Punjab

Ludhiana

CC/15/650

Dr.Vyom Bhargava - Complainant(s)

Versus

Konnection India Dotcom. - Opp.Party(s)

Govind Puri, Adv.

22 Sep 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 650 of 03.11.2015

Date of Decision            :   22.09.2016

 

Dr.Vyom Bhargava s/o B.N.Bhargava Proprietor M/s HMC Hospital, Basant Avenue, Near BCM School, Dugri, Ludhiana.

….. Complainant

                                                         Versus

1.Konnection India Dotcom Private Limited having its head office at Plot No.345, Udyog Vihar, Phase-II, Gurgaon-122016, through its Chairman/Managing Director.

2.Konnection India Dotcom Private Limited having its branch office at SCO-15, SAN Plaza Office No.308, Feroze Gandhi Market, Ludhiana through its branch Manager Sh.Gaurav Jaggi.

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :         Sh.Govind Puri, Advocate     

For OPs                         :         Sh.Nipun Gupta, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant, a doctor by profession claims to be running hospital   in the name of HMC Hospital in Basant Avenue, Ludhiana. Complainant claims to be the sole proprietor of his firm. The complainant was approached by the branch office of OPs at Ludhiana through Branch Manager Sh.Gaurav Jaggi for the development of web sites/web portal. That was required for creating awareness about the hospital of the complainant, so as to increase approach of the public at large to the said hospital through internet search even. The said web site/ web portal was to be shown on different web sites like Google, You Tube, Facebook etc. As per the terms of the contract dated 16.10.2013 entered between the parties. OPs were to design the web site/web portal regarding services and expertise available at the hospital after seeking inputs from the complainant. After designing of the web site/web portal, approval was to be got from the complainant and thereafter, the same was to be uploaded on the websites/web portals on web as well as on You Tube & Facebook. Approach to this You Tube and Facebook on internet search through Google engine was to be provided by the OPs. Believing the representation  of OPs, the complainant hired the services by paying Rs.85,000/- through cheque No.431097 dated 16.10.2013. That cheque was duly encashed by OPs. Representative of OPs was to personally meet the complainant and collect the necessary information regarding work profile. No one from OPs ever visited the complainant for collecting the requisite information and neither OPs prepared and nor designed any web site/web portal till date. Since from January 2014, the complainant has been in regular correspondence with the OPs through emails. Despite sending of several reminders, OPs have neither designed a proper advertisement portal and nor refunded Rs.85,000/-. Lastly, OP2 through its Branch Manager Sh.Gaurav Jaggi fixed the meeting for 18.02.2015 and one Mr.Sushant  was supposed to visit the hospital of the complainant for collecting and finalizing the design, but despite that none visited the complainant on 18.2.2015 and thereafter. Complainant sent email on 18.2.2015 to Op2 for calling him to start the advertisement campagin for the complainant within a week or in the alternative to cancel the contract by returning the amount of Rs.85,000/-. Inspite of writing of the said email, Ops did nothing. Ops despite lapse and delay on its part, revised the contractual period from 1.10.2014 to 30.09.2015 vide email dated 25.9.2014 written by Sh.Gaurav Jaggi, Branch Manager of Ops. After waiting for considerable period, legal notice dated 7.7.2015 was sent for calling upon the Ops to perform their part by designing and uploading the advertisement on Google. 10 key words with broad matching were to be suggested by Ops, but nothing of such sort was done and that is why, by pleading deficiency in      service, refund of Rs.85,000/- with interest @18% p.a. claimed. Compensation for mental harassment of Rs.50,000/- and litigation expenses of Rs.22,000/- even claimed.

2.                In written statement filed by OPs, it is pleaded interalia as if the present complaint has been filed for abusing the process of law because the complainant is not a consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986; complainant estopped from filing the complaint by his own act and conduct; complainant has no cause of action to file the complaint and even he has no locus standi. The transaction in question alleged to be a commercial transaction, due to which, this Forum has no jurisdiction. Rather, the contract was for expansion of business and as such, transaction in question does not fall within the domain of consumer complaint. Even it is claimed that case involves complicated question, which could not be decided in the summary proceedings. Admittedly, the complainant approached Ops for creating website for his business by intimating about the requirements. On finalizing negotiations, the complainant requested Ops to book the domain first before paying the advance consideration for creating the website, upon which, Ops instantly booked the domain name of M/s HMC Hospital on 6.10.2014. On satisfying itself, the complainant as the sole proprietor of M/s HMC Hospital paid the agreed consideration of Rs.85,000/- to the Ops. After receiving that amount, Ops instantly created the home page of the website of M/s HMC Hospital, despite the fact that the same was not mentioned in the contract. However, the same was provided as per express consent of the complainant. Thereafter, Ops contacted the complainant for improvements and comments, but for the reasons best known to the complainant, he did not bother to have a contract with Ops or any of its representatives, despite the fact that Ops and its representatives trying to contact with the complainant time and again. Finally, page was uploaded on the website of the Ops and since then the same has been live and still accessible on the link http://www.konnectionindia.com/hmc/. The home page so created was shared with the complainant through email on 17.1.2014, but the complainant evaded his comments upon the same for wringling out from the agreement. So, breach of the terms and conditions of the contract committed by the complainant by not providing the requisite information and key words. It is claimed that Ops have always been ready and willing to perform their part of obligation, but despite that the complainant never provided the requisite information and confirmation. Admittedly, legal notice dated 7.7.2015 was served by the complainant, but the same was duly replied on behalf of Ops. Each and every other averment of the complaint denied by praying for dismissal of the complaint.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C33 thereafter, his counsel closed the evidence.

4.                On the other hand, Sh.Suraj Kumar Sinha, Business Development Executive/Representative of OPs tendered in evidence his affidavit Ex.RA along with documents Ex.R1 and Ex.R2 and then closed the evidence.

5.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through carefully.

6.                After going through complaint, it is made out that the web site/web portal was to be got created by the complainant for promoting the business of hospital named as HMC Hospital run by him. It is not at all mentioned in the complaint that said business was run by the complainant for earning       livelihood. Rather, services of Ops were availed by the complainant for promoting the business interest through internet access and as such, certainly the services of Ops were availed for commercial purpose. Submission of counsel for Ops in this respect has force.

7.                As per law laid down in case titled as Lords Weat Pvt. Ltd. Vs. Rance Computers Pvt. Ltd-I(2014)CPJ-332(N.C.), in case software purchased by Pvt.Ltd. company for its use without impleading that Managing Director requires the same for running business for earning livelihood, then complainant will   not be a consumer. Ratio of this case is fully applicable to the facts of the present case because here in para no.1 of the complaint itself, it is mentioned that complainant being the sole proprietor of his firm availed the services of Ops for creating awareness about the services of experts available in the hospital of the complainant. As those services availed for creating awareness about the potentality of the hospital and as such, certainly services, were availed by the complainant as sole proprietor of the firm, for promoting business interest. In such circumstances, non impleadment of the fact qua availing of services for earning livelihood is fatal to the case of the complainant. So, consumer complaint is not maintainable because complainant is not a consumer as per above cited law. In view of this, all other arguments advanced by counsel for the complanant qua breach of terms and conditions of contract by Ops pales into insignifance because Consumer Forum has to assume jurisdiction only after finding the complainant concerned a consumer and existence of the involved consumer dispute.

8.                Even as per law laid down in case of Chandrakant Annaro Dhabalo vs. MGVCL, Baroda-IV(2015)CPJ-368(N.C.), in case supply of water to industrial sheds under a system takes place for commercial purpose, then the complainant (society) will not be a consumer because a person hiring or availing services for commercial purpose is excluded from ambit of expression consumer after amendment of Section 2(1)(d) of the Consumer Protection Act. Ratio of this case has its full application to the facts of the present case because here the complainant hired the services of creating web site/web portal for commercial purpose of promoting the business activities of the hospital, of which, complainant is a proprietor. No law to the contrary shown by the counsel for the complainant and as such, this complaint being not maintainable, merits dismisssal.

9.                Therefore, as a sequel of the above discussion, complaint dismissed with no order as to costs. Copies of order be supplied to the parties free of costs as per rules.

10.              File be indexed and consigned to record room.

 

          (Vinod Bala)                                     (G.K. Dhir)

                             Member                                              President                         Announced in Open Forum

Dated:22.09.2016

Gobind Sharma.