BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                            Dated this the 28^th February 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

    SMT. LAVANYA M. RAI                 : HON’BLE MEMBER

ORDERS IN

C.C.No.54/2015

(Admitted on 30.01.2015)

Mr. Hazarath Sayyed Madani,

Charitable Trust Ullal,

Mangalore Taluk, D.K. District,

Represented by its president Sri U.S Hamza.

                                                          ….. COMPLAINANT

(Advocate for the Complainant: Sri MCK)

VERSUS

EDU SMART SERVICE PVT,

802 Padma Towers 15,

Rajendra Palace,

New Delhi.

                                                ….........OPPOSITE PARTY

(Advocate for the Opposite Party: Sri GP)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI VISHWESHWARA BHAT D:

I.       The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite party alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as under:

     In April May 2012 opposite party approached complainant institution for providing smart class education program as they are better equipped to execute the work and provided demo of new concept convince the complainant that it would already provide smart class to several educational institutions.  The complainant permitted opposite party to install projectors in 18 classes convinced by representations of opposite party.   On the representation of opposite party complainant promised to provide smart class education in May 2011 it also reminded opposite party to complete installation work though opposite party installed the projectors in 18 class rooms in August 2011.   The installed equipments have been improperly functioning though opposite party provided the staff initially for running the smart class and assists the teachers in providing education in new technology offered the same failed entirety due to defects in the machineries they were unable to utilize the machinery.  Opposite party left without explanation.  Opposite party collected Rs.30,000/ from complainant but failed to provide any service.   Instead of providing service the opposite party has forwarded demand from complainant to invoice for Rs.1,80,000/ though alleging deficiency in service seeks refund of the amount paid and damages claimed in the complaint.

II.    Opposite party in their version contend the complainant filed with intention of harassing and to extract money from them.  The allegation that the system was inoperative and did not function properly and smart class is totally dysfunctional is false.  The allegation that opposite party have caused deficiency in service and caused loss to complainant is false.  The complainant is due in a sum of Rs.1,80,000 to opposite party and an intention demand of payment to avoid the payment the complaint is filed.  As per clause of tripartite agreement the complainant failed to co-operate with opponent by not showing the coordination and conducting the acts which they had to do as per the clauses mentioned.   If any dispute arises between the parties it has to be resolved before an arbitrator.   Hence seek dismissal.

2.     In support of the above complainant Mr. U.S. Hamza filed affidavit evidence as CW1 and not replied to the interrogatories and produced documents got marked at Ex.C1 to C5 as detailed in the annexure here below.   On behalf of the opposite parties Mr. Pavan (RW1) Area Manager and authorized representative of the opposite parties, also filed affidavit evidence.

III.    In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

      The learned counsel for complainant filed notes of argument.  Opposite party not filed notes of argument.  We have considered entire case file on record including evidence tendered by the parties and notes of argument of the parties.  Our findings on the points are as under are as follows:

               Point No.  (i): Affirmative

              Point No.  (ii): Negative

              Point No. (iii): As per the final order.

REASONS

IV.   POINTS No. (i):   The service provider opposite party in installing projectors in complainants 18 class rooms for a consideration of payment to opposite party is not in dispute.  The claim of complainant that these smart class instruments are not functioning and they are unable to utilize these products installed by opposite party leading to deficiency in service was disputed by opposite party.   Hence there is live dispute between the parties as contemplated under section 2 (1) (e) of C P Act.  Hence we answer point No.1 in the affirmative.

POINTS No. (ii):  In this case on behalf of complainant one Mr.U.S Hamza filed affidavit evidence.  But no interrogatories was served on behalf of opposite parties on complainant.  Even though on behalf of opposite party one Pavan the authorized representative of opposite party filed affidavit evidence and served with interrogatories no reply was filed by him to this.   Hence the effect is that there is no evidence by opposite party on record.

2.  In this case on behalf of opposite party the certified copy of arbitration award dated 14.4.2016 passed by one Mr. J.N. Yadav a retired District Judge, sole arbitrator New Delhi in award ARB/JN/64/14 is produced by opposite party.   As seen from this document the present opposite party filed arbitration proceeding against one the present complainant.   As seen from this CC of the award it was passed on producing initiated by the present opposite party.   As complainant too M/s Edu smart services Pvt Ltd against Hazrath Em education school, St Joachims Church (near) Ullal, DK, Karnataka  575020 there is slight change in the address of respondent in the arbitration proceedings and in the present complaint through the case file document No.5 invoice copy issued by opposite party in the list of document produced by complainant along with the complaint shows the name of complainant described as respondent in the Certified Copy of the Arbitrator’s Award dated 14.4.2016.  However on going through the award the learned arbitrator and the present complainant and the affidavit of complainant we have no doubt that the complainant in the present case is the respondent in the proceedings before the arbitrator.

3.     Another interesting aspect is in the complaint para 3 complainant claims opposite party contacted complainant in April May 2012 for installing the Smart education system equipped for the better purpose.  In this mention of 2012, the last digit 2 of 12 is corrected from ‘1’ to 2 in Bal pen.  But at para 4 of the complaint opposite party was required to equip the smart class education in May 2011 itself.  This is inconsistent with the plea raised at para 3 of the complaint. 

4.     That apart in view of the award passed by the sole arbitrator on 14.4.2016 as referred earlier against the present complainant in respect of the same dispute we are of the view that from there is already a proceeding initiated and completed against the complaint of the present complainant is not maintainable.   In fact the learned counsel for opposite party on this count produced and referred to a copy of order passed by National Consumer Disputes Redressal Commission in Revision Petition No. 1936 of 2015 in M/s Magma Fin Corp Ltd, vs. Praveen Benson and another respondent on 3^rd November 2015.   In this case it was held by the National Commission finding on record by an order proceeding before the Forum is not maintainable.  Hence we are of the view that the present complaint in view of the finding the arbitrator as referred earlier is not maintainable.   Hence we answer point No.2 in the negative.

POINTS No. (iii): Wherefore the following order

ORDER

                         The complaint is dismissed. 

      Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

     (Page No.1 to 7 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 28^th  February 2017)

              MEMBER                                                PRESIDENT

      (LAVANYA M. RAI)                           (VISHWESHWARA BHAT D)

  D.K. District Consumer Forum                  D.K. District Consumer Forum

            Mangalore.                                                Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. U.S. Hamza

Documents marked on behalf of the Complainant:

Ex.C1: 10.12.2013: Office copy of Legal Notice with postal

Ex.C1 (a)                receipt and acknowledgment issued to

Ex.C1 (b)                the EDU Smart Services Pvt, New Delhi by the complainant

Ex.C2: 04.07.2014: Office copy of legal notice issued to the EDU SMART SERVICES PVT, New Delhi by the complainant

Ex.C3: 04.09.2014: Notice to the Post Master from the Advocate for the complainant

Ex.C4: 07.10.2014: Complainant Settled Reply by the Supdt. of  Post Office, Mangalore

Ex.C5: 01.02.2014: Invoice of Edu Smart Services (Xerox)

Witnesses examined on behalf of the Opposite Party:

RW1  Mr. Pavan, Area Manager and authorized representative of the opposite parties

Documents marked on behalf of the Opposite Party:

Nil 

Dated: 28.02.2017                                    PRESIDENT