BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 35/2007 Filed on 07.02.2007

Dated : 31.01.2011

Complainant:

S. Balachandran, Proprietor, Aqua Club, Aakkulam, Thiruvananthapuram-21.

(By adv. T. Madhukumaran Nair)

Opposite parties:

1. The Director, World Space India Pvt. Ltd., II Floor, Mithra Towers, 10/4, Kasthurba Road, Bangalore-560 001.

   (By adv. Michael Kutty Mathew)

2. The Manager, M/s Adona Electronic Private Ltd, Ulloor, Medical College, Thiruvananthapuram.

This O.P having been taken as heard on 30.11.2010, the Forum on 31.01.2011 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Complainant is the proprietor of Acqua Club situated at Aakkulam tourist Centre, provides accommodation and other arrangements including food, boardings and venue for conducting social and religious functions for which the Digital Audio Services is an attractive factor and demanded by the customers of the complainant. The 1^st opposite party, the World Space India Private Ltd is a company incorporated, offers for subscription a digital audio service consisting channels which include music, news etc. transmitted by the Asia Star West beam of the World Space Satellite System. The 2^nd opposite party is the authorized signatory to collect the subscription and provides digital audio service for and on behalf of the 1^st opposite party in accordance with the terms and conditions offered by the 1^st opposite party. The 3^rd opposite party is authorized to redress the complaints of the digital audio service provided by the World Space India Private Ltd. The complainant fully satisfied with the identity and authority of the 2^nd opposite party over the 1^st opposite party for providing world space digital audio service and remitted Rs. 2,150/- as subscription and the cost of cables. The 1^st opposite party has allotted Receiver ID No. 0700000000229812 accepting the subscription and cost. On 22.03.2006 itself the digital audio service was installed and started functioning at complainant's firm. On 27.03.2006 4 days after installation the Satellite Radio became fully defunct and non-audible. All transactions and incidents which require redressal in this case took place at Aakkulam, Thiruvananthapuram which is within the jurisdiction of this Hon'ble Forum. The complainant intimated the matter and requested for appropriate urgent action to the customer care centre of the opposite party, the authorized channel partner and to the 1^st opposite party over the telephone on several times. The complainant contacted personally to their authorized service provider, the 3^rd respondent repeatedly. All the attempts to restore the service became in vain. They did not even care to enquire the complaint till now. The complainant has taken 20 orders for the conduct of different social religious functions which require the programmes provided by the different channels of digital audio service, but which could not be fulfilled due to the non-availability of the service. The complainant also lost many other orders during the vacation season of 2006, only because of the deficiency of service of the opposite parties.

The 1^st opposite party in this case World Space India Private Ltd filed version. In the version 1^st opposite party stated that the complaint is not maintainable before this Forum as the complainant is not a consumer as per Consumer Protection Act. They admitted that the complainant has availed the world space satellite radio service for commercial purpose to be used in the complainant's club in Aakkulam tourist Centre and had admitted that the same is an attractive factor for the customers of the complainant. Complainant is the proprietor of Acqua Club situated at Aakkulam Tourist Centre, which provides accommodation, food and other arrangement for conducting social and religious functions for which digital audio service is an attractive factor is not within the knowledge of the 1^st opposite party and the same does not warranty any comments. The 1^st opposite party submits that it does not know the 3^rd opposite party and does not have any kind of legal or business relationship with 3^rd opposite party and it is not authorized to redress any complaint regarding world space satellite radio service. 1^st opposite party submits that the complainant purchased the world space satellite radio service from the 2^nd opposite party and he had paid Rs. 2,150/-towards subscription charges and installation charges. They also submit that after the installation the Satellite Radio became fully defunct and non-audible is not within the knowledge of the 1^st opposite party and the complainant did not make any complaint to the opposite party with regard to the same. The 1^st opposite party denied the averments in para 7 of the complaint, that the complainant has taken no orders for conducting of different social religious function and that due to non-availability of the radio service the same could not be fulfilled and that the complainant has lost many other orders is not within the knowledge of the 1^st opposite party. 1^st opposite party further submits that the complainant filed this complaint with sole intention of harassing the 1^st opposite party and making unlawful gain. There has been no deficiency in service provided by the 1^st opposite party. 1^st opposite party further submits that the problem was due to intermittent non-availability of the radio service to the interference of the Air Force Radar system which is not within the control of the 1^st opposite party. Hence they prayed for the dismissal of the complaint.

In this case the 3^rd opposite party is exparte, and as per the application filed by the complainant this Forum strike out the 2^nd opposite party from the party array.

Points that would arise for consideration are:-

1. Whether there has been deficiency in service from the side of opposite parties?

2. Whether the complainant is entitled to get the reliefs?

Points (i) & (ii):- In this case there is no dispute regarding the subscription and installation of the digital audio service connection. The opposite parties installed the connection on 22.03.2006, but the digital radio functioned only for 4 days from 22.03.2006. The complainant's case is that he intimated the matter to the 1^st opposite party and 3^rd opposite party several times. But they did not even care to enquire the matter. Complainant further stated that owing to the failure of the functioning of the digital audio service, the complainant caused heavy loss, pain and sufferings and affected the dignity and prestige of the Aqua Club. In this case the complainant was examined as PW1 and the president of Aqua Club was examined as PW2. Both of them were cross examined by the 1^st opposite party. From the side of the complainant 12 documents were marked as Exts. P1 to P12. Ext. P1 is the receipt No. 509 dated 22.03.2006 being the subscription cost of cables issued by the 2^nd opposite party. Ext. P2 is the copy of service agreement and renewal form. Ext. P3 is the letter dated 03.05.2006 stating the receiver ID. Ext. P4 is the brochure issued by the World Space Satellite service. Ext. P5 is the copy of lawyer's notice dated 18.10.2006. Exts. P6 to P8 are the postal receipts and signed returned acknowledgement cards. Ext. P9 is the certificate of registration of the Acqua Club. Ext. P10 is the rules and regulations of Aqua Club membership. Ext. P11 is the brochure of Aqua Club. Ext. P12 is the membership form of Aqua club. In this case the 1^st opposite party is the only contesting party. 1^st opposite party submitted that the complainant did not inform the matter to them till they received the lawyer's notice. Immediately on getting the notice they tried to contact the complainant, but the complainant refused to have any meeting with him. And later they sent notice to him, but the notice was returned with endorsement “no such addressee”. The technicians of the 1^st opposite party after much efforts managed to visit the premises of the complainant and found that there was an intermittent problem in the signal reception due to interference with the air force radar located in the area. To prove their contentions, the 1^st opposite party filed 6 documents. Ext. D1 is the copy of legal notice dated 18.10.2006. Ext. D2 is the copy of reply notice dated 08.11.2006. Ext. D3 is the returned postal envelop. Ext. D4 is the copy of job sheet. In the job sheet it is stated that “there is no signal reception at the customer site due to the interference of air force signals. Customer not willing to sign the job card”. Ext. D5 is the copy of agreement. Ext. D6 is the installation report dated 22.03.2006. As per Ext. D5 agreement there is no warranty or guarantee issued by the opposite party while purchase of the radio service. As per clause 1.6 of the agreement quality of service is subject to environmental and topographic conditions and the world space shall not be responsible for non-availability of the radio service due to factors beyond their control. As per Ext. D4 job sheet the problem was due to non-receipt of signal consequent on the interference of air force radio signals. From the evidences adduced by the 1^st opposite party we find that there is no deficiency in service from their side. In this case the complainant argued that he is not running business for profit motive. Hence there is no question arising for loss of profit due to the non-functioning of the satellite radio service. The complainant himself admitted that he has been conducting the Acqua club from 1994. The satellite radio services was available only for 4 days, so the non-availability of radio service is not a reason for cancelling the programmes of their customers and more over the complainant did not furnish any evidence regarding his loss. It is true fact that the complainant had spent Rs. 2,150/- for the connection of the digital radio service. But he could not enjoy it due to the mal-functioning of the service. The opposite party argued that the defunct of radio service was due to the interference of air force signals and they are not liable for the same. In this circumstance, we find that it is reasonable to compensate the complainant's grievance to recover the cost of the installation charge from the 1^st opposite party. Hence the complaint is partly allowed.

In the result, the 1^st opposite party is directed to pay Rs. 2,150/- to the complainant along with Rs. 1,500/- as costs. Time for compliance one month from the date of receipt of the order. Thereafter 9% annual interest shall be paid to the amount.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31^st day of January 2011.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

jb S.K. SREELA : MEMBER

C.C. No. 35/2007

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Gangadharan Balachandran

PW2 - Shahul Hameed.

II COMPLAINANT'S DOCUMENTS :

P1 - Original receipt No. 509 dated 22.03.2006

P2 - Copy of service agreement and renewal form.

P3 - Letter dated 03.05.2006 stating the receiver I.D.

P4 - Brochure issued by the World Space Satellite Service.

P5 - Copy of lawyer's notice dated 18.10.2006

P6 - Postal receipts.

P7 - Acknowledgement card.

P8 - Acknowledgement card

P9 - Certificate of registration of the Acqua Club.

P10 - Rules & regulations of Acqua Club Membership.

P11 - Brochure of Acqua Club.

P12 - Membership Form of Aqua Club.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of legal notice dated 18.10.2006

D2 - Copy of reply notice dated 08.11.2006

D3 - Returned postal envelop.

D4 - Copy of job sheet

D5 - Copy of agreement.

D6 - Installation report dated 22.03.2006

PRESIDENT

jb