Act 2000 and is exempted from  liability for third party information, data communication  link  made available  or hosted by it  by virtue  of “Safe Harbor” Clause implicit within the   available or hosted by it  by virtue of  “Safe Harbour” clause  implicit within the contours  of Section 79 of IT Act 2000.  It is evident from section 79 of IT Act 2000 that the issue of claimant in respect of DTH recharge lies solely with first opposite party and the 2^nd opposite party have no any liability. 

10.       The complainant  raised  his grievances  to the opposite party  No.2   only on  07/08/2018 for which  2^nd opposite party on  no fault on its  part  after following with opposite party No.1 communicated to the complainant through email dated 18/08/2018 that the said DTH recharge transaction has been successful. 

11.     The opposite party submitted that the complainant has not come to the authority with clean hands and approached with suppressed material facts with a view to claim wrongful gains from2^nd opposite party. The 2^nd opposite party though having   no fault or liability on its part for just adjudication of the complaint, requested first opposite party through email dated 07/01/2020 to share the status of the said DTH recharge transaction and first opposite party on receipt of the email communicated 2^ndopposite party through email that the said DTH recharge has been successful. The 2^nd opposite party submitted that there is no prima facie case against the opposite party, liability, if any, lies with Videocon D2H that is first opposite party.  The opposite party also submitted that the claim of the complainant towards compensation is hypothetical and based on whims and fancies.  The opposite party quoted the decisions of the Hon’ble Supreme Court, that compensation is just equivalent for loss of goods or services suffered by a person and compensation should not be a bonanza or a source of profit.   It is also submitted that a claim for compensation has necessarily to be based on a finding of a loss or inquiry and has to be correlated with the extent of loss or injury.  Hence the prayer is, the 2^nd opposite party is not a necessary party in the proceedings and so strike out the name of the opposite party No.2 from the complaint and dismiss the complaint with cost. 

12.       The complainant and the 2^nd opposite party filed affidavit and documents.   The documents on the side of complainant marked as Ext. A1 to A5. Ext. A1 is Screen shot of mobile phone regarding payment made through Paytm wallet. Ext. A2 is copy of email message dated 08/09/2018 revealing recharge to the Videocon was successful.  Ext.A3 is Screen shot of Videocon DTH order successful, Ext.A4 series are communications issued by Videocon on receipt of complaint informing that the defect will be resolved. Ext.A5 is copy of notice sent by complainant to customercare@d2h.com dated 07/09/2018 (5 Series). The opposite party filed documents and they are marked as Ext.B1 to Ext.B3. Ext.B1 is copy of authority letter issued by Paytm dated 21/10/2019, Ext. B2 is copies of email communications in between complainant and the opposite party, Ext. B3 is copy of email communication by the first opposite party to the complainant.

13.      Heard the complainant and opposite parties, perused affidavit and documents.  The following points arise for consideration:-

1. Whether there is deficiency in service?
2. Relief and Cost?

14.Point No.1

         The definite case of complainant is that, he is a customer of Videocon Dish TV and his customer ID was 49890940, he remitted 199/- rupees to the Videocon D2H on 07/08/2018 through Paytm wallet.   Though an amount of Rs. 199/- transferred from his account to the account of Videocon D2H  and which was shown successful,  but his connection was disconnected stating  that no payment. He was usual consumer of Paytm wallet and he used to remit the transaction through Paytm wallet.   The complainant produced Ext. A1 to A5 documents which establishes the claim of the complainant that he paid an amount of Rs.199/- on 07/08/2018.  Ext. A2 is an email communication that recharge of 182825419 with Videocon D2H against the Id 5750832516 it has been successfully process. Ext. A3 also a printout stating recharge of Videocon d2h DTH successful, Ext. A4 is printout of details   from the mobile. Ext. A5 is a letter issued by complainant to the opposite party as an ultimatum that if the problem not solved the soon he will filed complaint against opposite party.  All these documents categorically prove the genuine grievance of the complainant and the earnest efforts made by the complainant to resolve the issue.   But the first opposite party filed version but no affidavit is seen filed.  The first opposite party has elaborately explained how to remit the subscription and process for activation of the same.  But there is no specific denial that the complainant has not remitted the amount in dispute.  But the averment is that to implead the 2^nd opposite party as party in the proceedings to ascertain the correct facts of the transactions. The complainant as per the contention of the first opposite party impleaded the Payment Gateway Vendor (Paytm) in the proceedings. The 2^ndopposite party entered appearance and filed version as well as affidavit. The specific contention of the 2^nd opposite party is that we are not a necessary party in the proceedings and there was no fault on their side.  On receipt of complaint from the complainant on 07/08/2018, the 2^nd opposite party contacted the first opposite party through email and it was reported that the DTH recharge transaction was successful.  The communication also was forwarded to the complainant and so if any liability which lies with Videocon D2H according to 2^ndopposite party.  Ext. B2 and B3 document produced by the 2^nd opposite party reveals the transaction of Rs. 199/- was successful.   The 2^nd opposite party made earnest effort to resolve the issue of the complainant which is evident from Ext. B2 document.  So, it is evident from the documents that the grievance of the complainant was genuine and there was deficiency in service on the part of the first opposite party. 

15.Point No.2

           The complainant herein was subscriber of first opposite party and he was availing service of the first opposite party for a long period. He was remitting his subscription through the Paytm wallet.  But when he remitted an amount of Rs. 199/- on 07/08/2018 it was not accounted by the first opposite party and his connection was disconnected. He immediately contacted the first opposite party, but the first opposite party could not redress the grievance. The complainant made several communications but all was in vain. At last, the complainant send email on 07/09/2018 expressing the displeasure to the opposite party call his efforts turned futile and as a last resort approached this Commission to redress the grievance.  So we find that  the complainant is entitled a reasonable  compensation  on account of deficiency in service  and thereby caused  inconvenience  hard ship  and mental agony  caused to the complainant. It can be seen that he made earnest effort and spend sufficient time to resolve the complaint amicably.  Hence he prayed a total compensation of Rs. 1,00,000/- Which includes connection charge of Videocon and expenses to transfers as HD connection Rs.3000/-, Videocon recharge Rs.199/-, Airtel new connection charge Rs.2500/-, telephone call expenses Rs.600/-, Email printing cost Rs.541/-, Postal order cost Rs.110/-, Postal expenses Rs.50/- and compensation on account of inconvenience, hardship and mental agony as Rs. 93,000/-.  Considering the entire aspects, we allow this complaint as follows: -

1. The first opposite party is directed to pay Rs. 50,000/-(Rupees Fifty thousand only) to the complainant on account of deficiency n service and there by caused hardships, inconveniences, mental agony and other financial expenses.
2. The first opposite party is also directed to pay Rs. 5000/- (Rupees Five thousand only) as the cost of proceedings.

        The first opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the above said entire amount will carry interest @ 9% per annum from the date of order till realization.