State Consumer Disputes Redressal Commission
Sh. Manoj Kumar. vs Fast Waymulti System Operator (Mso). & ... on 23 April, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 202/2019
Date of Presentation: 06.06.2019
Order Reserved on : 24.09.2019
Date of Order : 23.04.2020
......
Manoj Kumar son of Shri Amar Chand Verma R/o H.No.190/11
Tarna Road Mandi Town District Mandi (H.P) through Himachal
Pradesh Upbhogta Sangh (HPUS) H.No.88/6 Samkheter Mandi
Town District Mandi (H.P).
...... Appellant/Complainant
Versus
1. Fast Way Multi System Operator (MSO) through its Chief
Executive Officer Grand Walk Mall 5th Floor Opposite
Gurdev Hospital Ferozpur Road Ludhiana Pin:- 141002.
......Respondent/Opposite party No.1
2. District Public Relations Officer (DPRO) Nodal Officer
Digital Addressable Cable TV Mandi District Mandi Town
District Mandi (H.P).
......Respondent/Opposite party No.2
3. Chairman District Consumer Council through Deputy
Commissioner Mandi District Mandi (H.P).
......Respondent/Opposite party No.3
4. Nodal Officer Mr. Vivek Manchanda Grand Walk Mall 5th
Floor Opposite Gurdev Hospital Ferozpur Road Ludhiana-
141002.
......Respondent/Opposite party No.4
5. Sharad Malhotra Proprietor Wire Communication System
Sen Complex Mandi Samkheter Mandi Town District Mandi
(H.P).
......Respondents/Opposite party No.5
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Hon'ble Mr. R.K. Verma Member
Manoj Kumar Versus Fast Way Multi System Operator (MSO) & Ors.
F.A. No.202/2019
Whether approved for reporting?1 Yes.
For Appellant :
Ms. Kirti Sood vice Mr. Digvijay Singh
Advocate.
For Respondents No.2&3: Mr. Bhairav Negi Ld. ADA.
For Respondents No.1, 4 & 5 : Ex-parte.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 07.05.2019 passed by Learned District Consumer Forum/ Commission in consumer complaint No.152/2016 titled Fast Way Multi System Operator (MSO) & Ors.
Brief facts of consumer complaint:
2. Complainant Sh. Manoj Kumar filed consumer complaint through HPUS under Consumer Protection Act pleaded therein that complainant is using service of cable connection supplied by Sh. Sharad Malhotra Prop. Wire Communication System Sen Complex Mandi Samkheter Mandi Town District Mandi (H.P). It is pleaded that OP No.5 namely Sh. Sharad Malhotra Prop. Wire Communication System directed complainant to install digital cable T.V connection. It is pleaded that OP No.5 stopped the initial cable display and thereafter complainant requested field staff of OP No.5 to install digital cable connection. It is further 1 Whether reporters of the local papers may be allowed to see the order? Yes. 2
Manoj Kumar Versus Fast Way Multi System Operator (MSO) & Ors. F.A. No.202/2019 pleaded that OP No.5 did not install digital cable connection for long time on the pretext that set top boxes were not available. It is pleaded that after two months OP No.5 installed digital cable TV connection in residential house of complainant on dated 04.05.2016 and demanded consideration amount to the tune of Rs.1405/-(One thousand four hundred five). It is pleaded that complainant paid amount to field staff of OP No.5. It is pleaded that field staff of OP No.5 issued receipt of just Rs.205/-(Two hundred five) Annexure-C1 and field staff of OP No.5 refused to issue installation receipt of set top box. It is pleaded that OP No.5 also discontinued display of important channels i.e. DD Shimla and Zee group channels. It is pleaded that matter was reported to opposite parties No.1 to 4 but opposite parties No.1 to 4 did not take any action against OP No.5 and committed deficiency in service. Prayer for relief as mentioned in relief clause of consumer complaint sought.
3. Per contra version filed on behalf of opposite parties No.1, 4 & 5 pleaded therein that present consumer complaint is not maintainable and complainant has no cause of action. It is pleaded that OP No.5 is working as OCO (Outer Cable Operator) under MSO (Multi System Operator). It is pleaded that local cable operators are working under MSO. It is denied that opposite parties No.2 & 3 compel consumer 3 Manoj Kumar Versus Fast Way Multi System Operator (MSO) & Ors. F.A. No.202/2019 to install digital cable TV connection of OP No.5. It is pleaded that there are several service provider of cable TV and consumer is at liberty to opt service provider of cable TV as per individual choice. It is admitted that digital cable connection was installed in residential house of complainant on 04.05.2016 and complainant was asked to pay consideration amount to the tune of Rs.1405/-(One thousand four hundred five). It is denied that field staff of OP No.5 refused to issue payment receipt of set top box installation. It is pleaded that an amount of Rs.1200/-(One thousand two hundred) was claimed as security charges only. It is further pleaded that there are different packages provided by cable TV and different tariff charges have been provided for different cable TV package. It is denied that DD Shimla and Zee Group channels were discontinued. It is pleaded that opposite parties No.1, 4 & 5 did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Per contra separate version filed on behalf of opposite parties No.2 & 3 pleaded therein that digitization of cable network was mandatory to all cable operators as per cable T.V. Regulation Act 1995 amended in the year 2011. It is denied that opposite parties No.2 & 3 directed complainant to obtained digital cable connection from OP No.5 only. It is pleaded that in Mandi Town opposite party No.1 is providing 4 Manoj Kumar Versus Fast Way Multi System Operator (MSO) & Ors. F.A. No.202/2019 local cable network to consumers. It is further pleaded that opposite parties No.2 & 3 did not commit any deficiency in service. Prayer for dismissal of consumer complaint against opposite parties No.2 & 3 sought.
5. Complainant filed rejoinder and reasserted allegations mentioned in consumer complaint. Learned DCF/DCC dismissed the consumer complaint. Feeling aggrieved against order passed by learned DCF/DCC complainant filed present appeal before State Commission.
6. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present appeal.
1. Whether appeal filed by complainant is liable to be accepted as mentioned in memorandum of grounds of appeal and whether Wire Communication System i.e. OP No.5 was under
legal obligation to issue security fee payment receipt to complainant to the tune of Rs.1200/- (One thousand two hundred) for installation of digital cable set top box and whether keeping column of installation charges and balance fee as blank in receipt No.1055 annexure-C1 dated 04.05.2016 by OP No.5 i.e. Wire Communication System amounts to ipso facto deficiency in service on the part of OP No.5 i.e. Wire Communication System?
2. Final order.
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Manoj Kumar Versus Fast Way Multi System Operator (MSO) & Ors. F.A. No.202/2019 Findings upon point No.1 with reasons:
8. Complainant filed affidavit in evidence. There is recital in affidavit that deponent obtained cable TV service from OP No.5. There is recital in affidavit that in order to enforce TRAI Regulation opposite parties No.2 & 3 compelled deponent to obtain digital cable TV connection from OP No.5.
There is recital in affidavit that thereafter complainant obtained digital cable TV Connection from opposite party No.5. There is recital in affidavit that for sufficient long time OP No.5 did not install digital cable connection in residential house of deponent on the pretext that set top boxes were not available. There is recital in affidavit that after two months digital cable TV connection was installed in residential house of deponent by field staff of opposite party No.5 on dated 04.05.2016.
9. There is further recital in affidavit that field staff of OP No.5 received consideration amount from deponent to the tune of Rs.1405/-(One thousand four hundred five) but issue consideration payment receipt to the tune of Rs.205/-(Two hundred five) only. There is recital in affidavit that field staff of OP No.5 refused to issue receipt of payment of consideration amount qua installation of set top box. There is recital in affidavit that matter was reported to opposite parties No.1 to 4 but opposite parties No.1 to 4 did not take any 6 Manoj Kumar Versus Fast Way Multi System Operator (MSO) & Ors. F.A. No.202/2019 action against opposite party No.5. There is recital in affidavit that OP No.5 also discontinued display of channels like DD Shimla and Zee group channels to deponent.
10. Complainant also filed corroborative affidavit of Sh. Lawan Thakur General Secretary of HPUS. There is recital in affidavit that opposite parties did not comply guidelines issued by TRAI. There is recital in affidavit that OP No.5 received consideration amount for installation of set top box but did not issue installation payment receipt of set top box to consumers. There is recital in affidavit that deficiency and unfair trade practice on the part of OP No.5 is writ large in present matter. State Commission has carefully perused all annexures filed by complainant.
11. Sh. Hemant Kumar District Public Relations Officer filed affidavit in evidence. There is recital in affidavit that as per Cable Television Network Regulations Act 1995 amended in 2011 digitization of cable network is mandatory to all cable operators. There is recital in affidavit that directions were issued to OP No.5 to comply direction of TRAI in letter and spirit. There is recital in affidavit that in Mandi Town opposite party No.1 is providing local cable network to consumers. There is recital in affidavit that opposite parties No.2 & 3 did not commit any deficiency in service. 7
Manoj Kumar Versus Fast Way Multi System Operator (MSO) & Ors. F.A. No.202/2019
12. Shri Sharad Malhotra Prop. M/s Wire Communication System filed affidavit in evidence. There is recital in affidavit that deponent is working as Outer Cable Operator under MSO i.e. Multi System Operator of opposite party No.1. There is recital in affidavit that digital cable connection was installed in house of complainant on 04.05.2016 and complainant was asked to pay consideration amount of Rs.1405/-(One thousand four hundred five). There is recital in affidavit that after installation of set top box complainant refused to pay Rs.1200/-(One thousand two hundred) which was security consideration amount for installation of set top box. There is recital in affidavit that there are different packages provided in cable connection. There is recital in affidavit that amount to the tune of Rs.205/-(Two hundred five) was charged from complainant for tariff package selected by complainant. State Commission has carefully perused all annexures filed by opposite parties.
13. Submission of learned Advocate appearing on behalf of complainant that opposite party No.5 did not issue security payment fee receipt to the tune of Rs.1200/-(One thousand two hundred) to complainant for installation of digital cable set top box connection in residential house of complainant and committed deficiency in service is decided accordingly. It is proved on record that as per direction of TRAI installation of digital TV connection was mandatory. It 8 Manoj Kumar Versus Fast Way Multi System Operator (MSO) & Ors. F.A. No.202/2019 is proved on record that digital TV connection was installed in the residential house of complainant on 04.05.2016 by Wire Communication System i.e. OP No.5. Complainant has specifically mentioned in affidavit that complainant has paid installation charges of digital cable connection i.e. Set top box to field staff of opposite party No.5. OP No.5 did not file counter affidavit of field staff to whom directly consideration amount was paid by complainant. No reasons assigned by OP No.5 as to why OP No.5 did not file counter affidavit of field staff who received directly consideration amount for installation of digital cable connection i.e. Set top box from complainant. Adverse inference is drawn against OP No.5 for non filing affidavit of field staff of OP No.5 who has installed digital cable connection in the residential house of complainant.
14. Affidavit filed by Sharad Malhotra Prop. of Wire Communication System Cable Network is not helpful to opposite party No.5 because installation charges of digital cable set top box was not paid to Sh. Sharad Malhotra personally on 04.05.2016 directly but was paid to field staff of Sh. Sharad Malhotra. Shri Sharad Malhotra was not personally present at place H.No.190/11 Tarna Road Mandi Town. Sh. Sharad Malhotra has filed affidavit on the basis of derived knowledge only. It is not expedient in the ends of justice to rely upon affidavit filed on basis of derived 9 Manoj Kumar Versus Fast Way Multi System Operator (MSO) & Ors. F.A. No.202/2019 knowledge. OP No.5 i.e. Wire Communication System did not file affidavit of eye witnesses i.e. Field staff of Wire Communication System who had personally installed digital cable set top box in the residential house of complainant situated in H.No.190/11 Tarna Road Mandi. It is not the case of Wire Communication System that present receipt No.1055 dated 04.05.2016 was personally signed by Sh. Sharad Malhotra.
15. It is well settled law that contents of controversial document could be proved by person who had signed the document or by person who was marginal witness of document. See 2019(1) Himachal Law Reporter (H.P. High Court) 294 titled Shaminder Kumar Chaudhary Versus Sukhdev Chand and others. See Latest HLJ 2017 H.P High Court 1011 titled Oriental Insurance Company Ltd. Versus Champa Devi & others.
16. State Commission has carefully perused subscription application form submitted by complainant to OP No.5. It is proved on record that complainant has choose gold package. There are following packages provided by Fastway Transmission Pvt. Ltd. i.e. (1) Basic Package (2) Silver Package (3) Gold Package (4) Platinum package. Out of four packages complainant has opted gold package. It is proved on record that OP No.5 has issued monthly rent receipt to the tune of Rs.205/-(Two hundred five) to 10 Manoj Kumar Versus Fast Way Multi System Operator (MSO) & Ors. F.A. No.202/2019 complainant Annexure-C1 directly on behalf of Wire Communication System in individual capacity on dated 04.05.2016 and column of installation charges has been kept blank. No reasons assigned by M/s Wire Communication System that why column of installation charges shown as blank in receipt annexure-C1. Similarly column of balance in receipt annexure-CI has been kept blank by Wire Communication System.
17. State Commission is of the opinion that M/s Wire Communication System was under legal obligation to fill up installation charges column. There is no recital in receipt annexure-C1 that how much consideration amount was received by M/s Wire Communication System i.e. OP No.5 for installation charges of digital cable set top box. As per terms and conditions of receipt annexure-C-I installation charges are non-refundable. It is not the case of M/s Wire Communication System that M/s Wire Communication System did not claim any installation charges from complainant and had installed cable set top box in residential house of complainant free of costs. Hence it is held that deficiency on the part of M/s Wire Communication System is writ large in the present matter. State Commission is of the opinion that OP No.5 was under legal obligation to issue security payment consideration receipt for installation of cable set top box. No reason assigned by OP No.5 as to why 11 Manoj Kumar Versus Fast Way Multi System Operator (MSO) & Ors. F.A. No.202/2019 security payment amount receipt was not issued to complainant for installation of cable set top box in residential house of complainant.
18. Submission of learned Advocate appearing on behalf of complainant that complainant is entitled for compensation for mental agony and harassment is decided accordingly. In view of fact that OP No.5 i.e. Wire Communication System did not issue any receipt of payment of installation charges of digital cable connection i.e. Set top box to complainant and in view of fact that in receipt annexure-C1 issued by OP No.5 i.e. Wire Communication System column of balance has been shown as blank and in view of affidavit filed by complainant that he has paid an amount of Rs.1200/-(One thousand two hundred) for installation of digital cable connection i.e. Set top box in his residential house State Commission is of the opinion that complainant is legally entitled for equitable compensation for mental agony and harassment.
19. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for litigation costs is decided accordingly. State Commission is of the opinion that complainant has engaged Advocate and has also paid litigation costs & other expenses. State Commission is of the opinion that complainant is legally entitled for equitable litigation costs.
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Manoj Kumar Versus Fast Way Multi System Operator (MSO) & Ors. F.A. No.202/2019
20. Submission of learned ADA appearing on behalf of opposite parties No.2 & 3 that complainant did not pay any consideration amount to opposite parties No.2 & 3 and consumer complaint against opposite parties No.2 & 3 is not maintainable is decided accordingly. There is no evidence on record that complainant has paid any consideration amount to opposite parties No.2 & 3. In the absence of consideration amount paid to opposite parties No.2 & 3 it is expedient in the ends of justice and on the principles of natural justice to exonerate opposite parties No.2 & 3 from liability. It is proved on record that complainant has paid direct consideration amount to M/s Wire Communication System i.e. OP No.5 and OP No.5 has received consideration amount from complainant directly in individual capacity. In view of the above stated facts it is not expedient in the ends of justice and on the principles of natural justice to exonerate OP No.5 from liability. Point No.1 is decided accordingly. Point No.2: Final Order
21. In view of findings upon point No.1 above appeal filed by complainant is partly allowed and order of learned DCF/DCC is set aside. It is ordered that M/s Wire Communication System i.e. OP No.5 will issue receipt of security fee received from complainant to the tune of Rs.1200/-(One thousand two hundred) for installation of 13 Manoj Kumar Versus Fast Way Multi System Operator (MSO) & Ors. F.A. No.202/2019 digital cable set top box in the residential house of complainant situated in H.No.190/11 Tarna Road Mandi Town (Distt.) Mandi (H.P). It is further ordered that M/s Wire Communication System will provide service of channels to complainant as directed by Telecom Regulatory Authority of India as per gold package as per monthly rent approved by Telecom Regulatory Authority of India (Trai).
22. It is further ordered that OP No.5 i.e. M/s Wire Communication System shall pay compensation to complainant for mental agony and harassment to the tune of Rs.15000/-(Fifteen thousand). It is further ordered that in addition M/s Wire Communication System shall pay litigation costs to complainant to the tune of Rs.10000/-(Ten thousand). M/s Wire Communication System Sen Complex 2nd Floor Moti Market Mandi shall comply order within one month after receipt of certified copy of order.
23. Relief against District Public Relations Officer and Chairman District Consumer Council is declined because complainant has not paid any consideration amount to District Public Relations Officer and Chairman District Consumer Council Mandi. Consideration payment receipt No.1055 issued by M/s Wire Communication System Annexure-C1 dated 04.05.2016 shall form part and parcel of order.
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Manoj Kumar Versus Fast Way Multi System Operator (MSO) & Ors. F.A. No.202/2019
24. File of learned DCF/DCC alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member R.K. Verma Member 23.04.2020 K.D 15