CC No.553.2015

Filed on 25.03.2015

Disposed on.30.10.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 30^th DAY OF OCTOBER 2017

CONSUMER COMPLAINT NO.553/2015

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                         V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 25.03.2015 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an order directing the Opposite Parties to pay compensation of Rs.9,70,000/- and other reliefs.

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that in the month of January 2010, the Opposite Parties approached the Complainant’s Institution and disclosed that they would provide hardware server equipment, networking and accessories, etc., to the Complainant school along with necessary equipment as per each subject in different classes.  Further, they explained that it would enable to the children to view the pictures while studying and explaining by the teachers and promised that the Opposite Parties are going to give proper service from time to time.  The Complainant had agreed for the same under the impression that their children would get good marks in the examination by hearing the teaching and also by witnessing the pictures in the said hardware which would impress in their mind.  As per old Hindu Law, it clearly explained that “Shruthi & Smruthi” that means what the children heard at the time of teaching called Shruthi, what the children personally witnesses by seeing the picture called Smruthi which will be impressed and captured in the mind of the children and would help the children to score higher marks.   As per the promise of the Opposite Party both the Complainant and Opposite Parties had entered into Tripartite Agreement on 20.01.2010.  As per the terms and conditions stipulated therein, the Complainant had paid advance amount of Rs.15,000/- on 31.01.2010.  The Opposite Parties had installed and implemented said proposed Smart Class programme with all equipment’s, accessories, instruments, connections, hardware, etc., as per terms and conditions of the said agreement, the duration of said agreement is 60 months starting from the date of when the installation is completed.  The agreement can be renewed at the end of the stipulated time for a period of 5 years mutually by the parties as per the terms and conditions as agreed between them at that time, from the date of the said agreement.   In accordance with the terms and conditions, the Opposite Parties had installed on 25.07.2010 the complete smart class programme with its hardware, server, equipment and networking accessories, instruments, applications, and repose digital content, in the school premises, as per the details set out.  After entering into said Tripartite Agreement, and after installation of said hardware accessories, and networking applications, digital content, in first year the Opposite Parties had given good service, good training sessions, immediate attending to complaint calls.  In second year i.e., 2011, school coordinator replaced to substandard Coordinators, no training sessions to new teachers.  Damaged the equipment replaced with substandard equipment.  The school coordinators changing every 3 months, they had no knowledge of English and computers also.  Service of hardware delayed, complaints were attended after two or three weeks.  School coordinators and Regional coordinators kept changing.  The school had lost as to whom to contract and get things in place.  Smart Classes were not functioning and there was academic loss for the students.  The coordinator became irregular form December 2012, last usage report is enclosed.   As per the terms and conditions of the said agreement, the Complainant had paid a sum of Rs.15,70,680/- through various cheques to the Opposite Parties.  The problems continued, so the Complainant also delayed payment to make the Company set right their service.  The school coordinator used to come only 3 or 4 days in the first week of the month and was absent rest of the days.  The Complaints were not attended as usual.  The Complaints about the school coordinator, delay in repairing the hardware and upgradation of content was lodged to the Regional Coordinator and promised that everything will be set right and he taken away Rs.50,000/- by cheque.  The defects were not rectified by the Opposite Parties.  By March 2013, the service as to hardware and school coordinator completely stopped.  The content was removed and not renewed and smart-classes stopped working.  There was no response from the Regional Coordinator of the Opposite Parties.  There was no response to the phone calls made by the complaint with the Opposite Parties.  Since the Opposite Parties had stopped service and not rectified the defects in the smart class and had not rectified defects in hardware and its contents. Due to non-performance of the terms of the said agreement in providing service as stated supra, for non-fulfilment of the promises made by the Opposite Parties in providing digital class room service, the Complainant had lost 100 admissions in 2012-13 and around 50 students took TC in 2012-13.  Due to non-functioning of the hardware, which is not fit for usage and the parents had refused to pay digital classroom fees for the academic year 2013-14 and along with the said huge losses the school had been further defamed for non-fulfillment of its premises made at the time of admissions in the locality which also effects admission process of new children.  In spite of several complaints made by the Complainant and waiting for more than 9 months for sorting out the defects, the Opposite Parties had not rectified the defects so far.  The Opposite Parties committing default on their part, and having not provided proper service and not rectified the defects in hardware in smart class the Opposite Parties suppressing all these material facts and by misrepresented had issued Legal Notice on 01.02.2014 to the Complainant calling upon the Complainant to make the payment of total outstanding of Rs.24,77,103.03 for the remaining entire instalments towards the sale of hardware provision of digital content, etc., as claimed in the said notice.  In this regard, the Complainant had given reply on 26.05.2014 to the said Legal Notice explaining about defects not rectified and not provided the service to the Complainant school.  Even after the issue of reply from the Complainant, the Opposite Parties have not turned up to the Complainant school and kept silent by committing deficiency of service.  The Opposite Parties have failed in giving good service, the hardware is not functioning presently, they have removed the content without informing to the Complainant.  The school coordinator has stopped from coming to the school.  They have not responded to the continuous oral and written correspondence.  Due to their substandard equipment and service the school has lost name and reputation, many students have taken TCs, the school institution had lost admissions.  The revenue of the school came down.  The students had to suffer academically even though the Complainant institution had paid regularly.  The chairperson of the Complainant school Institution was dragged to the police station for cheating.  The Opposite Parties even after collecting he amount of Rs.15,70,680.00 from time to time, the service of Smart Class Programme to the Complainant school totally stopped in the Month of March 2013.  Due to the trouble the total programme of the Opposite Parties stopped without any service.   Hence, this complaint. 

3. In response to the notice, the Opposite Party No.1 & 2 put their appearance through their counsel, but failed to file their version. 

4. The Complainant, Smt.K.Manorama filed her affidavit by way of evidence and closed her side.  Heard the argument of Complainant side.

5.      The points that arise for consideration are:-

1. Whether the ‘Complainant’ as defined under Section 2(b) of the Consumer Protection Act, 1986 ?
2. Whether Complainant is a ‘Consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986 ?
3. Whether the Complainant has proved the alleged deficiency in service by the Opposite Parties ?
4. If so, to what relief the Complainant is entitled?

6.     Our findings on the above points are:-

                POINT (1):-  Accordingly

POINT (2):-  Accordingly

POINT (3):-  Negative

POINT (4):-  As per the final Order

REASONS

7. POINT NO.1:- As looking into the averments made in the complaint, the Complainant is an education institution running nursery primary High School under the name and style as “Silicon Valley School”.  This school is being run by the Registered Trust, known as Vidyasagar Educational Trust.  Even in the complaint, they clearly averred that the Complainant is a registered Trust known as Vidyasagar Educational Trust. Section-2(b) defines the   "Complainant" means :-

(i)          a consumer; or

(ii)         any voluntary consumer association registered under the Companies Act, 1956 (1of 1956)or under any other law for the time being in force; or

(iii)        the Central Government or any State Government,

(iv)        one or more consumers, where there are numerous consum­ers having the same interest;

(v)         in case of death of a consumer, his legal heir or representative; who or which makes a complaint; 

          By looking into Section-2(b), the Complainant means any Voluntary Consumer Association, Central Government or any State Government but not Trust, thereby the Complainant is not a ‘Complainant’ as defined under Section 2(b) of the Consumer Protection Act, 1986.  Hence, this point is held in accordingly. 

8. POINT NO.2:- Even as looking into the allegations made in the complaint, it is very clear that the Complainant in order to get good marks in the examination to their student wanted to install the hardware from the Opposite Parties and as a result of the non-failure of proper service by the Opposite Parties.  The Complainant suffers financial loss and reputation many students have taken T.Cs from the School Institution had lost admissions.  The revenue of the school came down.   From this allegation, it is very clear that as a result of the non-performance of the Tripartite Agreement, the Complainant Institution suffers revenue loss as well as reputation.  Under Section-2(1)(d) of the ‘Consumer’ means:-

(i)    buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)   hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment; 

By looking into this, it is very clear “Consumer” means person does not include who obtain goods or service for resale or for any commercial purpose.  But in this case, as looking into the allegations of the Complainant, it is very clear that the Complainant wanted to install the hardware for the commercial purpose and as a result of nonperformance of the terms and conditions of the Tripartite Agreement by the Opposite Party.  The Complainant suffers loss of revenue, thereby the Complainant is not a “Consumer” as defined under Section 2(1)(d) of the Consumer Protection Act, 1986.  Hence, this point is held in accordingly. 

9. POINT NO.3:-  In view of my findings point No.1 & 2 as negative question of considering the point No.3 will not survive. 
10. POINT NO.4:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is dismissed.  No cost.

Supply free copy of this order to both the parties. 

   (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 30^th day of October 2017)

        MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Smt.K.Manorama, who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Copy of Tripartite Agreement for Smart Class Programme between Educom Solutions Ltd, and Silicon Valley School.
2. List of Hardware and Consideration for Hardware-Smart Classroom (2Nos)
3. Payment Schedule for Payment for Hardware
4. Consideration for Content Licensing
5. Customer Payment Schedule Detail dt.03.02.2014
6. Customer Payment Detail as on 31.01.2015
7. Copy of Stock Register
8. Copy of Hardware Report
9. Customer Call Report Call Reg.No.514774
10. Letter dt.12.09.2013 sent to Edusmart Services Private Limited
11. Daily Usage Report dt.17.09.2012
12. Copy of Legal Notice dt.01.02.2014
13. Copy of Reply Notice dt.26.05.2014
14. Copy of Second Legal Notice dt.15.06.2014
15. Copy of Reply Notice dt.10.11.2014
16. Postal Slip
17. Copy of Police Complaint dt.30.05.2014 lodged by Edusmart P.Ltd.,
18. Reply given by the Complainant dt.30.05.2014 with RTIC letter 25.07.2014
19. For Paper Publications. 

Witness examined on behalf of the Opposite Parties:

                                      -NIL-

List of documents filed by the Opposite Party:

                                       -NIL-

MEMBER                                        PRESIDENT