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2011(1) CPR 191
HIMACHAL PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION SHIMLA
Mrs. Saroj Sharma, Presiding Member and Mr. Chander Shekhar Sharma, Member.
Taj Television (India) Private Limited
(Ten Sports) — Appellant.
versus
Veena Cable Network — Respondent
First Appeal No. 66/2009.
Decided on 21-10-2010.
Counsel for the Parties:
For the Appellant:Mr. A.S. Randhawa, Advocate.
For the Respondent No.1:Mr. Mehar Chand Thakur, Advocate.
For the Respondent No.2: Ex-parte.
IMPORTANT POINT
Dispute between two “service providers” is not a “consumer dispute” since it is not between “service provider” of a “consumer”.
Headnote:Consumer Protection Act,1986—Sections2(1)(d), 2(1)(g), 2(1)(r)—Respondent No. 1 was provided cable service by appellant on payment of connection charges –Contention of Respondent No.1 that despite receipt of said payment being charges for providing Ten Sports Channel, appellant without prior notice required under Telecom Regulatory Authority of India Act disconnected their said Ten Sports Cable Channel and as a result thereof respondent No.1 could not transmit said sports channel to subscribers from whom respondent No.1 was regularly charging monthly subscription and as a result respondent concerned was made to suffer huge financial loss—Complaint—Allowed by District Forum—Appeal—Held dispute related to two service providers, i.e. Veena Cable Network and Taj Television (India) Private Limited (Ten Sports) and was not between a “consumer” and a “service provider” and as such respondent NO.1 did not fall within ambit of definition of a “consumer” under Section 2 (1) (d) of Consumer Protection Act, 1986—Hence Foras under Consumer Protection Act, 1986 not had jurisdiction to entertain such complaint—Appeal allowed. (Paras 9 to 14)
Chander Shekhar Sharma, Member—This appeal is directed against the order passed by District Forum Sirmaur, at Nahan in Complaint No.93/2005, dated 15.01.2009, whereby the complaint of the respondent No.1 was allowed and the appellant was directed to restore Ten Sports Channel to respondent No.1 within period of 15 days after receipt of copy of order. In addition to this further directions were made that the appellant shall pay Rs. 40,000/- as damages to respondent No.1 for causing her unnecessary harassment and mental agony, litigation cost was quantified at Rs. 2,000/- which was ordered to be paid by the appellant to respondent No.1. However complaint against proforma respondent No.2 was dismissed being not maintainable.
2. Facts of the case as they emerge from the record are respondent No.1 was provided cable service by the appellant on payment of Rs.16,800/- as connection charges and payment of said amount was made by demand draft No.287795, dated 07.04.2005 vide Annexure AW-2 which was duly received by the appellant vide acknowledge-ment Annexure AW-3. Further allegations in the complaint are that the despite receipt of aforesaid payment being charges for providing Ten Sports Channel, appellant without prior notice required under the Telecom Regulatory Authority of India Act disconnected their aforesaid Ten Sports Cable Channel on 18.08.2005 and as a result thereof respondent No.1 could not transmit the said sports channel to the subscribers from whom the respondent No.1 was regularly charging monthly subscription and as a result thereof respondent concerned was made to suffer huge financial loss due to arbitrary act of the appellant which amounts to deficiency in service/unfair trade practice.
3. In this background complaint under Section 12 of Consumer Protection Act, 1986 was filed wherein claim to the tune of Rs.5,00,000/- as compensation was demanded due to aforesaid arbitrary act/decision of the appellant.
4. The complaint was resisted and contested by respondent No.1 and had taken preliminary objections regarding maintainability, and jurisdiction of District Forum below to entertain and try the complaint. On merit, it was pleaded that an amount of Rs.16,800/- which was sent through demand draft and was received by proforma respondent No.2 and as such their plea is to the effect that proforma respondent No.2 is liable for the same, whereas in-fact the amount of demand draft aforesaid was received by the appellant and not by respondent No.2. This fact also transpired from the record that the name of proforma respondent No.2 was deleted from the array of opposite parties vide impugned order dated 15.01.2009.
5. Brief resume of evidence led by the parties in nutshell is that the appellant in support of its case had placed reliance upon affidavit of Shri Bhupendra Makshi. Respondent No.1 in support of its case has filed her own affidavit and placed reliance upon documents Annexures AW-1 to AW-5, which are VC card, copy of draft dated 07.04.2005 for Rs.16,800/- in favour of the appellant, copy of receipt of draft, copy of letter dated 18.05.2008 addressed to the appellant by respondent No.1 and copy of letter dated 01.09.2005 written to the Manager of the appellant by Consumer Coordination Council.
6. We have heard the learned counsel appearing for the parties at length and have also gone through the record of case minutely.
7. Mr. A.S. Randhawa learned counsel argued that in the present case Foras under the Consumer Protection Act, 1986 had no jurisdiction to try the complaint which is to be tried by Telecom Disputes Settlement and Appellate Tribunal established under Section 14 of Telecom Regulatory Authority of India Act, 1997 and has also argued that since it is a dispute between two service providers and thus the respondent is not a “consumer” under the Consumer Protection Act, 1986. He has placed reliance on the decision of Hon’ble Apex Court in case titled as Hotel & Restaurant Accocn. And Anr. v. Star India Pvt. Lt
