DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.45/2016
Shri Chandra Kumar Bubna, Senior Citizen
S/o Shri Govind Ram Bubna, (67 Years old)
Krishna Kunj, 124/5,
Central Avenue, Sainik Farm,
New Delhi-110065.
….Complainant
Versus
Tata Sky Limited
Regional Off,
North Broadcast Centre,
Tata Communications Complex,
Mandi Rd, Chattarpur, Delhi-110030.
….Opposite Party
Date of Institution : 11.02.2016
Date of Order : 06.02.2018
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
Briefly stated, the case of the complainant is that complainant was having a TATA Sky HD connection under subscriber ID#1000648814 purchased few years back from the OP. The connection had High Definition Box (HD Box) recording option and the complainant was quite satisfied with the facility of recording option and the complainant was also quite satisfied with the facility of recording and other features being provided on that HD Box. In the month of January 2015, the OP did wide spread advertisement both in print and electronic media stating about launch of Ultra High Definition set up box by them and the advertisement highlighted benefits of best of class viewing with UHD box compared to normal HD setup box. The scheme offered by the OP allowed up-gradation from normal HD box to UHD box at Rs. 5991/-. Subsequent to this advertisement complainant made call to the OP company’s call centre to enquire further on the details and they assured the same features as highlighted in the advertisement. It was appraised by the customer care executive of the OP that ultra HD setup box will transmit some Ultra High Definition channels of which contents will have more clarity and ultimate viewing experience which will start with the World Cup Cricket Match and the company will add more channels shortly. OP’s call centre executive advised availability of UHD box with any of their authorized dealer. The complainant proceeded to buy UHD box from OP’s authorized dealer M/s. Gupta Department Store on 15.02.2015 for Rs. 5991/-. The service engineer of the OP installed the UHD box. It is submitted that the old HD setup box with recorded facility with complainant was taken back by the service engineer of the OP after installation of Ultra high Definition set up box. Subsequent to this transaction and to improve viewing experience further for UHD content complainant proceeded to buy a UHD TV for Rs.3,00,000/-(Rs. Three Lakh). Subsequent to that complainant got Ultra High Definition content for few weeks and experienced better viewing quality through new set up box. UHD set up box stopped receiving any UHD contents on the TV. Complainant lodged a complaint with OP via email on 28.09.2015 and the OP responded on 29.09.2015 stating that “there has been suspension of broadcasting facility of Ultra High Definition content till further notice and complainant won’t be receiving any content henceforth till further notice”. Complainant was shocked and felt cheated with such feedback since complainant had invested on UHD setup box and subsequent to that on UHD TV to enjoy his viewing experience. Complainant contacted the OP’s customer care team via email dated 03.10.2015 to refund his UHD set box cost of Rs. 5991/- and replace it with HD set up box with recording facility which he had been using earlier and was given back under upgradation of OP’s scheme but the complainant failed to get any response. Complainant’s demand was legitimate as he was not supposed to pay for something for which he was not to receive the desired content. Complainant sent various emails to the nodal officer of the OP on 09.10.20105, 13.10.2015, 16.10.2015, 17.10.2015 & 23.10.2015 with no response from the OP. Complainant sent a notice-cum-complaint to the Director of TATA Sky at Mumbai address on 07.11.2015 but no reply has been received till date. Hence, the OP is liable for the gross negligence, deficiency in service and unfair trade practice as defined under the Consumer Protection Act, 1986. Hence, the complainant has filed the present complaint for issuing direction to the OP to pay Rs.5,991/- against the purchase price of upgraded setup box; to replace the current UHD set box with the old setup box which was taken under exchange offer; to pay Rs.2,00,000/- for compensation and mental agony and harassment due to deficiency in product and subsequent hardship caused to complainant, to pay Rs.40,000/- against cost of litigation.
OP in its reply has inter-alia stated that the complaint does not fall within the definition of a ‘consumer dispute’ under the Consumer Protection Act, 1986 as there is neither any unfair trade practice adopted by OP nor any deficiency in service being established against OP. It is submitted that in the month of January, 2015, OP advertised the launch of their new UHD 4K Settlement Top Box in India which would be available to all existing as well as new subscribers. The complainant after agreeing to the terms and conditions of up-gradation of the set top box opted to take the new UHD 4K Set Top Box launched by the OP on 15.02.2015 for amount of Rs.5,991/-. It is submitted that “as per the advertisements of the UHD 4K set top box, broadcasted 4 India League matches, 1 quarter final, one semi-final and the final match of the ICC World Cup 2015 in the UHD 4K format and the OP also aired some movies in the 4K format, the details of which are given below:-
Movie Timings Date
Jai Ho & Kick 12PM & 9PM 10th October, 2015
Bajrangi Bhaijan 12.30 PM onwards 11th October, 2015
It is submitted that due to lack of 4K content temporarily suspended the OP suspended the 4K service on channel 400 and channel 550 available on the UHD 4K set top box w.e.f. 01.06.2015. This information was communicated to all UHD 4K set top box subscribers through an SMS and on 4K service channel nos. 400 & 550 and the OP also started to carry a static plate stating that this service has been temporarily suspended. The 4K service would be resumed once more content became available in 4K format or any sporting event became available in 4K format. It is also submitted that the complainant sent an email dated 28.09.2015 to OP asking them to provide UHD content and recording facility on UHD 4K set top box. OP replied to the email stating that the 4K service has been suspended temporarily due to lack of 4K content; that the service would be back once more content is available in 4K format or any sporting event is available for broadcast in 4K format. It is further submitted that the OP is engaged in the business of providing Direct-to-Home (DTH) television services to viewers and has no control over the content which is provided by the Broadcaster/ Producer. OP does not produce the content and has no control over its availability. OP is only a service platform which makes available the content provided by the broadcasters. It is for the broadcasters to create content, including but not limited to 4K content and as and when any of the broadcaster would make any content available in the 4K UHD format, the same would be made available by the OP to its subscribers having a 4K UHD STB. Complainant had sent several emails to the OP but the OP did not respond to all these emails as the issue raised by the complainant was the same and the same had been replied by email dated 29.09.2015. The complainant also contacted the Customer Care associate of the OP on 20.10.2015 for refund of Rs. 5900/- which was denied by the customer care associate of the OP as there had been no fault on the part of the OP. There is no deficiency in service on their part as the grievances of the complainant cannot possibly be addressed by the OP as it is beyond the control of the OP and, hence, the complaint be dismissed.
Complainant has filed a rejoinder.
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Shri Gyaltsen G Barfungpa, AR has been filed in evidence on behalf of the OP.
We have heard the arguments on behalf of the complainant. None has appeared to advance oral arguments on behalf of the OP despite opportunity given in this behalf.
According to the OP, the facility of UHD 4K set top box had been given on 15.02.2015. After the complainant has agreed to the terms and conditions of up-gradation of the set top box for which the OP charged an amount of Rs.5,991/-. However, the OP has not filed the copy of the terms and conditions of any such agreement or contract between the parties.
In our consideration opinion, no sane person would pay Rs.5,991/- for giving some league matches or the ICC World Cup 2015 or three features films in 4K format by spending Rs.5,991/- during span of short period.
We says so because the OP has failed to file the copy of any such agreement or contract containing written the terms and condition of up-gradation of the set top box.
It is admitted fact that the complainant had numbers of request through emails to the OP to refund an amount of Rs.5,991/- and to replace the UHD set top box with the old set top box which was taken under the exchange offer but however, the OP did not pay any huge to his request. Simply on the ground that there was no deficiency in service on their part. In such case, the OP itself cannot play the role of an adjudicator to decide its own case according to its own whims and fencies.
Hence, in our considered opinion, by not refunding the amount of Rs.5,991/- to the complainant or by not replacing the UHD set top box with the old set top box under the exchange offer, The OP had acted in a highly unjust manner and committed gross deficiency in service. Therefore, we hold the OP for guilty of unfair trade practice and deficiency in service.
In view of above discussion, we allow the complaint and direct the OP to refund the amount of Rs.5991/- charged for UHD 4K set top box and to replace UHD 4K set top box with the old version and to pay the lumsumps amount of Rs. 15,000/- to the complainant towards compensation for mental pain and agony and litigation charges within 45 days of receipt of copy of this order failing which the OP shall become liable to pay interest @ Rs. 9% per annum on the amount of Rs. 5,991/- from the date of filing of the complaint till realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 06.02.2018
