Date of filing       : 17.06.2016.

                                                                                    Date of disposal : 06.07.2017.

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.27/2016

(Dated this Thursday the 06^th day of July 2017)

M. Harish Kanna,

No.6, Bajanai Koil Street,

Kodali Village,

Vellore District - 632 518.                                                          …. Complainant.

/ Versus /

Appellate Authority,

Sistema Shyam Teleservices Limited,

32 A and B 2^nd Floor, AMBIT IT Park,

Ambattur Industrial Estate,

Chennai - 600 058.                                                               ….  Opposite party.

This complaint has come before us finally on 07.06.2017 in the presence of the complainant and Thiru. R. Damodaran, Counsel for the opposite party and upon hearing arguments, and having perused the documents and evidences and written arguments of both sides, this Forum delivered the following:

ORDER

PRONOUNCED BY TMT. S.  SUJATHA, MEMBER – 1.

This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite party for seeking Rs.14,00,000/- towards compensation for causing inconvenience, mental agony and service deficiency with cost Rs.25,000/-.

2.       The brief averments of the complaint is as follows:-

          The complainant purchased a Wi-Fi dongle on 03^rd September 2015 at Veeradharma Enterprises at Ambattur, Chennai and the said device has been activated on 07^th September 2015.  Before purchasing the said device, the complainant verified all the details like speed of the network, cost of devices and rental of monthly plans etc.  The opposite party told  that the MTS will provide the maximum speed of 9.8 Mbps in bigger cities like Chennai and minimum of 3 Mbps in rest of Tamil Nadu during bundle usage period, but the average speed in his area will be 3 Mbps onwards during fair usage after that speed will be reduced to 32 Kbps. 

3.       The opposite party charged Rs.1,299/- towards the device and the activation fee of Rs.200/- and no activation fee for the post-paid connection.  After that, with the help of the Customer care executives the complainant got the address of Veeradharma Enterprises and he purchased a product from the same store on 3^rd September 2015.  But his device activated on 7^th September 2015.  The complainant chose a plan that 7 GB Day and 7 GB Night unlimited and monthly rental for this plan is Rs.700/- + 14.5% Service Tax.  Day time is morning 8 AM to Midnight 11:59 PM and Night time is midnight 12 AM to Morning 7:59 AM.  According to the commitment, MTS have to provide a speed   of maximum 9.8 Mbps and minimum of 3 Mbps before completing the 7 GB Day and 7 GB Night data.  After that speed will be reduced to 32 Kbps and the user get connectivity all the day of bill cycle, hence it is an unlimited plan. 

4.       After getting connectivity, the complainant got shocked because he got speed about only 200 Kbps and the complainant registered a complaint on the same day.   Evenafter, that speed of the connection was not improved.  Therefore, he has escalate the issue to the escalation team. After that, they did online trace and share updates to him over the phone.  They have mentioned that the complainant’s area is high utilization sector and they can provide a maximum speed of 373 Kbps during day time (That is approximately 1/9 of the speed what they promise before purchasing a product) and night time he may receive a better speed like 800 Kbps, while moving outside from his home, he may receive a good signal strength.

5.       From the date of activation, the complainant was facing this issue with the MTS each and every month.  During November 2015, 2^nd half of the month connection was automatically disconnected frequently even his fair usage date has been left.  During this time, he cannot use the internet for more than 15 minutes.  For this issue customer care executive suggest him to change the operating system of the complainant’s laptop because MTS device does not support for Windows 8.1 Operating system.  During December 2015, all are aware that Chennai was suffered due to flood and mobile networks also not working well.  In this month from 1^st December 2015 to 11^th December 2015  the complainant did not get connectivity.  But while generation of the bill for the same month they did not less the rent for 11 days.

6.       It is not fair for the customers because the complainant suffered from 1^st December 2015 to 7^th December 2015 for food, water, electricity etc. in those days MTS also does not cover the city with their network, but they generated the bill.  During January 2016, the complainant  got connectivity upto 13^th January 2016 without any issue.  From 14^th January onwards he did not get proper connectivity in day time and from 24^th January 2016 he did not get proper connectivity during night time.  While the complainant spoke with escalation team executive Mr. Gowtham disconnected the call both the times and there are many executives spoke with me very rudely and saying like we cannot give the waiver.  Though the complainant sent several E-mails, the opposite party did not respond.  Hence the complaint.

7.       The contention of written version of the opposite party is  briefly as follows:-

          It is false that the opposite party had given a commitment to provide maximum speed of 9.8 Mbps.  The opposite party submits that the complainant has given a complaint in June with the complaint No.Jun/4813 and the same has been resolved to the complainant’s satisfaction.  There is a sum of Rs.1,736/- outstanding payable by the complainant to the opposite party for the 2 months for May and June 2016 which remains unpaid till date.  In fact at the time of applying for the service, customers are informed clearly about the tariff and the monthly plan details.  In fact the complainant at the time of enrolment of services, signed a Tariff Enrolment Form which clearly mentioned that 7 GB day and 7 GB night. 

8.       Further, the opposite party submits that the contention of the complainant that the speed is only 200 Kbps is not true and correct since he has used the data services and was initially regular in payment of the bills also.  As mentioned above, the complainant had used 10 GB month on month till June 2016.  Therefore, it is wrong on the part of the complainant to allege that speeds were not to his expectation.  It is respectfully submitted that after having initially enjoyed the services of the opposite party, it is a ruse by the complainant to avoid payment of the bills raised by the opposite party.  Further, it was informed to the complainant that since he was residing in high utilization area, the maximum speed possible was only 373 Kbps.  Without prejudice to the foregoing, it is respectfully submitted that thus achievable aggregate peak physical layer rate on the downlink is 9.8 Mbps.  In wireless network, there is often distinction to be made between peak rate and typical throughput that a user may experience at the application layer.  Peak rates are achievable under ideal conditions on the physical layer.  The actual throughput experienced by an user depends on wireless channel condition, number of wireless channels / Spectrum, speed of the mobile, number of users connected in respective cell, type of user device, type of connectivity & software in dongle, phone, laptop / PC, interference levels, obstructions, climate, higher layer protocol overheads etc.  It is a well known fact that at any point of time the wireless resources are shared across the users served by respective cell.  Thus, the actual rate experience by an user depends on the number of users being served in a cell.

9.       When other customers are getting good speeds from the opposite party the complainant could not be an exception to this norm which only shows his bonafide.  The averments that the complainant could not use the internet properly or that the connection got disconnected automatically are all blad allegations by the complainant without any proof.  The complainant was regularly using the device and according to the usage, the complainant was being charged and he was paying for the same without demur. 

10.     Only for the areas where there was water logging and the internet facility was disrupted, there was waiver and not for the entire Chennai City as alleged by the complainant.  There is no disruption for the complainant  in using the internet and hence the question of waiver does not arise.  The averments that the complainant was charged extra for the months of September, November and December 2015 are not true and hence baseless.  The complaints received from the complainant are attended to at the earliest possible time and resolved and thus there is no deficiency of service.

11.     In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1 to Ex.A39 were marked.  While so, on the side of the opposite party, the proof affidavit is filed and Ex.B1 & Ex.B2  were marked on their side.

12.     At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

9.     Written arguments filed and oral arguments also adduced by both sides.

13.     Point no.1:-

As per the  averments of the complaint, the allegation of the complainant is that the assurance given by the opposite party at the time of purchase of the Wi-Fi dongle, the speed has not been provided though, it is an unlimited plan and during the usage of the Wi-Fi dongle the complainant has got speed about only 200Kbps and therefore, inspite of repeated E-mails have been sent to the opposite party to rectify the defects and to provide a maximum speed of 373 Kbps during day time but the opposite party has not been fulfilled the request of the complainant and thereby, the opposite party committed deficiency of service.  On the other hand, on the side of the opposite party, it is vehemently contended that the allegation made in the  in the complaint are not at all true  and it is purely  baseless and it is well known facts that at any point of time, wireless resources are shared across the users served by respective cell  and thus the actual rate experience by an user depends on the number of users being served in a cell.  Further, it is stated that the complainant had used a data service initially, regular in payment of the bills also and thereby, he had used 10 GB per month till June 2016 and therefore, it is not correct to say that the speed is only 200 Kbps and infact the complainant is a defaulter for the subsequent months and further, whenever any E-mail received from the complainant for queries immediately, the opposite party has replied and rectified the demands as per the terms and conditions which was already provided the complainant at the time of purchase and therefore there is no deficiency of service committed by them.

14.     At this juncture, it goes without saying that the duty cast upon the complainant to prove the allegations made in the complaint against the opposite party by means of relevant and consistent evidence.  First of all, on perusal of the evidence of the complainant, it is learnt that the complainant had purchased Wi-Fi dongle on 03.09.2015 from Veeradharma Enterprises through Ex.A1 and the  opposite party promised that the speed of the said device will by 3 Mbps and the cost of Rs.1,299/- and activation fees of Rs.200/- and the said device was activated on 07.09.2015 which is 7 GB day and 7 GB night unlimited and monthly rental for this plan in Rs.700/- + 14.5% Service Tax.  It is further stated that during the time of usage, the complainant has got shocked because, the complainant got maximum speed only of 200 Kbps instead of 373 Kbps and therefore, the complainant registered complaint through E-mails on different dates and the reply also sent by the opposite party which are marked as Ex.A2 to Ex.A28 and even then, the opposite party has not rectified the speed as per his assurance.  Then, the complainant sent an Email copy contains legal notice from MTS and the reply sent by the complainant related to the complaint is marked as Ex.A29 & Ex.A30.  The snapshots of speed test results and the respective monthly bills are marked from Ex.A31 to Ex.A39 respectively.

15.     At the outset, on going through the evidence of the opposite party, it is stated that at the time of purchase of the wireless dongle, the complainant had executed the Customer Application Form (CAF)  for applying the data connection contains detailed terms and conditions of the services relating to Monthly Tariff Plan, Monthly Rentals, Free Usage per month, Fair Usage cap / Speed Limit, Unlimited Speed Limit @ 32 Kbps was enumerated and all these terms were agreed and signed by the complainant which are marked as Ex.B1 & Ex.B2 respectively.  Further, it is narrated that it is a well known fact that at any point of time, the wireless resources are shared across the users served by respective cell and therefore, it  depends on the number of users being served in a cell and infact the opposite party sent proper reply through E-mail for the queries raised by the complainant then and there and therefore, as per their terms and conditions, the opposite party had got opened without any deviation.  Further, it is deposed that the complainant is a defaulter in payment of the monthly bills  subsequently and therefore, there is no deficiency of service as alleged by the complainant.

16.     At this juncture, on careful perusal of the rival submission put forth on either side it is an admitted fact that the complainant had purchased a data connection through Ex.A1 by means of Ex.B1 application as per the terms and conditions provided by the opposite party.  As rightly pointed out by the opposite party from Ex.B1 & Ex.B2, which contains the terms and conditions related to the Monthly Tariff  Plan, Monthly Rentals, Free Usage per Month, Fair Usage cap / Speed Limit, Unlimted Speed Limit @ 32 Kbps etc.  Similarly, there is no dispute about the usage of the said device for certain months initially by the complainant without any complaint in respect of the speed limit.

17.     At this point of time, the complainant found that the speed limit has been reduced to 200 Kbps which is against the speed as assured by the opposite party and therefore, registered a complaint through E-mail against the opposite party.  In such a situation, on careful perusal of the E-mail communications in between the complainant and the opposite party on different dates shows that whenever the complainant has reported complaint, the opposite party immediately replied then and there and rectified the demands of the complainant.  Further, it is seen from the communications transferred from one another regarding the reduction of speed that it depends on the number of users being served in a cell and the said fact has been clearly mentioned with terms and conditions which are already provided to the complainant in Ex.A1.  Therefore, at any point of time the opposite party is not responsible and infact they have made proper service as promised.  In such circumstances, considering the explanation made by the opposite party there is some truth in the explanation which cannot be easily thrown out.  Further, it is pertinent to note that initially the complainant enjoyed the speed during the usage of the speed data connection and according to the usage, the complainant was being charged and he is paying the same without fail.   It is further seen that as already discussed, the opposite party has attended the complainant’s queries at the earliest possible time.

18.     Moreover, it is learnt that the complainant has not come forward to pay the bill for the subsequent months and thereby he is a defaulter as quoted by the opposite party.  In furtherance, it is noted that the complainant has not filed any document to show that the residential area of the complainant had actually affected under heavy rain and flood.   Therefore, he is not entitled to claim any compensation.

19.     In the light of the above facts and circumstances, that it is true at sometimes, the speed has been reduced during usage to the alleged device by the complainant and the same has been properly explained by the opposite party in his written version as well the Proof Affidavit.  Further, the complaints have been properly attended by the opposite party then and there which clearly shows the fruitful approach in service of the opposite party.  Therefore, this Forum cannot be able to find any deficiency of service on the part of the opposite party and the same has been proved on the side of the opposite party.  Thus the point no.1 is answered accordingly.

20.     Point no.2:-

As per the conclusion arrived in point no.1, the complainant is not entitled for any relief as prayed in the complaint and answered this point accordingly.              In the result, this complaint is dismissed.    No cost.

Dictated by the Member - 1 to the Steno-Typist, transcribed and computerized by him, corrected by the Member - 1  and pronounced by us in the open Forum on this 06^th   July  2017.

Sd/-****                                                                                        Sd/-****

00MEMBER - I                                                                         PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the opposite party:-

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MEMBER - I                                                                             PRESIDENT