KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 649/2018

JUDGMENT DATED: 20.09.2023

(Against the Order in C.C. 182/2017 of CDRC, Malappuram)

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPELLANTS:

1. Sysol System Solutions Pvt. Ltd., Suit #401, 4^th Floor, Neospace, Kinfra Techno Industrial Park, Calicut University Road, Kakkanchery, Tenhipalam, Kerala-673 635.

2. Muhammed Kudukkil Manchingal, Managing Director, Sysol System Solutions Pvt. Ltd., Suit #401, 4^th Floor, Neospace, Kinfra Techno Industrial Park, Calicut University Road, Kakkanchery, Tenhipalam, Kerala-673 635.

3. Haseen Aslam, Director, Sysol System Solutions Pvt. Ltd., Suit #401, 4^th Floor, Neospace, Kinfra Techno Industrial Park, Calicut University Road, Kakkanchery, Tenhipalam, Kerala-673 635.

4. Paingini Parambil Assia, Director, Sysol System Solutions Pvt. Ltd., Suit #401, 4^th Floor, Neospace, Kinfra Techno Industrial Park, Calicut University Road, Kakkanchery, Tenhipalam, Kerala-673 635.

5. Jaseem Ishan, Director, Sysol System Solutions Pvt. Ltd., Suit #401, 4^th Floor, Neospace, Kinfra Techno Industrial Park, Calicut University Road, Kakkanchery, Tenhipalam, Kerala-673 635.

6. AIN Technologies, Kinfra Techno Industrial Park, Calicut University Road, Kakkanchery, Tenhipalam, Kerala-673 635.

(By Advs. C. Radhakrishnan Nair & B.A. Krishna Kumar)

                                                Vs.

RESPONDENT:

Dinesh Kumar K., S/o Balan, Thottathilparamba, Kuttokkatoor P.O., (via) Chemmanathoor, Kozhikode-673 008.

JUDGMENT

SRI. AJITH KUMAR D.: JUDICIAL MEMBER                        

This is an appeal filed u/s 15 of the Consumer Protection Act, 1986 against the order of the District Consumer Disputes Redressal Commission, Malappuram (will be referred to as District Commission for brevity ) dated 24.05.2017 whereby the complaint was allowed and the appellant was directed to pay Rs. 5 Lakhs as compensation and Rs. 15,000/- as costs.

2.  The complainant had filed the complaint alleging deficiency of service against the appellants with the following pleadings:-

The complainant was working as a marriage broker who proposed to modernize his marketing techniques for which he contacted the opposite parties to avail their service in developing a website for his business.  The opposite parties had assured that they will provide a safe and secure website with comfortable usage facility for searching and browsing with prompt after sales service.  They made the complainant believe that their service would be beneficial for him to improve his business.

3.  In 2014 the complainant had entered into an oral karar with the first and second opposite parties to develop a matrimonial website with adequate maintenance and IT solutions for running his business in an international standard.  An amount of Rs. 48,000/- was paid to the opposite parties as remuneration. 

4.  The website was developed and service made available to the complainant in 2014 itself.  But the complainant realized that the website was incomplete, so he was in constant contact with the opposite parties to rectify and repair the website so as to enable the complainant to have smooth functioning of his business.  The website was not functional and when checked, the complainant came to know that the website was not in par with other websites in the field.  Subsequently the complainant was constrained to contact the developers of other websites such as Manithali Mangalya Sahayi and other websites to enquire about the defects in his website and thereafter requested the opposite parties to do the remedial measures.

5.  In May 2014 a sum of Rs. 15,000/- was  paid to the opposite parties and accordingly they had provided C panel details, username, password and made the corrective measures but still the service was not helpful to the complainant.  He was not able to check the website.  So the complainant again contacted the opposite parties over phone and requested them to make the site functional. After receiving the communication the opposite parties had assured that they have rectified the defects and made the website as one which would compete with Malayogam and Manorama matrimony. On 10.02.2017 an additional amount of Rupees 20,000/ was also paid for registration and other fees.

6.  But the complainant was not in a position to check the website to ensure the facilities available in it.  The complainant believed the assurances made by the opposite parties and started advertisements and announcements of his website for getting the details and profiles of clients, but he could not receive any registration due to the defects in the website.  For starting the new modes of the business he had shifted his office to Calicut by spending a sum of Rs. 6 Lakhs.

7.  On 02.01.2016 the complainant came to know that his website was not in existence and his domain registration was removed.  The opposite parties had collected a sum of Rs. 3,000/- for the reinstatement of the website.  The website did not bear any common facilities which are to be included for the smooth conduct of the business.  Absence of quick-search facility, non-linking with facebook, Gmail, Twitter etc and non availability of success story in the home page were the deficiencies of the website.  The opposite parties failed to provide such facilities though requested for by the complainant to remedy the defects.  The basic features required to a matrimonial website were not incorporated.  The complainant would allege deficiency of service and unfair trade practice and he sought for compensation of Rs. 5 Lakhs along with Rs. 11,70,000/- being the amount spent by the complainant for the business.

8.  Opposite parties filed version with the following contentions:

Opposite party Nos. 1, 2, 4 & 5 had no direct connection with the transaction alleged in the complaint as there was no company named Sysol Solutions in 2014 and hence the Directors are not liable or responsible in respect of the transaction.

9.  The 3^rd opposite party was the employee of the 6^th opposite party till 2015.  In March 2014 the complainant had approached the 6^th opposite party for generating a website for matrimonial registration and mediation for a sum of Rs. 3,000/-.   Since such a product was not available and made the complainant believe that a website had to be generated.  A sum of Rs. 2 Lakhs was needed for generating the website and the complainant had no estimate for such a product.  Therefore 3^rd opposite party had proposed to develop a website with minimum features for a total sum of Rs. 18,000/- and accordingly the complainant advanced a sum of Rs. 5,000/- on 21.03.2014 and also agreed to pay Rs. 693/- and Rs. 2,270/- as costs for the domain address and hosting space for the first year which were to be renewed each year for holding the web address and the third opposite party had registered a website  and completed the project on 02.06.2014 and gave training to the employees of the complainant.  The username and password were also handed over to the complainant.  The opposite party had also suggested the complainant to enter into a maintenance contract and furnished the details through Gmail on 14.06.14, but the complainant did not enter into a contract for maintenance.  After elapsing 11 months the opposite party had sent the domain and hosting address to the complainant for which there was no response.  He never paid the renewal charges.  The opposite parties never received any complaints till June 2016 though the web support got expired in June 2015.  So the opposite party had no responsibility to support the complainant.  In 2016 3^rd opposite party had stopped working with the 6^th opposite party and joined with the other opposite parties and started a new entity.  On humanitarian grounds the third opposite party had revived the domain address and hosting was reinstated.  There were no complaints from the complainant.

10.  No oral evidence was let in by both sides other than the affidavits.  Exts. A1 to A7 & B1 to B6 were marked.  Ext C1 was also marked.  The District Commission had allowed the complaint in part by awarding a sum of Rs. Five Lakhs as compensation. 

11.  The appellants would raise the following grounds:

The District Commission has failed to appreciate the evidence on record that the complainant was poor with an economically challenged background who did not cause production of any evidence to prove his resources for the alleged expenses in starting the business.  The District Commission had failed to consider that the complainant or the commissioner never gave any oral evidence and hence not provided with an opportunity to the appellant to cross examine them.  The District Commission had failed to appreciate the fact that the commissioner had filed the report prior to the appearance of the opposite parties.

12.  Heard the counsel for the appellants and that of the respondent.  The records from the District Commission were called for and perused.

13.  The case of the complainant that a website was developed by the opposite parties is admitted by the opposite parties.  Ext. A1 is the email dated 26.03.2014 by the third opposite party to the complainant by forwarding the home page image designed for the complainant in the name as “Fortunemate Matrimony” seeking the feed backs.  On 26.03.2014 the third opposite party had sent Ext. A2 Email by expressing gratitude to the complainant for registering with the Website.  In Ext. A2 the login details of the website were also forwarded.  The details of the facilities provided in the website were also seen incorporated in A2.  Ext. A3 is another Email dated 06.05.2014 sent by the third opposite party seeking the C panel details of the old website of the complainant “Manithali Mangalya Sahayi” for the purpose of uploading the same to the website of the complainant.  Ext. A4 is a document evidencing the payment of Rs. 3,000/- on 02.01.2016 for the fees for the renewal of Website domain registration and web hosting.  Ext. A5 is the receipt issued by the opposite party evidencing the payment of Rs. 1,500/- by the complainant on 10.02.2017.  As per Ext. A6 the complainant had requested the opposite parties to forward the username and password on 01.05.2017.  Ext. A7 is another copy of A1.

14.  As per the order in IA 374/2017, on 25.05.2017 the District Commission had deputed an expert Website Developer to check the website and to file a report.  On 30.05.2017 the expert, after checking the website filed a report which is marked as Ext. C1.  Ext. C1 was received in evidence as per the proceedings dated 06.10.2017.  No objection is seen raised by the opposite parties in receiving Ext. C1 in evidence.  The learned counsel for the appellants submitted that his party had no information about Ext. C1.  This submission does not appear to be correct as the said document was received in evidence on 06.10.2017 when the affidavit and the Exhibits were marked on the side of the complainant.  The defects of the website were elaborately reported by the expert.

15.  The expert, after checking the website had reported that the website was not useful or dependable.  A proper communication between the users was not possible.  So the expert evidence would establish that the website was defective and not useful for the complainant.

16.  The third opposite party had sworn affidavit.  Ext. B1 is the invoice dated 01.05.2014 evidencing the total payment made by the complainant towards the website as Rs. 20,963/-.  Ext. B3 is the ledger account of the Complainant which corresponds with Ext. B1.  Ext. B2 is correspondence between the opposite parties with their lawyer for preparation of development agreement for the complainant.  As per Ext. B4, on 08.02.2017 the opposite party had forwarded the username and password to the complainant.  Ext. B5 is the letter dated 14.02.2017 issued by the complainant by narrating the various defects in respect of the website.  In the letter marked on the side of the opposite parties the defects were reported.  There is ample evidence on record that the website developed by the opposite party was inherently defective.

17.  The learned counsel for the appellant would submit that the website was generated and made available for service in 2014.  There were no complaints from the side of the complainant till 2016 which would show that the complainant was using the website during the said period.  There is evidence adduced through expert evidence as Ext. C1 that the website is defective.  Ext. B5 would also prove that the complainant had specific case about the defect in the website developed and hence he is entitled to get compensation.  But the complainant had failed to tender any evidence regarding the loss caused to him due to the defect of the website.  Though he would claim a sum of Rs. 11,70,000/- as the expenses incurred in respect of the business run by him no tangible evidence were brought before the District Commission to prove his contention and hence the District Commission was right in declining the above claim.  The complainant would claim that he had paid Rs. 48,000/- for the development of the website, but no evidence is forthcoming.  The explanation for the absence of the receipt in this regard does not appear to be correct on the reason that the complainant had caused production of receipts regarding the subsequent payments.  The opposite party had caused production of Exts. B1 & B3 to prove that a sum of Rs. 20,963/- was received as charges for developing the website.  The case of the opposite party regarding the charges collected for developing the website appears to be more probable and hence it is accepted.  A total exaggeration of the claim is seen raised in the complaint.  Apart from this fact the attitude of the complainant in not raising any complaints about the alleged malfunctioning of the website after its generation till 2016 creates suspicion in the mind of the Commission as to whether the website was put to use during this period.  The District Commission, without considering these aspects had awarded Rs. 5 Lakhs as compensation and ₹ 15,000/- as costs.  The District Commission did not apply its mind in fixing the compensation and costs and it requires interference.  While fixing the compensation it was the duty of the complainant to adduce evidence to prove the actual loss caused to him.  He did not furnish any details regarding the income generated from his business and the loss caused due to the defective website.  Under such a situation only a reasonable amount alone could be awarded as compensation.

18.  Having due regard to the defects in the website developed by the opposite party it is found that the complainant is only entitled to get a reasonable amount and hence a sum of Rs. 50,000/- is awarded as compensation.  So the order of the District Commission is modified and the compensation is fixed as Rs. 50,000/-.

In the result, the appeal is allowed in part.  The order of the District commission is modified and the appellants are directed to pay the respondent/complainant Rs. 50,000/- as compensation within 30 days from the date of receipt of the copy of this judgment failing which the appellants shall pay interest @ 8% per annum along with costs of Rs. 3,000/-.

The respondent/complainant is allowed to receive the statutory deposit of Rs. 25,000/- on proper acknowledgement.  

                                       AJITH KUMAR  D.: JUDICIAL MEMBER

                                                                                                          RADHAKRISHNAN K.R.  : MEMBER

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