ORDER
By Jayasree Kallat, Member
The petition was filed on 28.08.09.The complainant purchased an internet Modem from Reliance communications Ltd. while taking connection Reliance communication Opposite party No.1 had assured that the internet usage for the complainant can avail speed up to 2048 Kb(2Mb). But the complainant did not get the assured speed. The speed was less than 5 kb and sometimes less than 1 Kb in bytes and suddenly stops. The internet connection was not working properly. The complainant had complained to opposite party No.1 at Apco Towers and also reported to the customer care. Opposite party had requested complainant to test the Modem at Service centre and other computers. The result was reported to customer care. But there was no improvement and the opposite parties did not take any action. Though the complainant was not getting speed at the assured and required level complainant was paying monthly tariff. Complainant had repeatedly informed the opposite party several times about the non availability of speed for the internet. As there was no response from the opposite party complainant had issued termination and refund of total amount including ZTE Modem cost. There was no response from the opposite parties. Hence this petition is filed seeking relief.
Opposite Party No.1 filed version denying the allegations in the complaint except those that are expressly admitted. The complaint is not maintainable. The averment in the complaint that, the internet Modem was not working properly, since installation is false and hence denied by Opposite Party No.1. Modem was not manufactured by Opposite Party No.1. Rash and negligent use may lead to defects in the modem. The averment in the complaint regarding speed of Modem offered and actual speed alleged in the complaint is false. There was no deficiency in service on the side of Opposite Party. The disconnection of service is made due to non payment arrears that too after giving due notice. The complainant is not entitled for any amount. Complaint is bad for non jointer of necessary parties. Opposite Party No.1 prays to dismiss the petition.
Opposite Party No.2 filed the version denying the averments in the complaint except those that are expressly admitted. The petition is not maintainable. The complainant is not a consumer since the alleged purchase of good is for commercial purpose. Opposite Party No.2 only supplied the phone handset to the customer but the first opposite party is the service provider. The allegation that bill No.1796 was issued to the complaint is denied. The same was issued to one Reshma and not to this complainant. The allegation that the speed of the Modem offered and the actual speed is less is false and denied by Opposite Party No.2. The alleged loss of speed may be due to the default of the computer of the complainant. Opposite Party No.2 is not liable to pay any amount to the complainant as there was no deficiency in service on the part of Opposite Party No.2. The product in dispute is manufactured and marketed by the first opposite party. If any warranty or offer is given that is done by Ist opposite party. If there was any defect or deficiency in service it is to be rectified by opposite Party No.1.As there was no deficiency on the part of Opposite Party No.2, Opposite Party prays to dismiss the petition.
Points for consideration.
Point No.1. Whether the petition is maintainable?
Point No.2. Whether the complainant is a consumer?
Point No.3. Whether the complainant is entitled for any relief?
Point No.1.
The opposite party No.1 had raised the issue of maintainability In IA petition Numbered as 110/2010 was filed by the opposite party. Complainant had filed counter to the IA. Petition. Both sides were heard and an order was passed on the I.A. that the petition is maintainable. The issue of maintainability was thus confirmed.
Point No.2.
Another contention raised by Opposite Party is that the complainant is not a consumer as he has purchased the Modem for commercial purpose. The complainant had deposed that he had purchased the Modem to upload Tax returns and to download sales tax rules. He has added that it is used for his own business purpose. The forum is convinced that the complainant had purchased the Modem for his own use. Hence we are of the opinion that he is a consumer as he has purchased the Modem from the Opposite Party No.1 after giving consideration. Opposite party No.1 is the service provider as well.
Point No.3
The case of the complainant is that he had purchased a Modem from the opposite parties. The complainant alleges that the speed for the internet usage available to him is less than what the opposite party had assured According to the complainant the speed available to him is less than 5 Kb and sometimes 1Kb in bytes and at times it stops totally. The system was not working properly. Complainant had filed Ext.A4 which would go to show that he had made a complaint before the customer care @ Reliance .com regarding the non availability of required speed and they have replied back to him mentioning that the complaint was forwarded to the concerned department to take appropriate action. Opposite Party No.2 has taken a contention that there is no customer relationship with the complainant as per Ext.B1 produced by Opposite Party No.2 the data card was purchased by one Reshma. Ext.A1 was produced by the complainant which shows that MG.880 Data card No.000281588 was purchased by James.P.C. on 11.12.2007. It is the original bill of the Zest Marketing International Apco Tower, Jail Road, Kozhikode. The complainants name is mentioned in the bill 1796 as James .P.C. It is signed by authorized signatury for Zest Marketing Opposite Party No.2 had produced Ext.B1 to show that the handset was sold to one Reshma but a perusal of Ext.A1 would clearly show that it is the original invoice bill of Opposite Party No.2 where the name of the complainant is clearly written. The handwriting seen on the original bill of the name portion and the other details and the receipt cum acknowledgement issued by Reliance communications which is to be issued by authorized outlet only if one and the same in both the name of the complainant Mr.James.P.C. is clearly written. A perusal of Ext.A1 would show that the No.1796 could be seen and two portions of the invoice No. & Date and the address portion of the buyer is blackened . But in Ext.B1 which is a carbon copy shows the same date 11.12.2007 and a name Reshma is written. In B1 also invoice and Date column is blackened. From the documents A1 & B1 itself, it is proved beyond doubt that the complainant had purchased the data card from Opposite Party No.2. All along the only complaint of the petitioner was that he did not get the required speed and hence there was hindrance to his work. From the evidence and deposition it is found that opposite parties had not responded properly to the complaints. According to us the opposite parties were deficient in their service by not attending to the complaints of their customer. Hence we are of the opinion that the complainant is entitled for relief. It is admitted by the complainant that as he did not get proper service he had decided to discontinue the service of the Opposite Party. It is the contention of Opposite Party that the complainant had stopped paying the bill. An amount of Rs.1603/- is due to the Opposite Party from the complainant. More over the connection is terminated at the request of the complainant. The forum has already come to the conclusion that the complainant had to suffer due to the negligence and deficient act of the Opposite Party. As the Opposite Party did not respond properly and give service when the complainant had complaints regarding the speed of the internet connection, we have already opined that the complainant is entitled for relief.
In the result the petition is allowed and opposite parties are directed to pay an amount of Rs.10,000/- as compensation to the complainant for the mental agony he had to go through along with a cost of Rs.500/- within one month of receiving the copy of the order.
Pronounced in the open court this the 4th day of May 2011.
Date of filing:28.08.09.
SD/-PRESIDENT SD/-MEMBER SD/-MEMBER.
APPENDIX
Documents exhibited for the complainant:
A1.Reliance Communications Receipt cum Acknowledgement Bill No.1796
dtd.11.12.2007.
A2. Press advertisement through Mathrubhumi news paper dtd.05.12.07.
A3. Reliance Net connect advertisement.
A4.. E.mail letter to the complainant dtd.01.08.09
A5. E.mail letter by the complainant regarding the termination & Refund of total amount
paiddtd.23.02.2010.
Documents exhibited for the opposite party:
B1. Handset of Zest Marketing international data card was purchased by one Reshma.
Witness examined for the complainant:
PW1.P.C.James(Complainant)
Witness examined for the opposite party:
RW1.Prabha Murali, Thekku Vettil, PO, Chelembra, Malappuram Dist.
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
