SRI.K. VIJAYAKUMARAN, PRESIDENT.

            This is a complaint for seeking a direction to the opp.party to renew the agreement in favour of the complainant compensation and costs.

          The averments in the complaint can be briefly summarized as follows:

          The complainant is conducting cable service at Karikode under the name and style Vayalil Vision, Karikode, .  He is depending  in his livelihood on  the income derived from the above said cable vision.    The complainant has entered into an agreement with the 1^st opp.party on 25.10.94 thereby the complainant was given consent to draw cable wires through the 174 electric posts of the opp.parties. As per the agreement the complainant was paying  the hire charges and obeying the rules and regulations of the opp.parties.   As per the agreement the complainant was given 10 years permission  which expired on 24.10.2004.  On 26.6.06 the complainant had submitted an application before the 1^st opp.party to allow  250 additional posts for the existing network purpose in Peroor Area.  But the same was not considered by the opp.party .  On expiration  of the term the complainant had approached the opp.parties to renew the agreement for a further period.  At that time the 3^rd opp.party informed  the complainant to continue his purpose and they will inform the time when the agreement is to be renewed..  Since there was no  interference or notices from the opp.party the complainant continued the cable  service through  the poles of the opp.parties.  In the year 2006  the complainant enquired with the opp.parties regarding the renewal of the agreement. At that time also the first opp.party informed the complainant that he shall continue the service until further intimation.  Thus with the silent permission of the opp.party the complainant continue to  avail the service of the opp.parties.  The complainant was in receipt of letter No.EDK/AE/CTV/2006-07/1871 dtd. 4.1.07 from the 3^rd opp.party requiring him to submit the copies of the agreement with relevant documents such as rout map, pole details, post office registration certificate etc. for the purpose of executing the fresh agreement.  The complainant was also directed to pay a sum of Rs.2785/-  towards rental arrears..  The complainant was also directed to remit the pole rental charges.  The complainant thereupon approached the 4^th opp.party with the relevant documents but he was not ready to take steps to renew the agreement.  The above act of the  opp.parties amounts to deficiency in service and unfair trade practice.  Hence the complaint.

          The opp.parties filed a joint version contending that the complaint is not a consumer.     Dispute in this complaint   is not a consumer dispute, as there is  no hiring of service or sale of material for consideration.   The subject matter of the complaint is the denial to give license to the complainant for drawing cable through  poles of KSE Board   The issue involved in this case is a pure question of contract and hence the Consumer Fora have no jurisdiction to adjudicate the issue.  The KSE Board is providing  permission to competent  applicants to use  the poles of  Board after having collected  a maintenance  fee prescribed by the  guidelines issued by the Board as directed  by the Hon’ble High Court.  In case of dispute  it should dealt with by an Officer  specified in the guideines.    The complainant has not resorted to said  remedy  to settle the issue before  approaching this Forum.  Hence the complaint is premature and liable to  be dismissed.   As per the guidelines the Board could issue license to draw cable through the poles of KSEBoard  to one Cable TV operator.   The Board  has already issued a license  to draw cable through the poles mentioned in the complaint to Asianet Communication Ltd..  But the complainant has not included Asianet  as a party in this complaint  and therefore the complaint is bad for non-jointer of necessary parties.  The complainant has no locus standi  to institute  this complaint against KSE Board, since the complainant himself has transferred his  right  to draw cables through the poles of KSE Board to Asianet Satellite Communications Limited as per  letter dated 8.11.2002 .    It is admitted that the complainant had obtained a sanction for drawing cable through  the poles of KSE Board at Karikode in the name and style Vayalil Vision.  After executing an agreement, with the 3^rd opp.party  but before the expiry of the agreement executed, the complainant submitted a letter dated 8.11.2002  to the 3^rd opp.party  that he wish to transfer the pole sanction  in his name to that  of Asia Net Sattalite Communication Ltd.  Therefore the complainant has no right to approach these opp.parties either to continue or to renew the agreement executed with Board.  The agreement became in fructuous after 8.11.2002 .  The Board also executed a fresh agreement with the Asianet during 2006 in the disputed area.   As per the guidelines  only one cable network per electric pole can be permitted.  The averments in para 3  of the complaint are not fully correct.   The demand notice for Rs.2,785/-  plus interest relates the pole rental  arrears pertaining to the period of the valid agreement between the Board and the complainant.  The demand to pay arrears is not signal or willingness of  Board to execute a fresh agreement with  the complainant.  The averments in para 4 are also false and hence denied.   The Board officials had not given their consent  to execute a new agreement with the complainant.   As the complainant has not been running cable TVnet work in his name the question  of execution of fresh agreement does not arise.  The  complainant approached  this Forum  suppressing material facts.    The Board’s officials  are  public servants and  they acted only as per the rules prevailing in the KSE Board.  After the implementation  of  judgement dated 27.1.1998 in Ops.10645/97, 16107/97  of the Hon’ble High Court of Kerala, the Board issued guidelines for  Cable TV Networks along LT Electric Poles.  As per clause [1] of the above guidelines  the complainant can approach the Chief Engineer Distribution,, KSE Board who is the appellate authority in case of difference in dispute arising out of the agreement.   There is no deficiency in service on the part of the opp.parties.  Hence the opp.parties prays to dismiss the complaint.

Points  that would arise for consideration are:

1.     Whether the  complaint is maintainable?

2.     Whether there is deficiency in service on the part of the opp.parties?

3.     Reliefs and costs.

For the complainant PW.1 is examined.   Ext. P1 to P4 are marked.

For the opp.parties DW.1 is examined.   Ext. D1 is marked.

Points:

          The main contention of the opp.parties is that the complainant herein is not a consumer  within the meaning of Sec.2[1] [d] of the Consumer Protection Act and the dispute herein is not a consumer dispute.  It is further argued that the opp.parties are not rendering any service to the complainant within the meaning of Sec.2 [1] [o] of the Consumer Protection Act.

          It is not disputed that the complainant and opp.party 1 entered into an agreement by which the opp.parties have permitted  the complainant to draw cable wires through the electric posts of the opp.parties for which the opp.parties have realized charges from the complainant.  The permission given by the opp.parties to the complainant to draw cable wires through electric posts after collecting fee can only be a license and it cannot be said that  opp.parties are rendering any service within the meaning of Sec.2[1][o] of the Consumer Protection Act while giving such license.

          There is no dispute that the period of the agreement elapsed in 2004 and that the agreement was not renewed by opp.parties.  According to the complainant he is continuing to use the electric posts of opp.parties even after the expiry of the agreement with the oral consent of the opp.parties and he is relying on Ext.P3 in support of his contention.   The specific case of the opp.parties is that the complainant issued Ext. D1 letter to the opp.parties seeking to transfer the pole sanction from his name to the Asianet  Satellite Communications Ltd. and  accordingly it was transferred and so the complainant has no right to seek renewal of  the agreement.  The complainant is challenging the veracity of Ext. D1 and says that he has not executed Ext. D1 when that be the position he ought to impleaded the Asianet Satellite Communication Ltd. also in  the party array in this complaint.  The burden to prove that the signature in Ext. D1 is not that of his is on the complainant which he failed to discharge.  Whatever that be the complainant is seeking renewal of an agreement which is refused by the opp.parties.   So the dispute herein is in respect of contractual rights  and not a consumer dispute and the Consumer Fora has no jurisdiction to entertain such a complaint.

The question deficiency arises only when service is provided.  Here as pointed out earlier the opp.party is not rendering any service within the meaning of Sec.2[1][o] of the Consumer Protection Act to the complainant and so no question of deficiency in service arises.  For all that has been discussed above we find that there is no consumer dispute between the parties and as such this complaint is not maintainable before this Forum. Points found accordingly.

In the result the complaint fails and the same is hereby dismissed.  No costs.

            Dated this the   23rdday of November, 2009

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I n d e x

List of witnesses for the complainant

PW.1. – Pradeep Lal

List of documents for the complainant

P1. – Copy of agreement with opp..party

P2. – Agreement with Asianet

P3. – Letter dated 4.1.2007

P4. – Letter dated 27.9.2008

List of witnesses for the opp.parties

DW.1. – J. Muraleedharan Achary

List of documents for the opp.parties

D1. – Letter dated 8.11.2002