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T.V.N.Appa Rao v Ortel Communications

31-Dec-09

District Consumer Disputes Redressal Forum, Rayagada.

CONSUMER FORUM,RAYAGADA.

consumer case(CC) No. CC/09/111

Sri T.V.N.Appa Rao .
………..Appellant(s)

Vs.

1. Ortel Communications Ltd , Corporate Office, C-1, Chandrasekharpur, Behind RMRC B.D.A Colony, Bhubaneswar.

2. Ortel Communications Ltd,
………..Respondent(s)

BEFORE:
1. Smt Pranati Patra
2. Sri B.K Rath
3. Sri K.A Ramachandran

Complainant(s)/Appellant(s):
1. Sri T.V.N.Appa Rao .

OppositeParty/Respondent(s):
1. 1. Ortel Communications Ltd , Corporate Office, C-1, Chandrasekharpur, Behind RMRC B.D.A Colony, Bhubaneswar.
2. 2. Ortel Communications Ltd,

OppositeParty/Respondent(s):

OppositeParty/Respondent(s):
1. R.C.Baxipatra

ORDER

In C.C NO: 111/2009 and C.C NO: 112/2009 the complainant has placed their grievance against the O .Ps and OP NO: 2 is appearing for the consumers as a whole and filed the grievance for and on behalf of the consumers at large . Hence all the three cases are disposed by a common order. 2. Previously the cable net work services were undertaken by private persons in different areas and subsequently they formed into an association and it was styled as MAJHI GOURI CABLE NET WORKS and they used to serve the consumers on taking money for cable net work services. i.e on payment of considerations. 3. The ORTEL COMMUNICATION LTD made his entry into the filed and made publications and wall paintings and also announcement through pamphlets premising to give better cable net work services including the transaction of T.V . channels of the choice of the consumers. They have also laid their net work by using the electric poles of the South Co for which they have made separate contract with the said department. The O .Ps also offered to give the cable net work services at a minimum of Rs 116/- P.M and if any body wanted to avail the said services they will be provided free services for three months. Having allured the consumers by different needs they were able to get some consumers but in the mean time the local cable operators presented the said actions and also warned the consumers not to come under the said promise and obstructed the O.P to encroach their business. 4. In order to avoid the scuffle between the local cable operators the O.P has entered into an agreement with them and purchased their installations and also their right to give the cable services to the consumers and they were allowed to work under the O.P for some monetary gains for sixty months. The cable operators also transferred the list of consumers to the O .Ps and the O.P has extended their cable net work to the consumers without any written permission from the independent consumers and in fact they have purchased the consumers right behind their back. 5. The O.P also served bills to the consumers giving their consumers numbers demanding more amount than they published by way of pamphlets, prints etc and they have also suddenly stopped the telecast of E.T.V Oriya as well as Telugu without notice to the consumers. Hence there is a public resentment in the matter and there is public rally, memorandum to the Government and the concerned officers in different parts of the State but the matter was not finalized and the consumers are not getting the services of their choice and they were thrashed with the channels which they never demand. Hence the entire consumers are not satisfied with the service provided by the O.P and also demanded that they have to stick up to promise given by them by way of pamphlets and wall prints etc. 6. The consumers also made a collective bargain with the O.P through one U.N Mishra Convener of the T.V Users . Association demanding quick action within a period of one month to restore E.T.V channels in Oriya and Telugu otherwise they shall be constrained to switch over to alternatives . they also agreed to deposit only Rs 130/- per month for the services and not ready to enhance the rate more than that. 7. The O.P appeared before this forum and filed the counter. In the counter they have stated that there is no consumer in the list of the O .Ps in record where in the T.V. Users Association , Rayagada is a consumer under law and as such, the complainant is not maintainable . They have also stated that the complainant petition is not listed by the consumers if any separately nor there is representative capacity for U.N. Mishra under law to Style himself as the convener who tried to misguide the forum for which he is liable for false representation. They have also submitted that the Association of T.V. Users , Sastri Nagar is a registered body nor any such representative authority of the users in shape of a resolution in favour of U.N Mishra has been given nor under law such a complainant abruptly in confirmation of letter of the Forum can be taken into cognizance by this Hon’ble Forum and so, it cannot be adjudicated under law. 8. The letter of U.N. Mishra styling himself as a convener of some T.V. Users is not proper legal and not maintainable before this forum. It is admitted by the O.P that there are few cable operators at Rayagada who have up-help to serve their establishment with the O .Ps in a financial bargain and there was no commitment or agreement in any nature by the O.P with those small T.V. channel holders to keep on all the channels which were transmitted by the small T.V channel owners at Rayagada. 9. It is admitted by the O.P that while they have taken charge from the local T.V channel owners there is no commitment to the local consumers including Sri U.N MIshra are not discussed , accepted or worked out and as such the O.P is not legally binding or obligations to provide all the T.V. channels which were communicated by the small T.V. channel owners , who have sold their establishment to the O.P . The purpose of communicating Etv Oriya and Telugu channels for few months after sale of the establishment of small T.V. channels holders to the O.P and small traders and the small operators who sold their establishment have never required the O.P to continue transmission of Etv Oriya and Telugu to the consumers at Rayagada nor the O.P has in mind at any time who has expressed his willingness to any of the consumers at Rayagada to give service of Etv Oriya and Telugu channel. Rather the O.P has expressed his inability for giving Etv Oriya and Telugu channel transmitted under their control due to several commercial reasons for which the Etv authorities have refused to cooperate with the O.P and in several meeting they with the O.P authorities the owner of Etv did not co-operate with the terms in the commercial discussion with the O.P and have categorically refused to allow their transmission at Rayagada through the O.P and the O.P is not obliged to inform or communicate to the consumers in writing regarding the refusal of the Etv authorities not to give facilities of Etv Oriya and Telugu to the O.P and in consequence therefore they are not obliged to provide the facilitates of Etv transmitted to the consumers . The O.P is not required to give the service claimed by U.N. Mishra and others for the transmission of Etv Oriya and Telugu . They alleged that there is no deficiency of service by the O.P and the they are trying to dishonor their establishment in fame in the market of T.V transmission and the O.P reserve the right to provide if necessary for claiming compensation against them in proper time with the above grounds and other grounds the O.P pray for dismissal of the letter of U.N Mishra with costs. 10. Admittedly the complainant petition is filed by U.N Mishra and the consumers of the O.P has given their signatures with their consumer number provided by the O.P. The O.P has not denied the consumer number or not denied the fact that they are not providing the services to them for consideration or giving free services without any consideration. 11. The O.P has stated that the convener Sri U.N Mishra is not having locus standing to file the case in a representative capacity since the association represented by him is not an association registered under the societies Registration Act and he has authority to represent the consumer as a whole. 12. In this connection the definition of COMPLAINANT is given u/s 2 (b) (iv) as follows :- One or more consumers , where there are numerous consumers having the same interest. 13. here there are numerous consumers having the consumer number provided by the O.P for the cable net work service. There is no direct contract between the consumers and the O.P and the O .Ps have obtained the said services from the previous cable operators and there is no consent letter from any of the said consumers. Basing on the information giving by the previous cable operators about their consumers and basing on the said information the O. Ps have extended the services to all the consumers. Even they have not asked the consent when they have installed their cable net work to the consumers and prior to that they have made publicity by brochure , advertisement etc. 14. The O. Ps have taken the service from the previous cable operators behind the back of the consumers and they have not informed about the quality , quantity , purity, standard or price of goods or services so as to protect the consumers against unfair trade practice. They have also violated the consumer rights when they have purchased the installations from the previous cable operators. Simply they have asked for the list of consumers from them and subsequently they have laid their cable net work services to those persons without taking any permission or entering into any contract with individual consumers. Hence the O. Ps have entered into the market with an intention to make a monopoly business in the said service and at the same time restricting other persons to enter into the filed. 15. When they have made advertisement wall paints and brochures stating that they are giving the cable net work services at the minimum rate of Rs 116/- per month and they have also made public announcement to give free services to the customers who have opted to come under their service facility . The O .Ps have totally ignored the above promises and behind the back of the consumers at a large have given the cable net work connection with the help of the previous cable operators. Even the O. Ps have not asked the choices of the consumers and started telecasting the channels of their choice and also disconnected the E.T.V Oriya and Telugu which was previously telecasted by the previous cable operators. 16. It is the settled principle of law that (2009 (2) C.P.R 350 (N.C) June 2009 part L.I.C of India Vrs. Smt.Bimala Devi that: If any agency or organization makes a public pronouncement through a Brochure to attract the people to join or be a beneficiary of a given scheme, in such a case, the persons / organization who has issued a brochure cannot unilaterally withdraw from the terms published by him or change the terms as they appear in the brochure , to the determent of other party. It is already seen that the O.P has purchased the cable net work installations from the previous service providers and in the sale deed it is clearly mentioned that he will give the list of consumers. The above transaction by the O .Ps with the previous cable operators is behind the back of the consumers and taking advantage of those sale deeds they have spread their wings even to the consumers who are not party to such sale and even they were not informed about the service provided by them and the amount to be paid by them for such service. Rather they have given consumers number to all the consumers and started serving demand bills to them where in they have ignored their promise in the brochure and advertisements given by them and foe non-payment of such bills they have also disconnected the line putting the consumers into peril. Even the consumers have made agitations and presented memorandum and also strikes demanding telecast of E.T.V Oriya and Telugu causing law and order problem and their demand is not considered by the O. Ps. Since the consumers have a right of choice to avail the services and when such services are extended by the O .Ps cannot impose any conditions on the consumers since the consumers are kings in the consumer market. Hence the action of the O .Ps in the filed of providing cable net work services to the consumers behind their back and without any written consent from them is an unfair trade practice. 17. The consumers in large have made an attempt by way of collective bargaining with the O.P and the O .Ps though received the said letter not opted for any such settlement for which the entire Rayagada has turned into a mess causing law and order problem. Even the O .Ps have failed to reach an understanding before the local administration and finally basing on the letter of the complainant though U.N Mishra , this court took cognizance of the matter and issued notice to the O .Ps. In the counter the O .Ps have not come with any clear hands for amicable settlement , rather they have explained the difficulties with the E.T.V company. But the consumers who were getting the said facility prior to the O .Ps and even after the O .Ps have taken complete charge, they have telecasted continuously for another three months the above channels and suddenly stopped the said channels without any notice to the consumers. 18. As seen from numerous books on collective bargaining , the negotiation is an activity in which parties are trying to satisfy their needs. Yet their needs are seldom what they seem to be, because the negotiations try to conceal them or do not recognize them. Consequently , negotiations are never totally for what is openly talked about or contested be it a price, services , products, territory , concessions , interest rates or money. What is being discussed, and the manner in which it is being considered, are used to satisfy psychological needs. 19. A negotiation is more than an exchange of material objects. It is a way of acting and behaving that can develop understanding , belief, acceptance, respect and trust. It is the manner of the approach , the tone of voice , the attitude we convey , the methods we use and the concern we exhibit for the other side’s feeling and needs. All these things comprise the process of negotiation . Hence the action of O .Ps not to sit for a negotiation with the consumers is not acceptable. 20. However, with the realization that human beings are matchless , it follows that their goals cannot be mutually exclusive in this climate candor and trust can be established and there will be an exchange of attitudes , facts, personal feelings and needs. With this free interaction and sharing , creative solutions may be found that make both sides winners. 21. When the C.P Act , 1986 was promulgated by the parliament , they felt that the consumers are always live in a society pervaded by potential Win-Lose situations. Some people interpret this to mean that all life is a constant of winning and losing . They see a world with rivals and competitors , with persons who want to take every thing for themselves. This is some times explained as ‘Soviet Style’ and in the consumer filed this type of ‘Soviet Style’ will not work since the market is for the consumers . If there is no consumers there is no market and there is no economic development . So when the consumers have asked for a negotiation and made a collective bargain with the O .Ps for the service provided by them behind their back , definitely the O .Ps who have entered into the market as a service provider for valuable consideration and when they are unable to provide the service to the choice of the consumers, they have no right to exist in the market offering the services of their choice without consideration the choice of the consumers. Hence the only alternative available to the O .Ps are either to accept the collective bargain and offer the demanded services, or take the way of exit. The existence of the O .Ps in the market is with the co-operation of the consumers and as such the O .Ps have to take care of the interest of the consumers and they cannot force their service on the consumers and demanding the consideration which they never intended. 22. The Hon’ble Supreme Court has held that : (1986) 3 S.C.C 165. Where a man has no choice , or rather no meaningful choice, but to give his consent to a contract or to sign on dotted line, in a prescribed or other form or to accept a set of rules as part of contract, however unfair or un reasonable and unconscionable a clause in that contract may be the courts will not enforce and will , when called upon to do so strike down an unfair and un reasonable clause in a contract entered into between the parties, who are not equal in bargaining power. The Court visualized different situations which as which as were the in quality of bargaining power is the result of the great disparity in the economic strength of the contracting parties, or the inequality may be the result of the parties or not or a situation in which the weaker party is in a position in which he can obtain goods or services on or means of livelihood only open the terms imposed by the stronger party or go without them. 23. Hence the Hon’ble Supreme Court while preserving the right of choice of consumers has given a free hand to the consumers either to accept the service on the rate advertised by them prior to their giving the service or go without it. 24. Since the O .Ps have failed to make an attempt to negotiate with the consumers and they have also changed their stands subsequently by raising the rate other than they published . Even the local administration is also not able to solve the problem and they have also not exercised their powers conferred on them by the Statute. 25. Unfair trade practice is very well explained in sec. 2 ® of the C.P. Act and on examination of all the materials placed before this forum by the parties , the O .Ps in order to have a monopoly in the business of cable net work services, enter the market and spread there wings without the consent of the consumers. They have also promised by issue of brochure and advertisement etc to provide the said service at Rs 116/- P.M and subsequently they have raised the rate and issued demand notices to the consumers and also disconnected the service connection provided by them for non-payment of dues demanded by them. They have also acquired their monopoly in the said service through out the State without allowing any other persons to provide such services and put the consumers into a compelling circumstances to accept the service provided by them without giving any chance to elect the choice of the consumers. Hence the O .Ps are only entitled to collect Rs 116/- (Rupees one hundred sixteen) from the customers who have opted for the service directly or indirectly or by giving such cable net work service by taking the list of customers of previous cable net work operator and they cannot exceed their monthly rate. 26. The consumers who wanted to avail the service of other person/organization who can supply their choice demand in reflection to the T.V channels is at liberty to opt for the same without any permission /consent from the O .Ps and if the O .Ps have agreed for the collective bargain with the consumers and agreed to provide such services the terms and conditions of such services agreed by them be published for the General Information of the public in order to avoid harassment to the consumers. Hence it is Ordered that :- The petition of the consumers filed through Sri U.N Mishra is allowed on contest against the O .Ps . The O .Ps are directed to stick up to their advertisement made by them through their brochure and charge only Rs 116/- per month from the consumers. The O .Ps are at liberty to made negotiations with the consumers for the services demanded by the consumers and if the consumers are able to get such services from any other person/ organization for the rate offered by them, the O .Ps will not stand on their way. The authorities declared under the Cable Television Net Work (Regulations) Amendment Act 2000 is advised to interface in the matter and make specific orders restricting the O .Ps from imposing the Arbitrary illegal demands having taken monopoly in the said business from the consumers and assure the consumers that they have their choice of taking the service demanded by them and protect their interest in the light of the provisions contained in the C.P Act. A copy of this order be communicated to the District Magistrate , Rayagada, Sub Divisional Magistrate , Rayagada and superintendent of Police, Rayagada for their information . In the circumstance there will be no order for cost or compensation.

In C.C NO: 111/2009 and C.C NO: 112/2009 the complainant has placed their grievance against the O .Ps and OP NO: 2 is appearing for the consumers as a whole and filed the grievance for and on behalf of the consumers at large . Hence all the three cases are disposed by a common order. 2. Previously the cable net work services were undertaken by private persons in different areas and subsequently they formed into an association and it was styled as MAJHI GOURI CABLE NET WORKS and they used to serve the consumers on taking money for cable net work services. i.e on payment of considerations. 3. The ORTEL COMMUNICATION LTD made his entry into the filed and made publications and wall paintings and also announcement through pamphlets premising to give better cable net work services including the transaction of T.V . channels of the choice of the consumers. They have also laid their net work by using the electric poles of the South Co for which they have made separate contract with the said department. The O .Ps also offered to give the cable net work services at a minimum of Rs 116/- P.M and if any body wanted to avail the said services they will be provided free services for three months. Having allured the consumers by different needs they were able to get some consumers but in the mean time the local cable operators presented the said actions and also warned the consumers not to come under the said promise and obstructed the O.P to encroach their business. 4. In order to avoid the scuffle between the local cable operators the O.P has entered into an agreement with them and purchased their installations and also their right to give the cable services to the consumers and they were allowed to work under the O.P for some monetary gains for sixty months. The cable operators also transferred the list of consumers to the O .Ps and the O.P has extended their cable net work to the consumers without any written permission from the independent consumers and in fact they have purchased the consumers right behind their back. 5. The O.P also served bills to the consumers giving their consumers numbers demanding more amount than they published by way of pamphlets, prints etc and they have also suddenly stopped the telecast of E.T.V Oriya as well as Telugu without notice to the consumers. Hence there is a public resentment in the matter and there is public rally, memorandum to the Government and the concerned officers in different parts of the State but the matter was not finalized and the consumers are not getting the services of their choice and they were thrashed with the channels which they never demand. Hence the entire consumers are not satisfied with the service provided by the O.P and also demanded that they have to stick up to promise given by them by way of pamphlets and wall prints etc. 6. The consumers also made a collective bargain with the O.P through one U.N Mishra Convener of the T.V Users . Association demanding quick action within a period of one month to restore E.T.V channels in Oriya and Telugu otherwise they shall be constrained to switch over to alternatives . they also agreed to deposit only Rs 130/- per month for the services and not ready to enhance the rate more than that. 7. The O.P appeared before this forum and filed the counter. In the counter they have stated that there is no consumer in the list of the O .Ps in record where in the T.V. Users Association , Rayagada is a consumer under law and as such, the complainant is not maintainable . They have also stated that the complainant petition is not listed by the consumers if any separately nor there is representative capacity for U.N. Mishra under law to Style himself as the convener who tried to misguide the forum for which he is liable for false representation. They have also submitted that the Association of T.V. Users , Sastri Nagar is a registered body nor any such representative authority of the users in shape of a resolution in favour of U.N Mishra has been given nor under law such a complainant abruptly in confirmation of letter of the Forum can be taken into cognizance by this Hon’ble Forum and so, it cannot be adjudicated under law. 8. The letter of U.N. Mishra styling himself as a convener of some T.V. Users is not proper legal and not maintainable before this forum. It is admitted by the O.P that there are few cable operators at Rayagada who have up-help to serve their establishment with the O .Ps in a financial bargain and there was no commitment or agreement in any nature by the O.P with those small T.V. channel holders to keep on all the channels which were transmitted by the small T.V channel owners at Rayagada. 9. It is admitted by the O.P that while they have taken charge from the local T.V channel owners there is no commitment to the local consumers including Sri U.N MIshra are not discussed , accepted or worked out and as such the O.P is not legally binding or obligations to provide all the T.V. channels which were communicated by the small T.V. channel owners , who have sold their establishment to the O.P . The purpose of communicating Etv Oriya and Telugu channels for few months after sale of the establishment of small T.V. channels holders to the O.P and small traders and the small operators who sold their establishment have never required the O.P to continue transmission of Etv Oriya and Telugu to the consumers at Rayagada nor the O.P has in mind at any time who has expressed his willingness to any of the consumers at Rayagada to give service of Etv Oriya and Telugu channel. Rather the O.P has expressed his inability for giving Etv Oriya and Telugu channel transmitted under their control due to several commercial reasons for which the Etv authorities have refused to cooperate with the O.P and in several meeting they with the O.P authorities the owner of Etv did not co-operate with the terms in the commercial discussion with the O.P and have categorically refused to allow their transmission at Rayagada through the O.P and the O.P is not obliged to inform or communicate to the consumers in writing regarding the refusal of the Etv authorities not to give facilities of Etv Oriya and Telugu to the O.P and in consequence therefore they are not obliged to provide the facilitates of Etv transmitted to the consumers . The O.P is not required to give the service claimed by U.N. Mishra and others for the transmission of Etv Oriya and Telugu . They alleged that there is no deficiency of service by the O.P and the they are trying to dishonor their establishment in fame in the market of T.V transmission and the O.P reserve the right to provide if necessary for claiming compensation against them in proper time with the above grounds and other grounds the O.P pray for dismissal of the letter of U.N Mishra with costs. 10. Admittedly the complainant petition is filed by U.N Mishra and the consumers of the O.P has given their signatures with their consumer number provided by the O.P. The O.P has not denied the consumer number or not denied the fact that they are not providing the services to them for consideration or giving free services without any consideration. 11. The O.P has stated that the convener Sri U.N Mishra is not having locus standing to file the case in a representative capacity since the association represented by him is not an association registered under the societies Registration Act and he has authority to represent the consumer as a whole. 12. In this connection the definition of COMPLAINANT is given u/s 2 (b) (iv) as follows :- One or more consumers , where there are numerous consumers having the same interest. 13. here there are numerous consumers having the consumer number provided by the O.P for the cable net work service. There is no direct contract between the consumers and the O.P and the O .Ps have obtained the said services from the previous cable operators and there is no consent letter from any of the said consumers. Basing on the information giving by the previous cable operators about their consumers and basing on the said information the O. Ps have extended the services to all the consumers. Even they have not asked the consent when they have installed their cable net work to the consumers and prior to that they have made publicity by brochure , advertisement etc. 14. The O. Ps have taken the service from the previous cable operators behind the back of the consumers and they have not informed about the quality , quantity , purity, standard or price of goods or services so as to protect the consumers against unfair trade practice. They have also violated the consumer rights when they have purchased the installations from the previous cable operators. Simply they have asked for the list of consumers from them and subsequently they have laid their cable net work services to those persons without taking any permission or entering into any contract with individual consumers. Hence the O. Ps have entered into the market with an intention to make a monopoly business in the said service and at the same time restricting other persons to enter into the filed. 15. When they have made advertisement wall paints and brochures stating that they are giving the cable net work services at the minimum rate of Rs 116/- per month and they have also made public announcement to give free services to the customers who have opted to come under their service facility . The O .Ps have totally ignored the above promises and behind the back of the consumers at a large have given the cable net work connection with the help of the previous cable operators. Even the O. Ps have not asked the choices of the consumers and started telecasting the channels of their choice and also disconnected the E.T.V Oriya and Telugu which was previously telecasted by the previous cable operators. 16. It is the settled principle of law that (2009 (2) C.P.R 350 (N.C) June 2009 part L.I.C of India Vrs. Smt.Bimala Devi that: If any agency or organization makes a public pronouncement through a Brochure to attract the people to join or be a beneficiary of a given scheme, in such a case, the persons / organization who has issued a brochure cannot unilaterally withdraw from the terms published by him or change the terms as they appear in the brochure , to the determent of other party. It is already seen that the O.P has purchased the cable net work installations from the previous service providers and in the sale deed it is clearly mentioned that he will give the list of consumers. The above transaction by the O .Ps with the previous cable operators is behind the back of the consumers and taking advantage of those sale deeds they have spread their wings even to the consumers who are not party to such sale and even they were not informed about the service provided by them and the amount to be paid by them for such service. Rather they have given consumers number to all the consumers and started serving demand bills to them where in they have ignored their promise in the brochure and advertisements given by them and foe non-payment of such bills they have also disconnected the line putting the consumers into peril. Even the consumers have made agitations and presented memorandum and also strikes demanding telecast of E.T.V Oriya and Telugu causing law and order problem and their demand is not considered by the O. Ps. Since the consumers have a right of choice to avail the services and when such services are extended by the O .Ps cannot impose any conditions on the consumers since the consumers are kings in the consumer market. Hence the action of the O .Ps in the filed of providing cable net work services to the consumers behind their back and without any written consent from them is an unfair trade practice. 17. The consumers in large have made an attempt by way of collective bargaining with the O.P and the O .Ps though received the said letter not opted for any such settlement for which the entire Rayagada has turned into a mess causing law and order problem. Even the O .Ps have failed to reach an understanding before the local administration and finally basing on the letter of the complainant though U.N Mishra , this court took cognizance of the matter and issued notice to the O .Ps. In the counter the O .Ps have not come with any clear hands for amicable settlement , rather they have explained the difficulties with the E.T.V company. But the consumers who were getting the said facility prior to the O .Ps and even after the O .Ps have taken complete charge, they have telecasted continuously for another three months the above channels and suddenly stopped the said channels without any notice to the consumers. 18. As seen from numerous books on collective bargaining , the negotiation is an activity in which parties are trying to satisfy their needs. Yet their needs are seldom what they seem to be, because the negotiations try to conceal them or do not recognize them. Consequently , negotiations are never totally for what is openly talked about or contested be it a price, services , products, territory , concessions , interest rates or money. What is being discussed, and the manner in which it is being considered, are used to satisfy psychological needs. 19. A negotiation is more than an exchange of material objects. It is a way of acting and behaving that can develop understanding , belief, acceptance, respect and trust. It is the manner of the approach , the tone of voice , the attitude we convey , the methods we use and the concern we exhibit for the other side’s feeling and needs. All these things comprise the process of negotiation . Hence the action of O .Ps not to sit for a negotiation with the consumers is not acceptable. 20. However, with the realization that human beings are matchless , it follows that their goals cannot be mutually exclusive in this climate candor and trust can be established and there will be an exchange of attitudes , facts, personal feelings and needs. With this free interaction and sharing , creative solutions may be found that make both sides winners. 21. When the C.P Act , 1986 was promulgated by the parliament , they felt that the consumers are always live in a society pervaded by potential Win-Lose situations. Some people interpret this to mean that all life is a constant of winning and losing . They see a world with rivals and competitors , with persons who want to take every thing for themselves. This is some times explained as ‘Soviet Style’ and in the consumer filed this type of ‘Soviet Style’ will not work since the market is for the consumers . If there is no consumers there is no market and there is no economic development . So when the consumers have asked for a negotiation and made a collective bargain with the O .Ps for the service provided by them behind their back , definitely the O .Ps who have entered into the market as a service provider for valuable consideration and when they are unable to provide the service to the choice of the consumers, they have no right to exist in the market offering the services of their choice without consideration the choice of the consumers. Hence the only alternative available to the O .Ps are either to accept the collective bargain and offer the demanded services, or take the way of exit. The existence of the O .Ps in the market is with the co-operation of the consumers and as such the O .Ps have to take care of the interest of the consumers and they cannot force their service on the consumers and demanding the consideration which they never intended. 22. The Hon’ble Supreme Court has held that : (1986) 3 S.C.C 165. Where a man has no choice , or rather no meaningful choice, but to give his consent to a contract or to sign on dotted line, in a prescribed or other form or to accept a set of rules as part of contract, however unfair or un reasonable and unconscionable a clause in that contract may be the courts will not enforce and will , when called upon to do so strike down an unfair and un reasonable clause in a contract entered into between the parties, who are not equal in bargaining power. The Court visualized different situations which as which as were the in quality of bargaining power is the result of the great disparity in the economic strength of the contracting parties, or the inequality may be the result of the parties or not or a situation in which the weaker party is in a position in which he can obtain goods or services on or means of livelihood only open the terms imposed by the stronger party or go without them. 23. Hence the Hon’ble Supreme Court while preserving the right of choice of consumers has given a free hand to the consumers either to accept the service on the rate advertised by them prior to their giving the service or go without it. 24. Since the O .Ps have failed to make an attempt to negotiate with the consumers and they have also changed their stands subsequently by raising the rate other than they published . Even the local administration is also not able to solve the problem and they have also not exercised their powers conferred on them by the Statute. 25. Unfair trade practice is very well explained in sec. 2 ® of the C.P. Act and on examination of all the materials placed before this forum by the parties , the O .Ps in order to have a monopoly in the business of cable net work services, enter the market and spread there wings without the consent of the consumers. They have also promised by issue of brochure and advertisement etc to provide the said service at Rs 116/- P.M and subsequently they have raised the rate and issued demand notices to the consumers and also disconnected the service connection provided by them for non-payment of dues demanded by them. They have also acquired their monopoly in the said service through out the State without allowing any other persons to provide such services and put the consumers into a compelling circumstances to accept the service provided by them without giving any chance to elect the choice of the consumers. Hence the O .Ps are only entitled to collect Rs 116/- (Rupees one hundred sixteen) from the customers who have opted for the service directly or indirectly or by giving such cable net work service by taking the list of customers of previous cable net work operator and they cannot exceed their monthly rate. 26. The consumers who wanted to avail the service of other person/organization who can supply their choice demand in reflection to the T.V channels is at liberty to opt for the same without any permission /consent from the O .Ps and if the O .Ps have agreed for the collective bargain with the consumers and agreed to provide such services the terms and conditions of such services agreed by them be published for the General Information of the public in order to avoid harassment to the consumers. Hence it is Ordered that :- The petition of the consumers filed through Sri U.N Mishra is allowed on contest against the O .Ps . The O .Ps are directed to stick up to their advertisement made by them through their brochure and charge only Rs 116/- per month from the consumers. The O .Ps are at liberty to made negotiations with the consumers for the services demanded by the consumers and if the consumers are able to get such services from any other person/ organization for the rate offered by them, the O .Ps will not stand on their way. The authorities declared under the Cable Television Net Work (Regulations) Amendment Act 2000 is advised to interface in the matter and make specific orders restricting the O .Ps from imposing the Arbitrary illegal demands having taken monopoly in the said business from the consumers and assure the consumers that they have their choice of taking the service demanded by them and protect their interest in the light of the provisions contained in the C.P Act. A copy of this order be communicated to the District Magistrate , Rayagada, Sub Divisional Magistrate , Rayagada and superintendent of Police, Rayagada for their information . In the circumstance there will be no order for cost or compensation.

………………….
Smt Pranati Patra

………………….
Sri B.K Rath

………………….
Sri K.A Ramachandran

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Joginder Singh Swahney v State Bank of India

31-Dec-09

CONSUMER DISPUTES REDRESSAL FORUM-II

GOVERNMENT OF NCT OF DELHI

Udyog Sadan, C-22 & 23 Institutional Area,

Behind Qutab Hotel, New Delhi-110 016

Case No. 310/ 2008

Mr.Joginder Singh Swahney

R/o D-II,2457, Vasant Kunj

New Delhi                                                      ……….Complainant

Versus

State Bank of India Cards & Payment Services Pvt. Ltd.

11, Parliament Street,

New Delhi                                                                  ……….Opposite Party

Date of Institution: 16.05.2008

Date of Order:  31.12.2009

S.C Kaushik, Member

O R D E R

This is a complaint under section 12 of the Consumer Protection Act, 1986.

The complainant is the holder of a credit card No. 4317575709497037 as issued in the name of the complainant by opposite party after completing the necessary formalities. It is alleged by the complainant that he had issued a cheque bearing No.255708 dated 28.12.2008 for Rs.1,500/- to the respondent company. However,

said cheque was returned dishonoured by the banker of the complainant despite of sufficient fund maintained by the complainant and the opposite party has levied Rs.337.08/-as payment dishonour fee from the complainant. There after the complainant has contacted opposite party several times for correction through S.B.I customer care representatives of opposite party and also served letter dated 24.01.2008 as well as dated 28.01.2008. The complainant has also issued a legal notice dated 28.03.2008 upon opposite party, asking opposite party to revert the baseless and illegal charge of Rs.337.08/- towards payment dishonour fee and also claimed Rs.20,000/- towards mental harassment but of no avail. Hence, this complaint.

The opposite party in its reply denied all changes levelled by the complainant in the said complaint and stated that the said cheque was returned dishonoured by the banker of the complainant with reason “Insufficient Funds” and the dishonour fee was charged upon the card account of complainant is levied in accordance with agreed terms and condition. The present complaint is totally vexations which is liable to dismiss. The complainant has filed rejoinder and affidavit of evidence stating deficiency of service committed by the opposite party. The opposite party has also filed affidavit of evidence repudiating the claims of the complaint. We have also gone through the record and heard the complaint as well as the counsel for opposite party. The negligent act of opposite party is  clearly reflected in the monthly statement dated 08th june 2008 Annexure c-3 with the complaint as much as on 28.12.2007 it has been shown payment received cheque No. 255708 for Rs.15,00/- and on 31.12.2007 the same cheque was shown as unpaid due to insufficient funds. The opposite party is under duty to prepare monthly statement correctly which does not harm the customer. However, the opposite party is negligent and deficient in rendering the service to the complainant and the dishonoured fee charged by the opposite is not justified under the facts and circumstances of the case. We therefore, direct the opposite party to refund an amount of Rs.337.08/- levied by the opposite party towards “Payment dishonour” fee in bill dated 08.01.2008. We further direct opposite party to pay to the complainant an amount of Rs.5,000/-(Five Thousand Only) towards cost and compensation. The opposite party shall comply the above order with in 30 days of the receipt of the copy of this order.

Copy of this order be sent to both the parties as per rule.

File be consigned to record room.

(S.C. KAUSHIK)         (V.K. GUPTA)

MEMBER                 PRESIDENT

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Jai Prakash v Nidhi Electronics

31-Dec-09

CONSUMER DISPUTES REDRESSAL FORUM, DISTRICT NORTH-EAST

D.C. OFFICE COMPLEX, NAND NAGRI, DELHI

No.34/08

Sh. Jai Prakash,

r/o. G-4/186, Gali No. 12,

5th Pushta, Sonia Vihar

Delhi.                                                 :        Complainant.

Versus

M/s. Nidhi Electronics,

B-19, Mukhya Market,

Rama  Garden, Karawal Nagar,

Delhi-110094          .                                     :        Opposite Party-I

M/s. Adonis Electronics Pvt.Ltd.

A-19, B-1, Mohan Cooperative Ind.Estate,

Mathura Road, Badarpur,

New Delhi-44.                                     :        Opposite Party-II

M/s.Onida Electronics Co.Ltd.

A-19, B-1, Mohan Cooperative Ind.Estate,

Mathura Road, Badarpur,

New Delhi-44.                                     :        Opposite Party-III

Order

Mrs.Asha Kumar, Member

In a nut shell complainant purchased one TV (make Onida) Model 14 XSST vide receipt no. 589 dated 27.1.2005 for Rs.5800/- from OP-I.  On the same day complainant tried to start the TV but it was not started so a complaint was made  immediately to OP-II which is authorized service centre of OP-III.  The said complaint was attended by OP-II on 4.4.2005.  Thereafter so many complaints were made time to time and the last complaint was made on 10.12.2007 which was never attended by the OP-II.  Complainant also extended the warrantee period of the above said TV  under EWC scheme  and for the same he paid some amount (amount not mentioned) to the OP-II.

Page 1 of 3

Order was announced by Hon’ble District Forum on 16.12.2008.  An amount of Rs.1000/- towards compensation and Rs.500/- as litigation expenditures were awarded  in favour of the complainant.  The complainant was not satisfied with the amount of compensation of Rs.1000/- towards physical and mental harassment and Rs.500/- as cost of litigation awarded by District Forum vide impugned order dated 16.12.2008, for having sold a defective colour TV (Onida make) under EWC scheme of OP-II.

In this regard an appeal  was filed before Hon’ble State Commission.  It was admitted and direction was given to the District forum for deciding the case afresh for determining  the amount of compensation and cost of litigation.

Documents on record perused.

We have gone through the complaint and documents filed by him that shows TV (Onida make) Ch.No. 40/5760 Model 14 XSST for Rs.5800/- was never in smooth function.  Since from the starting it developed certain gliches which were although rectified some times but we can imagine complainant must had gone lot of mental agony and harassment.  In this regard, as per the direction of Hon’ble State Commission, we want to modify our previous order passed on 16.12.2008 in respect of compensation and cost of litigation.

Thus, under these circumstance, we are of the view that compensation as well as cost of litigation awarded to the complainant should be enhanced and we are of the view that if the compensation is increased Rs.5000/- instead of Rs.1000/- and cost of litigation is increased Rs.1000/- instead of Rs.500/- that will be reasonable compensation and cost of litigation in favour of the complainant, which will meet the end of justice.

Page 2 of 3

Thus we direct the OP-2 to pay Rs.5000/- compensation to the complainant for his physical harassment and mental agony as well as Rs.1000/- cost of litigation to the complainant.

The above orders should be complied within 60 days from the date of receipt of this order, failing which the OP shall invite odium u/s 25 & 27 of the C.P. Act, 1986.

A copy of this order be sent to the concerned quarters by registered post or be supplied free of cost, on demand.  File be consigned after compliance.

Announced ______   day of __________________, 2009.

(U.C.Tiwari)                            (Asha Kumar)

President                                Member

Page 3 of 3

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Harmeet Kaur v LIC of India

31-Dec-09

Before the District Consumer Disputes Redressal Forum, Rohtak.

Complaint No. : 348.

Instituted on     :  29.06.2007.

Decided on       : 31.12.2009.

Smt. Harmeet Kaur wife of Late Sh. Manohar Singh  resident of House no.911/18 Mohalla Ghani Pura Rohtak.

………..Complainant.

Vs.

1. LIC of India Subhash Road Rohtak through its Branch Manager.
2. Divisional Manager LIC of India Divisional Office, Jivan Prakash 489 Model Town, Karnal.

……….Opposite parties.

COMPLAITN U/S 12 OF CONCUMER PROTECTION ACT,1986.

BEFORE:       SH. JOGINDER SINGH JAKHAR, PRESIDENT.

SMT. MEENA KUMARI, MEMBER.

SH. VIRENDRA KUMAR JAIN, MEMBER.

Present:            Sh.Ajay Dua, Advocate for the complainant.

Sh.Vijay Groha Advocate for the opposite parties.

ORDER

JOGINDER SINGH JAKHAR, PRESIDENT:

According to the complainant her husband had obtained a policy bearing no.173709513 for a sum of Rs.2 lacs and P & T was 90-15, dated 28.12.2003 and the premium was payable yearly. The husband of the complainant had paid the premium well within time and regularly. The husband o complainant expired on 2.8.05 and as such the complainant had lodged the death claim before the opposite party and completed all the required formalities. But the opposite party had repudiated the claim of the complainant on the ground that the husband of complainant had given wrong answers to the questions given in proposal form. The husband of complainant was medically examined by the doctor of opposite parties and was found fit. Moreover, the husband of complainant had died a natural death and not due to suffering from any alleged ailment. Complainant requested the opposite parties many times to pay the claim amount but to no effect. Hence this complaint with prayer to direct the opposite parties to pay the claim amounting to Rs.2 lacs, bonus and other benefits alongwith interest @ 18% p.a. from the date of death of husband of complainant till payment to complainant and also to pay another amount of Rs.20000/- on account of  unnecessary harassment and litigation expenses to the complainant.

After notice opposite parties appeared and filed its written reply submitting therein that it is not disputed that the life assured had taken the policy for sum assured of 2 lacs with T.T. 90-15 whereunder, the claim, if payable would have been paid at the time of maturity only. Since the claim under the policy stands repudiated, nothing is payable not now neither at maturity. It is further submitted that the deceased L.A. died on 2.8.05 as he was suffering from pleural effusion(Tubercular) with UTI & remained admitted in the hospital from 25.3.03 to 19.4.03 and also availed leaves on medical ground on different dates prior to the date of proposal. These facts were not disclosed by him, rather he gave false answers. It is very much clear from F.No.3816 received from Railway Central Hospital, New Delhi that the deceased L.A. suffered from various ailments and he died due to diseases. It is not a natural death. There is no deficiency on the part of answering opposite party. It is also came to the notice of opposite parties that deceased L.A. had undergone operation in July/August 2004 there exist ample evidence to prove that deceased L.A. suffered from various ailments prior to proposing for insurance. All the other contents of the complaint were stated to be wrong and denied. Opposite parties prayed for dismissal of the complaint with costs.

Both the parties led evidence in support of their case.

Ld. Counsel for the complainant in his evidence tendered affidavit Ex.P1, documents Ex.P2 to Ex.P8 and closed his evidence.

Ld. Counsel for the opposite party in his evidence tendered affidavit Ex.R1, documents Ex.R2 to Ex.R8 and closed his evidence.

We have heard learned counsel for the parties and have gone through the evidence and other material aspect of the case very carefully.

After going through the file and hearing the parties we have observed that in the present complaint insurance and death of the life assured is not disputed. After the death of life assured, complainant filed the claim with the opposite parties but the same was repudiated by the opposite parties on the ground that the life assured was suffering from various diseases prior to making proposal for the policy and he had concealed these facts from the opposite party. To prove the fact, opposite party has placed on file Claim Enquiry Report Ex.R3, Certificate of Hospital Treatment Ex.R4 & Leave record Ex.R5. As per claim Enquiry report Ex.R3, the cause of death is Heart Attack and he was suffering from Liver problem and was operated for liver in Railway Hospital in July August 2004.

After going through the file and hearing the parties we are of the considered view that the allegation of the opposite party is that the life assured was suffering from pleural effusion(Tubercular) with UTI & remained admitted in the hospital from 25.3.03 to 19.4.03 and he was suffering from various ailments and had died due to diseases but no record of alleged disease has been placed on file and the cause of death in the present case is heart attack. Secondly the life assured had taken the policy in the year 2003 and as per claim enquiry report Ex.R3, he was operated for liver in July/August 2004 i.e. after making proposal for the policy. Moreover, the treatment record is not supported by any affidavit of doctor. In this regard as per the authority reported I(2009) CPJ 402 titled LIC Vs. Kastura Ram, Hon’ble Rajasthan State Commission, Jaipur has held that: “Suppression of material facts-Claim repudiated-Contention, deceased suffering from cancer, took medical treatment, not disclosed at the time of taking of policy-Contention not acceptable- Health declaration made in 2000-Deceased admitted in hospital first time in 2002-Cancer diagnosed after expiry of two years, from the date of policy-Deceased aware of cancer at the time of taking of policy not proved-Deceased died after two years of policy-Heavy burden lies on insurer to prove fraudulent concealment of material facts-Repudiation of claim unjustified”, IV(2007) CPJ 319 titled LIC of India Vs. Darshna Devi, Hon’ble U.T. Commission, Chandigarh has held that: “No nexus between cause of death and diabetes-Insured suffering from diabetes/hypertension prior to having of policy, intentionally/fraudulently suppressed it, not proved-Repudiation of claim unjustified-Insurance Company liable under policy”, as per II(2008) CPJ 300(NC) titled Life Insurance Corporation, of India Vs. Chandra Kanta Lohande(Smt.), Hon’ble National Commission has held that: “Life insurance- Suppression of pre-existing disease-Claim repudiated-Contention, assured chronic patient of ‘Dyspepsia’, under regular treatment as outpatient, not disclosed-Contention not acceptable-Dyspepsia not disease in itself- In today’s world, people face problems like acidity, indigestion, back pain, headache-Symptoms may occur time-to-time with different levels of intensity-They cannot enumerated in proposal form-Repudiation unjust, improper- Insurer liable to pay sum assured with interest”, as per II(2007)CPJ 242 (NC) titled LIC of India Vs. Patel Ganesh bhai Ramji bhai , Hon’ble National Commission has held that “Suppression of material fact that life assured suffering from pre-existing disease TB prior to taking policy-Complaint-Compensation awarded with 12% interest-Hence appeal-Life assured medically examined before issuance of policy-Presence of TB not found at that point of time-No suppression of material fact as alleged-Claim wrongly repudiated-Order of State Commission upheld-Cost awarded” and as per 2007(3)CLT 535 titled LIC Vs . Sajida Begum, Hon’ble National Commission has held that: “No affidavit of the doctor and no other evidence produced by petitioner in order to reaffirm the contention-Rightly held to be unreliable evidence”.

Keeping in view the above referred case laws, which are applicable on the facts and circumstances of the case, we have come to the conclusion that complaint is tenable. Accordingly we hereby allow the complaint with direction to the opposite parties to pay the insured amount of Rs.200000/-(Rupees two lacs only) with all benefits alongwith interest @ 9% p.a. from the date of filing the present complaint till its realization and Rs.2500/-(Rupees two thousand five hundred only) as litigation expenses to the complainant maximum within one month from the date of decision failing which the amount of award shall carry interest @ 12% p.a. from dated 31.01.2010 onwards till its realization to the complainant.

Copy of this order be supplied to both the parties free of costs.

File be consigned to the record room.

Announced in open court:

31.12.2009.

………………………….

Joginder Singh Jakhar, President.

…………………………

Meena Kumari, Member.

…………………………

Virendra Kumar Jain, Member.

vs

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Jai Prakash v Nidhi Electronics

31-Dec-09

CONSUMER DISPUTES REDRESSAL FORUM, DISTRICT NORTH-EAST

D.C. OFFICE COMPLEX, NAND NAGRI, DELHI

No.34/08

Sh. Jai Prakash,

r/o. G-4/186, Gali No. 12,

5th Pushta, Sonia Vihar

Delhi.                                                 :        Complainant.

Versus

M/s. Nidhi Electronics,

B-19, Mukhya Market,

Rama  Garden, Karawal Nagar,

Delhi-110094          .                                     :        Opposite Party-I

M/s. Adonis Electronics Pvt.Ltd.

A-19, B-1, Mohan Cooperative Ind.Estate,

Mathura Road, Badarpur,

New Delhi-44.                                     :        Opposite Party-II

M/s.Onida Electronics Co.Ltd.

A-19, B-1, Mohan Cooperative Ind.Estate,

Mathura Road, Badarpur,

New Delhi-44.                                     :        Opposite Party-III

Order

Mrs.Asha Kumar, Member

In a nut shell complainant purchased one TV (make Onida) Model 14 XSST vide receipt no. 589 dated 27.1.2005 for Rs.5800/- from OP-I.  On the same day complainant tried to start the TV but it was not started so a complaint was made  immediately to OP-II which is authorized service centre of OP-III.  The said complaint was attended by OP-II on 4.4.2005.  Thereafter so many complaints were made time to time and the last complaint was made on 10.12.2007 which was never attended by the OP-II.  Complainant also extended the warrantee period of the above said TV  under EWC scheme  and for the same he paid some amount (amount not mentioned) to the OP-II.

Page 1 of 3

Order was announced by Hon’ble District Forum on 16.12.2008.  An amount of Rs.1000/- towards compensation and Rs.500/- as litigation expenditures were awarded  in favour of the complainant.  The complainant was not satisfied with the amount of compensation of Rs.1000/- towards physical and mental harassment and Rs.500/- as cost of litigation awarded by District Forum vide impugned order dated 16.12.2008, for having sold a defective colour TV (Onida make) under EWC scheme of OP-II.

In this regard an appeal  was filed before Hon’ble State Commission.  It was admitted and direction was given to the District forum for deciding the case afresh for determining  the amount of compensation and cost of litigation.

Documents on record perused.

We have gone through the complaint and documents filed by him that shows TV (Onida make) Ch.No. 40/5760 Model 14 XSST for Rs.5800/- was never in smooth function.  Since from the starting it developed certain gliches which were although rectified some times but we can imagine complainant must had gone lot of mental agony and harassment.  In this regard, as per the direction of Hon’ble State Commission, we want to modify our previous order passed on 16.12.2008 in respect of compensation and cost of litigation.

Thus, under these circumstance, we are of the view that compensation as well as cost of litigation awarded to the complainant should be enhanced and we are of the view that if the compensation is increased Rs.5000/- instead of Rs.1000/- and cost of litigation is increased Rs.1000/- instead of Rs.500/- that will be reasonable compensation and cost of litigation in favour of the complainant, which will meet the end of justice.

Page 2 of 3

Thus we direct the OP-2 to pay Rs.5000/- compensation to the complainant for his physical harassment and mental agony as well as Rs.1000/- cost of litigation to the complainant.

The above orders should be complied within 60 days from the date of receipt of this order, failing which the OP shall invite odium u/s 25 & 27 of the C.P. Act, 1986.

A copy of this order be sent to the concerned quarters by registered post or be supplied free of cost, on demand.  File be consigned after compliance.

Announced ______   day of __________________, 2009.

(U.C.Tiwari)                            (Asha Kumar)

President                                Member

Page 3 of 3

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