Tamil Nadu

South Chennai

CC/396/2018

S Karthikeyan - Complainant(s)

Versus

M/s Hosting Raja CRM Server - Opp.Party(s)

M/s S Gopala Krishnan J Satheesh

19 Sep 2022

ORDER

Date of Complaint Filed :26.09.2018

Date of Reservation      : 02.09.2022

Date of Order               : 19.09.2022

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,   : MEMBER II

 

CONSUMER COMPLAINT No. 396/2018

MONDAY, THE 19^th DAY OF SEPTEMBER 2022

Mr. S.Karthikeyan,

S/o Sadasivam,

Residing at No. 3 Ragavan colony,

4^th street, west saidhapet,

Chennai- 600 083.                                                             ... Complainant                

 

..Vs..

The Chief Executive Officer,

HostingRaja CRM Server,

2^nd Floor, Saraswathamma Complex,

Akshay Nagar, TC Palya Main Road,

Dooravani Nagar Post,

Ramamurthi Nagar,

Bangalore – 560 016.                                                     ...  Opposite Party

 

******

Counsel for the Complainant          : M/s. S.Gopala Krishnan

Counsel for the Opposite Party       : M/s. K. Ramesh

 

On perusal of records and on endorsement made by the Counsel for the Complainant and the Counsel for the Opposite Party to treat written arguments as oral arguments, we delivered the following:

ORDER

Pronounced by Member-I, Thiru.T.R. Sivakumhar., B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to refund a sum of Rs.16,000/- which the amount was collected excessively from the Complainant and to pay a sum of Rs.5,20,000/- towards compensation and to pay a sum of Rs.1,00,000/- as mental agony, pain along with cost of Rs.30,000/-.

2.     The averments of Complaint in brief are as follows:-

The complainant had running a ocean software premium server software company and had order for a dedicated server on 27.06.2018 from opposite party and paid a sum of Rs.16,000/- but the opposite party had provide alternative server for the speedy High configuration network. The business for the purpose of livelihood. But the opposite party had provided an alternate server for a speedy high configuration. After using of Virtual server, the complainant ocean software has become a downtime and lapse of Network connection, immediately the complainant had approached the opposite party that the server has become a low network, and instructed the opposite party to refund of order amount of Rs.16,000/-. The opposite party had approached the complainant to purchase of server for high configuration server, hence the same was purchased only after few days the complainant found that it was not a dedicated server. The Complainant had never asked for any cleaning Malware injected files, but the opposite party had only said that file full of virus, further not responded to the performance of previously used server with that of the server provided by Opposite Party. The purchased server was used without issues only for a single day, thereafter Problem has been arise due to the server has became down, mail problem, technical persons made some issues, further technical people panel software update on morning time a low Network connection has taken place due to opposite party virtual server. The complainant had lost continuously sites and mails are not working properly because of those issues the complainant customers nearly about 15 clients went to other company. Further on checking times demo not opened because of which new orders were lost.  The complainant office faculty 15 members were idle in office continuously for 25 days without any work. Further the complainant had also provide  salary for 15 faculty member in the office without any profit. The complainant had totally depressed and faced mental torture from their clients and opposite party Hosting Raja server company. The complainant had made several request to opposite party for refund the amount of Rs. 16,000/-, the opposite party had replied stating that within one month of purchase, if any problem or damages acquired amount will be refunded. Further the complainant had sent mail, there was only reply, but no action would be taken. Despite efforts taken by complainant the opposite party had miserably failed to refund the amount till date. On 30.08.2018 legal notice was issued, there was no reply from the opposite party. Hence a second legal notice was issued on 03.09.2018 even to that there was no response from the opposite party. The complainant is not barred by limitation, the same is filed in time. The Complainant is a consumer and the complaint is filed for deficiency of service on the part of the Opposite Party.  Hence the complaint.

3. Written Version filed by the Opposite Party in brief is as follows:-

         The Opposite party states that the Complainant being a company in name and style "Ocean Software" will not come under the purview of "Consumer" under Section 2(d)(i) of Consumer Protection Act, 1986. The Complainant has sent a written communication through email on 18^th July, 2018 to the opposite party stating that, his company lost customers. This clearly indicates that, he is not a consumer to the opposite party. The Complainant got a service from the opposite party for his business purpose only, not for personal use. The Complainant is a Company and approaches this Opposite Party seeking services of web hosting for his company "Ocean Softwares" for Commercial purpose only and under this point alone the Complaint has to dismissed on limine. The Opposite party is a Company incorporated under the provisions of Companies Act, 1956. The Opposite party is a hosting and domain name provider in India. The Complainant approaches the Opposite Party seeking services of web hosting for his company accordingly the Opposite party had provided the said services to the Complainant Company. In this business time the Opposite Party received a Notice from Datacenter about Phishing Content/illegal website about the Complainant's website. And said notice contained that the Opposite Party should remove the Complainant's websites/server from the Opposite Party's service for the complainant's  unwanted  and  abuse  of  said  website.    The Opposite party received mail from abusesupport@e2enetworks.zohodesk.com on 02 July 2018 regarding the Ticket 23666 Phishing complaint on the server 101.53.145.82. The IP mentioned 101.53.145.82 belongs to the Complainant host of "OCEANHOST.COM" and the same been informed by the Opposite Party to the Complainant. The Notice has also stated that immediate action has to be taken on it to avoid the IP address from getting blacklisted.  Complainant who after been informed of the same, the Complainant requested this Opposite Party to remove the phishing content. Though it is not their work to do and it is not included in the scope of work, the Opposite Party helped the Complainant by scanning and removing the malware/phishing content. Owing to the problem of the complainant's server/website, the Opposite Party data center has blocked many of their servers and this has resulted in financial loss for them and it had affected more than 50 of their servers. They received another one complaint about a compromised website (smfcmoney.com) which is being used to attack their clients and their customers. The said malicious activity is Associated with IP Address: 101.53.145.82 which belongs to the Complainant.  In order to avoid future escalations from the data center they migrated the Complainant to another data center. Again the Opposite Party got phishing content notice from other authorities to take action. Once they receive this kind of Notice, they will suspend the websites/server. Since the Complainant pleaded and made repeated request to the Opposite Party not to suspend his server, they gave another series of Dedicated IP's to the Complainant which was blocked again. They received one more notice/complaint and the account has been suspended for domain chennaicarz.in, in the said complaint it has been stated that "RSA. The Security Division of EMC", an information security company has been appointed to assist Navy Federal CU in preventing targets, or may target Navy Federal CU's clients as potential fraud victims. The RSA has been made aware that the Complainant Company appears to be providing internet services to a website, which is making unauthorized use of site not only violates Navy and other Intellectual Property rights, but may also become a host to a phishing attack, or other fraudulent scams directed against Navy Federal clients. It is further been stated that the fraudulent website not only represents a misappropriation of Navy Federal CU's intellectual property: its purpose is to mislead Navy Federal shown that such sites become a host of phishing and other fraudulent scams. They mailed the Complainant cleaning his malware injected server and due to the Complainant server they had incurred a huge loss in business and also stated that they no longer want to host the Complainant web sites due to lots of hacked or malware affected websites which will affect their server also. They asked the Complainant to migrate his data within a week and once done will process on refund after deducting the amount for used in pro rata basis. Though they had agreed to refund of Rs.8.000/- as the Complainant have used the server for few days and after request made by the Complainant over phone to refund the entire amount of Rs.16.000/-, they had agreed to refund the entire amount even though they had incurred heavy loss in business due to the Complainant malware server and asked the Complainant to confirm the mail sent by them, but no reply from the Complainant. It was true that the Complainant approached them for providing web hosting services for his Company and did not specifically asked dedicated server for his company and based on his request his Company been provided with virtual server. It was not true that his Company has become a downtime and lapse of Network connection because of Virtual server. Only due to the malware injected server the Complainant Company faced low Network connection and his members could not work. Only they had lost reputation in business due to the Complainant malware injected server and not the Complainant lost reputation. They are very well versed in the field providing service to lot and lot of their clients using server in proper manner and not using malware injected servers for some other wrongful purpose which is best known to the Complainant as the Complainant been informed about the complaints they received about the malware injected server belongs to the Complainant, the Opposite party have sent proof of the hosting IP and have asked to move such data failing which the Datacenter will block list such website in the IP address of the Complainant, but the Complainant purposely did not follow any of the alert mail sent by them. They sent a mail dated 18 July 2018 after having telephonic conversation that they will process full refund and asked the Complainant to give confirmation over mail to process, but the Complainant have not responded. He filed  this Complaint only for extort the money from them and to destroy their reputation and good will. Hence the complaint is to be dismissed.

4.   The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-9  were marked. The Opposite Party submitted their Proof Affidavit and Written Arguments and no documents was marked on their side.

Points for Consideration

1. Whether the Complainant is a consumer?  

2. Whether there is deficiency in service on the part of the Opposite Party?

3. Whether the Complainant is entitled for reliefs claimed?

4. To what other reliefs the Complainant is entitled to?

Point No.1 and 2:

        It is an undisputed fact that the Complainant had approached the Opposite Party for providing web hosting services for his company by name Ocean Softwares.

        It is also not in dispute that the Complainant had paid a sum of Rs.16,000/- to the Opposite Party for their services.

        The disputed fact was that the Complainant had asked the Opposite Party to provide for a dedicated server but the Opposite Party had provided a virtual server for a speedy high configuration, by which resulted in software has become a downtime and lapse of network. After using the server it was found that the service provided is not of dedicated server and the Opposite Party had sold a virtual dedicated server to the Complainant, hence sought for refund of entire amount of Rs.16,000/- paid to the Opposite Party.

        The contention of the Opposite Party in this regard was that the Complainant had not asked for dedicated server and because of the server provided by them the Complainant company’s software has become downtime and lapse of Network connection, was denied. Though they have received notices about the Complainant’s website involved in phishing content/illegal website, they have informed the Complainant the same. Since they received another notice they had migrated the Complainant to another data centre, when they receive such kind of notices they need to suspend the Complainant websites/server but on the repeated requests made by the Complainant, suspension action was not taken. Further contended that again one more notice/Complaint that the complainant company appears to be providing internet services to a website, which is making unauthorized use of site not only violates Navy and other intellectual property rights, but may also become a host to phishing attack or other fraudulent scams directed against Navy Federal Clients. Further contended that they had mailed Complainant cleaning his malware injected server and due to complainant server the Opposite Party had incurred a huge loss in business and hence they had informed the Complainant that no longer they want to host the Complainant website which would affect their server also. They have agreed to pay a sum of Rs.8000/- as the Complainant had used the server for few days, even they had agreed to pay the entire amount of Rs.16,000/- as requested over the phone by the Complainant, but asked the complainant to confirm their mail sent by them, there was no response from the Complainant.

        On discussion made above and considering the facts and circumstances of the case, it is clear that the Complainant had approached the Opposite Party for a dedicated server for his website, to be provided for his company run in the name of ocean software’s. And from the averments made in the complaint, the company is run for his livelihood. Hence the Complainant is a consumer and the complaint fled by the Complainant falls under the purview of the Consumer Protection Act.        

        From the perusal of Ex.A-1, the Invoice dated 27.06.2018, raised by the Opposite Party for receipt of Rs.16,000/- for providing server to the Complainant. From perusal of Ex.A-2, mail dated 05.07.2018 sent at 14.49 by the Opposite Party to the Complainant, wherein it was mentioned that “phishing contents hosted on your websites, Google has been blocked your websites, and to scan the whole website and upload on the server. Also advised to send a mail to Google webmaster tool or white listing the domain name”. The Complainant had sent a reply on the same day and sought to check file permission to upload. From Ex.A-3, mail dated 18.07.2018 sent by the Opposite Party, wherein they had agreed to pay a sum of Rs.8,000/- as the Complainant had used their server for few days. The Complainant by his mails dated 18.07.2018, 19.07.2018, 20.07.2018 sent to the Opposite Party, had sought for explanations about the server provided to him which resulted his business to downtime and for refund of entire amount of Rs.16,000/-, as found in Ex.A-4, Ex.A-5 and Ex.A-6. The Opposite Party instead of resolving the issue had sent reply mails dated 20.07.2018 to refund only if there was any issue. From perusal of Ex.A-8 and Ex.A-9 being the mails dated 23.07.2018 and 25.07.2018, respectively, the Opposite Party had sought to remove the review made by the Complainant and to confirm thereafter to refund entire amount to the Complainant, would clearly show that the contentions made by the Opposite Party in the written version, are not sustainable, as the same are not supported by any documentary evidence and also it is clear that as only to avoid the refund of entire amount to the Complainant, well aware of a wrong server resulting the software becoming downtime and lapse of network. Therefore, we are of the considered view that the Opposites Party had committed deficiency of service and caused mental agony to the Complainant. Accordingly, point Nos. 1 and 2 are answered.

Point Nos.3 and 4:

As discussed and decided Point No.1 against the Opposite Party, the Opposite Party is liable to pay a sum of Rs.16,000/- being the invoice amount and to pay a sum of Rs.5,000/- towards deficiency of service and mental agony and along with cost of Rs.3,000/-. And the Complainant is not entitled for any other relief/s. Accordingly, Point Nos. 3 and 4 are answered.

In the result the Complaint is allowed in part. The opposite party is directed to refund a sum of Rs.16,000/- (Rupees Sixteen Thousand Only) being the invoice amount and pay a sum of Rs.5,000/- (Rupees Five Thousand Only) towards deficiency of service and mental agony and along with cost of Rs.3000/- (Rupees Three Thousand Only) to the Complainant, within 8 weeks from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 9% p.a from the date of receipt of this order till the date of payment.

In the result the Complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 19^th of September 2022.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 List of documents filed on the side of the Complainant:-

 

Ex.A1	27.06.2018	Copy of Invoice Bill by the Opposite Party
Ex.A2	05.07.2018	Complainant given representation to upload the server
Ex.A3	18.07.2018	Opposite Party given reply to refund the purchased amount
Ex.A4	18.07.2018	Complainant had given compliant about the server to the Opposite Party
Ex.A5	19.07.2018	Complainant second time approach to refund the ordered amount
Ex.A6	20.07.2018	Opposite Party second time assured to refund the purchased amount
Ex.A7	20.07.2018	Complainant 3rd time request to refund
Ex.A8	23.07.2018	Opposite Party replied to refund
Ex.A9	25.07.2018	Opposite Party finally replied to refund the purchase the amount

 

 

List of documents filed on the side of the Opposite Party:-

NIL

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT