State Consumer Disputes Redressal Commission
Msm Discovery Pvt. Ltd. Presntly Known ... vs Dr. Adesh Kumar & Others on 3 July, 2023
Appeal No. Culver Max Entertainment (P) Ltd. 03.07.2023
42 of 2014 (erstwhile MSM Discovery Pvt. Ltd.)
Vs.
Dr. Adesh Kumar and others
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 11.03.2014
Date of final hearing: 09.06.2023
Date of Pronouncement: 03.07.2023
First Appeal No. 42 / 2014
Culver Max Entertainment Private Limited
(erstwhile MSM Discovery Pvt. Ltd.)
Through its Authorised Signatory
Having its Registered Office at:
Interface Building No. 7, Fourth Floor
Off. Malad Link Road, Malad (West) Mumbai 400064
(Through: Sh. Amitesh Mishra, Advocate)
.....Appellant
VERSUS
1. Dr. Adesh Kumar
R/o Avas Vikas Colony, Jwalapur, Haridwar
....None for Respondent No. 1
2. Smt. Nisha Patel
Prop. New Star Cable Network
R/o Adarsh Nagar, behind Khoobsurat Palace
Jwalapur, Tehsil Haridwar
....None for Respondent No. 2
3. Sh. Manish Sharma
2nd Floor, 9/1B, Secular House
Qutab Institutional Area, Arun Asaf Ali Marg
New Delhi
....None for Respondent No. 3
4. Sh. Hemant Gandhi
B-1, 2nd Floor, Johar Complex, Rishikesh, Dehradun
....None for Respondent No. 4
5. C.E.O. MSM Set Discovery Pvt. Ltd.
(now Culver Max Entertainment Private Limited)
....None for Respondent No. 5
1
Appeal No. Culver Max Entertainment (P) Ltd. 03.07.2023
42 of 2014 (erstwhile MSM Discovery Pvt. Ltd.)
Vs.
Dr. Adesh Kumar and others
6. Shiva Cable Network
47/3 Durga Mamelir Wali Gali
Begum Bagh, Meerut, Uttara Pradesh
....None for Respondent No. 6
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal under Section 15 of The Consumer Protection Act, 1986 has been directed against the judgment and order dated 07.02.2014 passed by the learned District Consumer Disputes Redressal Forum, Haridwar (hereinafter to be referred as the District Commission) in consumer complaint No. 134 of 2009 styled as Dr. Adesh Kumar Vs. M.S.M. Set Discovery Pvt. Ltd. and others, wherein and whereby the complaint was allowed directing the appellant - opposite party No. 1 to supply signals of its channels to the respondent No. 1 - complainant and also to deposit a sum of Rs. 10 Lacs in the District Forum (Commission) as costs for contesting the said complaint within a period of 30 days from the date of order.
2. The factual matrix leading to filing of present appeal are as such that the appellant is a company incorporated under the Companies Act, 1956, having it's office at Unit Nos. 5, 6, 7 and 8, Time Tower, M.G. Road, Gurgaon 122002, Haryana. The company is a Broadcaster as contemplated in Clause 2(e) of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulation, 2004 and engaged in the business of distribution of and collection of subscription fees for the distribution of 2 Appeal No. Culver Max Entertainment (P) Ltd. 03.07.2023 42 of 2014 (erstwhile MSM Discovery Pvt. Ltd.) Vs. Dr. Adesh Kumar and others 'TheOneAlliance' channels which includes channels such as Sony Entertainment Televisioin (SET), MAX, SAB, PIX, Aath, Animal Planet, AXN, Animax, Discovery, Discovery Channel Tamil, TLC, Discovery Science, Discovery Turbo, Aaj Tak, Headlines Today, TEZ, Neo Sports, Neo Cricket, MIX and Discovery HD World. The respondent No. 1 - complainant in his complaint has alleged that he is an individual who is / was the subscriber of the television channels of respondent No. 2 - a cable operator (opposite party no. 4 of the complaint). As per the complaint, the complainant is a consumer of the opposite parties and was viewing the T.V. channels through the cable network being run by the opposite party No. 1 - appellant. The opposite party No. 1 is a broadcaster and broadcasts the channels in the name and style of the appellant company. At the time of installation of the connection, the opposite party No. 4 - Smt. Nisha Patel charged installation charges from the consumer which included the cost of cable and other equipment supplied by the opposite party No. 4 and a sum of Rs. 500/- was charged from the complainant. The complainant and the other consumers are suffering on account of the monopolistic and unfair trade practices being adopted by the opposite parties and the complainant had been viewing 12 channels broadcasted by the opposite party No. 1 through the cable network of the opposite party No. 4. The opposite party No. 1 suddenly stopped the broadcast of the channels leading to inconvenience and harassment to the consumers and irreparable losses to them, whereas the complainant had paid advance subscription to the opposite party No. 4 and on dated 05.05.2009, the opposite party No. 1 has suddenly stopped the broadcast of the channels which were being viewed by the consumers of the cable network of opposite party No. 4 on account of default in the payment of the subscription amount by the opposite party No. 4 to the opposite party No. 1. The sudden disruption of the broadcast by the opposite party No. 1 is an act of high handedness and is an unfair trade practice and the opposite 3 Appeal No. Culver Max Entertainment (P) Ltd. 03.07.2023 42 of 2014 (erstwhile MSM Discovery Pvt. Ltd.) Vs. Dr. Adesh Kumar and others parties are adopting unfair trade practice. Thus, there had been deficiency in service on their part, therefore, the complaint be allowed directing the opposite parties not to disrupt in any manner whatsoever in the broadcast of the channels described in Annexure-1 of this petition. They were also directed to resolve a mechanism so that they have any interse disputes, it should be settled by them by taking recourse to legal measures without harming the interest of consumers and costs / compensation be also awarded.
3. The opposite party No. 1 has submitted its written statement alleging that the complainant is not a consumer and the complainant or any other persons, viewed T.V. channels through cable network being run by the opposite party No. 1 and the opposite party No. 1 is merely the distributor of 'TheOneAlliance' channels in India and distributes its channels to the respective criteria as specified by the Telecom Regulatory Authority of India. Opposite party No. 4 is a cable operator and used to have a valid subscription agreement with opposite party No. 1, however, due to non- payment of dues, the signals of opposite party No. 2 to opposite party No. 4 were disconnected. It is further submitted that present complaint is nothing but an eye wash wherein the complainant has in collusion with opposite party No. 4 filed the present complaint with only intention of illegally getting a reconnection of the signals of opposite party No. 1 to opposite party No. 4 without opposite party No. 4 entering into a fresh subscription agreement with opposite party No. 1 and making regular payment for the same to the opposite party No. 1. It is further submitted that in the cases of disconnection of cable operators, opposite party No. 1 is legally bound to issue public notices as per Clause 4.3 of the Interconnection Regulations and the same were duly published by the opposite party No. 1 on 23.06.2007; the complainant and every other person had at least a notice period of 3 weeks to approach opposite party No. 4 and 4 Appeal No. Culver Max Entertainment (P) Ltd. 03.07.2023 42 of 2014 (erstwhile MSM Discovery Pvt. Ltd.) Vs. Dr. Adesh Kumar and others demand it to resolve its issues with opposite party No. 1; the aggrieved persons could also seek damages and other such relief against opposite party No. 4 and the said persons were free to approach any other cable operator in the area who was supplying signals of opposite party No. 1's channels etc. It is further submitted that there had been never any sudden or illegal break in the transmission provided by the opposite party No. 1 to opposite party No. 4 at the time when opposite party No. 4 had a valid and subsisting agreement with opposite party No. 1. Any subsequent disconnection by opposite party No. 1 has been due to fault on the part of the opposite party No. 4 and the opposite party No. 4 was solely responsible and culpable for losses or damages suffered, if any, on account of disconnection by opposite party No. 1. Thus, the prayer clause of the present complaint are false, ill-conceived, malafide and the contentions of the complaint are totally denied. There was no deficiency in service provided by the opposite party No. 1 and opposite party No. 1 has never adopted unfair trade practice. Therefore, the complaint is liable to be dismissed.
4. The opposite party Nos. 2 to 6 have not filed any written statement before the learned District Commission.
5. The District Commission after taking into consideration the material available on record, has passed the impugned judgment and order dated 07.02.2014 wherein and whereby the learned District Commission has directed the opposite parties (including the appellant) to ensure to supply the signals of its channels to the complainant - respondent No. 1 properly and within a month from the date of order. It was also directed that the opposite party No. 1 - appellant shall deposit Rs. 10 Lacs as compensation with the District Commission.
5Appeal No. Culver Max Entertainment (P) Ltd. 03.07.2023 42 of 2014 (erstwhile MSM Discovery Pvt. Ltd.) Vs. Dr. Adesh Kumar and others
6. Having been aggrieved by the aforesaid judgment and order, the present appeal has been preferred by the appellant. It is contended in the appeal that as per Clause 3.2 (proviso) of Interconnection Regulations vests a right in the appellant to disconnect its signals and to sever its business relationship with an operator in case of non-payment of dues and the act of disconnection of the signals (operator) by the appellant can under no circumstances, be categorized under the definition of 'deficiency in service'. It is further alleged that the complainant is not a consumer of the appellant.
7. A perusal of the order sheet has shown that none has appeared on behalf of respondent Nos. 1 to 6, hence the arguments were heard ex-parte against the respondent Nos. 1 to 6.
8. We have heard learned counsel for the appellant and perused the material available on record.
9. On record there is certified copy of Revision Petition No. 15 of 2009 (paper No. 24/2 of the District Commission's record) passed by the State Consumer Disputes Redressal Commission, Uttarakhand, Dehradun wherein the State Commission has ordered on dated 20.03.2012 regarding the maintainability of consumer complaint and has relied on the following judgments:
(a) Secretary, Thirumurugan Co-
operative Agricultural Credit Society Vs.
M. Lalitha (Dead) through L.Rs. and
others; I (2004) CPJ 1 (SC)
(b) Zee Turner Limited Vs. Sanjeev
Chauhan and others; I (2008) CPJ 318
6
Appeal No. Culver Max Entertainment (P) Ltd. 03.07.2023
42 of 2014 (erstwhile MSM Discovery Pvt. Ltd.)
Vs.
Dr. Adesh Kumar and others
(c) Mrs. Rubi (Chandra) Dutta Vs. M/s
United India Insurance Company
Limited; II (2011) CPJ 19 (SC) = IV (2011)
SLT 303 = 2011 (3) Scale 654
(d) Haryana Urban Development
Authority Vs. Bhawnesh Kumar Taneja;
IV (2011) CPJ 561 (NC)
and has held that there is no jurisdictional error in the impugned judgment and the consumer complaint No. 134 of 2009 is not maintainable.
10. Against the above said judgments dated 20.03.2012 passed in Revision Petition No. 15 of 2009, the appellant had gone to the Hon'ble High Court of Uttarakhand in Writ Petition (M/S) No. 582 of 2012; MSM Discovery Pvt. Ltd. Vs. Dr. Adesh Kumar and Others. The Hon'ble High Court has held that there is no jurisdiction error to entertain the complaint. Hon'ble High Court has held as under:-
"So far as the jurisdiction to entertain the complaint is concerned, I am in agreement with the view taken by the State Commission, therefore, I am not inclined to entertain the writ petition on the ground of maintainability of the consumer complaint and the writ petition is accordingly dismissed in limine. However, liberty is given to the petitioner to move an application before the District Forum Haridwar to recall the ex parte order and if such recall application is moved, the same shall be decided by the District Forum expeditiously, preferably within 7 Appeal No. Culver Max Entertainment (P) Ltd. 03.07.2023 42 of 2014 (erstwhile MSM Discovery Pvt. Ltd.) Vs. Dr. Adesh Kumar and others a period of four weeks after hearing both the parties in accordance with law."
11. Thus, when the matter was already decided by the Hon'ble High Court, therefore, we are not inclined to discuss the same plea again that the consumer complaint was not maintainable in the District Forum (Commission).
12. Some photocopies of the consumer complaint No. 213 of 2007 (paper Nos. 53 to 66 of the appeal file) are available on record which have revealed that prior to the present complaint, a complaint No. 213 of 2007 by Sh. Prem Chand Sharma and another was also filed against the appellant and this complaint No. 213 of 2007 was not contested by the complainants, therefore, the same was dismissed as not pressed vide order dated 21.05.2008 (paper No. 65 of the appeal file).
13. The appellant has contended in the memo of appeal that the consumer complaint No. 213 of 2007 was withdrawn by the complainants on dated 21.05.2008 for the reasons best known to them and thereafter the signals of the appellant to respondent No. 2 - opposite party No. 4 were finally disconnected on 24.05.2008 on account of non-payment of dues amounting to Rs. 6,69,120/- (excluding interest calculated @ 24% per annum).
14. It is further contended on behalf of the appellant that after the lapse of almost one year on 30.05.2009 another consumer complaint bearing No. 134 of 2009 was filed on 21.07.2007 on the ground of disconnection of the signals of respondent No. 2 and stated that the signals were disconnected on dated 05.05.2009, despite the appellant leading evidence qua its disconnection on dated 24.05.2008 and the respondents not refuting 8 Appeal No. Culver Max Entertainment (P) Ltd. 03.07.2023 42 of 2014 (erstwhile MSM Discovery Pvt. Ltd.) Vs. Dr. Adesh Kumar and others the said evidence through their own evidence, hence the learned District Commission has disregarded this fact while arriving at its final order.
15. We have perused the records in the light of said contention.
16. PUBLIC NOTICE from the SET Discovery Pvt. Ltd. was published in the newspaper on dated 23.06.2007 which is available on record at paper No. 50 of the appeal file.
17. It is true that all the cable operators, who wish to supply the signals of channels of the appellant to the consumers / subscribers need to necessarily enter into a Subscription Agreement with the appellant in terms of clause / provisions of TRAI's Interconnection Regulations, according to which an operator can receive signals of the appellant, such as territory of retransmission, monthly subscription fees and terms of the agreement. Here it is pertinent to mention that respondent No. 2 - opposite party No. 4 was impleaded in the complaint case, as a necessary party, even then no such documentary evidence has been filed on behalf of opposite party No. 4 that he has paid the entire subscription fees and he has made full compliance with the terms and conditions of the agreement. Thus, in absence of such reliable and cogent evidence regarding the payment of subscription amount to the appellant company, the cable operator cannot get the signals of the appellant company.
18. As per Clause 4.3 (proviso) of Interconnection Regulations also vests right in the appellant to disconnect its signals and to sever its business relationship with an operator in case of non-payment of dues. Respondent No. 2 - opposite party No. 4 has failed to prove that the entire payment / subscription amount has already been paid.
9Appeal No. Culver Max Entertainment (P) Ltd. 03.07.2023 42 of 2014 (erstwhile MSM Discovery Pvt. Ltd.) Vs. Dr. Adesh Kumar and others
19. Apart from it, we have also perused the record of the complaint file, wherein only one receipt of Cable T.V. Dish Antenna Centre of 05.05.2009 is available on record. No monthly receipts about the payment of Cable T.V. Dish Antenna has been submitted by the complainant, which could show that the complainant has regularly paid the monthly subscription amount of T.V. Channels of respondent No. 2 (cable operator - opposite party No. 4). When the complainant was not paying the regular monthly subscription amount, he is not liable to get any relief as claimed in the complaint case. By paying one month subscription amount to view the channels of the T.V. does not create a right to the customer to view the channels forever. So regular monthly subscription is very necessary for a customer to view the channels of T.V. Likewise monthly subscription by the cable operator to the appellant company should also be regularly paid to get the signals from the appellant company.
20. It is true that disconnection of signals was due to non-payment of subscription amount by the cable operator to the appellant company. When the subscription amount for regular supply of signals of the channels is not paid and when the regular monthly amount for utilization the channels of Dish Antenna is not paid by the customer - complainant, no question arises that there was a deficiency of service on the part of the appellant company.
21. For the sake of arguments, if the appellant was not giving signals of channels of T.V. to the cable operator / cable operators inspite of payment of subscription fees, then such cable operators might seek legal remedy against such disconnection against the appellant / Broadcaster by referring dispute before the TDSAT as regards such disconnection by the appellant for redressal of the grievances, but the records have shown that no such action was ever taken by the cable operator against the appellant. On record, the cable operator - respondent No. 2 has not submitted any such 10 Appeal No. Culver Max Entertainment (P) Ltd. 03.07.2023 42 of 2014 (erstwhile MSM Discovery Pvt. Ltd.) Vs. Dr. Adesh Kumar and others cogent and reliable evidence in regard to the fact that he had never made any default in payment of monthly subscription amount to the broadcaster. The complainant has paid one month subscription amount to view the channels to the cable operator and not to the broadcaster. Hence, in such circumstances, if the complainant was aggrieved by the disconnection of the channels to the operator, then he could approach another cable operator operating the channels in the area or also get DTH system such as Tata Sky, Dish T.V. etc. and like to view the T.V. channels properly.
22. Thus, we are of the view that the learned District Commission has not given its finding in the above respect in accordance with law.
23. Learned District Commission has also awarded Rs. 10 Lacs as compensation. We do not find any deficiency in service on the part of the appellant company, therefore, the order for directing to pay or deposit the amount of Rs. 10 Lacs (Rupees Ten Lacs only) as costs is perverse and is liable to be quashed.
24. Accordingly we are of the view that the impugned judgment is perverse and is not passed in accordance with law. The impugned judgment has suffered from illegality and irregularity, therefore, we are inclined to interfere with the finding of the impugned judgment. We are of the considered view that the appeal is liable to be allowed and the impugned judgment is liable to be set aside.
25. Accordingly, the appeal is allowed. Impugned judgment and order dated 07.02.2014 is set aside and the complaint is hereby dismissed. No order as to costs of the appeal.
11Appeal No. Culver Max Entertainment (P) Ltd. 03.07.2023 42 of 2014 (erstwhile MSM Discovery Pvt. Ltd.) Vs. Dr. Adesh Kumar and others
26. Statutory amount deposited by the appellant, be released in favour of the appellant.
27. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The copy of this judgment alongwith original record of the concerned District Commission be sent to the District Commission concerned for record and necessary information.
28. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 03.07.2023 12