Date of Filling : 01.02.2016.
Date of Disposal : 13.06.2017.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.
PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M., … PRESIDENT
TMT. S. SUJATHA, B.Sc., … MEMBER - I
Consumer Complaint No.05/2016
(Dated this Tuesday the 13th day of June 2017)
Mr. A. Subramanian,
S/o. Late Mr. G.K. Arunachalam,
G-1, Vasanth Apartments,
No.133, L.D.G. Road,
Thomas Nagar, Little Mount,
Saidapet,
Chennai - 600 015. … Complainant. / Versus /
1. Sistema Shyam Teleservices Limited,
Represented by its Director,
MTS Towers,
No.334, Udyog Vihar, Phase-IV,
Gurgaon,
Haryana - 122 001.
2. Sistema Shyam Teleservices Limited,
Represented by Mr. Viram Vasu,
Head - Customer Service Delivery,
Ambit IT Park, 2nd Floor,
No.32, A & B Industrial Estate,
Ambattur,
Chennai - 600 058. … Opposite parties.
This complaint is coming upon before us finally on 26.05.2017 in the presence of the M/s. S. Bruno Cruz, Counsel for the Complainant and Mr. R. Damodaran, Counsel for the 1 & 2nd opposite parties and having perused the documents and evidences and oral arguments of both sides, this Forum delivered the following,
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT
This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 for claiming compensation for a sum of Rs.1,00,000/- for causing mental agony and sufferings caused due to gross deficiency in service, inconvenience and hardship due to the negligent act of the opposite parties.
2. The brief averments of the complaint is as follows:-
The complainant who is running a real estate business in the name and style of “Landmarks Property Developers” had received a SMS on 06.12.2014 from mobile No.730501777 informing that “MTS HI Speed Internet + Date Card 40GB999” is available and asked to contact No.9444708047 for further information. As the complainant was in the need of Data Card for his personal use, he contacted that number and the person on the other side informed that he is the sales representative of the opposite party company and the cost of the MTS Date Card is Rs.1,000/-. When the complainant asked regarding the speed of the internet, he was told that there are 2 transmitters towers in the surrounding areas and the speed will not be an issue, the speed will be upto 9.8 mbps however the speed will be a minimum of 4 to 5mbps. Further, he promised the complainant to return the money and take back the data card, if the internet speed is not upto the mark.
3. On believing the opposite parties sales representative’s words to be true, the complainant placed the order for data card and on the same day i.e. 06.12.2014, the opposite parties representatives Mr. Venkat and Mr. Devarajan came to the complainant residence about 12 noon and handed over the “MTS MBLAZE ultra Wi-Fi data card No.8925652055 and demanded for Rs.1,300/- which was different from the actual cost of the Data Card told earlier. They said that, since the Data Card is with Power adapter, it amounts to Rs.1,300/-.
4. When the complainant asked for demo card to check the speed, they told the complainant that they don’t have demo card, hence the complainant has no alternate than to pay for data card and paid the sum of Rs.1,300/- and handed over the necessary documents i.e. ID and Address proofs without verifying the speed of the internet. The opposite parties sales representative also promised the complainant that the data card will be activated within 24 hours (i.e. 07.12.2014). That even after 48 hours, the date card was not activated. The complainant repeatedly called Mr. Venkat throughout the day but he was not responding to any of his call till 5 p.m. Finally, he picked up the call around 5 p.m. and promised that he would inform the status of the activation after reaching the office within 30 minutes. But he never contacted the complainant. Then the complainant contacted the person to whom he has placed the order initially for data card. Finally, the data card was activated only on 09.12.2014 around 1 p.m.
5. That after the activation of the data card, there was a great disappointment for the complainant that the download speed showed only 0.11 mbps. Then the complainant made a complaint with the customer care and the instructions given by them were futile and the complainant asked for technician to solve the issue and his complaint was registered as Dec/4081 dated:09.12.2014 and informed that the complaint will be attended within 22 hours.
6. That on 11.12.2014, the technician of the opposite parties called the complainant to check his availability and promised to come by 02.30 p.m. but he never came to attend the complaint even after many calls. Disappointed with the unprofessionalism of the opposite party, on 12.12.2014, the complainant sent an e-mail to the opposite party to disconnect the service connection and to return back Rs.1,300/- paid towards data card. By a reply mail dated:12.12.2014, the opposite parties rendered apology for their unprofessional behavior and informed the complainant that the complaint (DEC/4081) raised against the speed issue is in open state and they would not be able to refund the cost of the hardware unless they detect the issue in the services, moreover they have raised a request for account cancellation and the request number is 4491312 and further informed that the cancellation would take a maximum of 7 days to disconnect the services.
7. Then the complainant has informed the opposite parties through his mail that he has not agreed to continue the service as the opposite parties stated in their e-mail dated:12.12.2014. On 15.12.2014, the opposite parties mechanically sent two mails without applying their mind and stating in first mail that the “MTS account is active”, in their second mail the complaint (DEC/4081) raised against the speed issue is in open state”. The complainant has extremely disappointed and shocked to see such contradictory mails from the opposite parties.
8. That on 15.12.2014, the opposite party sent an e-mail to the complainant with a demand that the complainant has to pay Rs.285/- to process disconnection request and the complainant sent an e-mail dated 16.12.2014 to opposite parties and informed again that the complainant has not interested in continuing with MTS service. Subsequently, on 17.12.2014, the opposite parties sent an e-mail to the complainant and informed that the services have been temporarily deactivated since 15.12.2014. By an e-mail dated:18.12.2014, the complainant again requested the opposite parties to take back the data card and refund the amount Rs.1,300/- paid by him.
9. Thereafter, the opposite parties had been sending SMS and demanding to pay Rs.285/- for unused data card. The opposite parties sent bill dated:01.01.2015 for the period from 09.12.2014 to 31.12.2014 for payment of Rs.289/- and bill dated:01.02.2015 for the period from 01.01.2015 to 27.01.2015 for the payment of Rs.1,027/- when the data card was not in use. It is pertinent to note on 12.12.2014, the complainant had requested the opposite party to disconnect the service due to false assurance given, regarding the capacity and performance of internet connectivity, even by mail dated:17.12.2014, the opposite parties had informed the complainant that the connection has been deactivated from 15.12.2014. Therefore, it is very clear that the opposite parties had sent bills for deactivated and unused data card. Moreover, on 09.02.2015, the opposite parties also sent an auto generated forged legal notice through e-mail in the name of one Advocate Mr. Veera with the instruction that “ this is auto generated e-mail please do not reply” and demanding to pay a sum of Rs.1,318/- for which the data card was not at all in use. This is extremely deficiency of service and untrade practice of the opposite parties and thereby caused mental agony and sufferings. Hence this complaint.
10. The contention of written version of the 1 & 2nd opposite parties is briefly as follows:-
The entire averments in the complaint filed by the complainant are not true and correct. The complaint that the speed of the internet was promised at 9.8 mbps is neither true nor substantiated by the complainant. It has been clearly informed that the speed will be defending upon locations where the complainant is making use.
11. It is true that the complainant placed the order for a data card on 06.12.2014 and the same was handed over to him on the same day. It has also been clearly intimated to the complainant that the card will be activated after 48 hours and accordingly it was activated on 09.12.2014. Though the complainant registered a complaint in respect of the speed issue he has failed to given any appointment to the technical staff of the opposite parties to attend to the issue inspite of several calls to resolve the same at the earliest point in time by the opposite parties team members. Hence due to the non-cooperative attitude of the complainant, the complaint was closed on 16.12.2014.
12. In the meanwhile, the complainant by an e-mail dated:12.12.2014 requested to disconnect the service and on his request the same was disconnected on 15.12.2014. But again the complainant requested for reactivation and the same was reactivated on 30.12.2014. As such the contention of the complainant that there is deficiency of service by the opposite parties is not true and correct.
13. The complainant is bounded to pay the charges for the usage of the device and in that regard only the demand is made by the opposite parties. The refund of amount will be processed only based on the radio frequency remarks. Since the complainant was not co-operating the technical team of the opposite parties to analyse and it is found that more than 1 GB consumption is shown in the complainant’s account. As per the terms and conditions, the complainant is not eligible for any refund for the device as requested by him.
14. At the end of his every mail filed by him as documents before this Hon’ble Forum, the complainant is mentioning after his name, the words “Landmarks Property Developers” will fall in the category of “Consumer” as defined under the Consumer Protection Act is a preliminary issue to be considered. There is no deficiency of service whatsoever on the part of the opposite parties. The complainant is neither put to any mental agony or sufferings as alleged by him. As such the opposite parties are not liable to pay any compensation, much less at Rs.1,00,000/- as claimed.
15. The complainant is not entitled to any refund since he has used the data card for more than its value. The complaint itself is misconceived and filed with an ulterior motive to defame the opposite parties’ reputation. Hence the complaint may be dismissed with costs.
16. In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1 to Ex.A9 were marked. While so, on the side of the opposite parties, the proof affidavit is filed and Ex.B1 was marked on his side.
17. At this juncture, the point for consideration before this Forum is:-
- Whether the complainant is a consumer or not?
- Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?
- To what other reliefs, the complainant is entitled to?
18. Oral arguments adduced on both sides. Written arguments filed on the side of the opposite parties. Inspite of sufficient time given, the complainant has not come forward to file written arguments. Hence, it is closed
19. Point no.1:-
Regarding this point, on the side of the opposite party, it is vehemently contended in the written version as well as his evidence, that the complainant who is corresponding through on E-mail ID having commercial name and mentioning the same after his name at the end of every mail which clearly shows that the will come under the category of “consumer” as defined under Consumer Protection act, 1986. In such circumstances, it is true that the complainant mentioned in his complaint that he is running a real estate business in the name “Landmarks Property Developers” and he has mentioned the same under his name in each and every E-mail. But there is no evidence to show that he has bought the internet connection from the opposite party only in his own name but not in his business name.
20. Furthermore, there is no evidence to show that the complainant has used the said internet connection for the business or commercial purposes. At the outset, the opposite party being the service provider of MTS high speed internet, they can easily take the materials from the internet service of the complainant, if the complainant has used for commercial purposes. Such being so, the opposite party has not at all produced any materials before this Forum in order to prove that the complainant has used the internet service for commercial purposes. So mere averments made in the written version is not sufficient to show that the complainant is not a Consumer as defined under Consumer Protection Act, 1986. It is commonly used their designation or business name under his name for identification purposes. From that fact only we cannot say that the complainant is not a consumer. Thus the point no.1 is answered accordingly.
21. Point no.2:-
According to the averments of the complaint and the evidence of the complainant, it is learnt that as per the order placed by him for data card on 06.12.2014 on payment of Rs.1,300/- and the data card was handed over on the day itself and promised to activate the said data card within 24 hours. That even after 48 hours the data card was not activated. Then the complainant contacted the person to whom he had placed the order initially for data card and finally, the data card was activated only on 09.12.2014 around 1 p.m. The service details of the data card is marked as Ex.A1. It is further stated that after activation of the data card, the download speed showed only 0.11 mbps and to that effect, the complaint was registered as Dec/4081 dated:09.12.2014 and he was informed that it will be attended within 22 hours. Evenafter, many calls of the complainant the opposite parties never came to attend the complaint and therefore on 12.12.2014, the complainant sent an e-mail to the opposite party to disconnect the service connection and to return back Rs.1,300/-, paid towards the data card. The said mail is marked as Ex.A2. The opposite parties rendered apology for their unprofessional behavior and informed the complainant that the speed issue is in open state and they would not be able to refund the cost of the hardware unless they have detect the issue in the services for account cancellation and the same would take a maximum of 7 days to disconnect the services.
22. It is further learnt that on 15.12.2014, the opposite parties mechanically sent 2 mails without applying their mind and stated in the first mail that “MTS account is active” and in their second mail the complaint raised against the speed issue is in open state” with demand that the complainant has to pay Rs.285/- to process disconnection request which is marked as Ex.A3. For which, the complainant sent a reply mail dated 16.12.2014 is marked as Ex.A4. Subsequently, on 17.12.2014, the opposite parties sent an e-mail to the complainant and informed that the services have been temporarily deactivated since 15.12.2014 and inturn on 18.12.2014 the complainant again sent an e-mail requested the opposite parties to take back the data card and refund the amount of Rs.1,300/- and the said E-mail is marked as Ex.A5. Even thereafter, the opposite parties had been sending SMS and demanding to pay Rs.285/- for unused data card bill dated: 01.01.2015 for the period from 09.12.2014 to 31.12.2014 for the payment of Rs.289/- and bill dated: 01.02.2015 for the period from 01.01.2015 to 27.01.2015 for the payment of Rs.1,027/- when the data card was not in use and the bills are marked as Ex.A6 & Ex.A8 respectively. Then, the complainant sent an e-mail dated:22.01.2015 is marked as Ex.A7 for claiming compensation for the poor service, false promise and irrelevant reply. The opposite parties also sent a auto generated forged legal notice through e-mail in the name of one Advocate Mr. Veera which is an unfair trade practice is marked as Ex.A9.
23. On the other hand, from the contention raised in the written version as well as the evidence of the opposite parties, it is not correct to say that it was promised that the speed of the internet at 9.8 mbps and it has been clearly informed that the speed will be defending upon locations of usage and the same has been clearly explained to the complainant and also informed that the data card will be activated only after 48 hours and not within 24 hours as alleged and accordingly it was activated on 09.12.2014 itself. It is further stated that only due to the non-cooperative attitude of the complainant, the complaint was closed on 16.12.2014 and as such there is no deficiency of service. It is further elicidated that in complainant’s email dated:12.12.2014 he is requested to disconnect the service and as per his request the same was disconnected on 15.12.2014. But again the complainant requested for reactivation and the same was reactivated on 30.12.2014 and therefore, the complainant is bound to pay the charge for usage for the data service to the tune of Rs.1,268/-. Unfortunately, the above amount was not paid by the complainant. While being so, the complainant cannot allege negligence or deficiency of service upon the opposite parties.
24. As per the terms and conditions, the complainant is not eligible for any refund for the device as demanded by him. Furthermore, it is narrated that as per his own submissions and documents filed by the complainant it is clearly described as “Landmarks Property Developers” is a commercial organization and hence the complainant will not fall under the definition of “Consumer” and hence this complaint is not sustainable and the usage details during December 2014 are 9 to 14 is marked as Ex.B1.
25. At this juncture, on careful perusal of the rival submissions put forth on either side, it is crystal clear that it is an admitted fact that the complainant has placed an order for data card on 06.12.2014 and the same was handed over to the complainant on the same day and also the said data card has been activated on 09.12.2014 i.e. after 48 hours. Such being so, the first contention raised by the complainant is that as per the terms and conditions made by the opposite parties the data card has to be activated within 24 hours. At this instance, whether it is correct or not, has to be decided by this Forum. It is seen from the averments of the complainant as well as the evidence of the proof affidavit, it is clearly mentioned by the complainant that the data card has not been activated within 24 hours and only activated on 09.12.2014 at 1 p.m. that is after 48 hours. At the outset, on careful perusal of Ex.A1, data card service details given by the opposite party, there is no mentioning about the specific period of activation of data card either within 24 hours or after 48 hours. In such circumstances, no document or proof produced on either side to establish their averments. Further, it is an admitted fact that the data card was activated on 09.12.2014. Hence, the above said contention has become futile.
26. The next point to be taken into consideration is as to whether the request made through Ex.A2, E-mail has been made within time that is the disconnection of the service inrespect of the said data card. In this regard, on going through the evidence of the opposite parties, as per the request made by the complainant through E-mail dated:12.12.2014, the service was disconnected on 15.12.2014 that is within the stipulated time as mentioned in the Ex.A1 under the head, “procedure and time limit for Redressal of complaints”: in which, it is mentioned as “atleast 3 days for disruption / disconnection of service”. Therefore, there is no deficiency of service in disconnection of service on the part of the opposite parties.
27. The next thing to be taken in to consideration is whether the opposite parties has demanded to pay Rs.289/- for the bill dated:01.01.2015 for the period from 09.12.2014 to 14.12.2014 & bill dated:01.02.2015 for the period from 01.01.2015 to 27.01.2015 and demanding to pay a sum of Rs.285/- for the unused data card within Ex.A6 to Ex.A8. As already discussed aboue, it is crystal clear that the complainant has used the alleged data card from 09.12.2014 to 14.12.2014 and the same was clearly admitted by the complainant and in order to prove the same Ex.B1 is marked on the side of the opposite parties. Therefore, the contention for the payment of the used data card and the bill dated:01.01.2015 for the period from 09.12.2014 to 31.12.2014 for the payment of Rs.289/- comes under Ex.A6 is not a disputed one. But in respect of Ex.A8, the payment for the usage of the data card for the bill dated:01.02.2015 for the period from 01.01.2015 to 27.01.2015 for the payment of Rs.1,027/-, it is stated by the opposite parties that on subsequent request of the complainant for reactivation the said data card was reactivated on 30.12.2014 and it was vehemently denied by the complainant that he has not at all made any such request for reactivation. If it is so, the burden of proof is shifted on the shoulders of the opposite parties. In fact, in order to establish the plea taken by the opposite party, none of the documents filed by the opposite parties.
28. It is further learnt that when the opposite party has come forward to produce Ex.B1, for the usage details till December 2014 on days, 9 to 14 what hindrance to the opposite party for not producing the details for the period from 01.01.2015 to 27.01.2015 has not been explained by the opposite parties which clearly shows that the complainant has not at all used the alleged data card for the period from 01.01.2015 to 27.01.2015 and thereby, the plea taken by the opposite parties that the complainant has used the said data card for the above said period on subsequent request made by him is not at all proved. Therefore, the claim made by the opposite party towards payment of bill dated:01.02.2015 for the period from 01.01.2015 to 27.01.2015 for the payment of Rs.1,027/- for the unused data card, clearly amounts for unfair trade practice which leads to deficiency of service. Thus the point no.2 is answered accordingly.
26. Point no.2:-
As per the decision arrived in point no.1, it is clearly proved by the complainant that the deficiency of service by way of unfair trade practice committed by the opposite parties and hence the complainant is entitled for reasonable compensation. Regarding the refund of deposit towards the cost of data card, it is pertinent to note from the averments of the written version and the evidence of the opposite parties, it is clearly informed to the complainant that as per the terms and conditions the complainant was not entitled for refund of the hardware. Furthermore, it is pertinent to note that the complainant has used the device for some days and thereby, it cannot be assessed the value of the usage of the data card. Thus the point no.3 is answered accordingly.
In the result, this complaint is allowed in part. Accordingly, the 1 & 2nd opposite parties, jointly and severally are directed to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for causing mental agony and sufferings due to the deficiency of service with cost Rs.5,000/- (Rupees five thousand only) to the complainant. Regarding other reliefs, this complaint is dismissed.
The above amounts shall be payable within one month from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9.5% till the date of payment.
Dictated by the President to the Steno-Typist, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this 13th June 2017.
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MEMBER - I PRESIDENT
List of documents filed by the complainant:-
Ex.A1 | 10.12.2014 | Data card service details given by the opposite parties. | Xerox copy |
Ex.A2 | 12.12.2014 | E-mail between the complainant and the 2nd opposite party | Xerox copy |
Ex.A3 | 15.12.2014 | E-mail between the complainant and the opposite parties | Xerox copy |
Ex.A4 | 16.12.2014 | E-mail between the complainant and the opposite parties | Xerox copy |
Ex.A5 | 17.12.2014 18.12.2014 | E-mail between the complainant and the opposite parties | Xerox copy |
Ex.A6 | 01.01.2015 | Bill for the period from 09.12.2014 to 31.12.2014 | Xerox copy |
Ex.A7 | 22.01.2015 | E-mail by the complainant to the opposite party | Xerox copy |
Ex.A8 | 01.02.2015 | Bill for the period from 01.01.2015 to 27.01.2015 | Xerox copy |
Ex.A9 | 09.12.2015 | Copy of the auto generated legal notice | Xerox copy |
List of documents filed by the 1 & 2nd opposite parties:-
Ex.B1 | Dec -2014 | Details of the Usage of Data card | Xerox copy |
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MEMBER - I PRESIDENT
