DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA.

CC.No.565 of 22-11-2012

Decided on 21-03-2013

Baba Farid Vidyak Society (Registered), Bathinda, through Sh.Gurmeet Singh Dhaliwal, Chairman.

........Complainant

Versus

M/s Intellvisions Software Ltd., 303, Steel House, 24, Mahal Industrial Estate, Off Maha Kali Caves Road, Andheri (East), Mumbai-400093-India, through its Managing Director.

.......Opposite party

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President.

Sh.Amarjeet Paul, Member.

Smt.Sukhwinder Kaur, Member.

Present:-

For the Complainant: Sh.Rohit Jain, counsel for complainant.

For Opposite party: Opposite party ex-parte.

ORDER

VIKRAMJIT KAUR SONI, PRESIDENT:-

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant is a duly registered Charitable Society formed in the year 1994 and registered with the Registrar of Firms and Societies, Punjab at Sr.No.306 of 1994. Sh.Gurmeet Singh Dhaliwal is working as Chairman of Society (earlier he was General Secretary/Administrator). The present complaint has been filed by Sh.Gurmeet Singh Dhaliwal, being authorized to file the present complaint through resolution passed by Executive Committee of Society in its meeting held on 9.9.2012. The complainant society was formed to spread the light of education in backward Malwa belt of Bathinda. The Society initially started its operations by establishing and running the Baba Farid Public Senior Secondary School, St. No.13, Ajit Road, Bathinda and having a number of educational institutions that have been established and are being run successfully within a campus popularly styled as 'Baba Farid Group of Institutions' situated at Muktsar Road, Village Deon, Bathinda. In order to enhance the working and productivity of the educational institutions and for proper and efficient management of all the institutes, the complainant Society intended to computerize all the institutes with the modern set up with latest technology and systems, which technology, software and system was meant to be used by him exclusively for improving its working and efficiency and productivity by means of self employment. In December 2011 the opposite party's representative contacted the complainant's officials and introduced themselves as established leaders in the field of developing cutting edge self-service products including Dynamic Queue Management System. The opposite party represented that it had installed the said system in the various companies both in India and abroad and enjoyed considerable renown in the field. Initially the product was offered by the opposite party @ Rs.1,85,000/- but after noting the various additional, specific, new requirements pointed out by the complainant, it finally estimated the price of the entire system as Rs.3,20,000/-. The complainant then got the terms and conditions duly acknowledged and admitted from the opposite party before placing the formal purchase order. The said terms and conditions were duly confirmed by e-mail to the complainant by Ms.Payal Rajawat, Manager (Sales) and thereafter the regular purchase order for sale, supply and installation of Opti-Q: Dynamic Queue Management System was placed to the opposite party by the complainant on 14.3.2012. The total cost of the entire system and its installation, repair, maintenance and guarantee of its performance was Rs.3,20,000/- plus taxes, out of which the part payment to the tune of Rs.1,85,415/- (including taxes) towards 50% payment was made in advance on 13.3.2012 through NEFT No.PUNBH 12074071508 to the opposite party's account maintained in Yes Bank Ltd. The balance payment was payable after the due installation and satisfactory working of the ordered system. The opposite party had welcomed the placing of purchase order and assured the complainant of total satisfaction of its requirement by the system to be sold, supplied and installed by it. As per agreed terms of the contract, the regular inputs from time to time were to be provided by the complainant and the opposite party assured to meet all his said requirements. Since the admissions were to begin w.e.f 1.4.2012, the opposite party was duly apprised of the urgency of the matter and was required to install and operationalize the system before 1.4.2012. The opposite party assured the complainant to install and operationalize the system latest by 7.4.2012. Both the systems delivered and installed by the opposite party as well as its services hired by the complainant for satisfactory performance of the said system suffered from grave defects, faults, deficiency and imperfection and fallen short of the premises, allurements and guarantees held out by the opposite party. The opposite party, under the contract, were to sell, supply and install and get the machine operational in the complainant's campus upto 7.4.2012 but it failed to adhere to the time schedule on the plea that customization of the said system was in process and would take sometime. The complainant adopted a liberal, accommodating attitude and extended the time for completion by another one week i.e. upto 14.4.2012. Vide e-mail dated 7.4.2012 the opposite party promised to give the supply and delivery of the required machine by 14.4.2012 and the due installation and operation w.e.f. 15.4.2012. The opposite party defaulted as the machine was supplied belatedly on 16.4.2012 and installed at the campus on 17.4.2012 through the opposite party's experts, who stayed at the campus upto 20.4.2012 for overseeing the operations of the machine. But the installed machine/system failed to work properly and the opposite party's representative/expert formally submitted in writing on 20.4.2012 that the machine is not working due to the software deficiency. The opposite party took out the hard-disc of the software from the said machine and left the campus for rectifying the fault. The complainant expressed disappointment of non-working of the said machine through subsequent e-mail due to inherent faults and deficiencies besides the belated installation of the said machine. The opposite party's expert revisited the campus of the complainant on 24.4.2012 and fitted a new hard-disc in the said machine and left the campus on 26.4.2012 after submitting the service report. The Opti-Q: Dynamic Queue Management System machine stopped giving display on 14.5.2012. The complainant lodged the repeated complaints with the opposite party both through telephonically and SMS but the faults in question were rectified by the opposite party's experts after the delay of 11 days. The system sold, supplied and installed by the opposite party is not of the quality standard and grade as allured by them and is not giving due promised performance and he is facing considerable inconvenience and harassment of multifarious front on account of the inherent defects/faults in the said system. Some of the defects/faults pointed out by the complainant to the opposite party are as under:-

(1) Initially the system did not provide for allocation of counter-collegewise and coursewise due to which the visitors were being directed/redirected to wrong counters. The system did not fulfill the requirement already pointed out by the complainant to the opposite party. The opposite party rectified the system to the some extent by making provision for selection of college name but the software installed by it still does not select the course name. The opposite party have shield the matter by alleging that it is new requirement, whereas it had already committed to supply this requirement.

(2) Initially the opposite party had provided the rights of coding the token as per the requirement of the complainant but when modifying the software for adding the college name at the counter location module, it removed the provision of fixing the codes of the token.

(3) The complainant had in its requirements pointed out in flow chart that the services option to be provided by the opposite party should be in the proper sequence of inquiry, registration, admission and fee depositation, so that the visitor does not face any problem whatsoever. The software developed by the opposite party shows the token as pending on all selected service counters. Due to this the visitor faces considerable harassment by call on all the counters at one time and often he appears at a counter where no service is required/desired by the visitor. The complainant has pointed out this deficiency to the opposite party time and again. All the said service options do not follow proper pointed out sequence as indicated in inflow chart provided to the opposite party earlier to the purchase order. But despite numerous complaints on the part of the complainant the fault is still persisting.

(4) While displaying the token numbers in Hindi or Punjabi the software displays the figures/numbers also in Hindi/Devnagri script, which is most confusing. The numbers should be displayed in figures and not in script.

(5) During the negotiations the opposite party had agreed to provide right to the complainant for addition/deletion of course name in future in the software so that the opposite party would not be bothered by such requests in future. Similarly the opposite party had also agreed to provide rights to the complainant for addition/deletion of name of college/school in the software to avoid future botheration but despite promise to provide the said services, the opposite party had persistently defaulted in not providing the same.

(6) The opposite party had agreed to provide the display of new visiting format token on LCD screen for benefit of visitor but lateron it had refused to do so.

(7) The system and software to be provided and installed by the opposite party was to be integrated with ERP (Enterprise Resource Planning) System, separately procured by the complainant, which the opposite party had been required to do and had so undertaken but the task has been left incomplete and unfulfilled adding to the problems of the complainant and depriving both the systems of their effectiveness and value.

(8) The system as provided and installed by the opposite party does not contain any provision for anti-virus protection, which is the basic necessity of the system raising a big question mark over the quality, value and effectiveness of the system provided and installed by the opposite party.

(9) The said system does not cover SMS facility and web based queries. The opposite party had also agreed to enter the vehicle number of the visitor in the visitor form and deliver 'thank you' SMS to the visitor but again the opposite party has defaulted in doing the needful.

(10) The opposite party has provided no support for maintenance of the said system since April 2012 onwards on account of which the said faulty system has gone out of order/stopped functioning.

There are many defects, faults and imperfection in the said system that has been repeatedly brought to the notice of the opposite party by the officials of the complainant but the same remain unrectified. The opposite party has refused to pay any heed to the requests of the complainant and insisted on the payment of the entire amount. The complainant had repeatedly requested the opposite party to repair/rectify and provide the remedial measures but it had fallen on the deaf ears. The legal notice dated 1.6.2012 and rejoinder dated 2.8.2012 was served on the opposite party through counsel but its reply has not been given. Hence the complainant has filed the present complaint to seek the direction to the opposite party to pay the compensation to the tune of Rs.17,40,190/- including the part payment of Rs.1,85,415/- paid on 13.3.2012 besides Rs.10,54,775/- being expenses incurred on creating necessary infrastructure as required by them for the purposes of due performance of Opti Q: Dynamic Queue Management System.

2. The opposite party has been summoned through the registered post but despite receiving the summons it has failed to appear before this Forum, hence ex-parte proceedings are taken against the opposite party.

3. The complainant has led ex-parte evidence in support of his allegations. He has produced Ex.C1 photocopy of certificate of registration; Ex.C2 photocopy of resolution; Ex.C3 photocopy of letter; Ex.C4 photocopy of rate list; Ex.C5 photocopy of letter dt.14.3.2012; Ex.C6 photocopy of technical proposal ; Ex.C7 photocopy of letter dt.12.3.2012; Ex.C8 to Ex.C10 photocopies of letters; Ex.C11 to Ex.C12 photocopies of performa invoice; Ex.C13 and Ex.C14 photocopies of letters; Ex.C15 photocopy of tax invoice; Ex.C16 photocopy of receipt; Ex.C17 photocopy of goods advice; Ex.C18 photocopy of e-mail; Ex.C19 photocopy of service report containing pages 3; Ex.C20 and Ex.C21 photocopies of e-mail; Ex.C22 photocopy of service report; Ex.C23 to Ex.C35 photocopies of e-mails; Ex.C36 and Ex.C37 photocopies of legal notice and postal receipt; Ex.C38 photocopy of reply of legal notice; Ex.C39 photocopy of rejoinder to reply of legal notice; Ex.C40 photocopy of India post track result; Ex.C41 photocopy of detail of infrastructure; Ex.C42 photocopy of cutting of the newspaper; Ex.C43 to Ex.C64 photocopies of retail invoice and payment vouchers; Ex.C65 photocopy of buility; Ex.C66 photocopy of invoice; Ex.C67 photocopy of advice; Ex.C68 to Ex.C70 photocopies of retail invoice and payment vouchers; Ex.C71 to Ex.C83 photocopies of payment vouchers/retail invoices and receipts; Ex.C84 photocopy of certificate; Ex.C85 photocopy of sheet containing 3 pages; Ex.C86 photocopy of payment voucher containing 5 pages; Ex.C87 photocopy of journal voucher containing 3 pages; Ex.C88 photocopy of payment voucher containing 3 pages; Ex.C89 photocopy of payment voucher containing 4 pages; Ex.C90 photocopy of payment voucher containing 3 pages and Ex.C90 affidavit of Sh.Gurmeet Singh Dhaliwal, Chairman dt.13.3.2013.

4. The arguments advanced by the learned counsel of the complainant heard at length. Record alongwith written submissions submitted by the complainant perused.

5. The submission of the learned counsel of the complainant is that the complainant in order to enhance the working and productivity of the educational institutions and for proper and efficient management of all the institutes, the complainant Society intended to computerize all the institutes with modern set up with latest technology and systems, which technology, software and system was meant to be used by him exclusively for improving its working and efficiency and productivity by means of self employment. The services from the opposite party through the software were supposed to be provided free of cost to the students and general visitors of the institution. No profit is to be earned from the installation of this system in the form of income. The complainant has placed the proposal order dated 12.3.2012 at 10:55 am vide Ex.C7 and Ex.C8 as per the previous negotiations which took place between both the parties and the same was accepted on 12.3.2012 at 4:41 pm vide Ex.C9. The final order was placed on the accepted terms on 14.3.2012 vide Ex.C5. The opposite party was required to install and operationalize the system before 7.4.2012. The condition was agreed by the opposite party in the agreement vide Ex.C5, Ex.C7 and Ex.C8. On relying upon the promise of the opposite party, Rs.1,85,415/- being 50% payment was paid on 13.3.2012 to it in advance as per the agreement vide Ex.C71. The complainant extended the completion time upto 14.4.2012 on the request of the opposite party vide Ex.C13. The machines were installed at the campus on 17.4.2012 by the opposite party vide Ex.C19 but they failed to operationalize them. The fact regarding the completion of work was admitted by the service engineer under its work completion certificate page 2 of Ex.C19 The complainant society has regularly sent the e-mails to the opposite party vide Ex.C20 to Ex.C35 in which the urgency of the project was raised before it and it was also pointed out that it has failed to operationalize the software/system as per the agreement due to which he is facing a lot of problems. The session has already started and the news item about the launching of the free of cost service was published in the newspaper vide Ex.C42 but the opposite party never bothered to reply the abovesaid e-mails sent by the complainant. The opposite party admitted its deficiency in service vide its reply Ex.C30 sent through e-mail on dated 21.5.2012 but it never tried to remove the problems which were present in the said system rather it left the project incomplete resulting into wastage of Rs.11 lac (approx.) that was invested by the complainant on the infrastructure that was demanded by it to complete the project as per the agreement. The complainant has deposited 50% of the cost of the project in advance to the opposite party as per the agreement and has provided each and every facility that was demanded by it but even after this, the opposite party having malafide intention in its mind and left the project incomplete. Due to this act of the opposite party, the complainant society has faced immense defamation in public and has suffered mental, physical agony and harassment. The complainant has produced on record the list of expenditure vide Ex.C41 that was incurred on setting up the infrastructure by him on the asking of the opposite party . The complainant has also produced on record the certificate Ex.C84 of Estate Officer who has carried the project under his supervision. The retail invoice and payment voucher of the expenses incurred by the complainant on the infrastructure are Ex.C-43 to Ex.C-83 through which he has incurred Rs.10,54,775/- and Rs.1,85,000/- has been paid being 50% amount in advance to the opposite party. The complainant society is a big group of institution and running a number of colleges and institutes and this service was supposed to be provided free of cost to all the students, college staff and other visitors. Non functioning of the project has put all the abovesaid people in distress. The infrastructure which has been installed on the premises of the complainant has become useless without the use of the software and the whole investment has become dead and waste. The opposite party is wholly responsible for the abovesaid loss to the complainant which is a charitable institution in nature imparting the education to the backward belt of Malwa region.

6. As submitted by the counsel of the complainant, it shows that the complainant society has been running the charitable institution for imparting the educational in the Malwa belt and the system that has been installed by the opposite party in his premises was non commercial in nature as he has provided that service free of cost to the students, college staff and visitors. The complainant is not charging any cost for providing that service thus the service obtained by the complainant society falls within the definition as provided under the 'Act'. The support can be sought by the precedent laid down by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled Halda Office Systems Pvt. Ltd. Vs. Bapuji Institute of Engineering and Technology, II (2012) CPJ 359 (NC) wherein it was held:-

“Consumer Protection Act, 1986, Sections 2(1)(d), 2(1)(f), 2(1)g), 21(b)-Consumer-Non-commercial Technical Education Institution-Goods-Breakdown of computer chairs-Replacement sought-Alleged deficiency in service-District Forum allowed complaint-State Commission dismissed appeal-Hence revision-Chairs were purchased for use of students in educational institution-There is no evidence that chairs were purchased on behalf of respondent for commercial purposes-Petitioner has admittedly replaced 15 chairs out of 300 defective chairs-Deficiency in service proved-Orders of Fora below upheld-Costs of Rs.10,000/- awarded.

Result: Revision Petition dismissed.”

7. A perusal of record placed on file shows that the Dynamic Queue Management System was installed in the premises of the complainant. The opposite party promised to install the said system by 7.4.2012 but the date was extended to 14.4.2012 by the complainant on the request of the opposite party but after the installation of the said system on 17.4.2012 the system proved faulty, defective and non-working. The complainant society requested the opposite party to rectify the problems telephonically and via SMS but the said system was not rectified. Moreover it was not upto the mark for which it was got installed from the opposite party. Despite repeated requests of the complainant society, the opposite party has failed to rectify the problems mentioned in para No.6 of the complaint. The complainant society has agreed to make the payment of Rs.3,20,000/-, out of which part payment to the tune of Rs.1,85,415/- (including taxes) towards 50% payment was made in advance on 13.3.2012 through NEFT No.PUNBH 12074071508 to the opposite party's account maintained in Yes Bank Ltd. The remaining amount was to be paid on the completion of the installation of the said system but the opposite party has left its work incomplete and has not installed the said system properly and as per the agreement the said system has not been providing all the facilities that has been agreed between the complainant society and the opposite party. Moreover the opposite party has not shown its intention to rectify those defects when the defects were reported in the said system. The engineer of the opposite party has rectified the defect after the delay of 11 days and thereafter the said system was again not working properly and was not giving the results as required to be given by the same. The complainant society has to raise the separate infrastructure for the installation of that system and for that it has spent Rs.10,54,775/- as per the requirement of the opposite party.

8. Therefore in view of what has been discussed above there is deficiency in service on the part of the opposite party. Hence this complaint is accepted with Rs.10,000/- as cost and compensation. The opposite party is directed to refund the amount of Rs.1,85,415/- to the complainant society within 45 days from the date of receipt of the copy of this order. At the same time the complainant will handover all the equipments if installed for the Dynamic Queue Management System by the opposite party to the opposite party. The compliance of this order be done within 45 days from the date of receipt of the copy of this order.

9. In case of non-compliance the interest @ 9% per annum will yield on the amount of Rs.1,85,415/- till realization.

10. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

21-03-2013

Vikramjit Kaur Soni

President

Amarjeet Paul

Member

Sukhwinder Kaur

Member