Order dictated by:
Sh.Charanjit Singh, President
1. Sh. Parbodh Chander Bali, complainant has brought the instant complaint under section 12 of the Consumer Protection Act, 1986 on the allegations that opposite party is selling service of “High Speed Internet Data” in Amritsar and opposite party offered various plans. Internet works two ways one way it sends data from outside world to Internet User and speed at which it does so is termed as “Upload speed” and also other way it sends data from user to outside world at which it does so is termed as “Download speed”. Opposite party provides a modem on security deposit of Rs. 500/- from customer and supplies a fixed quantity of GB at minimum speed of MBPS internet per calendar month according to plan. The complainant took “plan 20 MBPS” from the opposite party in which opposite party assured to provide 30 GB of internet @ minimum speed of 20 MBPS per calendar month and after exhaustion of quota of 30 GB, opposite party will keep providing data @ speed of 5 MBPS for unlimited quantity till end of that calendar month. Opposite party failed to provide speed of 20 MBPS. Opposite party recommended for testing internet speed and other parameters of internet so provided by the opposite party, online, using third party called “Ookla.com” which tests internet speed, online, using different servers. Opposite party recommended testing its speed using Ookla on Mohali server which is named as “Quadrant Televentures Ltd.”. The complainant always felt slow speed of internet and as such off and on tested the speed of internet on recommended “Ookla” and found the Internet speed actually very slow. The complainant made various complaints to opposite party. Engineer of the opposite party visited the complainant premises but failed to provide the required speed. The download speed never touched to 20MBPS and upload never touched 10 MBPS. Opposite party failed to set it right to provide 20 MBPS speed to download or upload data. On 30.4.2018 complainant checked the speed of interest which confirmed to be very low. Complainant checked his account with the opposite party and surprised that opposite party was showing quota consumer of 28.05GBN and quota available as Zero, whereas opposite party promised to provide 30 GB quota on full speed of 20 MBPS in a calendar month. On 30th April when still 2 days of calendar month were balance and quota of 30 GB was not exhausted, opposite party had tightened the speed to 5 MBPS showing quota as zero which was unfair. The complainant made complaint to the opposite party but opposite party could not explain it. The complainant served a legal notice on 4.5.2018 but till data opposite party neither replied to the said notice nor had rectified the fault of slow speed. The abovesaid act of the opposite party caused a great shock, insult, mental agony and harassment to the complainant as it is unfair to reduce speed of internet before committed quota and not provide full speed of 20 MBPS . Vide instant complaint, complainant has prayed for the following reliefs:-
(a) Opposite party be directed to provide full speed of 20 MBPS download as well as upload till exhaustion of 30 GB quantity and rest unlimited @ 5 MBPS of internet data in one calendar month ;
(b) Compensation to the tune of Rs. 20000/- alongwith litigation expenses to the tune of Rs. 5000/- may also be awarded to the complainant.
Hence, this complaint.
2. Upon notice, opposite party appeared and filed written version in which it was submitted that complainant has taken the plan of 20 MBPS speed with 30 GB internet at minimum speed of 20 MBPS and as per plan taken by the complainant, the opposite party has been providing the same facility to the complainant . The complainant himself produced Ex.CW4 in which it is clearly mentioned that download MBPS speed is 19.23 on 21.5.2018, 19.04 on 13.5.2018, 18.85 on 13.5.2018, 18.07 on 11.5.2018. As per the guidelines of Telecom Regulatory Authority of India (TRAI), it is clearly established that “As per regulation on “Quality of service standard for Broadband Services” issued by TRAI on 6.5.2006 , a subscriber should get minimum 80% of the subscribed broadband connection speed from ISP Node to User”. In the present case, the speed of Internet provided by the opposite party is more than 80% meaning thereby the complainant has been using the internet facility very enjoyfully and in a very speedy manner. It was denied that complainant was surprised that opposite party was showing quota consumer of 28.05GB and quota available as Zero. It was denied that opposite party promised to provide 30 GB quota of full speed of 20 MBPS in a calendar month. It was denied that on 30th April, when still 2 days of calendar month were balance and quota of 30 GB was not exhausted , opposite party high tightened the speed to 5 MBPS showing quota as Zero . While denying and controverting other allegations, dismissal of complaint was prayed.
3. Alongwith complaint, complainant has filed his affidavit Ex.CW1, plan of opposite party Ex.CW2, screen shot Ex.CW3, speed test result Ex.CW4, notice Ex.CW5.
4. Alongwith written version, opposite party filed affidavit of Om Parkash Gupta Ex.RW1/A, authorization letter Ex.R-1, Crestal billing portal Ex.R-2, Crestal billing portal Ex.R-3, guidelines issued by Govt.of India Ex.R-4.
5. We have heard the complainant in person and the Ld.counsel for the opposite party and have also carefully gone through the written synopsis filed by the complainant as well as record on the file.
6. The complainant has reiterated the facts as narrated in his complaint by filing his affidavit Ex. CW1 and has vehemently contended that the complainant took “plan 20 MBPS” from the opposite party in which opposite party assured to provide 30 GB of internet @ minimum speed of 20 MBPS per calendar month and after exhaustion of quota of 30 GB, opposite party will keep providing data @ speed of 5 MBPS for unlimited quantity till end of that calendar month. Opposite party failed to provide speed of 20 MBPS. The case of the complainant is that he is always facing slow speed of internet and as such off and on tested the speed of internet on recommended “Ookla” and found the Internet speed actually very slow. In this regard the complainant made various complaints to opposite party and on this engineer of the opposite party visited the complainant premises but failed to provide the required speed. The download speed never touched to 20MBPS and upload never touched 10 MBPS. Opposite party failed to set it right to provide 20 MBPS speed to download or upload data. On 30.4.2018 complainant checked the speed of interest which confirmed to be very low. Complainant checked his account with the opposite party and surprised that opposite party was showing quota consumer of 28.05GBN and quota available as Zero, whereas opposite party promised to provide 30 GB quota on full speed of 20 MBPS in a calendar month. On 30th April when still 2 days of calendar month were balance and quota of 30 GB was not exhausted, opposite party had tightened the speed to 5 MBPS showing quota as zero which was unfair. The complainant made complaint to opposite party but opposite party could not explain it. The complainant served a legal notice on 4.5.2018 but till data opposite party neither replied to the said notice nor had rectified the fault of slow speed. The abovesaid act of the opposite party caused a great shock, insult, mental agony and harassment to the complainant as it is unfair to reduce speed of internet before committed quota and not provided full speed of 20 MBPS.
7. On the other hand Ld.counsel for the opposite party has repelled the aforesaid contention of the complainant on the ground that complainant has taken the plan of 20 MBPS speed with 30 GB internet at minimum speed of 20 MBPS and as per plan taken by the complainant, the opposite party has been providing the same facility to the complainant The complainant himself produced Ex.CW4 in which it is clearly mentioned that download MBPS speed is 19.23 on 21.5.2018, 19.04 on 13.5.2018, 18.85 on 13.5.2018, 18.07 on 11.5.2018. As per the guidelines of Telecom Regulatory Authority of India (TRAI), it is clearly established that “As per regulation on “Quality of service standard for Broadband Services” issued by TRAI on 6.5.2006 , a subscriber should get minimum 80% of the subscribed broadband connection speed from ISP Node to User”. In the present case, the speed of Internet provided by the opposite party is more than 80% meaning thereby the complainant has been using the internet facility very enjoyfully and in a very speedy manner.
8. From the appreciation of the facts and circumstances of the case, it was not denial the fact that the complainant has taken the plan of 20 MBPS speed with 30 GB internet at minimum speed of 20 MBPS. It was the case of the complainant that opposite party assured to provide 30 GB of internet @ minimum speed of 20 MBPS per calendar month and after exhaustion of quota of 30 GB, opposite party will keep providing data @ speed of 5 MBPS for unlimited quantity till end of that calendar month. But the opposite party failed to provide speed of 20 MBPS and in this complainant has produced Ex.CW4 in which it is clearly mentioned that download MBPS speed is 19.23 on 21.5.2018, 19.04 on 13.5.2018, 18.85 on 13.5.2018, 18.07 on 11.5.2018. The only plea of the opposite party is that as per the guidelines of Telecom Regulatory Authority of India (TRAI), it is clearly established that “As per regulation on “Quality of service standard for Broadband Services” issued by TRAI on 6.5.2006 , a subscriber should get minimum 80% of the subscribed broadband connection speed from ISP Node to User”. In the present case, the speed of Internet provided by the opposite party is more than 80% meaning thereby the complainant has been using the internet facility very enjoyfully and in a very speedy manner. But we are not agreed with this plea of the opposite party on two counts firstly as the complainant was not made aware regarding the said rules of TRAI at the time of providing the internet facility and as admittedly the complainant was assured to provide 30 GB quota on full speed of 20 MBPS and now the opposite party has taken the shelter of TRAI rules which the complainant was not made aware at any time. As such the complainant was not bound by those rules which were not provided or explained at the time of availing the internet facility from the opposite party. It has been held by the Hon'ble National Commission in case The Oriental Insurance Co.Ltd. Vs. Satpal Singh & Others 2014(2) CLT 305 that onus to prove that the terms and conditions were supplied to the insured is on the Insurance company. But in this case the opposite party could not produce any evidence to prove that the TRAI rules in question were ever supplied to the complainant. It has further been held by the Hon'ble Supreme Court of India in case M/s. Modern Insulators Ltd. Vs. Oriental Insurance Co.Ltd 2000(1) CPC 596 that where the terms and conditions of the policy were not supplied to the insured, the same are not binding on the insured.
9. The abovesaid law squarely covers the case of the complainant as the TRAI rules were neither supplied nor explained to the complainant, as such the complainant is not bound by those rules which were never explained to him. Moreover the complainant was provided 30 GB data at 20 MBPS speed and after 30 GB the complainant is entitled to 5MBPS for unlimited quantity . As the complainant has fully proved on record that the opposite party is not providing the internet speed to the extent of 20 MBPS as promised , as such opposite party has committed unfair trade practice. Not only this the opposite party showed the data consumed as 28.05 GB and available quota was shown as Zero and to prove this fact the complainant has placed on record data consumption Ex.CW3 which fully proves that the quota consumed shows as 28.05 GB and quota available was shown as Zero. As the complainant has taken the facility of 30GB data at 20 MBPS speed , then how the opposite party after consuming 28.05 GB data can show the available data as Zero. As such the opposite party has been looting the gullible public by showing them the different plans and when the customers availed the facility by coming in their words, they took shelter of TRAI rules which were not explained to the customers at the time of providing the internet facility. As such the complainant has fully proved his case and is entitled to compensation .
10. In view of the above discussion, we allow the complaint with costs and the opposite party is directed to provide the services as adopted by the complainant i.e. to provide 30 GB data at 20 MBPS speed . As the complainant has been harassed in the hands of the opposite party as he was not provided the services as hired by him , as such he is entitled to compensation to the tune of Rs. 3000/- while litigation expenses are assessed at Rs. 2000/-. Compliance of the order be made within 30 days from the date of receipt of copy of this order ; failing which complainant shall be entitled to get the order executed through the indulgence of this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
