IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday the 30th day of August, 2018
Filed on 29. 06. 2016
Present
1. Sri.E.M. Muhammed Ibrahim , BA,LLM (President)
2. Smt. Sheela Jacob (Member)
in
CC/No.216/2016
Between
Complainant:- Opposite party:-
Sri.Dinesh.D 1. Asianet Satelite Communication
C/o Rajesh, Ltd. Nellitharayil Towers ,
Ammu(H) Thattarambalam.P.O
Kandiyoor.P.o Mavelikkara- 690 103,
Mavelikkara .
(By Adv.P.C.Dileepkumar) 2. Asianet Satelite Communication
Karimpanal Arcade, 3rd Floor,
East Fort, Trivandrum- 695 023
(By Adv. P.S Anilkumar)
ORDER
SRI.E.M. MUHAMMED IBRAHIM.B.A.LLM (PRESIDENT)
This is a consumer complaint filed under section 12 of the Consumer Protection Act, seeking compensation to the tune of Rs.4,00,000/- and costs of the proceedings from the opposite parties.
1. The averments in the complaint in short are as follows:-
The petitioner is a subscriber of the opposite party and using internet connection provided by the opposite party. The petitioner is engaged in the file work through online. But for the last several months the band width that he obtained is less than 100Kpbs instead of promised 1 Mpbs. Due to the lesser band width he could not be able to send file to seniors in time which created several problems and ultimately lost his employment. He contacted with the customer care to cure the above defect and they promised to restore the band width within 2-3 days. He contacted with the customer care during May 19th to June 8th. But they have not cured the defect. Due to the defective network the complainant suffered much loss. The opposite parties are not doing any follow up action on receipt of the complaint. As they are having monopoly in the field they are not paying heed to the complaints of the customers including the complainant. Hence there is deficiency in service on the part of the opposite parties. The complainant and several 1000’s of persons sustained heavy loss of income, loss of mental agony and the complainant lost his job also. Therefore the complainant seeks to pass an order directing the opposite parties to pay Rs.4,00,000/- towards compensation and Rs.3,000/- as cost of the proceedings.
2. The opposite parties 1 and 2 resisted the complaint by filing a joint version by raising the following contentions:-
The petition is not maintainable, as the petitioner has no locus standi to file the complaint and he was not empowered to file complaint on behalf of the other consumers. This Hon’ble Forum has no locus standee to try the case as per the norms of the TRAI and only the TRAI court has jurisdiction to try the complaint. The I.D. number which was provided by the company was not stated in the complaint purposefully and hence the opposite party was unable to trace out the particulars of the tariff and such other particulars regarding the consumer. It is admitted that a chocking problem was detected in Chengannoor - Mavelikkara line and the band width was affected. In order to resolve the opposite party placed 20 x 20 net work card on 11th May thereby downstream was increased from 2 to 5 and the problem was resolved. Later on, in order to increase DS to 5 to 8 company placed DRR/DRT. This is the only problem occurred in Mavelikkara circle and thereby the entire chocking problem in the said circle was resolved as stated above and only a minimum time was used to resolve the chocking problem. The opposite parties, in order to maintain healthy and cordial relationship between them and subscribers, are resolving every complaint expeditiously. They are maintaining very healthy relationship with the genuine subscribers. It is incorrect to say that the opposite parties are not redressing the genuine grieves of the subscribers. The claim of the subscriber is exorbitant and the claim made in the complaint is without any legal basis. Nothing was pleaded or produced to quantify the so called loss sustained by the complainant. The complaint lacks bonafides and it is frivolous. Hence the petition is to be dismissed with costs.
3. In view of the above pleadings the points that arise for consideration are:-
(1) Whether the petition is maintainable?
(2) Whether there is any deficiency in service on the part of the opposite parties
1 & 2?
(3) Whether the complainant is entitled to get compensation and cost as prayed
For?
(4) Reliefs and costs.
4. Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.A1 and A2 documents. Evidence on the side of the opposite parties consists of the oral evidence of the RW1 and Ext.B1 to B3 documents.
5. The opposite parties have filed notes of arguments. The complainant has not filed any notes of argument though sufficient opportunity was granted.
6. Heard both sides.
7. Point No.1
This specific case of the complainant is that he is a subscriber of Asianet internet connection and he has been using a net connection for the last several months. But the band width that he obtained was 100Kpbs instead of promised 1 Mpbs due to the defective network. He suffered much loss and inspite of his complaint the opposite party has not been curing the defects and therefore the complainant is entitle to get compensation and cost from the opposite parties. According to the opposite parties the complainant is having no locus standi to file the complaint that he is neither a subscriber nor a person empowered to file the complaint on behalf of the various subscribers and therefore the complaint is not maintainable and the same as to be dismissed in-limini. Inspite of above contention in the written version filed by the opposite parties, the complainant has not produced any materials to prove that he having locus standi to file the complaint. He has also not produced the ID number allotted to the complainant. There is nothing on record to indicate that the complainant is a subscriber of the 1st opposite party though the complainant would claim in the complaint as well as in the proof affidavit that he is a subscriber of Asianet network connection, the complainant has not produced any scrap of paper to prove that he has been paying monthly or annual subscription to the opposite party. The name and address of the complainant shown in the complaint is Dinesh.S C/o Rajesh, Ammu (H), Kandiyoor P.O., Mavelikara. The invoice seen produced along with complaint ( but not got marked in evidence) would indicate that Mr.Rajesh, Ammu (H), Kandiyoor P.O., Mavelikara is the subscriber. As the above document has been produced along with the complaint same in evidence. The same is a part of pleadings. In the view of the address shown in above document and also in view of the non production of any evidence to show that the complainant is a subscriber of the 1st opposite party or 2nd opposite party, and also in view of the fact that the complainant has not mentioned the ID Number in the complaint which was provided by the opposite parties to every person paying subscription, it is clear that the complainant is not a subscriber of Asianet Satellite Communication.
The term consumer is defined as 2 (I) (d) of the Consumer Protection Act 1986. Accordingly the consumer may be a person who buys any goods or avails any service for consideration and also includes any user of such goods and any beneficiary of such goods other than the person who buys the goods or the person who hires or avails of services for consideration and when such goods are purchased or services are availed with the approval of the first mentioned person. Now I shall consider whether the allegation in the complaint or the averments in the affidavit would satisfy the above definition of consumer, in this case. As per the complaint the complainant is a subscriber of Asianet Satellite Communication which provides internet connection if the above claim is taken in its face value it is to be considered that the complainant has availed the service of internet connection from the 1st opposite party. But unfortunately there is no pleadings to prove that the complainant has availed the service of internet connection from the opposite party by paying any consideration or he has been using the service with the approval of the person who obtained the internet connection. In view of the address of the complainant shown in the complaint and also in view of the documents / invoices produced by the complainant along with the complaint, the complainant is not a consumer or the subscriber of the opposite party but one Rajesh is the subscriber. The complainant is not having a case either in his complaint or in his chief affidavit that he has been using the internet connection availed by the said Rajesh with that persons consent or approval.
8. It is further to be pointed out that there is no averments in the complaint to the effect that due to the defective services 1000’s of persons suffered loss and he is a representative of the persons who are suffered. He is having no such averments in the proof affidavit. It is pertinent to pointed out that when the complainant was in the witness box as PW1 he would admit during cross examination by the counsel for the opposite parties that he has filed the complaint in his personal capacity and not in a representative capacity. It is further to be pointed out that the complainant would admit while cross examining RW1 that one Rajesh is a subscriber who availed net connection. In view of the above materials on record it is clear that the complainant is not a subscriber of the opposite party Asianet Satellite Communication and there is also nothing on record to indicate that the complainant is using the net connection with the approval of the original subscriber Sri. Rajesh. Even if the complainant has been using the internet connection with the consent or approval of the said Rajesh, the complaint cannot be termed as a consumer as it is impermissible to use the net connection by a person other than the subscriber without the consent of the service provider. The opposite parties has specifically contented that the net connection given to one person cannot be used by other person without the consent or concurrence of the service provider. The above contention of the opposite party is not seen denied by the complainant nor he produced any evidence either oral or documentary to prove that the complainant has been using the net connection given to the said Rajesh with the consent and concurrence of the opposite party who is the service provider. Therefore it is clear that the complainant is not a subscriber but he is an un-authorised user of the internet connection which was provided to Sri.Rajesh, Ammu (H), Kandiyoor P.O., Mavelikara. In the circumstances it is clear that there is no contractual relationship between the complainant and the opposite parties. It is well settled that an un-authorised user cannot make a claim against the service provider complaining deficiency in service. As the complainant is not a consumer of the opposite parties, the contention of the opposite party that the complainant is not having any locus-standi to file the complaint is having merit. In view of the reasons stated above the complaint is not maintainable and the same is only to be dismissed. The point answered accordingly.
Point No.2 & 3
As the complainant is neither a genuine subscriber of the opposite parties nor a person using the internet connection with the approval of the person to whom the internet connection was given by the opposite parties with the approval of the opposite parties. As the complainant is not having any locus – standi to file the complaint. The questions of deficiency in service or awarding compensation do not arise for consideration at all. The points answered accordingly..
Point No.4
In view of our finding under point No.1, the complaint is only to be dismissed being not maintainable.
In the result the complaint stands dismissed. The parties are directed to suffer their respective costs.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 30th day of August, 2018.
Sd/-Sri.E.M.MuhammedIbrahim (President):
Sd/-Smt. Sheela Jacob (Member):
Appendix:-
Evidence of the complainant:-
PW1 - Dinesh S Nair (Witness)
Ext.A1 - Copy of the details of test history
Ext.A2 - Copy of the speed test results
Evidence of the opposite parties:-
RW1 - Sujith V S (Witness)
Ext.B1 - Copy of the registration form
Ext.B2 - Copy of the final bill
Ext.B3 - Copy of TR register from May 2017 to November 2017
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- Sa/-
Compared by:-
