Ram Krishna Gautam, Member
1. The present Petition, is being filed under Section 14 read with Section 14A of the Telecom Regulatory Authority of India Act, 1997 (As Amended
upto date) (hereinafter referred to as “TRAI Actâ€) on behalf of the above Petitioner Company, against the Respondent No. 1, a Local Cable
Operator, Sky Vision Cable, bearing LCO code LCODL924 in the Petitioner’s system, in respect of the default on the part of the Respondent
No.1, in making payment of collected Monthly subscription fee from the subscribers, to the Petitioner for availing Cable signal feed, which amounts to
Rs. 10,43,867/-(Rupees Ten Lakh Forty Three Thousand Eight Hundred Sixty Seven Only) as on 31st March, 2021, due and payable to the Petitioner
Company. It is further mentioned that Respondent No. 1 has migrated to the competitor DPO of the Petitioner i.e. Alcoa Digital Private Limted,
Respondent no.2, without giving any notice & complying with the TRAI regulations and clearing outstanding amount due and payable by the
Respondent No. 1 to the Petitioner. As per petitioner’s record, the Respondent No. 1 has taken 526 Set Top Boxes from the Petitioner for
deployment at subscribers’ house. It is mentioned in the petition that STBs are the exclusive property of the Petitioner and it has also been
mentioned in the agreement executed between the parties that each set top box is worth Rs. 1999/-. The Respondent No. 1 has defaulted in meeting
with its obligations as laid down under the agreement by defaulting in making payments towards the monthly subscription charges, and has migrated to
Respondent no. 2 without giving any notice on clearing the dues of the Petitioner, whereas Petitioner has fulfilled its obligation under the Agreement
and ensured uninterrupted supply of signals to Respondent No.1. The Petitioner has suffered heavy financial losses, hence, Petitioner is seeking
intervention of this Tribunal to pass appropriate directions as may be necessary in the interest of Justice within the jurisdiction to entertain the present
petition under the provisions of the TRAI Act within the limitation period. The petitioner prayed for a direction to the Respondents to jointly and
severally clear the outstanding subscription dues of Rs. 10,43,867/- (Rupees Ten Lakh Forty Three Thousand Eight Hundred Sixty Seven Only) as on
31st March, 2021 and Respondents to return 526 Set Top Boxes in good and working condition, which has been issued to Respondent no.1 or in lieu of
that pay an total amount of Rs. 10,51,474/- (Rupees Ten Lakh Fifty One Thousand Four Hundred Seventy Four Only) @ Rs. 1999/- per Set Top Box.
It has further been prayed to Restore the set top boxes of the Petitioner at subscribers’ premises, if any, already swapped by the Respondents and
to restrain the Respondent No. 1 to receive cable TV signals from Respondent no. 2 or any other DPO until the Set Top Boxes of Petitioner returned
to the Petitioner in good and working condition or cost equivalent to such set top boxes is paid by the Respondent No.1. A prayer to restrain the
Respondent no. 2 from supplying signals to Respondent no. 1 until the dues of the Petitioner are cleared and STBs are returned to the petitioner is
there. Respondents are also being requested to be declared as defaulters and to pass other orders as this Tribunal, may deem fit and appropriate in the
facts and circumstances of the present case alongwith costs in favour of the Petitioner and against the Respondent, in accordance with law.
2. In brief, the petition contends that the Petitioner is a cable television service provider duly registered under the provisions of the Cable Television
Networks (Regulation) Act, 1995 (hereinafter referred to as “Cable Television Actâ€) and is carrying on Distribution Platform Operator
[hereinafter referred to as “DPOâ€] business. The Respondent No. 1, Sky Vision Cable, is a Local Cable Operator and has been receiving
encrypted Cable Signal feeds of television channels from the addressable system of the Petitioner to retransmit the same through its Cable Television
network to the subscribers. The Respondent has entered into an interconnect agreement on 19th October, 2019 (herein after referred to as
“Agreementâ€) with Petitioner for obtaining Cable Signal feed from 19th October, 2019 onwards. Copy of the agreement dated 19th October, 2019
is annexed herewith and marked as Annexure- P1 to petition. Respondent no. 2, Alcoa Digital Private Limted, is also engaged in the business of cable
television service under the provisions of the Cable Television Networks (Regulation) Act, 1995 and is working in the area of operation of the
Petitioner and is a service provider under TRAI Act, 1997.
3. It is submitted that as per petitioner’s record, the Respondent No. 1 has taken a number of 526 Set Top Boxes, which is Petitioner’s
exclusive property and the Petitioner is the owner of these Set Top Boxes and the same were issued to it for deployment at subscriber house. Each
set top box is worth Rs. 1999/- and the Respondent No. 1 is liable to return all the 526 set top boxes in good and working condition or an equivalent
cost in lieu of the same. It is submitted that based upon the terms of written Agreement executed between the parties from time to time, the Petitioner
on a monthly basis raised invoices on the Respondent No. 1 for the payment of subscription amount collected from subscribers. Copy of some of the
invoices raised by the Petitioner towards monthly subscription charges are annexed herewith and marked as Annexure- P2 to petition. Also a copy of
the statement of Accounts maintained by the Petitioner Company has also been annexed herewith and marked as Annexure Pâ€" 3 to petition. It has
further been contended that on several occasions, the Petitioner orally requested the Respondent No. 1 to clear the outstanding amount but the
Respondent No. 1 paid no heed to the request of the Petitioner and continued to default in making any payments and gave false assurances to clear
the same. The Petitioner issued a demand cum cease and desist notice to the Respondent No. 1 on 21st January, 2021, which is annexed herewith and
marked as Annexure- P4 to petition.
4. It has been contended that Respondent No. 1 has migrated to Respondent no. 2, without complying with the provisions of Interconnection
Regulations of providing three weeks’ notice to the Petitioner. It is also submitted that the Petitioner is also entitled to recover from the
Respondent No. 1 an interest at the rate of 18% p.a. on such outstanding amount from the date it became due till the date of realization. The
Petitioner has discharged its obligation under the said Agreement, but the Respondent No. 1 has failed and neglected to perform its obligation under
the Agreement.
5. Mr. Siddharth Priya Srivastava, Manager of the Petitioner’s Company is duly authorised to file this petition vide Board Resolution dated
15.01.2019. A copy of the said Board Resolution is annexed as Annexure P â€" 5 to the petition.
6. This Tribunal has the jurisdiction to entertain and try the present petition under the provisions of the TRAI Act and it has been filed within the
limitation period.
7. After giving sufficient opportunities to the respondents, neither appearance, nor any reply got filed. Hence, on 15.1.2024, the respondents were
proceeded ex parte.
8. Evidence by way of affidavit dated 23rd March 2022 was filed by Mr. Harsh Singh of petitioner’s company reiterating the contentions of the
petition in totality. No evidence, either oral or documentary, for and on behalf of Respondent, could be filed, by Respondents.
9. Petitioner also filed written arguments in this petition specifying the details of the amount to be awarded to the petitioner.
10. Heard learned counsel for the petitioner and gone through the material placed on record.
11. Hon’ble Apex Court in Anil Rishi Vs. Gurbaksh Singh â€" AIR 2006 SC 1971 has propounded that onus to prove a fact is on the person who
asserts it. Under Section 102 of The Indian Evidence Act, initial onus is always on the plaintiff to prove his case and if he discharges, the onus shifts to
defendant. It has further been propounded in Premlata Vs. Arhant Kumar Jain- AIR 1976 SC 626 that where both parties have already produced
whatever evidence they had, the question of burden of proof ceases to have any importance. But while appreciating the question of burden of proof
and misplacing the burden of proof on a particular party and recording of findings in a particular way will definitely vitiate the judgment. The old
principle propounded by Privy Council in Lakshman Vs. Venkateswarloo â€" AIR 1949 PC 278 still holds good that burden of proof on the pleadings
never shifts, it always remains constant. Factually proving of a case in his favour is cost upon plaintiff when he fulfils, onus shifts over defendants to
adduce rebutting evidence to meet the case made out by plaintiff. Onus may again shift to plaintiff. Hon’ble Apex Court in State of J & K Vs
Hindustan Forest Co. (2006) 12 SCC 198 has propounded that the plaintiff cannot obviously take advantage of the weakness of defendant. The
plaintiff must stand upon evidence adduced by him. Though unlike a criminal case, in civil cases there is no mandate for proving fact beyond
reasonable doubt, but even preponderance of probabilities may serve as a good basis of decision, as was propounded in M Krishnan Vs Vijay Singh-
2001 CrLJ 4705. Hon’ble Apex Court in Raghvamma Vs. A Cherry Chamma â€" AIR 1964 SC 136 has propounded that burden and onus of
proof are two different things. Burden of proof lies upon a person who has to prove the facts and it never shifts. Onus of proof shifts. Such shifting of
onus is a continuous process in evaluation of evidence.
12. This Petition, before this Tribunal, is a civil proceeding and in civil proceeding, the preponderance of probabilities, is the touchstone for making a
decision, as against strict burden of proof, required in criminal proceeding.
13. As there is no privity of contract, in between, petitioner and respondent no. 2 and proposition of law laid down by this Tribunal, in many cases is of
this effect, as competitive MSO, having no privity of contract, will not be held liable for any default made by LCO with regard to liability arisen with
other competitive MSO, out of interconnect agreement, in between, petitioner and that LCO. Hence, respondent no. 2 is not to be fastened with any
liability. Therefore, no relief against competing service provider may be claimed or awarded.
14. Since, during the proceeding before this Tribunal, the respondents chose not to appear, nor filed their reply, nor participated, hence, there is no
negation of contents of petition. Hence, this petition merits its allowance with costs. Further, Petitioner’s evidence Affidavit is with reiteration and
the contention of the petition, wherein the interconnect agreement has been made Annexure to affidavit, and it was not controverted by respondents.
Issuance of 526 STBs, along with VCs, in compliance of interconnect agreement, in between, petitioner and respondent no. 1, has been stated in this
uncontroverted affidavit. The price per STB, is given as Rs. 1999/-, and total amount, as a cost of these STBs as well as VC has been calculated to
be Rs. 10,51,474/-. Whereas, as per the agreement entered, in between, the compensation for STBs, ought to be the depreciated value of STB and
this Tribunal, very often has decided depreciation of 15% for the value of purchase. (BP No. 267 of 2019 - Hathway Digital Private Limited Vs.
Jaipur Cable Network). Hence, Rs.1999/- has been claimed as the value of per STBs, and with depreciated value, it will come to Rs. 1699/- per STB.
Hence, the amount payable in case of failure to restore the STBs and VCs, will come to Rs. 8,93,674/- (Rs.1699*526 STBs).
15. Unrebutted affidavit of Petitioner is in fully reiteration and corroboration of Petition. These facts have been fully proved by Petitioner, by way of
uncontroverted affidavit. Hence, Petitioner had proved its case with all precise and cogent evidence. The Petition is to be decreed for an amount of
Rs. 10,43,867/- (Rupees Ten Lakh Forty Three Thousand Eight Hundred Sixty Seven Only) as on 31st March, 2021, Rs. 8,93,674/- (Rupees Eight
Lakh Ninety Three Thousand Six Hundred and Seventy Four Only) (Rs.1699*526 STBs) along with pendentelite and future interest @ 9% p.a., an
interest, which is being very often awarded in present fiscal scenario, by this Tribunal in other decided Petitions.
ORDER
Petition is being allowed with cost. Respondent No. 1 is being directed to make deposit within two months, from the date of judgment, the outstanding
subscription dues of Rs. 10,43,867/- (Rupees Ten Lakh Forty Three Thousand Eight Hundred Sixty Seven Only) as on 31st March, 2021, and to return
total 526 Set Top Boxes in good and working condition, which has been issued to it or in lieu of that, pay the total amount Rs. 8,93,674/-(Rupees Eight
Lakh Ninety Three Thousand Six Hundred and Seventy Four Only) @ Rs. 1699/- per Set Top Box, along with pendentelite and future interest @ 9%
p.a., till actual date of payment, in Tribunal, for making payment towards petitioner.
Formal order / decree be got prepared by office, accordingly.