NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
N
- 130,
1.
Star Plus TV
Star
India Pvt. Ltd.
205–206,
Okhla Industrial Estate Phase III
2.
Bharti Airtel Ltd.
D–184,
Okhla Industrial Area Phase I
BEFORE:
HON’BLE MR. JUSTICE M.
B. SHAH, PRESIDENT
HON’BLE MRS.
RAJYALAKSHMI RAO, MEMBER
HON’BLE MR. ANUPAM
DASGUPTA, MEMBER
For the Complainant: Mr. Omesh Saigal, Authorised Representative, Mr. Atul Nanda, Advocate (as amicus curiae) and Mr. Yatinder Vidyarthi, Advocate
For
Opp. Party No. 1: Mr.
Ramji Srinivasan, Senior
Advocate with Mr. Vivek Dhokalia, Ms. Punita Bhargava, Mr. Daksh Kumar and Mr.
Harsh Kaushik, Advocates
For
Opp. Party No. 2: Mr.
S. Ganesh, Senior Advocate with
Mr.
Navin Chawla, Advocate
Dated
The Society of Catalysts, a
voluntary consumer organisation, has filed this
complaint against the alleged unfair trade practices adopted by Opposite Party
(OP) No. 1, Star Plus TV and OP No. 2, Bharti Airtel
Ltd. (hereafter referred to as ‘Star TV’ and ‘Airtel’ respectively). It is
stated by the complainant that it is a voluntary consumer association
consisting of former IAS officers, IIT alumni, eminent lawyers and other well
known persons, registered under the Societies Registration Act, 1860 and has
the following objectives:
1.
To become a part of the Consumer Protection Movement for
safeguarding the rights of consumers.
2.
To
propagate, process and participate for rights of consumers under the Consumer
Protection Act and as such as an NGO.
3.
To
take up the cases of consumers in various forums including Consumer Courts and
bodies like ASCI, MRTP, etc.
4.
To
liaise with other consumer bodies and Government Departments in furtherance of
the aforesaid objectives.
5.
To
file Public Interest Litigation (PIL) with various Courts for individual
consumers.
The
undisputed facts are that Star TV broadcast a programme
by the name of “Kaun Banega Crorepati”
(in short, the ‘KBC’) between 22nd January 2007 and 19th
April 2007 for the duration of one hour daily, 4 days in a week. The programme was sponsored, among others, by Airtel and
carried commercial advertisements at the beginning and end of as well as during
each episode of the programme. The prominent film
star Shah Rukh Khan, acting as the anchor person,
asked a series of questions to the selected contestants of the KBC, one of whom
could win up to Rs.2 crore if he answered all the
questions correctly at each round, including the final.
It
further emerges from the averments of the opposite parties that during the
telecast of this programme, there was another contest
called the “Har Seat Hot Seat” (hereafter
referred to as the ‘HSHS’) in which all TV viewers of the KBC
were invited to participate. The HSHS contest consisted of answering an
objective type question with four possible answers announced during each
episode of the KBC. The participants of the HSHS, who thus had to be naturally
viewers of the KBC to know the questions, were required to send the answers by
cellular/landline phone of Airtel (or, those of MTNL or BSNL) to a number specified
by Airtel, before the correct answer was flashed on the screen. The answers
sent on cellular phone had to be through Airtel’s
(or, MTNL’s or BSNL’s)
short messaging service (in short, SMS). The winners among the participants
from among those who gave the correct answers to the questions were to be each
given a prize of Rs.2 lakh. Each
participant/consumer, who sent the answer using Airtel’s
SMS, was required to pay Rs.2.40 per message, which was higher than the normal
pulse/call rate or text messaging charges. The announcement of the OPs in this regard stated that there was no entry fee for
the HSHS contest and the winner for each episode would be selected randomly out
of those who sent the correct answers. There were 52 such episodes of the KBC
and thus total prize money amounting to Rs.1.04 crore
was paid out by the OPs. It is not denied by the OPs that in all they received 58 million text messages
(hereafter, ‘SMS’s’) and thereby collected Rs. 13.92 crore from the
participants of HSHS towards the charges for such messages.
It
is contended by the complainant that the OPs created
an impression in the minds of the viewers of the KBC that the participation in
the HSHS contest was “free” and the prize money was being paid out by the organisers. But in reality the cost of organising
the HSHS contest as well as the prize money was built in the cost of the SMS
sent or telephone calls made by the participants to the given number of Airtel
in answering the questions. The complainant has contended that this was an
unfair trade practice as defined under section 2(1) (r) (3) (a) of the Consumer
Protection Act, 1986 (hereinafter referred to as the CP Act).
Secondly, it has contended that apart
from the aforesaid, the HSHS contest was in reality a lottery because the
questions were simple and the winner was to be finally selected from among the
participants providing the correct answers by a random selection and that this
contest was organised jointly by Star TV and Airtel
mainly to further promote their own business interests by improving the viewership of the KBC and enhancing its TRP (Television Rating Point – a criterion for
indicating the popularity of a television channel or programme
and the data are considered very useful for the advertisers) to command higher
advertisement charges with the said programme and
additional business revenue from the large number of SMS’s
made by the participants. This, according to the complainant, was also an
unfair trade practice under the provisions of section 2(1) (r) (3) (b) of the
CP Act.
WRITTEN VERSION OF AIRTEL
Airtel
has contended as under:
i)
This
complaint is not maintainable before a consumer forum because under proviso 4
to section 14 of the Telecom Regulatory Authority of India Act, 1997 (hereafter
referred to as the TRAI Act), the grievances of the complainant can be
redressed only by the Telecom Regulatory Authority of India (hereafter referred
to as the TRAI).
ii)
Airtel
admits to charging of Rs. 2.40 per message per
participant in the HSHS contest
and claims that all the participants were made well aware of the said charges a
priori. Airtel has not charged any amount for these SMS in violation of the
tariff prescribed by the TRAI because this was a value-added service provided
by Airtel for which the TRAI has not prescribed any rates.
iii)
Airtel
was not the organiser of the programme
KBC but merely a sponsor thereof. The entire content of the programme
including the questions asked were organised by Star
TV alone; and, therefore, no complaint against Airtel is maintainable.
iv)
Further,
(a) apart from Airtel, there were other sponsors of the programme
but they have not been made parties to the complaint and (b) other telephone
service providers like BSNL and MTNL, which provided the same service to their
respective subscribers, are also not joined as Opposite Parties. Hence, the
complaint is not maintainable.
WRITTEN VERSION OF STAR PLUS TV
Star
Plus TV has also filed its written version contending
as under:
i) This
Commission has no jurisdiction to entertain and adjudicate on the dispute
raised by the complainant. Only the Telecom Disputes Settlement and Appellate
Tribunal (hereafter referred to as the TDSAT) would have jurisdiction as
provided under the TRAI Act. For this purpose, reliance is placed on section 14
and section 27 of the TRAI Act which read as under:
Section 14
“Establishment
of Appellate Tribunal. – The Central Government shall, by notification, establish
an Appellate Tribunal to be known as the Telecom Disputes Settlement and
Appellate Tribunal to –
(a)
adjudicate any dispute –
i)
between a licensor and a licensee;
ii)
between two or more service providers;
iii)
between a service provider and a group of consumers;
Provided that nothing in this
clause shall apply in respect of matters relating to –
(A) the
monopolistic trade practice, restrictive trade practice and unfair trade
practice which are subject to the jurisdiction of the Monopolies and
Restrictive Trade Practices Commission established under Sub-section (1) of
Section 5 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of
1969);
(B)
the complaint of an individual consumer maintainable
before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal
Commission or the National Consumer Disputes Redressal Commission established
under section 9 of the Consumer Protection Act, 1986 (68 of 1986);
(C)
dispute between telegraph authority and any other person
referred to in sub-section (1) of section 7B of the Indian Telegraph Act 1885
(13 of 1885);
(b) hear and dispose of appeal against any direction, decision
or order of the Authority under this Act.
Section 27
“Bar of jurisdiction –
ii) Regarding the phone/SMS charges, it is
pointed out that the contestants of the HSHS segment participated completely
voluntarily (motivated by a desire to win the contest) with full knowledge of
the pulse rates/costs involved for participation. There was no element of
coercion or concealment/deception on the part of Star TV.
iii) (a) The financials and revenue sharing,
if any, referred to by the complainant, really fall within the domain of
confidential and proprietary information, to be disclosed only in accordance
with law, if required; and (b) the alleged ‘sharing’ of revenue, even if true
for the sake of argument, does not detract from the fact that the entry to the
contest was in fact ‘free’ as the contestant did not pay any monies to enter
the contest nor is there any illegality involved in it if any alleged revenue
sharing has occurred (as admitted by complainant in paragraph 12 of the
complaint).
In support of its contentions the Complainant
has stated in paragraphs 9, 10, 12 and 13 of the complaint, as under:
“9) That the general impression
given was that as the participation is free, the prize money is being given by
the organizers of the contest from out of their pocket. The program mentioned
that the SMS would each be charged at Rs 3 but
participants in the contest were kept in the dark whether this money was being
collected and retained by the service provider (i.e. the company providing him
the cellular service) or was being shared with the organizers of the contest
i.e. with OP1 and OP2. They therefore rightly accepted the impression given by
the organizers (OP1 and OP2) of the contest that the right to participation in
the contest to win the prize money was free of charge.”
“10) That the Complainant
Society carried out a sample survey, through personal and telephonic contact
and otherwise, and found that the facts are, however, to the contrary. The
short sample survey clearly established that all the viewers of the programme who participated in the contest were under the
clear impression that the participation is free and that whatever was being
paid for the SMS was to cover the costs of their service provider and is to be
retained by him. Most of the viewers felt that the contest was carried out to
increase the popularity of the programme.”
“12) That it is clear that the
money collected for the SMS’s sent for the contest by
the participants by the concerned cellular operator was shared by him with OP1
and OP2 also. OP2 is entitled to collect landing charges only; for these
special SMS’s he got an extra amount as his share.
Similarly, OP 1, which is normally not entitled to any amount collected as SMS
charge, also received a share of the money collected. While not illegal as per
TRAI directives, their non-disclosure to the participants in the contest was
clearly motivated to give the impression that the participation was free. It is
clear from this that participation in the contest was not free and money was
charged for the contest in the transaction as a whole by enhancing the charge
for the SMS.”
“13) That it is also clear that
the contest was held not with a view to enrich the viewer but merely to enhance
the popularity of the programme, leading to higher TRPs and consequently higher commercial spot and
sponsorship rates, and also to directly benefit OP2 by increasing his business
by getting more calls.”
As against this, it has been
contended on behalf of OP 1 as under:
“Rates
for such premium SMS’s are higher than those charged
for routine use. For such programmes (not limited to
KBC), the Service Providers are charging anything between Rs.2.40 to Rs.6.00
per SMS, which fact is within the knowledge of TRAI, as the Sectoral
Regulator, and which is permissible under the relevant Tariff
Orders/Regulations.
“As the complainant has failed to
produce on record the ‘short sample survey’ allegedly carried out by it, it has
failed to prove that such impression was created. Further, no affidavit
in support of such contention has been filed.”
On the other hand, in its reply to
the complaint (written version) Airtel has, inter alia,
contended as under:
“7. (Preliminary Objections)
......... the answering respondent was not the organiser
of the program called “Kaun Banega
Crorepati” (hereinafter referred to as the said
program). It was merely a sponsor of the same and therefore no complaint can
lie against the answering respondent........
“9. (Para-wise Reply to the
complaint) ........... the contents of paragraph 9 are wrong and are denied. It is
vehemently denied that the general impression given was that the participation
is free. ......... Copies of few sample advertisements are annexed hereto and
marked as Annexure – B. It was even
otherwise common knowledge that being granted sponsorship rights, the answering
respondent would have given sponsorship fee to the Respondent No. 1. .........
It is vehemently denied that any impression was given by the answering
respondent that the right to the participation in the contest to win the prize
money was free of charge. .............. The services provided thru premium SMS
are not basic services, but are special services that require specialist
vendors, costly software, backend and frontend
facilities, exclusive trained manpower, etc. ............”
“16. ......... It is denied that the
holding of the “har seat hot seat” contest on the
said program is an unfair trade practice. It is denied that any impression was
given that the participation in the program was free of charge. ........”
In context of the contentions of
Airtel (OP 2), it is instructive to note those of Star Plus (OP 1) in the
latter’s brief para-wise reply. These are extracted
as under:
“40.
“41.
FINDINGS
A. WHETHER ‘HSHS’ CONTEST AN UNFAIR
TRADE PRACTICE
For deciding this controversy, we
would first refer to section 2(1) (r) of the CP Act, which defines ‘unfair
trade practice’ as under:
“Unfair trade practice means a
trade practice which, for the purpose of promoting the sale, use or
supply of any goods or for the provision of any service, adopts any
unfair method or unfair or deceptive practice including any of the
following practices, namely :
1)
……………………….
2)
…………………………
3)
permits –
(a)
the offering of gifts, prizes or other items with the
intention of not providing them as offered or creating impression that
something is being given or offered free of charge when it is fully or partly
covered by the amount charged in the transaction as a whole;
(b)
the conduct of any contest, lottery, game of chance or skill, for
the purpose of promoting, directly or indirectly, the sale, use or supply
of any product or any business interest.”
Section 2(1) (r) (3) (a) can be
divided into two parts, as under:
(i)
Offering of gifts, prizes or other items
with an intention of not providing them as offered;
Or,
(ii)
Offering of gifts, prizes by creating
impression that something is being given or offered free of charge when it is
fully or partly covered by the amount charged in the transaction as a whole.
From the aforesaid second part of
section 2(1) (r) (3) (a), it is apparent that if an impression is created that
something is being given or offered free of charge when the prize is fully or
partly covered by the amount charged in the transaction as a whole, it is an
unfair trade practice.
In
the present case, there is no dispute that the prize of Rs.2 lakh given to each winner of the HSHS contest was out of
the payment collected through charges for calls and SMS. Further, it is not
denied that, in all, 58 million SMS’s were received
and normal charge of an SMS is Re.1/- per SMS or less. That
means, in all, for 58 million SMS’s, Rs.13.92 crore were collected (5.8 crore x
Rs.2.40). Out of the aforesaid amount, the prizes given for 52 episodes
were @ Rs. 2 lakh per
episode. That is, a total sum of Rs.1.04 crore was
distributed as prize money for the HSHS contest, leaving a gross profit of Rs. 12.88 crore. If Re. 1/- is
the normal charge per SMS, even then the total amount that would have been
collected for 58 million SMS’s would be Rs. 5.8 crore, i.e., more than
five times the cost of the prizes. Though the OPs
have refused to disclose the costs of and revenues earned from conducting the
HSHS contest on grounds of confidentiality of proprietary information, it is
quite clear that @ Rs. 2.40 per SMS, the gross
earning was far in excess of the cost of the prizes offered.
However, it is contended that there
is nothing on record to establish that OPs 1 and 2
have created an impression that the prizes for the HSHS contest were being
offered or given free of charge. In our view, such impression is apparent
and no consumer would possibly imagine from the advertisements or “on screen
displays” (OSD) for the HSHS contest that it was out of the funds collected by
Airtel through SMS that the prizes were being paid out or, that the cost of
either the entire contest or some part thereof was being met. This does not
require any further proof because such an impression is apparent. From the deceptive practice of non-disclosure
adopted by the Opposite Parties inference can be drawn that without informing
the contestants by recovering extra large amount through SMS prizes would be
distributed. Nowhere the consumers were informed that the prize would be
distributed out of the fund collected from SMS messages.
Further, it is seen that though the issues raised in the complaint are
entirely about the conduct of the HSHS contest and have nothing to do with the programme KBC on which the HSHS contest took a ‘piggy-ride’
of sorts, OP. 2 has tried to obfuscate matters by referring to the KBC programme, and not the contest HSHS, when it states that
the complaint cannot lie against it because it is merely a sponsor of the KBC.
Secondly, the two copies of the newspaper advertisements that OP 2 has produced
on record are only about participating in the KBC, not the HSHS. Thirdly, OP
no. 1, in its 102-page affidavit in reply to the complaint, has not produced
one piece of paper to show what indeed was advertised to inform the
participants about the terms and conditions applicable to the HSHS contest.
Other than a copy of the rules relating to the HSHS contest, claimed to have
been put up on a certain website, there is nothing worthwhile to substantiate
its claim that no impression was created that the HSHS contest and the prize
money therefor were not entirely free. Further, as
would be clear from the extracted portions of their averments, there is clear
contradiction between the averred stands of the two OPs
on whether the contest HSHS was advertised as “free”. This lends further
credence to the complainant’s contention that an impression was indeed created
as alleged in the complaint.
Further,
much has been made out by the OPs that the SMS charge
@ Rs. 2.40 per text message was justified because of
the extra costs of “specialist vendors, costly software, backend and frontend facilities, exclusive trained manpower, etc.” However, it is
nowhere stated explicitly that this was indeed the case with the conduct of the
HSHS contest. Both Airtel and Star Plus TV have been
in the business of conducting such contests for long – in fact, it is an
admitted position that the KBC in question was the third ‘avatar’ of the first
KBC. In this set of circumstances, there
is no question of value added service by the opposite party.
Similarly,
it is nowhere shown by Airtel, except as the general proposition extracted from
its averment and quoted above, that all, or at least some, of the extra costs
on the aforesaid items were actually incurred by it to conduct the HSHS contest
per se, which would by itself justify the rate of Rs.
2.40 per SMS message. In fact, the stand is that these are in the nature of
confidential proprietary information. Moreover, it is quite clear that while
there may have been many sponsors of the programme
KBC and Airtel was one of them, in respect of the HSHS contest, announced and
conducted in tandem with the KBC, there was a special business relationship
between Star Plus TV and Airtel which included, inter alia,
some undisclosed arrangement of sharing the net earnings from the SMS’s. These facts on record also lead to the conclusion
that there is some force in the complainant’s contention that the HSHS contest
was, in fact, an attempt to (at least, indirectly) promote the business
interests of both OPs. 1 and 2.
Therefore,
it is our view that there is nothing on record to establish that either of the OPs made it clear that the prizes for the HSHS contest
would be offered to the participants from the funds collected out of the
charges for SMS’s sent by the participants themselves
or that the HSHS contest was being conducted out of other sources of funds or that
Airtel would not pay any amount from its collection from SMS’s
to Star TV or that the HSHS contest was not with a view to promoting the
business interests of Star TV and Airtel. Such offering of the gifts/prizes
when it is fully or partly covered by the amount charged through SMS’s as a whole is
an unfair trade practice as the same is not disclosed to the contestants.
It is true that participation in the programme by the consumers was voluntary but at the same time it was due to the temptation of getting prize money of Rs.2 lakhs by sending correct answers through SMS.
Further, even if the SMS rates were declared but the prize/gift amount was distributed out of the revenues collected from the SMS charges, it amounts to unfair trade practice as contemplated under sub-clause (3) of section 2(1)(r) of the Act.
In
this view of the matter, it is apparent that Opposite Parties adopted deceptive
practice and permitted offering of prizes by suppressing the fact that the
prizes would be distributed out of collection of amount through SMS. Normally,
contestant would gather impression that prize money of Rs.2 lakhs
is offered free of charge even though it is fully covered by the amount charged
in a transaction as a whole. In temptation of getting the prizes, the
contestants would not bother to spend small additional amount for sending SMS
messages which would result in large profit to the opposite parties. The common
consumer is vulnerable to such enticement.
In view of the aforesaid finding, we are not discussing
the second contention of the complainant that conduct of such a contest was for
the purpose of promoting directly or indirectly the business interests of the
opposite parties which also amounts to unfair trade practice as defined under
section 2(1)(r)(3).
B. MAINTAINABILITY OF THE COMPLAINT
The learned counsel
for the OPs have vigorously contended that the
complaint is not maintainable under the CP Act in view of the provisions of
section 14 of the TRAI Act. For this purpose, heavy reliance is placed on
section 14A which, inter
alia, provides that only the TDSAT would adjudicate any
dispute “between a service provider and a group of consumers”.
It is to be stated that the dispute
in the present case is not between a telecommunication (telecom) service
provider and a group of consumers qua the services which are required to be
rendered by that service provider. The term ‘service provider’ as defined in section 2(1)(j) of the TRAI Act means “the Government as a service provider and includes a
licensee”.
As provided under section 2(1)(e) of the said Act, “licensee” means “any person licensed under sub-section
(1) of section 4 of the Indian Telegraph Act, 1885 for providing specified
public telecommunication services”.
OP no.2 can be considered to be a
licensed Telecommunication (telecom) service provider under the TRAI Act but it
is important to distinguish that the dispute does not pertain to the
entertainment or telecom services which are provided by Star TV or Airtel. The
dispute pertains to unfair trade practice, as contemplated under section 2 (1)
(r) (3) of the CP Act, adopted by OPs no.1 and 2 in
offering prizes for the HSHS contest out of the monies collected from the
contestants, without making it known to them.
It is to be stated that even the opposite parties specifically
averred and emphasized that there is no violation of tariff prescribed by the
TRAI. In such set of circumstances, there is no question of approaching the
TDSAT. Therefore, it cannot be said that such a dispute can be adjudicated only
by the TDSAT.
Further, in the present case, the
complainant is a Society which is to be considered as an individual who is
entitled to file a complaint under the CP Act for protecting the rights of the
consumers as a whole and that is specifically provided under the CP Act as well
as under the TRAI Act. Under section 2(1)(b) of the CP
Act, a complaint can be filed by any voluntary consumer association registered
under the Companies Act or under any other law for the time being in force. It
can also be filed by one or more consumers where there are numerous consumers
having the same interest. In the present case, numerous consumers have not
approached us but a voluntary consumer association has filed this complaint and
it is specifically provided under section 14-B of the TRAI Act that such a
complaint is maintainable before the consumer fora.
In support of the contention that the
complaint is not maintainable before this Commission, learned counsel for the OPs have relied upon the judgment in the case of Grahak
Hitvadhini Sarvajanik Sansthan vs. Intermedia Cable
Communications Pvt. Ltd., (Revision Petition
No.87 of 2005) decided on 17.11.2006.
In that case, it was contended by the consumer organisation
on behalf of the cable operators that restricted trade practice was adopted by
the service provider and the broadcaster in that the cable operator could not
give the cable connection beyond the area which was assigned to the latter, was
an is unfair trade practice. That dispute would clearly fall within the ambit
of section 14 of TRAI Act, 1947 and, hence the decision thereon would have
no bearing on the issue to be decided in the present case. Similarly, the
judgments in the cases of Cellular Operators Association of India vs. Union of
India [(2003) 3 SCC 186] and Clariant International
Ltd. Vs. Securities & Exchange Board of India [(2004) 8 SCC 524] have no
bearing on deciding the question of unfair trade practice as envisaged under
section 2(1)(r) particularly, sub-clause (3) thereof.
C. NON - JOINDER OF PARTIES
Learned counsel for the OPs have further contended that during the HSHS contest,
apart from Airtel, SMS’s were also sent through BSNL
and MTNL; yet they are not joined as Opposite Parties and the complainant
deliberately omitted them as Opposite Parties even after this deficiency was
pointed out in the reply filed by OP no.1.
In our view, even if BSNL and MTNL
have not been joined as Opposite Parties, it cannot be contented that the
complaint is not maintainable. It is not denied by either OP that OP no.2
received 58 million SMS’s and collected large amount.
With regard to BSNL and MTNL, there is nothing on record to suggest that they
too recovered large amounts from the call/SMS charges for the HSHS contest and
that they both (or, either) used the said amount or a part thereof for sharing
the cost of the prizes. The prizes were distributed from the large amount of
Rs.13.92 crore received by OP no.2 through SMS’s.
D. CONCLUSION
In view of the foregoing discussion, the complaint is allowed partly. Star Plus TV and Bharti Airtel Ltd. are held to have violated the provisions of section 2 (1) (r) (3) of the CP Act in conducting the “Har Seat Hot Seat” contest which was in conjunction with the main television show, “Kaun Banega Crorepati” and thereby adopted unfair trade practice.
From
the facts stated above and on the basis of the admitted fact that Opposite
Party No.2, Bharti Airtel Ltd. received 58 million
SMS text messages, it goes without saying that this practice resulted in to increase
their business. Further, normal charge of the 58 million SMSs
would have fetched only a maximum of Rs.58 million, i.e., Rs.5.8 crore.
As against this, they
received a large amount of Rs.13.92 crore from SMS
messages. Further, the excess revenue (Rs.13.92 crore
minus Rs.5.80 crore) comes to Rs.8.12 crore. Out of this, they distributed prizes amounting to
Rs.1.04 crore. Still, the surplus revenue comes Rs.7.08 crore. However, in
such a case, there is no question of paying any compensation to the complainant
because the complainant is a voluntary consumer organisation
which has highlighted the unfair trade practice committed by Star Plus TV and Bharti Airtel Ltd.
But, at the same time, in terms of proviso to section 14(1)(d),
this would be a fit case for awarding punitive damages. Considering the large
amount of profit earned and the large number of consumers affected, this would
be a fit case for imposing punitive damage of Rs.1 crore
which only comes to approximately 14% out of the surplus revenue of Rs.7.08 crore.
In the result, the Star Plus TV and the Bharti Airtel
Ltd., Opposite Parties No.1 and 2, are directed to pay jointly and severally
damages of Rs.1 crore. They are hereby directed to
deposit the said sum of Rs.1 crore with the Registrar
of this Commission, who in turn, shall deposit the same to the credit of the
Consumer Welfare Fund (Rule 9). The Opposite Parties No.1 and 2 are also
directed to pay Rs.50,000/- to the Complainant towards
litigation costs.
We
highly appreciate the efforts made by complainant, the Voluntary Consumer
Association. We also appreciate the services rendered by Shri
Atul Nanda, Amicus Curiae.
Sd/xxxx
……………………………………..
( M.B. SHAH, J
)
PRESIDENT
Sd/xxx
……………………………………..
(
RAJYALKSHMI RAO)
MEMBER
Sd/xxx
……………………………………..
( ANUPAM DASGUPTA)
MEMBER
/sra/