Karnataka

Bangalore 4th Additional

CC/347/2018

Wing Commander B.V.Arun Kumar (Retd.,) - Complainant(s)

Versus

ACT Fibernet - Opp.Party(s)

Inperson

10 Oct 2018

ORDER

Complaint filed on: 02.03.2018

                                                      Disposed on: 10.10.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.347/2018

DATED THIS THE 10^th OCTOBER OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Wing Commander

B.V.Arun Kumar (Retd.,)

S/o Sri.B.V.Pathy,

Aged about 51 years,

R/at I floor, #1884,

Southend ‘C’ road,

Jayanagar 9^th block,

Bengaluru-69.

 

Inperson     

 

V/s

Opposite party/s

Respondent/s:-

 

The Managing Director

ACT Fibernet,

Regional office,

Golden Heights,

59^th C Cross,

4^th M block,

Rajajinagar,

Bengaluru-10.

 

By Advocates

M/s.King & Partridge

 

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party (herein after referred as Op) seeking issuance of direction to refund the amount of Rs.7982/- which is inclusive of the router installed and take the router back, pay a cost of approx. Rs.1500/- against the electrical power supply consumed from his residence for the server box kept in his residence. Further direct the Op to pay a sum of Rs.20000/- for deficiency of service, harassment with interest at 9.5% p.a; to pay cost and to grant such other reliefs deem fit for which the Complainant is entitled to.

 

          2. The brief facts of the case of the Complainant are that, on 29.06.17, Op launched fibernet services in Complainant’s area and they did door to door sales campaign with offer of Rs.7928/- for a six month advance rental plan for ACT storm plan wherein they Complainant were assured a speed of f100 MBPS with 150 GB of monthly data. Along with this the router D link 825 was given at free of cost as part of the offer. The marketing team initially surveyed his house and he had clearly mentioned that house being a duplex house would like to have the internet to be covered to the entire duplex house for which they confirmed it will cover with good speed. They assured that ACT technical team will ensure optimum location of the router and ensure good speeds. On 31.06.17, the technical team visited his place and installed a box for their fibre optic cable and placed the router in second floor room and confirmed better speeds. They took electrical power from his house and assured that he will be given a discount of Rs.50/- every month for use of this electrical power. The Complainant further submits that, after one month of use with lot of teething problems, they were able to get speeds claimed by ACT only with cabled connection and dropped by 25% on Wi-Fi connectivity. When complained to the ACT, they visited and assured that it will improve as they use it. Complainant continued to use with reduced speeds sometimes to the extent of 40Mbps. Repeated complaints were made and in Sept 2017, another technical person visited and informed that the location of router is wrong and there are many walls and obstructions in the house and hence the signal cannot cover the entire house and relocated near stair case of their house which they feel is better. Here too the speeds were not very much as compared and they were getting around 60mbps as Op are near to the router and Complainant could not get connected in the rooms below the router. In Oct again several complaints were given and they changed the router once and no change in the speeds was observed. Then their technical team gave us factual information that the router provided by op do not have capability to cover the entire house and it can only work better around 10 feet area with good speeds. The problem is with the router and nothing can be done. They advised us to buy another router and have a parallel connection in the lower floor of the house where connectivity was not good. Or buy a repeater and install so that it will boost the speed. They claim this is the problem with the ACT router and they do not inform customers beforehand of this problem. Additional router and repeater was costing him Rs.3,000/- extra which he was not prepared to buy. As claimed by them at the time of installation, they were to provide him the service with their router and technical support and now informing that this is what they can give is totally a breach of trust and amounts to cheating the customers. In spite of repeated mails they did not respond to his mails. Even after repeated calls and escalation mails nothing was done. His contract of advance rental got over on 01.01.18 and 03.01.18. He get a bill of Rs.1308.94 for Jan 2018. He refused to pay as the connection was very slow and the complaint was still not resolved. Around 16.01.18, they disconnected his connection for not paying the bill without any intimation. On 28.01.17, Op visited and taken away the equipment installed in his place and yet to clear additional hardware fitted. In the last 6 months, he has made to use the internet at very slow speeds and since he had paid them in advance for 6 months, they did not return his balance amount after disconnection. He was forced to accept and use the net with very slow speeds which affected his official and personal work on the internet. Hence prays to allow the complaint.

 

3. On receipt of the notice, Op did appear and filed version denying the contents of the complaint. The sum and substance of the version of the Op are that, Complainant approached the Op for internet broadband services and vide Customer Application form (CAF) dtd.28.06.17 opted for a half yearly/six month package i.e. ACT-Storm (75mbps with 125GB) along with Wi-Fi router, offered by the Op by paying a sum of Rs.7928/- in cash.  Therefore the Complainant’s allegation that the Complainant was assured internet speed of 100 mbps with 150 GB is not only false but is also baseless and contrary to the plan opted by the Complainant. Further all CAFs and TEFs contain a declaration that the subscriber has read all the terms & conditions contained therein and confirm his understanding and acceptance of the same without exception. After completing the formalities of address verification, documentation etc., the Op deputed a technical team to the Complainant’s premises to set up the equipment namely customer switch or a CX box, at the Complainant’s premises. After installing the customer switch at the Complainant’s premises, supplying and setting up the Wi-Fi router, the Op activated the connection on 29.06.17 and thereafter raised an invoice dtd.30.06.17 for Rs.7928/-. The Op further submits that, ever since the activation of the internet connection, the Complainant has used the same continuously and without any interruption. The usage details evidencing the above fact i.e. from the date of activation till the Complainant himself disconnected the connection between 29.06.17 and 18.01.18. From the usage details, it is clear that the Complainant’s allegation that after a month of the activation, the speed limit with respect to Wi-Fi connectivity had reduced by 25% is false and without basis. The usage details clearly show that the Complainant had utilized the internet connection to an extent where he had more often than not, exceeded the available download usage limit or the Fair Usage Policy (FUP) i.e. 125 GB which he was entitled to as per his plan. Had there been issue with either the internet speed or the Wi-Fi router, the Complainant would not have been able to use the internet connection so effectively. Therefore, the issue of internet speed and defective router raised by the Complainant is baseless and does not warrant any consideration. If at all the Complainant had faced any issues with the internet speed, the same was solely on account of his exceeding the FUP limit as mentioned in his plan. It is pertinent to state that as per the TEF, in the event the customer exceeds his upload or download FUP limit, the speed, post FUP, reduces to 512 kbps. The usage details clearly show that the Complainant had exceeded his download usage limit almost every month. As soon as the Complainant exceeded his download FUP limit, the internet speed would have reduced to 512 kbps. However, from the 1^st of every month, when the new billing cycle commenced, the speed was automatically restored to its original speed as per the plan. Therefore, there was no issue whatsoever with the internet speed as falsely alleged by the Complainant. Had there been any issue with the internet speed, the Complainant would not have exceeded his download FUP limit. Despite there being no issue with respect to internet speed, the Complainant, without any reason, began raising trouble tickets alleging defects in the router installed and consequently low internet speed. Though there was no fault on the part of the Op, the Op promptly resolved the several trouble tickets raised by the Complainant. The Complainant had been unnecessarily raising trouble tickets alleging that the internet speed was not as per the plan, when in fact it was his over usage that was causing the variation in internet speed. When the Complainant raised issues regarding the router, the technical team of the Op confirmed that the router supplied to the Complainant at the time of installation was in good working condition. However, on his repeated requests, and in good faith, though there was no problem with the router, the Op replaced the router on three separate occasions. The Op further submits that, despite the above, on 22.12.17, the Complainant raised a trouble ticket requesting disconnection of internet services. The Op as a policy attempts to retain its customer base by promptly attending to and resolving any issue faced by its customers and accordingly, the Op immediately attended to the trouble ticket raised by the Complainant, who thereafter agreed to continue with the services provided by the Op. Even after resolving his issues, the Complainant continued to raise trouble tickets and called the customer care of the Op regularly, harassing the officers of the Op and threatening them of legal action. Further, as regard the Complainant’s allegations that the speed was not uniform in the lower floor of his house and that the rooms nearer to the router had a high speed, it is submitted that the same is baseless in view of the facts stated above. Without prejudice, it is pertinent to submit that speed variation with respect to internet through Wi-Fi router is normal and is bound to occur where there were certain obstructions in the house such as walls, or due to any connectivity equipment being used by the Complainant. These factors are beyond the control of the Op. In fact, the TEF contains a clause that speed variations may arise due to Wi-Fi router or any other connectivity equipment being used by the customer for which the Op shall not be responsible and the Complainant, having signed the TEF, cannot now feign ignorance of the same, to suit his convenience and claims. The Complainant further submits that, the Complainant has always been in continuous and uninterrupted usage of the internet connection and the speed has never been an issue. In fact, let alone speed, the router supplied also was in extremely good condition. In the light of the above, it is clear that there is no deficiency of service whatsoever made out by the Complainant. As submitted supra, the Complainant has utilized the internet services without any interruptions and over and above the available monthly limit of 125 GB, as per the package availed by him, which fact is evident from the usage details. Therefore he is not entitled to any refund whatsoever much less what is prayed for in the complaint. In any case, clause 10 of the CAF clearly provides that the Op would not entertain refund of any amounts that may have been paid by the subscriber for any annual/semi-annual/quarterly/monthly/child plan package/wireless plus-home Wi-Fi device or any other similar package offered by the Op from time to time. This is because the Op provides broadband internet connection through Optic Fiber Cable (OFC) network and for connecting/activating the connection for every customer, the Op incurs a sum of Rs.8,000/- to Rs.10,000/- for establishing the OFC network, installation of CX equipment, installation and wiring inside the customer premises. Prior to signing the CAF and TEF, the Complainant read and understood the terms & conditions therein and cannot now plead ignorance of the same. It is thus clear that the Complainant has filed the above complaint as an afterthought, with the malafide intention of harassing the Op and unjustly enriching himself at the cost of the Op. Hence on these grounds and other grounds prays for dismissal of the complaint and also prays this forum to:

a) Direct the Complainant to pay Rs.1,308.94 for the internet usage in between 29^th and 31^st Dec 2017 and Jan 2018

b) Direct the Complainant to return the Wi-Fi router originally provided by the Op, in terms of the TEF

c) Dismiss the above complaint with exemplary costs, in the interests of justice and equity.

         

          4. The Complainant to substantiate his case filed affidavit evidence and produced documents E1 to E6. DGM-Legal of Op filed affidavit evidence and got marked the documents as Ex-B1 to B17. Both filed written arguments. Heard both side.

  

5. The points that arise for our consideration are:

1. Whether is there any deficiency of service on the part of Op, if so, whether the Complainant entitled for the relief sought for ?  
2. What order ?

                   

           

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Negative.  

Point no.2: As per the final order for the following

 

REASONS

 

          7. Point no.1:  We have briefly stated the contents of the complaint as well as the version filed by the Op. The undisputed facts which reveals from the pleadings of the parties goes to show that, he has availed internet broadband services from the Op on 28.06.17 for six months i.e. ACT Storm – ½ yearly package (along with a free Wi-Fi router) by paying a sum of Rs.7928/- in cash.

 

          8. The Complainant alleged that, he was assured internet speed of 100 Mbps with 150 GB and after a month of activation of the internet connection, the speed limit with respect to Wi-Fi connectivity had reduced by 25% and that there was a variance in the speeds, where rooms nearer to the Wi-Fi router had a high speed and whereas the speed was lesser in the lower floor of his house. In this context, he raised several complaints with Op. It is also the case of the Complainant that, he was forced to accept and use the internet services with low speeds and despite the Complainant’s repeated follow ups, the issues were not resolved. To substantiate this fact, Complainant has produced emails. The Complainant also contended that the connection was deactivated/disconnected permanently on 16.01.18 and despite several follow ups his grievances were not resolved by Op.

 

          9. The Complainant has also taken another contention that, he was forced to sit next to the Wi-Fi router to connect to the internet allegedly due to lower speeds as the Wi-Fi router was provided by the Op. Further alleges that the Op had raised a false invoice of Rs.1487/- for the period of Jan 2018 in advance, while the internet connection has not been rectified since Dec 2017. Hence, there is deficiency of service.  With regard to the alleged deficiency Op has specifically denied. With regard to the speed variation alleged by the Complainant is, as per the case of the Op was on account of Complainant exceeded his FUP limit. Further according to the case of the Op, Complainant opted for a half yearly package i.e. ACT Storm with free Wi-Fi router. As per the package availed by the Complainant, he was entitled to a speed of about 75Mbps and was further entitled to use 125GB of data, each for upload and download, per month. Further submits that, every customer while availing the service of Op is required to read and understand the CAF and TEF, after which he or she acknowledges the terms & conditions contained therein. The said CAF and TEF not only provide for the details of the package availed by a customer but also include certain terms & conditions, instructions, disclaimers etc. which can be seen on going through the contents of Ex-B2 & B3.

 

          10. As per the Complainant’s CAF and TEF, the Complainant was entitled to a Fair Usage Policy (FUP) limit of 125 GB each for upload and download. FUP is the policy put in place by a service provider of unlimited broadband internet service that limits the amount of data one user can download in a given time frame. In the Complainant’s case, the limit per month as is evident from the TEF, available at the corresponding entry therein to ACT Storm, available in the fourth row of the column under the head ‘Plan name’, at page no.13 is 125 GB and usage beyond 125 GB, the speed post FUP limit automatically reduces to 512 kbps. In this context, we find there is considerable force in the contention taken by Op as the Complainant has exceeded the speed limit of about 75 Mbps and 125GB of data. Op further contended that, it made it clear in the TEF (fourth bullet point under the tabular column dealing with ‘Offers) that “Speed indicated above can be experienced on LAN connectivity. Speed variation may arise due to Wi-Fi router or any other connectivity equipment being used by the customer for which ACT Fibernet shall not be responsible in such case. In this context also, we find there is considerable force in the contention taken by Op. We also noticed that, Complainant has made a declaration in the TEF acknowledging that he has read and understood the terms & conditions and the details of the Tariff Plan and its charges in the TEF. In view of the said acknowledgement, the Complainant cannot now feign ignorance of the same. At the same time, the Complainant’s allegation that he was entitled to an internet speed of 100 Mbps and 150 GB of data usage, is quite contrary to his tariff plan. Hence, the contention taken by the Complainant that there is deficiency of service and alleged unfair trade practice has no legs to stand.

          11. With regard to the alleged speed variation in the internet connection is concerned, Op has specifically given detail particulars which can be seen on going through the written arguments at para 23.6 and 23.7 reads thus:

23.6: As regards the alleged speed variation in the internet connection, as submitted supra, the Complainant exceeded his FUP limit of 125GB, which is evident from the Complainant’s usage details marked as Ex-B5 to B12, which were filed along with the Op’s application for production of documents. It is pertinent to note the usage details of the Complainant, which is produced as below, for the convenience of this Hon’ble Forum:

 

Sl. No.	Month	Data Usage (in GB)	Exhibit no.
1	June 2017 (29th to 30th June)	75.15	Exhibit B5
2	July 2017	155.03	Exhibit B6
3	Aug 2017	143.97	Exhibit B7
4	Sept 2017	182.33	Exhibit B8
5	Oct 2017	160.57	Exhibit B9
6	Nov 2017	120.68	Exhibit B10
7	Dec 2017	176.97	Exhibit B11
8	Jan 2018	109.91	Exhibit B12

 

23.7: From the above entries, it is clear that, except for the months of June 2017, Nov 2017 and Jan 2018 the Complainant has exceeded the download FUP limit of 125 GB in the remaining months.

 

12. So the issue raised by the Complainant with regard to the internet speed, he would not have been able to exceed his download usage limit over and above 125 GB. It is also noticed that, in the event a customer exceeds his upload or download FUP limit, the speed on exceeding the FUP limit, automatically reduces to the speed indicated in the TEF. Similarly, in the Complainant’s case, as per the TEF, marked as Ex-B3, it is clear that since the Complainant exceeded his upload or download FUP limit, the speed on exceeding the FUP limit, reduces to 512 Kbps. Therefore, the speed variation, if any, was solely on account of the Complainant having exceeded his download usage limit and nothing more than that.

 

          13. With regard to the alleged Wi-Fi range by the Complainant is concerned, Op submits that, the said speed variation with respect to internet through a Wi-Fi router is normal and is bound to occur where there were certain obstructions in the house such as walls, or due to any connectivity equipment being used by the Complainant. These factors are beyond the control of the Op. In fact, the TEF contains a clause that speed variations may arise due to Wi-Fi router or any other connectivity equipment being used by the customer for which the Op shall not be responsible and the Complainant, having signed the TEF, cannot now feign ignorance of the same.  In this context, we find there is considerable force in the contention taken by Op with regard to the alleged Wi-Fi range. Hence, there is no any deficiency of service on the part of Op. Mere allegations that there is a deficiency of service on the part of Op is not sufficient unless it is supported by the positive evidence in the light of the decision reported in (2000) 1 SCC 66 in the case of Ravneet Singh Baggas v. KLM Royal Dutch Airlines and another.

 

14. The Op has taken another specific contention stating that, Complainant is not entitle for any of the refund or compensation. In this context, submits that, Complainant has to show the actual loss or damage for claiming compensation. In support of it, Op placed reliance on the two decisions (1) MANU/R1/0086/2017 in the case of Samiran Bhattacharjee vs. Niti Samanta and Others, (2) (2015) SCC Online NCDRC 1809 in the case of Dr.Uttam Kumar Samanta vs. Tata Teleservices ltd., We placed reliance on the contents of the complaint. Since the Complainant has already exceeded speed limit, as per the package availed by him is entitled to the internet speed of about 75Mbps and further entitled to use 125GB of data and the disconnectivity was on his own. Further it is evident that, the Complainant seeking refund of Rs.7,982/- and Rs.1,500/- against the electrical power supply consumed by the server box of the Op and also sought for compensation of Rs.20,000/-. Op submits that, Complainant is not entitled to any refund in view of the fact that he has enjoyed the continuous and uninterrupted services offered by the Op which can be seen from the usage details marked as Ex-B5 to B12. Despite enjoying the services to the maximum extent possible, the Complainant, with the malafide intention to harass the Op and to unjustly enrich himself has sought for a refund of the amount paid by him while availing the services. We find there is considerable force in the contention taken by Op in the light of the two decisions cited supra. When the Complainant has enjoyed the service to the maximum extent, he cannot raise little finger stating that, there is deficiency of service on the part of Op. The another contention taken by Op is that, as per clause 10 of CAF (page 12 of CAF) clearly provides that the Op would not entertain refund of any amounts that may have been paid by the subscriber for any annual/semi-annual/quarterly/ monthly/child plan package/wireless plus-home Wi-Fi device or any other similar package offered by the Op from time to time. This is because the Op provides broadband internet connection through Optic Fiber Cable (OFC) network and for connecting/activating the connection for every customer, the Op incurs a sum of Rs.8,000/- to Rs.10,000/- for establishing the OFC network, installation of CX equipment, installation and wiring inside the customer premises. Hence Op is not liable to refund any amount in view of the clause in CAF. Knowing fullywell all these terms & conditions, the Complainant has subscribed his signature. Hence, he is bound by the terms & conditions as per the decision of Hon’ble Supreme Court reported in (1996) 4 SCC 704 in the case of Bharathi Knitting co., vs. DHL Worldwide Express Courier Division of Air Fright ltd.,. Looking to the entire evidence on record, there is no iota of evidence in respect of deficiency of service on the part of Op.

 

Now, turning to the counter claim, Op has prayed for:

a) Direct the Complainant to pay Rs.1,308.94 for the internet usage in between 29^th and 31^st Dec 2017 and Jan 2018

b) Direct the Complainant to return the Wi-Fi router originally provided by the Op, in terms of the TEF

c) Dismiss the above complaint with exemplary costs, in the interests of justice and equity.

 

To consider the counter claim, requisite court fee has to be paid by Op. During the course of arguments, when this forum has questioned to the learned counsel for the Op, she has not pressed on the issue of counter claim. Hence, counter claim as sought for by the op without paying court fee has no legs to stand. Hence, this counter claim is not considered. In view of our discussions made above, we come to the conclusion that, complaint filed by the Complainant is totally devoid of any merits and liable to be dismissed. Accordingly we answered the point no.1 in the negative.

 

15. Point no.2: In the result, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant is dismissed devoid of any merits.

 

          2. Looking to the circumstances of the case, we direct both the parties to bear their own cost.   

 

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 10^th October 2018).

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Wing Commander Sri.B.V.Arunkumar (Retd.,) who being the complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Doc.E1 to E6

Emails dtd.09.02.18, 18.01.18, 02.01.18, 26.12.17, 06.11.17, 11.12.17

 

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.Suresh Babu.C.N, who being the DGM-Legal of Op was examined.

 

Copies of Documents produced on behalf of Opposite party/s

 

Ex-B1	Certificate of incorporation reflecting the change in the name of Op
Ex-B2	Customer application form
Ex-B3	Tariff enrolment form
Ex-B4	Invoice dtd.30.06.17 Rs.7,928/-
Ex-B5 to B12	Signed and sealed usage details
Ex-B13	Screenshots of the relevant FAQ sections of Op website
Ex-B14	Invoice dtd.01.12.17 Rs.8,134/-
Ex-B15	Invoice dtd.01.01.18
Ex-B16	Snapshot of customer port status indicating the disconnection of customer port
Ex-B17	Invoice dtd.01.02.18

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT