DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 31st day of May, 2023
Present : Sri.Vinay Menon V., President
: Smt.Vidya A., Member
: Sri.Krishnankutty N.K., Member Date of filing: 09/12/2021
CC/225/2021
Dr. Thulika Rohan
W/o Rohan
M/s Dermatome Skin and Lasers Clinic
r/a 31/1370 Hamsam, Mission Compound Road
City (P.O), Palakkad – 678 014 - Complainant
(By Adv. Ashwin K Anand)
V/s
1. Celswa Digitals Pvt. Ltd.
Rep. by its Director
4th Floor, Chemmanam Square
P.P.Road, Perumbavoor
Ernakulam – 683 542
2. Mr. Sandeep Nair
Director, Celswa Digitals Pvt. Ltd.
4th Floor, Chemmanam Square
P.P.Road, Perumbavoor
Ernakulam – 683 542 - Opposite parties
(Opposite parties by Adv. M/s K.S.Arundas,
Abid Millath & Vince.M.J)
O R D E R
By Smt. Vidya.A, Member
1. Pleadings of the complainant in brief
The complainant is a self employed skin specialist doctor who earns her livelihood through consultation in her clinic. The opposite party is a software developer and they proposed to develop a software for the management of the clinic. The 2nd opposite party made her believe that he is having necessary expertise and workmanship in developing such softwares and accordingly issued a proposal on 21/08/2019, proposing to develop modules in Java for admin, doctors, front desk and pharmacy. They quoted a total consideration of Rs. 2,95,000/- The proposal included ‘Android Application’ for doctors, which was later deleted as it was not acceptable to the complainant.
2. The complainant paid a total consideration of Rs. 2,99,611/- on different occasions as per the demands of the opposite party. An amount of Rs.1,65,200/- was paid on 30/09/2019, Rs. 50,000/- on 26/02/2020, Rs.40,000/- on 16/01/2021 and Rs. 44,411/- on 17/03/2021. The complainant paid these amounts on the belief that she would be the sole owner of the software and the said software including all versions in either source code or object code form will be delivered to her.
3. The opposite party did not enter into a non-disclosure agreement with the complainant before starting the work even after her repeated demands and the software was not delivered in accordance with the industry standards. After receiving the entire amount, he has not developed the software for the item ‘pharmacy’. The complainant forwarded an agreement to the opposite party so as to protect her intellectual properties with respect to the said software; but the opposite party refused to sign it and forwarded a format of a standard form non-disclosure agreement, which was not at all relevant to the current situation.
4. The opposite party had made inordinate delay in completing the work and failed to complete the work to the satisfaction of the complainant. The opposite party did not have the necessary expertise or workmanship in developing the software as assured and specified in the proposal. Due to the deficiency in service on their part, the complainant had suffered financial loss and mental agony.
5. The complainant is entitled for the delivery of the software along with all necessary code. The complainant issued a legal notice to the opposite parties through her counsel on 26/07/2021; but the opposite parties did not reply to that or act in accordance with the request made by the complainant.
6. So the complainant approached the Commission to get an order
- Directing the opposite party to repay the entire amount of Rs.2,99,611/- received by him for the development of the software.
- To direct the opposite parties to pay Rs. 5 lakhs as compensation for their deficiency in service and such other incidental reliefs which the Commission deem fit and proper.
7. Complaint was admitted and notice issued to the opposite party. The opposite parties appeared and vakalath was filed on their behalf. But they filed their version beyond the statutory period and hence rejected. The opposite parties filed Review Petition before the Hon’ble State Commission and Review Petition was dismissed relying on the decision of Hon’ble Supreme Court that the time limit fixed for filing version cannot be extended by the District Commission or State Commission.
8. The complainant filed proof affidavit and Exts. A1 to A13 marked from her side. Evidence closed and heard.
Ext. A1 is the copy of Software Development Proposal issued by the opposite parties to the complainant and Ext. A2 is the copy of “Hospital Management Software – cost details” issued by the opposite parties to the complainant. In this total amount is mentioned as Rs. 3,30,400/- and stated that 50% of the total project cost has to be paid in advance. Android Application for Doctors costing Rs. 50,400/- in the proposal was later deleted as it was not acceptable to the complainant.
9. Ext. A4 to A13 are the Account statements of the complainant for various periods showing the payments made to the opposite party and chalan receipts issued by State Bank of India to the complainant regarding the transfer of amounts. Ext. A6 is the receipt issued by State Bank of India dated 30/09/2019 for the payment of Rs. 1,65,200/- to the account of Celswa Digitals Pvt. Ltd. (opposite party). Ext. A7 is the receipt issued on 26/02/2020 showing payment of Rs. 50,000/- Ext. A8 is the receipt dated 16/01/2021 showing the payment of Rs. 40,000/- Ext. A9 is the receipt dated 17/03/2021 showing the payment of Rs. 44,411/- From these it is clear that complainant had made a payment of Rs. 2,99,611/- to the account of the opposite parties as per their agreement.
10. Complainant’s grievance is that even after receiving the payment, the opposite parties did not deliver the software in time and in accordance with the industry standards. The 2nd opposite party has not developed the software for the item ‘Pharmacy’. Further, he did not enter into a non-disclosure agreement even after the complainants repeated demands. Ext. A1 software development proposal contains the development of ‘Pharmacy Module’ which according to the complainant was not delivered by the opposite party. Further the opposite party failed to develop the software within the stipulated time.
11. Since the opposite party failed to file version within the statutory period, they were proceeded as ex-parte.
12. So from the evidence adduced, the complainant has made out a prime-facie case. Hence, there is deficiency in service on the part of the opposite party in not developing all the modules and in not delivering the software within the stipulated time.
13. Complainant’s claim that the software developed is not as per industry standards is without any supporting evidence. Other than mere statements, the complainant has failed to prove the extent of dichotomy between ordered product and completed product and to the extent to which the finished product is useless. Hence the complainant is not entitled to get full refund of the amount.
From Ext. A2 cost details, the cost of the item Pharmacy module which the opposite parties failed to complete is shown as Rs. 30,000/- and the complainant is entitled to get the refund of that amount with interest.
14. The conduct of the opposite parties in not delivering the software within the stipulated time had caused mental agony to the complainant. Further the failure to deliver the ‘pharmacy module’ even after payment caused financial loss. This made her file this complaint causing additional financial burden. The opposite parties are bound to compensate the complainant for that.
In the result, the complaint is partly allowed.
- We direct the opposite parties to refund Rs. 30,000/- with interest at 10% from 09/12/2021 till realisation.
- We further direct the opposite parties to pay Rs. 30,000/- as compensation for the deficiency in service and Rs. 20,000/- for the mental agony and financial loss and Rs. 10,000/- as cost of the litigation.
The opposite party shall comply with the directions in this order within 45 days of receipt of this order, failing which opposite party shall pay to the complainant Rs. 250/- per month or part thereof until the date of payment in full and final settlement of this order.
Pronounced in open court on this the 31st day of May, 2023.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Documents marked from the side of the complainant:
Ext. A1 : Copy of Software Development Proposal.
Ext. A2 : Copy of “Hospital Management Software – cost details”.
Ext. A3 : Legal Notice dated 26/07/2021.
Ext. A4 : Account statement of the complainant from 28/09/2019 to
30/09/2019.
Ext. A5 : Account statement of the complainant from 25/02/2020 to
29/02/2020.
Ext. A6 : Receipt issued by State Bank of India dated 30/09/2019 for the
payment of Rs. 1,65,200/-
Ext. A7 : Receipt issued on 26/02/2020 showing payment of Rs. 50,000/-
Ext. A8 : Receipt dated 16/01/2021 showing the payment of Rs. 40,000/-
Ext. A9 : Receipt dated 17/03/2021 showing the payment of Rs. 44,411/-
Ext. A10 : Account statement of the complainant from 25/09/2019 to
04/10/2019.
Ext. A11 : Account statement of the complainant from 14/02/2020 to
26/02/2020.
Ext. A12 : Account statement of the complainant from 12/01/2021 to
18/01/2021.
Ext. A13 : Account statement of the complainant from 10/03/2021 to
17/03/2021.
Documents marked from the side of opposite parties: Nil
Witness examined from the complainant’s side: Nil
Witness examined from the opposite parties side: Nil
Cost- Rs. 10,000/-
NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
