IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MADIKERI

ORDER DELIVERED BY HON’BLE MEMBER

SRI.B.NIRMALA KUMAR

1. This complaint is filed by the complainant against the opposite party (herein after called as opposite party) under Section 35 of Consumer Protection Act,2019.  The complainant prays to direct the opposite party to refund the entire sum of Rs.1,75,000/- along with an  interest there on at 18% per annum from the date of that the payable was due as reasonable to the complainant.

2. The brief facts of the complaint is as under;

1. That the complainant is a registered trust which manages Coorg Public School, a reputed academic institution which has been catering to the academic needs of students at South Kodagu.
2. That the opposite party is a registered company under the Companies Act.  The opposite party with the assistance of an intermediary approached the authorities in the school run by the complainant to provide “ENGLISH FOREEVER COURSE”, to the students of the school.  The opposite party in their brochure of the said course have promised to enable students to acquire desired levels of proficiency in English.  The opposite have advertised that their product aims to bridge the gap between learning requirements and resources available with their smart technology.
3. That the opposite party with the reference of an intermediary had with false promises of performance induced the complainant o execute a standard format agreement dated 15/06/2018 promising to provide English forever content through a Smart class programme involving interactive modules to enhance the English Speaking and listening skills in the identified classroom/lab for an agreed consideration for a total duration of 36 months with 01/07/2018 as the intended date of commencement of the contractual obligations.  The executed copy of the draft service agreement, executed on behalf of the complainant in good faith on believing the promises of the opposite party dated 15/06/2018.
4. That, as per the agreed terms the first installment, amounting to Rs.1,75,000/- was promptly paid by the complainant pursuant to execution of the agreement on 15/06/2018 with an intent to make available the English language enhancing facilities for the benefit of the students in Coorg Public School who were not charged separately for availing the benefit.  This facility was availed at cost by the complainant to maintain high standards of the school’s students.  In this context it is relevant to reiterate that the school has been accorded the British Council International School Award.
5. However, after receipt of the advance amount, no effort was made by the complainant to commence reciprocal obligations of performance by the intended date, i.e. 1/7/2018.  That, the complainant, on the terms of the agreement has made an up-front payment of Rs.1,75,000/- including 18% G.S.T, for the services to the obtained from the opposite party.
6. After many months of delay and lot of frantic communications by the complainant, one representative of the opposite party visited the school and partially installed software on only two systems, one being the server and another a client, and reset of the systems in the language lab were left untouched.  Therefore, again there was no response from the opposite party regarding the installation of the content for the remaining systems.  Thereafter again after much persuasion to the opposite party, the relevant content was installed only to cater to half the number of students of each class size of students and not the entire number of systems.  That as per contractual obligations, it was demanded by the complainant to install the repository for agreed systems to cater to a full class strength of students averaging around 40 students as contemplated during contract formation, but thereafter contrary to intended contractual obligations, the same was refused by the opposite party belatedly communicating to the complainant’s representative that two of their students will have to share each system and that if more installations were to be made the opposite party had to be additionally paid for.  This was unacceptable to the representatives of the complainant and flatly refused to do so as this was not the contractual understanding.
7. That, after all the efforts taken by the complainant to establish communication with opposite party, no efforts were taken by the opposite party to rectify the lapses in the agreement.  The complainant also issued a letter to the opposite party on 11/09/2018, asking the opposite party to reply as to why the services offered to in the agreement has not yet been complied by the opposite party.  The opposite party had not provided any reply to the said letter.  However, after repeated persuasion by the complainant, the representative of the opposite party has responded on 12/10/2018, stating that he would be visiting on 16^th October to discuss the issue, and rectify it accordingly. 
8. The complainant, subsequently through their counsels have issued a legal notice dated 5/12/2019, to the opposite party, demanding them to fulfill the obligations according to the agreement, and the same was duly served on the opposite party at their then registered office.  The complainant got issued another legal notice pursuant to the legal notice dated 5/12/2019. 
9. The complainants submit that they have suffered great agony.  They have invested huge amounts with the fond hope that they can impart quality education to its students based on the unhonoured promises of the opposite party.  The complainants based on the assurances of the opposite party have invested the amount to acquire the services for the benefit of the students.  The actions and omissions of the opposite party however post receipt of consideration amount to breach of contract and deficiency in service to the consumer.  Hence the above complaint. 

3. On receipt of the complaint notice has been ordered to issue to opposite party.  Inspite of service of notice opposite party remained absent without sufficient reason and cause.  Hence opposite party called out as absent and placed exparte.

4. In the course of enquiry in to the complaint, the complainant has filed affidavit evidence on his behalf reproducing what he has stated in his complaint.  The complainant has produced documents along with complaint.  We have heard the arguments of the complainant side and we have gone through the oral and documentary evidence of the complainant scrupulously.

5. Based on the above materials the following points arise for our consideration.

1. Whether the complainant has proved that there is deficiency in service on the part of the opposite party, if so whether he is entitled for the relief sought for?

2. What order?

6. Our findings on the above points are as under;

• Point No.1:- In the Affirmative
• Point No.2:- As per the final order for the   following;

R E A S O N S

7. Point No.1:- As looking in to the averments of the complaint, the complainant is a registered trust which Manages Coorg Public School.  the opposite party is a registered company under the Companies Act.  The opposite party with the assistance of an intermediary approached the authorities in the school run by the complainant to provide “ENGLISH FOREEVER COURSE”, to the students of the school.  The opposite party in their brochure of the said course have promised to enable students to acquire desired levels of proficiency in English.  The opposite have advertised that their product aims to bridge the gap between learning requirements and resources available with their smart technology.  The opposite party the opposite party with the reference of an intermediary had with false promises of performance induced the complainant o execute a standard format agreement dated 15/06/2018 promising to provide English forever content through a Smartclass programme involving interactive modules to enhance the English Speaking and listening skills in the identified classroom/lab for an agreed consideration for a total duration of 36 months with 01/07/2018 as the intended date of commencement of the contractual obligations.  This is clearly shows on seeing the documents produced by the complainant marked as Exhibit P1 to P3.

8. It is the further case of complainant that as per the agreed terms the first installment, amounting to Rs.1,75,000/- was promptly paid by the complainant pursuant to execution of the agreement on 15/06/2018 with an intent to make available the English language enhancing facilities for the benefit of the students in Coorg Public School who were not charged separately for availing the benefit.  This facility was availed at cost by the complainant to maintain high standards of the school’s students.  In this context it is relevant to reiterate that the school has been accorded the British Council International School Award.   This is also clearly shows on documents produced by the complainant marked as Exhibit P4.  On perusal of Exhibit P4, it is clearly shows that the opposite party is received sum of Rs.1,75,000/- from the complainant on 15/06/2018.

9. That the complainant on the terms of the agreement has made payment of Rs.1,75,000/- for the service to be obtained from the opposite party.  After receipt of the amount the opposite party did not commence the service.  Therefore, the complainant has sent the many e-mails communications with opposite party for provide service.  When the opposite party not responded the complainant finally sent the legal notice to the opposite party for requesting to refund the amount along with interest.  But the opposite party has neither replied not made any attempts to repay the amount.  It is clearly shows on seeing the documents produced by the complainant marked as exhibit P5 to P9.  In this regard we come to the conclusion that the opposite party is negligent and there is deficiency in service on his part.
10. We have briefly stated the contents of the complaint filed by the complainant.  Though notice has been duly served on opposite party, he did not appear, hence placed Exparte.  Under such circumstances, non appearance and non filing of version, draw an adverse inference that, the opposite party has admitted the claim of the complainant in the light of the decision reported in “2018(1) CPR 314 (NC) in the case of M/s. Singla Builders and Promoters Ltd., vs. Amankumar Garg, wherein it is held that “non-filing of written version to complaint before the Forum, amounts to admission of the allegations leveled against them in consumer complaint”.  On careful scrutiny of the case of the complainant and on the background of oral and documentary evidence, it is vivid and clear that the complainant who comes to Commission seeking relief has proved with clear and tangible material evidence.  Accordingly we come to the conclusion that the opposite party directed to refund the amount of Rs.1,75,000/- along with interest at the rate of 12% per annum to the complainant.  Further opposite party is directed to pay compensation of Rs.10,000/- together with litigation cost of Rs.5,000/- to the complainant.   Accordingly, we answer the point No.1 in the affirmative.

11. Point No.2:- In the result, we proceed to pass the following;

O R D E R

The complaint filed by the complainant is allowed.

2. The opposite party is directed to refund the amount of Rs.1,75,000/- along with interest at 12% per annum to the complainant.
3. The opposite party is also directed to pay compensation of Rs.10,000/- towards deficiency in service and cost of litigation of Rs.5,000/- to the complainant.
4. This order is to be complied by the opposite party within 45 days from the date of this order, failing which complainant is at liberty to have a redressal as per law.
5. Furnish copy of the order to the complainant and opposite party at free of cost.

 (Dictated to the Stenographer, transcribed, corrected and pronounced in the open Commission on this 27^TH  DAY OF AUGUST, 2021)

    (C. RENUKAMBA)         ( PRAKASH.K )       (B. NIRMALA KUMAR)

           MEMBER                 PRESIDENT                   MEMBER