Salma Noor, J.
Oral:
1. This appeal is directed against the order dated 10.7.09 passed by the District Consumer Forum-III, Janakpuri, New Delhi-58, in Complaint Case No. 640/07 wherein the District Forum directed the Appellant/OP-1 to refund to the complainant the amount of Rs. 3,250/- after collecting their Dish and STB from the premises of the complainant. OP-1 and to further pay to the complainant a sum of Rs. 2000/- towards compensation and cost for the harassment caused to the complainant on account of deficiency in service on their part. The appellant has prayed for setting aside the impugned order.
2. Brief facts of this case are that the complainant has taken a DTH connection of Tata Sky Ltd., on 11.3.07 for the purpose of better quality picture and sound on his TV against payment of Rs. 3,250/- vide invoice No.062 dated 11.3.2007. After some days, the service provider, TATA Sky Ltd., block the ETC Punjabi and some other channels due to which complainant and his family were disheartened. Complainants grievance is that OP-1 has not given any prior or any other information regarding this. Complainant further states that after making an enquiry he came to know that OP-1/appellant had to discontinue the ETC Punjabi Channel due to a court verdict and OP-1/appellant was not able to telecast the above noted channel in future. Complaints alleging deficiency in service was filed before the District Forum with prayer for refund of Rs. 3250/- with interest and also compensation and cost for the harassment caused to the complainant/respondent.
3. OP-1/appellant, M/s Tata Sky Ltd in their detailed written statement before the District Forum, raised a number of preliminary objections with regard to the complainants request for refund of the amount of Rs. 3,250/- against return of their equipments from the premises of the complainant and pleaded that the Set Top Box provided by them can be used for availing the services of other DTH service providers of a subscriber is not willing to continue with their services for want of non-available channels and wants to avail the services of other service providers may use the same STB for availing new services. OP-1/appellant claimed that complainant in fact had purchased the STB, which equipment he can make use of for availing the services from some other DTH service providers and that they are not liable to take back the same from the complainant and refund the amount of Rs. 3250/- OP-1/appellant also narrated in detail as to why they were not able to broadcast ETC Punjabi though alternative channel comprising of more material including the one provided by ETC has now been made available to the viewers.
4. Parties have filed affidavits in support of their rival contentions.
5. The District Forum after taking into consideration the pleadings and evidence led by the parties over ruled the objections raised by the appellant, allowed the complaint and directed the appellant to pay Rs. 3,250/- after collecting their Dist and STB and also Rs. 2000/- towards compensation.
6. Feeling aggrieved, the instant appeal has been filed by the appellant/OP.
7. We have heard Sh. Manoj, Counsel for the appellant and Sh. Vikas, Counsel for the Respondent and perused the material on record.
8. The main plea of the appellant is that the Ld. District forum has wrongly observed that the amount of Rs. 3250/- paid to the respondent-1/complainant was a security deposit. His contention is that the said amount was the cost paid by the complainant for the Set Top Box (STB) (also known as digicomp) to respondent-2 who supplied the STB of the quality approved by the appellant. The appellant has not received that money.
9. The appellant further said that âTata Sky Hardwareâ includes Minidish, LNB and Digicard and is given to the subscriber without any consideration and remains property of TATA Sky Ltd., which means that these items will be collected by the appellant firm after services are discontinued.
10. Clarifying on the STB, the appellant contends that âIn case the DTH subscriber does not owe any dues (including any arrear towards installments of hire purchase scheme or arrears of rent for the Director to Home Customer premises Equipment of such operator) to the DTH operator (TATA Sky Ltd, in this case), such operation shall not disable the DTH/STB of such subscriber who does not want to continue to opt or avail DTH services offered by such DTH operator and uses or intends to use the DTH Customer premises Equipment for viewing the DTH services of Doordarshan or any other DTH operator.â
11. The above quoted extract from the Gazette notification dated 31.8.2007 makes it amply clear that the STB is not specific to the DTH operator and is a property of the subscriber and can be used in case other DTH operators services are subscribed.
12. The appellants plea is that the cost of STB (Rs. 3250/-) was paid to the respondent-2 and is now property of the complainant/subscriber (respondent-1 in this appeal). Therefore, order of the Ld. District Forum to refund this amount is not justified.
13. As regards deficiency in service, the appellant has accepted that ETC Punjabi channel was discontinued as alleged by the complainant. Defending its action, the appellant contends that Para 5.4, 5.5 and 16.4 of the terms and condition of the service provides for discontinuance of a channel. In addition, the appellant pleads that the discontinuance was done due to circumstance beyond their control and therefore, one should not be penalized for failure caused due to factors beyond his/her control. To support his contention, the appellant has submitted copies of the correspondence with ZEE Turner Ltd., so as to make it possible to telecast ETC Punjabi channel on Tata Sky DTH service at normal costs. It is alleged that ZEE Tuner Ltd launched its Dish TC DTH service which was signal provider as well as DTH service operator. The appellants case that monopolistic motives of Zee Turner Ltd. resulted in conditions that made it very costly to include just one channel ETC Punjabi. Increasing such a cost could have been injustice to large number of viewers Pan-India, who may not be interested in ETC Punjabi; the action of the appellant was in the larger interest of a vast majority of the subscribers.
14. In view of the above and the records available on the file, it is evident that the Ld. District Forum has failed to appreciate the difference between the Tata Sky Hardware and the STB, which was provided by Respondent-2 and the appellant cannot be held liable to return that money. In any case STB is property of the respondent-1/complainant and he can use it without any DTH operator.
15. The counsel for the appellant has relied upon some judgments which are not applicable in this case.
16. As regards deficiency in service, it is admitted that one Channel âETC Punjabiâ has to be discontinued by the appellant but it was not intentional. In fact, the appellant took up the matter with the signal provider to get the channel to its viewers but in the larger interest of other viewers had to discontinue it. Since the reasons for such an action were beyond the control of the appellant, we do not find it to be a case of intentional deficiency in service.
17. In view of the above, we find that Ld. District forum has erred in its judgment. In the result, the appeal is allowed. The order dated 10.7.2009 of District Forum in Complaint Case No.640/07 is hereby set aside.
18. 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 Record Room.
19. The FDR, if any, be returned to the appellant as per rules.