Date of Filing: 19/08/2011

        Date of Order:15/10/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  15^th DAY OF OCTOBER 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO.1534 OF 2011

Mr. Kannan Pandi,

S/o. Sri Pandi Muniyandi,

Faith Block 217 Purva Grace Apts.,

Amrutha Halli, Bangalore-92.

(Rep. by Advocate Sri.D.Ramachandr)                                    ….  Complainant.

V/s

M/s. TATA Tele Services Ltd.,

A Block Silicon Terraces 30/1,

Hosur Main Road, Koramangala,

Bangalore-95,

Rep. by its Manager.

(Rep. by Advocate Sri.M.R.Krishnamurthy)                           …. Opposite Party.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to pay Rs.2,02,000/-, are necessary:-

          On the assurance of the representative of the opposite party that if the complainant subscribes Rs.2,000/- towards USB Modem Charges he will get the Modem with the advantages:- Broadband usage : Unlimited, Monthly Rental :Rs.1100, Maximum download speed        : 3.1 Mbps, Maximum download limit at max speed:10 GB, Unlimited download speed after 10 GB : 256 Kbps, Free National roaming : Unlimited, Plan Name : HSIA 10 GB@1100 Capping Plan, USB Modem Charge : Rs.2000 and other facilities, the complainant had subscribed to that and deposited Rs.2,000/- towards Modem charges and got activated the services.  The complainant noticed that the speed was not as per the plan which was offered.  This was intimated to the opposite party’s Customer Care Call Center.  The complainant was informed that there may be a signal issue and the technician will visit the complainant and verify.  A week later the representative of the opposite party came to the residence of the complainant verified the speed but did not fix the issue.  The representative confirmed that there was no signal issue, informed but that is a common problem as there are too many people who are using the service so the complainant can’t get the speed more than 256 Kbps.  The representative verified the Broadband speed using www.speedtest.net accordingly the speed was bellow 3.1 mbps.  It was not the minimum broadband speed of 256 Kbps.  When the complainant questioned, the representative said, that they will give speed up to 3.1 Mbps, but it was not given.  The complainant called many times the customer care/concerned executives of the opposite party.  The complainant being a professional employee of the Wipro Limited needs internet service 24X7.  If the speed is less than 256 Kbps, it affects his profession and the employment and the complainant got bad remarks.  On 23.10.2010 the opposite party regretted in processing the complaint of the complainant, but never cared to rectify the defect.  Instead on 10.11.2010 the opposite party sent an e-mail stating that the problem has been resolved.  The complainant responded to the opposite party stating that the issue was not resolved yet and requested the opposite party to act.  Being fed up, the complainant stopped using the Broadband of the opposite party and took the broadband of Airtel.  Even though the complainant has not used the Broad band the opposite party issued a demand notice demanding Rs.2,050/-.  The complainant replied stating that he is not liable to pay and demanding the refund of Rs.2,000/-  Hence the complainant seeking refund of Rs.2,000/- with interest, Rs.75,000/- towards physical inconvenience and mental harassment, Rs.25,000/- towards extra amounts spent by the complainant to get the work done elsewhere, Rs.1,00,000/- towards the loss of promotion, inconvenience.  Hence the complaint.

2.       In brief the version of the opposite party are:-

          The complainant showed interest in getting Broad band connection and purchased USB Modem by paying the sum of Rs.2,000/-, it is not deposit it is the price.  The speed provided to the complainant was 256 kbps.  The complainant has called the customer care of the oppsiote party and the opposite party informed the complainant that engineer would visit his place and assured that if there is any problem in the internet they would rectify the same.  The complainant is not getting the speed is denied.  The opposite party never promised of 3.1 Mbps.  Whenever the complainant called the customer care the opposite party has given suitable reply.  The complainant was provided with sufficient speed as promised.  The complaint of the complainant is attended.  In pursuance of the regret mail dated: 23.10.2010 the opposite party has successfully resolved the issue.  It is true that the complainant has stopped using the service of the opposite party in the month of November-2010.  Demand of Rs.2,050/- is admitted.  Subsequently the complainant requested for the waive of amount.  The opposite party has assured that it will be considered and as a goodwill gesture has waived Rs.2,050/-.  After waiving the complainant is demanding Rs.2,000/-.  There is no deficiency in service nor there is any cheating.

3.       To substantiate their respective cases the complainant has filed his affidavit and the documents.  The opposite party has filed a memo stating the version be read as his evidence.  The arguments were heard.

4.       The points that arise for our consideration are:-

:- POINTS:-

1. Whether the complainant has paid Rs.2,000/- as deposit towards the supply of Modem to the opposite party?
2. What Order?

5.       Our findings are:-

Point (A) & (B)         :           As per the final Order

                                       for the following:- 

-:REASONS:-

Point A to B:-

6.       Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact that the complainant has availed the service of the opposite party regarding Broad Band obtained Modem by paying Rs.2,000/- from the opposite party and later as it did not come up to his expectations with respect to the speed 256 Kbps, he stopped using it.  The opposite party demanded Rs.2,050/- towards charges of usage of the Broad band and later on the request of the complainant waived Rs.2,050/-.

7.       Now the complainant is claiming return of Rs.2,000/- paid to the opposite party at the time of taking modem alleging that it was a deposit and the opposite party claims that they have sold the Modem to the complainant and hence they are not liable to repay any amount.  Hence we have to see whether the modem is purchased by the complainant or whether the modem has been given to the complainant on trust and taken Rs.2,000/- as security deposit.  In this regard pleadings of both the parties are as bald as it could be.  The complainant never produced any scrap of paper to show that he has paid Rs.2,000/- to the opposite party on a particular date, month and year under a particular receipt.  Even the complainant never stated on what date he availed the services? under which receipt he had deposited? the money etc.,.  Hence it is not possible for us to say that the complainant has given the amount as security deposit to the opposite party regarding the modem in question. 

8.       The modem is a movable property admittedly.  It was the property of the opposite party and the complainant paid certain amount towards it and it is with the complainant now.  Hence it means it is a sale transaction and not a security transaction.  If the complainant had paid Rs.2,000/- as security deposit towards the modem it was incumbent on the part of the complainant to produce the document to show that the amount paid to the opposite party was a security deposit with certain terms and conditions, that the amount will be repaid to the complainant on the happening of an event, but such things have not been produced.  Hence have to apply the principals of Caveat Emptor i.e., purchaser has to be beware of the product while purchasing the same.  Hence even if there is any defect in the Modem he has to bear with it.

9.       In any event the complainant never stated on what date he has paid the money or on what date he got the connection?  The complainant has produced post paid service photon + activation card and Photon+no.9243319908 card Xerox copies.  It does not prove that the complainant has taken a broad band modem on paying Rs.2,000/- as security deposit nor it says that it was given to the complainant on a particular date.

10.     The complainant has produced speedtest.net the global broad band speed test windows internet explorer it shows that down load was 0.13 Mb/s, upload was 0.07 Mb/s, Ping 839 ms.  Even this does not say on what date it has been done or when it has been done.  The complainant has produced an e-mail dated: 26.10.2010 at 9.39 pm this only shows that he was not getting the speed in the internet that’s all.  It does not say that the modem was defective or modem has any problem.  Regarding this e-mail the opposite party has replied on 10.11.2010 that’s all.  Then the opposite party has issued the notice to the complainant on 06.05.2011 demanding the usage charges to which the complainant has replied on 02.08.2011 and then filed this complaint on 19.08.2011.  None of these things establish that the complainant has paid a particular deposit towards the supply of modem and the modem has any problem.

11.     The modem is still with the complainant, if the modem had any problem, the complainant would have got the modem tested by an expert and produce his report before this Forum, but that has not been done.  The speed depends on the time at which the internet is being used, the number of users at that time and availability of the current, etc., and type of computer that he was using.  Without those details it is impossible for us to say that the complaint is maintainable.

12.     When the complainant himself has not established that he has deposited Rs.2,000/- to get the modem the question of asking the opposite party to repay the amount does not arise.  The complainant never stated that he has surrendered the modem to the opposite party and demanded the money.  The complainant has stated that he has obtained broad band from another company and using it.  He may be using the broad band through the modem of the opposite party.  That possibility and probability is not overruled.  Hence under these circumstances it is impossible to believe the story of the complainant to any extent in any manner whatsoever.  Hence we hold the above points accordingly and proceed to pass the following:-

-: ORDER:-

1. The Complaint is Dismissed.  No order as to costs.
2. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
3. Send a copy of this order to both parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 12^th Day of October 2011)

MEMBER                                       MEMBER                            PRESIDENT