orders
THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Sri. Santhosh Kesavanath P., President
Sri. K.N. Radhakrishnan, Member
CC No. 306/2010.
Monday, the 26th day of September , 2011
Petitioner : Mary Queens Mission Hospital,
Palambra P.O., Kanjirappally
reptd. by its Director,
(By Adv. Raju Abraham)
Vs.
Opposite party : Mavericks Digibrain Pvt. Ltd.,
44/25, D, North Avenue Appts,
Lissie Junction, Cochin-18.
Reptd. by its Marketing Manager,
Shane Sadanand.
O R D E R
Sri. Santhosh Kesavanath P., President
Case of the petitioner filed on 9..11..2010 is as follows:
Petitioner is a private hospital, rendering service in the medical field in allopathy treatment. Opposite party is a service provider in computer software. Petitioner and opposite party entered in to an agreement by which the opposite party agreed to install computer software for the functioning of hospital administration. The petitioner purchased the system for Rs. 1,66,500/- and payment were made through installment. Petitioner paid annual maintenance fees of Rs. 5,000/- every year. According to the petitioner, as per terms of the agreement, opposite party is bound to carry out all periodical services. After the installation of the above said soft ware in the beginning stage services given by opposite party was satisfactory and there after they began to withdraw from the duty to render adequate service. Petitioner on several times requested opposite party to give specified service and upgrading the system. But the opposite party was reluctant to do required service on lame excuses. Moreover the password for the function of the software is not given to the petitioner by the opposite party so far. According to the petitioner act of the
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opposite party amounts to deficiency in service. So, he prays for a direction to the opposite party to give the password for using the soft ware installed by the opposite party and to direct opposite party to carry out necessary maintenance for the smooth functioning of the system petitioner claims Rs. 1,00,000/- as compensation and cost of the proceedings.
Opposite party entered appearance and filed version contenting that the petition is not maintainable. This Fora has no jurisdiction to entertain the complaint. 2 years free service was given to the petitioner for a period from 21..10..2006 to 20..10..2008. Petitioner paid the AMC for 21..10..2008 to 20..10..2009. Petitioner never paid AMC after the said period. According to opposite party liability of opposite party to give service to the petitioner terminates on expiry of date of AMC. Even after AMC opposite party had gone for visit. Opposite party sent invoice in January 2010 for the charge for AMC. But petitioner has not been paid charges till date. According to petitioner there is no deficiency in service on the part of the opposite party. They are ready to resume the services, if the petitioner agrees to remit the AMC charges. Opposite party prays for dismissal of the petition with their costs.
Points for determinations are:
i) Whether the petition is maintainable or not?
ii) Whether there is deficiency in service on the part of the opposite party?
iii) Relief and costs?
Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A4 documents on the side of the petitioner and Ext. B1 to B4 documents on the side of the opposite party.
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Point No. 1
Opposite party has a definite case that petition is not maintainable for the want of territorial jurisdiction of this District Forum. According to the opposite party there is a concluded contract between the petitioner and opposite party company signed and accepted by the petitioner. In the said contract it is very specifically stated that all disputes arising out of the agreement are subject to the jurisdiction of court at Ernakulam. So, this fora has no jurisdiction . Hon’ble Supreme Court of India in Interglobe Aviation Ltd. Vs. N. Sachidanand (Reported in 2011 (iii) CPJ page 1) stated that any clause which ousts jurisdiction of all courts having jurisdiction and conferring jurisdiction on a court not other wise having jurisdiction would be invalid. Further as per section 3 of the Consumer Protection Act the provisions of the Consumer Protection Act shall be in addition to and not derogation of any other law for the time being in force. So, it is the option of the consumer either to approach the courts at Ernakulam or this District Fora. The jurisdiction of the District Forum is defined in section 11 of the Consumer Protection Act. AS per section 11(3) the District Forum shall have jurisdiction to entertain complaints within the local limits of whose jurisdiction cause of action wholly or any partly arises. Admittedly from the averment of both parties it can be seen that soft ware installed in the petitioner hospital, which situated within the jurisdiction of the Kottayam Fora So, this Fora can entertain the complaint. So, In our view this petition is maintainable before this fora.
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Point No. 2
The petitioner alleges deficiency in service in not giving the password for using the software already installed and also in not carrying out necessary maintenance for the smooth functioning of the system installed by the opposite party. Admittedly the free service rendered by the opposite party is covered for a period from 21..10..2006 to 20..10..2008. Petitioner took one annual maintenance for 21..10..2008 to 20..10..2009. The copy of the annual maintenance contract entered between the petitioner and opposite party produced is marked as Ext. A3. From Ext. A3 It can be seen that the period of agreement is from 1..1..2009 to 31..12..2009. Petitioner produced copy of the sale bill for AMC for 1st January 2010 to 31st December, 2010. Said document is marked as Ext. A1. From Ext. A1 it can be seen that AMC charge is Rs. 6,000/-. In Ext. A1 it is stated that all payment should be made as DD/Cheque in favour of the company. But the petitioner has not produced any document to prove that the annual maintenance charges were paid to the company. So, the inference that can be drawn is that the hospital has not paid the amount demanded by the company as per Ext. A1 bill. Thus it can be probably concluded that hospital is seeking service of opposite party company without making any payment. With regard to the failure of the functioning of the system petitioner has not adduced any evidence by seeking assistance of an expert software professional. Opposite party produced certain IP and OP bills issued from the petitioner hospital and same were marked as Ext. B2 series. Ext. B3 is the copy of the admitted patient list. From Ext. B2 and B3 document it can be inferred that the system is functioning properly. In our view petition is failed to prove any deficiency in service on the part of the opposite party. So, point No. 2 is found accordingly.
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Point No. 3
In view of the finding in point No. 1 and 2 petition is dismissed. Considering the facts and circumstances of the case no cost and compensation is ordered.
Dictated by me, transcribed by the Confidential Assistant, corrected by me and
pronounced in the Open Forum on this the 26th day of September , 2011.
Sri. Santhosh Kesavanath P., President Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
APPENDIX
Documents for the petitioner:
Ext. A1: Copy of the sale bill with vide No. 155/10
Ext. A2: Copy of the sale bill with vide No. 80/06
Ext. A3: Copy of the AMC executed on 5..1..2009
Ext. A4: Copy of the customer requisition form Dtd: 25..9..2008
Documents for the opposite party:
Ext. B1: Copy of customer requisition form Dtd: 25..9..2006
Ext. B2series Bills
Ext. B3: Copy of the details of currently admitted patients
Ext. B4: Copy of the receipt Dtd: 14..3..2007.
By Order,
Senior Superintendent
