Tamil Nadu

South Chennai

CC/169/2006

Trivitron Medical System Pvt Ltd., - Complainant(s)

Versus

E Solution Pvt. Ltd., - Opp.Party(s)

S.R.Rajagopal

01 Sep 2017

ORDER

                                                                        Date of Filing :  02.02.2006

                                                                        Date of Order :  01.09.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO.169/2006

FRIDAY THIS 1^ST DAY OF SEPTEMBER 2017

 

M/s. Trivitron Medical Systems Pvt. Ltd.,

Rep. by its Manager,

Mrs. R. Prema,

No.15, IV Street,

Abhiramapuram,

Chennai 600 018.                                         .. Complainant

                                       ..Vs..

 

E. Solutions Pvt. Ltd.,

Rep. by its Director,

No.96, Dr. Radhakrishnan Salai,

Chennai 600 004.                                          .. Opposite party.

 

 

Counsel for Complainant          :    M/s. S.R. Rajagopal & others   

Counsel for opposite party       :    M/s.T.K. Bhaskar & others.     

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to refund a sum of Rs.1,75,000/-  as advance and also to pay a sum of Rs.5,00,000/- towards damages for deficiency in service.

 

 

 1. The averments of the complaint in brief are as follows:

         The complainant submit that he placed purchase order with the opposite party for supply of 3e software for its installation, provisioning of customization and additional reports implementation and training.     Accordingly  the complainant paid  a sum of Rs.1,75,000/- and 3e soft ware installation was carried out by the opposite party.   The complainant further contended that during the period of installation several defects arose in the soft ware installed by the opposite party was refused to rectify the defects.    The opposite party assured that all the required modules shall be installed and customized to the complainant’s requirements.  The complainant handed over the templates  only on 22.4.2005.    As per purchase order the opposite party should complete the customization process on or before 31.3.2005.    The accounts, purchase, sales and Inventory modules have been taken for entering the data by the complainant’s actual user staffs using the 3e software with the guidance and directions given by the opposite party’s visiting staff.  Even then the complainant ‘s staff were unable to enter the data due to  non acceptance of data by the software and several other errors which was duly informed to the opposite party and requested to rectify the defects.  Therefore the complainant sent letter dated 24.8.2005 also addressed to the opposite party; since the opposite party failed to rectify the defects.   The complainant was compelled to cancel the purchase order and claimed for refund.  Since the opposite party has not refunded the advance money towards 3e soft ware.     As such the act of the opposite parties clearly amounts to gross deficiency in service and thereby caused harassment, mental agony  and hardship to the complainant.  Hence the complaint is filed.

2. The brief averments in Written Version of  the opposite party    are as follows:

        The opposite party denies each and every allegation except those that are specifically admitted herein.  The opposite party submit that  the complainant is not a consumer as defined under the act as services of the opposite party were availed for commercial purpose.   The goods purchase and services availed by the complainant only for commercial purpose.   The goods purchased and services availed for commercial purposes do not fall within the ambit of ‘consumer’ as defined under the Act.    The explanation to the said provision excludes purchase and use of goods or availing of service exclusively for the purpose of earning out one’s livelihood by self –employment from commercial purpose.   The opposite party  also submit that the complainant having purchased 3e software exclusively for business purpose is not a consumer and cannot validly maintain a compliant before this forum.   Further the opposite party state that there is defect in the supply of soft ware which is duly installed with the complainant.   The final proposal regarding pricing and other sent by the opposite party to the complainant on 31.3.2005.   But alone the complainant issued a purchase order dated 10.4.2005 for supply of 3e soft ware.  The obligation under the purchase order to customize was only in respect of CSM module and not that all required modules would be installed and customized according to complainant’s requirements.    The templates were handed over to the opposite party on 11.5.2005 after repeated demands.   The delay in implementation was solely on account of the complainant and its failure to deliver the template and repeated demands of additional requirements out side the scope of the purchase order.   The complainant Managing Director and CSM department gave the requirements in writing from the complainant critical and Cardiac care, Renal Care and TDL divisions.    No specific requirements were given for the accounts sales, Inventory and assets modules.   Hence there is no deficiency of service on the part of the opposite party and therefore this complaint is liable to be dismissed.

3.      In order to prove the averments of the complaint, the complainant had filed proof affidavit as his evidence and documents Ex.A1 to Ex.A11 marked.  Proof affidavit of opposite party  filed and Ex.B1 to Ex.B3 marked on the side of the opposite party.  

4.   The points for the consideration is: 

1. Whether the complainant is entitled to a sum of Rs.1,75,000/-paid  towards advance as prayed for ?

2. Whether the complainant is entitled to a sum of Rs.5,00,000/- towards, damages  for deficiency of service and mental agony with cost as prayed for ?

 

 

 

5. POINTS 1 & 2 :

        Both  parties and counsel  has not turned up to advance any oral argument for long time after filing written arguments.   The complainant pleaded  and contended that he placed purchase order with the opposite party for supply of 3e software for its installation, provisioning of customization and additional reports implementation and training.   But on a careful perusal of Ex.A2 it is seen that it is not a purchase order.  It may a quotation given by the opposite party.   The complainant further contended that accordingly  complainant paid  a sum of Rs.1,75,000/- and 3e soft ware installation was carried out by the opposite party.  During the period of installation several defects arose in the soft ware installed by the opposite party was refused to rectify the defects which amounts to unfair trade practice and deficiency of service.   The complainant further contended that the defects identified by the opposite party is that the non functioning of the soft ware was due to the non furnishing of templates is against true fact.  Immediately after the payment of advance amount of Rs.1,75,000/- the opposite party procured and installed with the server software on 22.5.2005.  The opposite party assured that all the required modules shall be installed and customized to the complainant’s requirements as per Ex.A2.   The complainant handed over the templates  only on 22.4.2005.  But on a careful perusal of Ex.A2 it is seen that the  templates was handed over only on 11.5.2005.  As per purchase order the opposite party should complete the customization process on or before 31.3.2005.    The accounts, purchase, sales and Inventory modules have been taken for entering the data by the complainant’s actual user staffs using the 3e software with the guidance and directions given by the opposite party’s visiting staff.  Even then the complainant ‘s staff were unable to enter the data due to  non acceptance of data by the software and several other errors which was duly informed to the opposite party and requested to rectify the defects.  A letter dated 24.8.2005 also addressed to the opposite party for due rectification of defects but since the opposite party failed to rectify the defects.   Hence the complainant was compelled to cancel the purchase order by Ex.A9 and claimed for refund.  Since the opposite party has not refunded the advance money towards 3e soft ware.  The complainant file the case.

6.     The complainant further contended that as per decision reported in 2001 (3) CPR 169

M/s. Institutional Technical Suppliers

..Vs..

Josey Joseph

Such refund of the advance amount is entitled in this case it is very clear that the complainant is a company.  The opposite party is also company. The complainant is associated with international brand  in the industry proves that the complainant is a company doing duly commercial business.     Further it is also seen from the purchase order and other documents the 3e software installation is not for livelihood but for business purpose as per Sec. 2 (1)  (d) of the Consumer Protection Act 1986.  This forum have no jurisdiction.  

7.     The contention of the opposite party is that the complainant is not a consumer as defined under the act as services of the opposite party were availed for commercial purpose.   The goods purchase and services availed by the complainant only for commercial purpose.   The goods purchased and services availed for commercial purposes do not fall within the ambit of ‘consumer’ as defined under the Act.   The explanation to the said provision excludes purchase and use of goods or availing of service exclusively for the purpose of earning out one’s livelihood by self –employment from commercial purpose.   In this case the complainant having purchased 3e software exclusively for business purpose is not a consumer and cannot validly maintain a compliant before this forum.  

8.     The opposite party cited a decision reported in 1995 84  comp cas121(SC) 

Laxmi Engineering Works

..Vs..

PSG Industrial Institute

Further the opposite party contended that there is defect in the supply of soft ware which is duly installed with the complainant.   Ex.B1 is final proposal regarding pricing and other sent by the opposite party to the complainant on 31.3.2005.   But the complainant issued a purchase order dated 10.4.2005 for supply of 3e soft ware.  The obligation under the purchase order to customize was only in respect of CSM module and not that all required modules would be installed and customized according to complainants requirements.    The templates were handed over to the opposite party on 11.5.2005 after repeated demands.   The delay in implementation was solely on account of the complainant and its failure to deliver the template and repeated demands of additional requirements outside the scope of the purchase order.   The complainant Managing Director and CSM department gave the requirements in writing from the complainant critical and Cardiac care, Renal Care and TDL divisions.    No specific requirements were given for the accounts sales, Inventory and assets modules. The cancellation of the purchase order by the complainant is illegal and caused great hardship and is against the scope of Consumer Protection Act.    Considering the facts and circumstances of the case this forum is of the considered view that  the complainant is not entitled for any relief as prayed for in the complaint and the points 1 & 2 are answered accordingly. 

             In the result this complaint is dismissed.   No cost.

  Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  1^st  day  of  September  2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants” side documents:

Ex.A1- 31.3.2002  - Copy of Final proposal for price.

Ex.A2- 10.4.2005  - Copy of purchase order for supply of 3E software.

Ex.A3-         -       - Copy of email communication.

Ex.A4-  18.5.2005 - copy of purchase order for supply of HP Compaq

Ex.A5-  20.5.2005 - Copy of invoice cum delivery challan raised on complainant.

Ex.A6- 29.6.2005  - Copy of invoice cum delivery challan.

Ex.A7- 4.7.2005    - Copy of invoice cum delivery challan.

Ex.A8- 21.7.2005  - Copy of invoice cum delivery challan.

Ex.A9- 8.8.2005    - Copy of invoice cum delivery challan.

Ex.A10- 26.8.2005 – Copy of letter from opposite party to complainant.

Ex.A11- 5.9.2005  - Copy of Minutes of meeting with opposite party.

Opposite party’s side document: -

Ex.B1-  31.3.2005 - Copy of Final Proposal.

Ex.B2- 3.11.2005  - Copy of reply notice.

Ex.B3- 30.8.2005  - Copy of detailed reply letter sent by the opposite parties

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.