DOF.09.06.2010

                                                                      DOO.05.07 .2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.M.D.Jessy              : Member

Dated this, the  5^th  day of  July    2011

CC.153/2010

P.A.Joseph, Pamboorikkal House,

Karippal P.O.,

Perumpadavu,

Kannur.

(Rep. by Adv.P.D.Tomy )                                    Complainant

The General Manager,

Assianet Satellite Communications Ltd.,

III rd Floor,

Karipanal Arcade,

East Fort.

Thiruvananthapuram.

(Rep. by Adv.G.V.Pankajakshan)                           Opposite party   

O R D E R

Smt.M.D.Jessy, Member

          This is a complaint filed under sectin12 of consumer protection Act for getting an amount of `50,000 as compensation for the defective service rendered by the opposite party

          The case of the complainant in brief is as follows:  On 26.11.09 the representatives of the opposite party approached complainant and pursued him to pay `1740 towards one year subscription charge. They offered that complainant will get 125 channels through out one year without any interruption. Believing the offer the complainant paid 1740 towards annual subscription and availed the cable connection. But the net work provided by the opposite party is below standard and the complainant could not watch the programme properly. The cable connection is also not available for almost all the days. Even though complainant made frequent complaints to the branch office of opposite party at Therthally, they have not taken any steps to cure the defect. Moreover, the complainant is also not getting 125 channels as offered by opposite party at the time of providing connection. Aggrieved by the poor quality of reception and the adamant attitude taken by the officials of the opposite party the complainant sent a registered lawyer notice on 15.3.2010 to the opposite party demanding to return the annual subscription amount paid by the complainant and also demanding to pay `50,000 as compensation for the defective service. The said notice was received by the opposite party on 20.3.2010 but the opposite party has not cared to comply the demands made in the notice nor even sent a reply. Since the opposite party failed to provide proper net work supply for a long period the complainant suffered much difficulties mental pain and agony. Even though the difficulty, mental pain and agony suffered by the complainant could not be compensated in terms of money the complainant calculate compensation amount to the  tune of `50,000 and he also claims for the return of annual subscription amount of `1740 paid by the complainant to the opposite party at the time of availing connection. Hence the above complaint filed.

           After receiving the complaint Forum sent notices to opposite party .Opposite party entered appearance and filed version denying the main allegation of the complainant.  The opposite party submits that     the complainant was a consumer of Skyway communication, a channel TV net work owned by one Sebastian Manakkal. The Skyway Communication was taken over by opposite party in the year December 2008 and the complainant continued to be a consumer of the opposite party also. The opposite party never installed TV net work connection to the complainant as averred in the complaint but after the take over of the establishment complainant has not paid the monthly subscription to the opposite party. After repeated request to clear the arrears on 26.11.09 complainant paid an amount of `1740 towards the balance monthly subscription and the opposite party issued a receipt for the same. The said receipt is produced by the complainant along with the complaint with a pretext that it is a receipt for annual subscription. Opposite party never offered 125 channels to the complainant as pleaded in the complaint. There after also the complainant is not remitting the monthly subscription to the opposite party. Even though the employees of opposite party met the complainant demanding to clear the monthly subscription, the complainant had not paid the same by saying flimsy reasons. The opposite party is a well settled establishment in the cable net work field and the reception provided by the opposite party is  having highest standard. Now the complainant is trying to evade from the liability of paying the monthly subscription arrears and filed the above untenable complaint. Since the complainant agreed to clear the balance subscription the opposite party has not sent a reply to the lawyer notice issued by the complainant. The complainant is not entitled to get any relief as prayed and the complaint is only liable to be dismissed by awarding cost to the opposite party.

          On the above pleadings the following issues have been taken for consideration.

          1. Whether the complainant is a consumer of the opposite

   party?

2. Whether there is any deficiency of service by the opposite

    party in providing cable net work connection to the

   complainant. If so the quantum of damage by the

           complainant?

3. Relief and cost.

The evidence consists of Exts. A1 to A8 marked and PW1, PW2 examined on the side of the complainant and DW1 examined for opposite party. No exhibits marked for opposite party’s side.

Issue No.1  

          The case of the complainant is that on 26.11.09 the representatives of opposite party approached complainant and instigated the complaint to avail cable network connection for one year by paying `1740. Opposite party offered clear network transmission of 125 channels to the complainant. Believing the offer complainant availed cable connection of opposite party by paying an annual subscription of `1740 on 26.11.09 itself. Opposite party in the version and evidence denied the above contention of the complainant. But they admitted that complainant was a consumer of Skyway communication, a channel TV net work owned by one Sebastian Manakkal at Therthally. On November 2008 this Skyway communication was taken over by the opposite party and the complainant continued to be a consumer under the opposite party also. From this admitted version it is clear that the complainant availed cable net work service of the opposite party by paying service charge. Hence complainant definitely come under the purview of a consumer under opposite party as defined under the Act, and the issue is answered accordingly.

Issue No.2

          Issuance of Ext.A1 to the complainant is admitted by opposite party. Complainant alleges that as per Ext.A1 he paid 1740 to the opposite party towards the advance monthly subscription for one year and the opposite party has the duty to provide uninterrupted and clear cable net work supply for one year to the complainant. On the other hand opposite party denied the above version of the complainant and submits that Ext.A1 is the receipt issued to the complainant towards the payment of monthly arrears from November 2008 to October 2009 at the rate of `145 per month. For answering this issue the basis for which Ext.A1 was issued is to be decided first. On perusal of Ext.A1 it can see that previous balance is shown as `320. It is the admitted case that complainant was a consumer of Skyway communication Therthally from 30.8.03. This institution was taken over by opposite party from November 2008 onwards and the complainant continued to be a consumer of opposite party also. Ext.A5 is the monthly card alleged to be issued by Skyway communication to the complainant. Even though it is submitted by opposite party that it is a fabricated one opposite party can also produce monthly collection chart or account ledger to show the transaction with complainant It is also pertinent to note that while cross examination DW1 admitted that A\-ym-b-¡m-c³ sImSp¯      payment details office D­v.” When it is admitted that complainant was a consumer under opposite party and opposite party challenges that there is arrears of monthly subscription from complainant it is the bounden duty of the opposite party to prove the same by producing the above documents with them. Hence there is no valid ground for not accepting Ext.A5 on evidence. It is clear from Ext.A5 the monthly rent is `160 and Ext.A1 shows two months rent arrears as `320. DW1 also admitted during cross examination that Ext.A1 previous bill 320 cq]-bmWv.” That being the position there is no proper explanation from opposite party why they have collected `1740 from the complainant on 26.11.09. DW1 in the chief affidavit stated that

“ 2008  \h--¼À apX hogvN hcp-¯nb hcn-k-T-Jy amkT 145 cq] {]Im-cT   1740 cq]-bpT 28.11.09\v \ÂIp-I-bpT Bb-Xnsâ  cioXn ]cm-Xn-¡m-c\v \ÂIn-bn-«p-f-f-Xp-am-Wv. {]kvXpX cio-kn-bmWv Ext.A1Bbn ]cm-Xn-¡m-c³ lmP-cm-¡n-bn-«p-f-f-Xv. If the payment was made by the complainant on 28.11.09 the receipt should be dated on 28.11.09. Here Ext.A1 is dated 26.11.09. Moreover the rent is calculated at the rate of `145 per month only. Ext.A5 collection card shows that monthly rent is  `160 each. Why the reduced rate was given to the complainant is also not properly answered by the opposite party. DW1 during cross examination admits that PW2 is also a consumer of them. Ext.A7 is the provisional receipt issued by the employee of DW1 to PW2. In Ext.A7 the annual rent is shown `1740. From this evidence it can see that when a lump sum payment towards one year is effected a reduced rate is given to the customers and this amount is also seen collected from complainant by opposite party as per Ext.A1 receipt. The contention of opposite party to this effect that Ext.A1 was issued to the complainant is towards the rent arrears from November 2008 onwards for 12 months cannot be believed at all. Hence we found that Ext.A1 was issued by the opposite party to the complainant towards the lump sum payment for one year subscription from 26.11.08. Complainant alleges that from the very beginning itself complainant is not getting the net work transmission properly. Due to the poor picture quality the complainant could not view the programme properly. Even after making oral complaints the defect was not cured by opposite party. Hence on 15.3.2010 complainant sent Ext.A2 lawyer notice to opposite party demanding return of the advance subscription and compensation for the mental agony and discomfort met by the complainant due to the defective service of opposite party Opposite Party has not cared to sent a reply for this notice. The reasons stated for not sending a reply is also seen contradicted bythe evidence tendered by DW1 that t\m«okv Ab-¨-Xn-\p-ti-jT ]cm-Xn-¡m-csâ Asp¯vX t]mbn-«n-Ã. When the complainant paid advance annual subscription, it is the duty of the opposite party to provide uninterrupted quality supply of net work transmission to the complainant during the period. No demand notice is also seen issued by the opposite party claiming payment of previous arrears. When it is seen that complainant paid annual subscription there is no question of asking for monthly subscription again. In the chief affidavit filed by DW1 it is stated that  “bYmÀ°-¯n ]cm-Xn-¡m-c³   2009  Unk-T-¼À apX-ep-ff hcn-k-T-Jy R§Ä¡v \ÂIp-hm-\p-f-f-XmWv” is found to be absolutely false that itself shows that there is no basis for the allegation that it is due to enemity for asking monthly arrears the complainant caused to file the complaint against opposite party. With in a short span of time complainant raised objection against picture clarity of opposite party’s net work transmission and sent lawyer notice. But no attempt is seen taken by the opposite party to clear the dispute. Keeping silence towards the allegation made to the lawyer notice is also found against the claim of the opposite party. The evidence of PW2 also supported the case of complainant to the effect that the net work supply provided by opposite party to their area is having no picture quality hence complainant submitted that  he already relinquished the service provided by the opposite party and availed another cable connection having good quality. Since there is no prima-facie case proved regarding the enemity of complainant towards opposite party there is valid reason for the complainant to ask for the return of the advance annual subscription amount form the opposite party. But the opposite party with out even cared to improve the quality of net work transmission opposed the claim of the complainant by raising false and untenable contentions. Hence we found that there is clear deficiency of service on the part of opposite party towards the complainant .Regarding damage sustained to the complainant by the defective service of opposite party is not proved by cogent evidence. Any way it is seen that resisting legal demands of the complainant by raising false contentions would have caused much mental agony to the complainant. Since the complainant have availed the service of another cable net work connection with in a short span of time the discomfort caused to the complainant can be neglected. Any how opposite party is liable to compensate the complainant to the mental agony and difficulties caused to him and that is calculated to be `1500. Opposite party is also liable to refund `1740 the advance annual subscription obtained by them from the complainant. The complainant is also entitled to get `1000 towards the cost of litigation from the opposite party and the issues are answered accordingly.

          In the result, the complaint is allowed partly directing the   opposite party to refund the advance annual subscription amount of     `1,740 (Rupees One thousand Seven hundred and Forty only) together with compensation of `1500 (Rupees One thousand Five hundred only)  and `1000 as cost of this litigation to the complainant within one month from the date of receipt of this order failing which complainant is at liberty to execute the order as per the provisions of consumer protection Act.

              Sd/-                    Sd/-                   

          President              Member               

APPENDIX

Exhibits for the complainant

 A1.Cash receipt dt.26.11.09 issued by OP

 A2.Copy of the lawyer notice sent to OP

 A3.Postal AD

 A4. Connection installation receipt dt.29.8.03 issued by Skyway

      communications

A5. Monthly collection card

A6. Certificate issued by Village officer, Thimiri

A7. Provisional receipt dt. 29.10.08 issued by OP

A8. Ledger folio issued by OP

Exhibits for the opposite party: Nil

Witness examined for the complainant

PW1.Complainant

 PW2.Augustine Joseph

Witness examined for the opposite party:

DW1. Sujith.K.

                  /forwarded by order/

          Senior Superintendent

Consumer Dispute  Redressal Forum, Kannur.