Delhi

East Delhi

CC/690/2014

AMIT - Complainant(s)

Versus

AANCHAL COMPUTERS - Opp.Party(s)

-

07 Nov 2017

ORDER

                DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, EAST, Govt of NCT Delhi

                  CONVENIENT SHOPPING CENTRE, 1^st FLOOR, SAINI ENCLAVE, DELHI 110092                                  

                                                                                                  Consumer complaint no.        690 /2014

                                                                                                  Date of Institution      –         04/08/2014

                                                                                                  Order Reserved on                 07/11/2017

                                                                                                  Date of Order         -               10/11/2017  

                                                                                                       

In matter of

Mr. Amit Kishore Jain, adult   

B-166, Ramprastha Colony  

Chander Nagar, Ghaziabad, UP 201011……….……..…………….Complainant

                                                                  

                                                                     Vs

1-M/s Anchal Computers Ltd.

R-32, 1^st Floor, Shakarpur,

Main Vikas Marg, Delhi 110092

 

2-M/s Systema Shyam Teleservices Ltd.      

A-194, Phase I, Okhala Industrial Area,

New Delhi 110020.……………………….…………………………..……….Opponents

 

Quorum          Sh Sukhdev Singh      President

                         Dr P N Tiwari               Member                                                                                                   

                         Mrs Harpret Kaur       Member

Order by Dr P N Tiwari, Member 

Brief Facts of the case                                                                                                 

Complainant had purchased MTS MBLZE Ultra Wi Fi post paid 3G Plus internet Dongle having MEID no. A00000495D8F4B and MDN no. 8459181146 from OP1 for a sum of Rs 1400/-on 30/05/2014 for his business /personal use to be used at his residence/office (Ex Anne. C1-C3).    It was assured by OP1 that the product had 3G Plus speed up to 9.8 Mbps. It was also assured that the product was post paid so complainant would get Rs 100/- per month discount from monthly rent Rs 875/pm + 12.5 % service tax and would be able to use 10GB/pm, so complainant got agreed and paid the amount. He also got a confirmation SMS from OP 2 for post paid activation of MTS dongle after submitting required formalities for taking connection (Ex. Anne. C4 & C5).

It had been stated that complainant was getting slow speed of internet so lodged complaint on OP2 Email Id (

Complainant raised issue of breach of consumer’s right for lakhs of customers who had been cheated by such activities by OP2 besides felt cheated himself, so filed this complaint claiming refund of Rs 1400/- as the cost of 3GPlus MTS dongle with two monthly bills paid by him as sum of Rs 500/ + 891 (total=1391) and Rs 2 lakh as compensation for mental agony and harassment and Rs 5000/- as litigation charges.  

After receiving notices, OP1/Anchal Computers filed their memo and received copy of complaint, but did not file written statement or evidence besides did not put their appearance despite serving notices so case preceded Ex Parte against OP1/seller.

OP2/ Sistema Shyam Teleservices Ltd. submitted written statement denying all the allegations of unfair trade practice and deficiency in services. It was stated that internet speed depends upon type of software use, Window firewall or presence of ‘Virus’ in the system and the place where computer had been installed (inner room or basement), specification of computer and number of customers using internet at the same time, which complainant did not disclose anything about his computer though MTS dongle could be used by five terminals simultaneously, but speed would be different.  

It was submitted that MTS/OP being telecom service provider under Unified Licence granted by the Govt. of India and MTS had obtained spectrum under auction held in March 2013 at the market price, so OP had no restriction on technology to be adopted for providing internet services on GSM/WCDMA/CDMA as per “Notice of Invitation’ dated 31/03/2013

It was specifically denied that OP/MTS was a 3G technology provider and had never advertised in market. It was specifically admitted that MTS was providing EVDO Rev. B based mobile broadband internet services (dubbed as 3GPlus).

All such informations were printed on MTS /packing materials of data card (Ex OP Anne. A & A1). As complainant had not disclosed correct and factual preposition of his data card usage with computer specifications, so his complaint be dismissed.

Complainant filed his rejoinder to written statement of OP2 and stated that his contents and evidences were correct, but OP2 had denied his allegations without evidence. It was denied that internet coverage in his area was poor, but MTS internet had very slow speed. He had also moved an affidavit u/s 45 (b) of The Indian Evidence Act stating that his all the emails on record had been taken from his computer as were original and his computer was working in good condition when email printouts were taken (Ex Anne. 15). He had also filed his evidences on affidavit of himself and reaffirmed on oath that all the contents were true and correct.

OP also submitted their evidence on affidavit through Mr Keshav Tiwary, COO with OP2 and stated on affidavit that OP2 had stated in their written statement the reasons for slow speed and had never given any advertisement regarding OP2 had 3G spectrum, but had specifically stated and all the details were printed on the package box and on MTS Dongle.

OP admitted that complainant took post paid connection after being satisfied and signed the statement in registration form. After this stage, OP granted post paid connection on monthly tariff and also accepted discount as he was a good user of internet, so Rs 100/-were given as concession in monthly bill which he agreed.

It was again stated that OP2 /MTS was providing EVDO Rev. B based broadband services (dubbed as 3GPlus) which had capability of high speed network and customer/complainant had utilized 4245 MB data from 31^st May 2014 to 15^th June 2014 and had informed complainant that if speed was slow from 16/06/2014 to 15/July 2014, be intimated to OP2 as bills were generated from 22 July 2014 in his case, but complainant failed to provide any valid information to OP2 under his plan. Here complainant had used 4.254 GB data in just 15 days and wanted waive off excess bill without any evidence. OP2 had also submitted data usage table which itself proves that there was no issue of slow speed. Hence, this complaint may be dismissed.  

For arguments, number of opportunities was given to OPs through notices, but did not put their appearance or submitted written arguments. Even on the date of arguments, OPs did not put appearance. Complainant submitted written arguments with explanation about ‘megabites per second’ text taken from Google and two judgments from Hon. NCDRC supporting his case.

Arguments were heard from complainant who was in person. After perusal of file, order was reserved.  

Before conclusion, it was necessary to know about status of -

1-MTS speed under the spectrum OP had purchased in auction and was selling in market.

2-Legal imposition of law laid down in judgments submitted by the complainant.

3-Necessity of affidavit filed by complainant under Section 45 (b) of the Indian Evidence Act.  

 

* MTS speed under the spectrum (EVDO REV. B -3G Plus) Data Modem –

Material taken from the Wikipedia and official site of MTS.

MTS 3GPLUS network is powered by EVDO Rev B phase II technology, which is capable of delivering maximum 4.9 Mbit/sec on one carrier of 1.25 MHz spectrum.

 Source : https://telecomtalk.info/does-mts-3gplus-really-have-the-edge-over-3g-operators-in-india-our-take/110194/

We have also gone through the various terminologies used in internet services. These are –

E (EDGE), 3G (Third Generation), H (High Speed Packet Access), H+ (Evolved HSPA) and LTE/4G (Fourth Generation).

 Some are marketed with connection speeds of "up to 7.2 Mbit/s", which is only attained under ideal conditions. As a result, these services can be slower than expected, when in fringe coverage indoors.  Source:

1. Big Cinemas & others vs Manoj Kumar – RP 2038/2015 decided on 01/02/2016- issues were related to charging maximum rates then MRP.
2. D K Chopra vs Snack Bar, RP 4090/2012, decided on 04/03/2014 – Double charging against printed MRP on packed food items / Energy Drinks from OP/stall at Airport.    

We have gone through legal prepositions in these citations. Both these citations pertain to overcharging then MRP, so these citations are not applicable in this case.  

  

***Necessity of affidavit filed by complainant under Section 45 (b) of the Indian Evidence Act. 

The Section 45 the Indian Evidence Act defines as –

“Cases in which secondary evidence relating to documents may be given of the existence, condition or contents of a document in the following – sub clause (a) and (b).

Here complainant has filed his affidavit under sub clause (b), which defines as –

‘When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative-in-interest.

Neither OP has objected or demanded genuineness of documents filed by the complainant or the Forum, so, under the Consumer Protection Act, the relevance of such affidavit/documents has no relevance, hence not considered.

We have seen from the data available on Google/ internet, speed of signals depends upon the geographical area coverage by the service provider and type of computer used by the customers/ complainants at that time.

By considering the facts narrated in OP affidavit, internet signal speed depend upon many factors as narrated, but complainant has neither stated the computer configuration, place of working and number of persons using internet at one time, but complainant has not disclosed such details which are essential in deciding the issue of signal speed by OP.

We have seen in the complaint under para 1 where it has been stated by the complainant that dongle would be used for business/personally, so such details has not been disclosed by the complainant as for what purpose he had purchased the dongle from OP in his complaint or at any time of proceedings.  

OP2 has also stated in their written statement and in evidence that complainant purchased after full satisfaction and did not disclose details about dongle use, but sent various emails for enhancing internet speed which was timely replied as denied by OP.  

We have also gone through the official website of MTS as – http://www.mtsindia.in/3GPlus/ which gives details of all such requirements.  

It was also seen that complainant had stated in his complaint (para 9) that he was getting slow internet speed of 337 Kbps /109 against promised speed of 9.8 Mbps, but OP2 has stated in their written statement (para 2) and evidence on affidavit (para7) that OP cannot enhance the speed of internet which depends upon various factors, which complainant has not disclosed in his complaint, in rejoinder or in evidence. It is clear from the facts that complainant was getting slow speed than promised speed of internet. OP had put certain point of issues, but complainant had not reverted timely with evidences to disprove the objections raised by the OP. Under the Consumer Protection Act, consumer has to prove the deficiency in services/products or unfair trade practice adopted by OP, which was not done.

 

Hence, we come to the conclusion that after going through all the facts and evidences on record, this complaint has no merits and deserve to be dismissed, so dismissed without cost.  

 

The copy of order be sent to the parties as per Section 18 of the Consumer Protection Regulations, 2005 (in short CPR) and file be consigned to the Record Room under section 20(1) of CPR.

 

(Dr) P N Tiwari, Member                                                          Mrs Harpreet Kaur – Member                       

 

                                                             Sukhdev Singh, President