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Judgment
This revision petition has been filed by the petitioner N. Syamasundaran against the order dated 18.11.2015 of the State Consumer Disputes Redressal Commission, Karnataka, (in short 'the State Commission') passed in Appeal No.820 of 2013.
Brief facts relevant for the disposal of this revision petition are that the petitioner had one Tata Sky connection and his set-top box was not functioning properly and after complaint, the same was replaced by the opposite party. After sometime, the replaced set-top box also became faulty and the petitioner could not utilise his Tata Sky connection. The grievance of the complainant in the complaint is that no proper response was given by the persons of the opposite party and the set top box was not replaced. He requested for disconnection of the Tata Sky connection and wanted the remaining amount in his account to be paid to him.
The complaint was resisted by the opposite party on the ground that set top box was purchased from a third party vendor and therefore, Tata Sky did not have any responsibility to replace the same. As a goodwill gesture, they replaced set top box once but, it is not their responsibility to replace the set top box every time. The District Consumer Disputes Redressal, Forum, Bangalore, (in short 'the District Forum') dismissed the complaint vide its order dated 03.05.2013. The complainant preferred an appeal before the State Commission which was also dismissed vide its order dated 18.11.2015.
Hence the present revision petition.
Heard the learned counsel for both the parties and perused record. The learned counsel for the petitioner stated that both the fora below have not appreciated the fact that set top box is the part of the hardware and the opposite party claims ownership on this set top box as part of hardware. In support of his assertion, the learned counsel referred to the judgment of this Commission in Tata Sky Limited Vs. Kamla Lall & anr., RP No.3044 of 2010, decided on 14.01.2011, (NC), wherein the condition no.10 of the terms and conditions is clearly mentioned and which reads as under:-
"10. DIGICARDTM /DIGICOMPTM
10.1 The DigicardTM and the Tata Sky Hardware will at all times remain Our property.
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10.7 Each digicardTM is compatible with only one DigicompTM, and cannot be used on any other DigicompTM.
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10.14 You must not allow any other person or entity to use the DigicardTM and/or Hardware, including the DigicompTM in any manner and for any purpose whatsoever."
It was further pointed out by the learned counsel for the petitioner that the guidelines issued by Telecom Regulatory Authority of India (TRAI) clearly specify time limits for rectification of defects or problems faced by the direct to home subscribers and the same reads as under:-
"15.(1) (b) in case of complaints (other than non receipt of signals) by direct to home subscriber, at least ninety per cent of all such complaints shall be redressed within a period of forty-eight hours of the receipt of complaint.
(2) No complaint referred to in clauses (a) and (b) of proviso to sub-regulation (1) shall remain unresolved beyond five days."
It was asserted that it was the duty of the service provider to rectify the defect within the time prescribed by the Telecom Regulatory Authority of India whatever may be the cause. Clearly the service provider has failed in rectification of the defect or problem communicated by the complainant to the service provider.
The learned counsel further stated that the complainant then requested for disconnection of the Tata Sky connection but the balance in the account of the complainant has not yet been refunded by the opposite party.
On the other hand, the learned counsel for the respondent opposite party stated that set top box is not part of the Tata Sky hardware and it is purchased from third party. There may be specific type of set top box which is suited for Tata Sky signals but the same is being supplied by third party and not by the Tata Sky Company.
The respondent company replaced set top box once as a goodwill gesture but it was not obliged to replace the same second time. This set top box was to be repaired or replaced by third party and therefore, if the complainant could not watch the TV due to fault in the set top box, the respondent company is not responsible for the same. The District Forum and the State Commission both have given concurrent finding that the respondent company was not responsible for replacing the set top box of the complainant and there was no deficiency of service on the part of the respondent company. The scope under the revision petition is quite limited against the concurrent finding given by the fora below.
I have given a thoughtful consideration to the arguments advanced by the learned counsel for both the parties and have examined the material on record. It is true that the TRAI has set out certain guidelines for the service providers to direct to home subscribers and the service provider is required to remove any defect or problem within a specified time. It is seen that both the fora below have given concurrent finding that the opposite party was not guilty of any deficiency in service and opposite party was not responsible to replace the set top box of the complainant. Facts cannot be reassessed by this Commission at the stage of revision petition as held by Hon'ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286, as under:-
"23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons."
The question is whether defect in the set top box is required to be removed by the Tata Sky Company or not? Condition No.10 of the terms and conditions, though relied by the complainant, does not, in my view, confirm that set-top box is a part of the hardware supplied by the Tata Sky Company. Thus, this set top box is not a part of the hardware supplied by the Tata Sky Company and therefore, the responsibility to replace the set top box was not of the opposite party. Thus, from this point of view, I do not find any illegality in order of the State Commission.
The complainant had also demanded that the balance amount in his account be refunded to the complainant. This seems to be a genuine request and opposite party is liable to refund the account balance in the account of the Tata Sky connection of the complainant on the date when the complaint of defective set top box was made to the opposite party.
On the basis of the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 18.11.2015 of the State Commission which calls for any interference from this Commission so far as it relates to replacement/repair of the set-top box of the complainant. However, the opposite party is directed to refund the balance amount in the Tata Sky account of the complainant from the date when the complaint was made to the Tata Sky Company by the complainant for his defective set top box. This order be complied by the opposite party within a period of 45 days from the date of receipt of this order. The Revision petition No.1384 of 2016 is disposed of accordingly.