SUDHEER KUMAR vs DANDA ASHOK REDDY

THIS order will govern the disposal of revision petition Nos. 647 of 2005 filed by the opposite parties and 780 of 2005 filed by the complainant which arise out of a common order dated 28.2.2005 of Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad. Though, Complaint Case No. 58 of 2003 was dismissed by the order dated 12.5.2004 by a District Forum but the appeal filed by complainant against that order was allowed by the State Commission with direction to the opposite parties to provide Gemini and Teja Channel De-coders to the network of complainant within a period of two weeks from the date of passing of order and also to pay Rs. 1,00,000/- towards damages to the complainant.

FACTS insofar as they are relevant for deciding both these revision petitions are these. On opposite party No. 1 being agreeable to provide Gemini and Teja Channel De-coders, the complainant paid amount of Rs. 25,000/- by a demand draft dated 9.9.2002 to get the said channel De-coders. On not providing these channel De-coders despite receipt of said amount by opposite party No. 1, the complainant filed complaint case No. 10 of 2003 against opposite party Nos. 1 and 2. During the pendency of that complaint, the parties reached an amicable settlement and said channel De-coders were connected on 2.3.2003 and the complaint was, thus, dismissed by the order dated 12.8.2003 by the District Forum. The complainant towards quarterly advance paid amount of Rs. 15,000/- each on 12.3.2003 and 27.6.2003 to opposite party No. 1. opposite party No. 1 sent a notice dated 5.8.2003 to the complainant for increasing connectivity from 500 to 1500 and a necessary declaration was to be given along with subscription entry before 8.8.2003 by the complainant. It is stated that under the service agreement dated 20.2.2003 entered into between the parties the period provided for such a notice is 7 days. Opposite party again disconnected channel De-coders on 5.9.2003. Thereupon alleging deficiency in service, the complainant filed complaint case No. 58 of 2003 before the District Forum which was contested by the opposite parties on the pleas which need not be referred to here for deciding present revision petitions. District Forum dismissed the complaint and appeal filed against that order was allowed by the State Commission in the manner noticed above. In Revision Petition No. 780 of 2005 the complainant seeks enhancement of the amount of damages. In Revision Petition No. 647 of 2005 the opposite parties seek setting aside of the aforesaid order of State Commission. In Revision Petition No. 647 of 2005 the submission advanced by Shri Kunal Verma for petitioners was two-fold : (i) after the amendment of definition of ''consumer'' under Section 2(d)(ii) of Consumer Protection Act, 1986 (for short the Act) w.e.f. 15.3.2003, the complainant who has been availing service of the opposite parties for commercial purpose, is not a consumer; and (ii) order under challenge could not have been legally passed by the State Commission as service contract dated 20.2.2003 which was for one year, had lapsed on 20.2.2004.

After amendment Section 2(d)(ii) reads thus: "consumer" means any person who- (i) ........... (ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose]; [Explanation : For the purposes of this clause, ''commercial purpose'' does not include use by a person of goods bought and used by him and services availed of by him exclusively for the purposes of earning his livelihood by means of self-employment;]

COPY of the complaint is placed at pages 34-38 while that of written version filed by opposite party No. 1 which was adopted by opposite party No. 2 at pages 39-40 in Revision Petition No. 780 of 2005. In para No. 3 of the complaint it is, inter alia, alleged that complainant was unemployed having no immovable or movable properties and to eke out his livelihood he took a loan from Andhra Pradesh State Finance Corporation, Nalgonda of Rs. 6,57,000/-. He started cable network business under the name and style of Uma Maheshwar Cable Networks. Complainant approached opposite party No. 1 for providing Gemini and Teja Channel De-coders. After opposite party No. 1 agreed to provide channel De-coders the complainant paid Rs. 25,000/- by a Bank Draft on 9.9.2002. It was further alleged that complainant has been charging Rs. 100/- p.m. on every connection and his network was having nearly 600 connections. In corresponding para of written version it is alleged that complainant be put to prove all the averments made in Para 3 of the complaint and answering opposite party did not have any knowledge about the investment made by the complainant. In the absence of specific denial in written version of the allegations made to the said effect in para 3 of the complaint the opposite party Nos. 1 and 2 will be deemed to have admitted those allegations. Also taking note of the explanation appended to said Sub-clause (ii) of Clause (d) of Section 2 the said submission advanced on behalf of opposite parties about complainant not being a consumer under the Act is repelled being without any merit. Coming to the second limb of the submission, copy of service contract is placed at pages 41-48 in Revision Petition No. 780 of 2005. Though it was executed on 20.2.2003 but was to be effective from 10.3.2003 for a period of 12 months up to 9.3.2004. Admittedly, disconnection of two channel De-coders was made by the opposite parties on 5.9.2003 and thereafter complaint came to be filed on 22.9.2003 by the complainant. It is the date of disconnection of two channel De-coders which furnished cause of action to file complaint against the opposite parties. Since dates of disconnection and filing of complaint were well within one-year period of execution of said service contract, it is not open to the opposite parties to contend that the order passed on 28.2.2005 by State Commission was bad in law as by that time the service contract had lapsed.

IN Revision Petition No. 780 of 2005 Ms. K. Radha Rao for petitioner admitted that complainant had not led any evidence on point of damages. IN the absence of evidence, the complainant cannot be said to have made out case for increase in the amount of damages beyond Rs. 1,00,000/- as awarded by the State Commission. For the foregoing discussion, both the revision petitions deserve to be dismissed being without any substance. Dismissed as such. Opposite parties are directed to provide two channel De-coders to the complainant within 3 days of the receipt of copy of this order. They will also pay cost of Rs. 5,000/- to the complainant. Revision Petitions dismissed.