Punjab

Faridkot

CC/15/81

Dasmesh Public School - Complainant(s)

Versus

M/s Pearson Education Services - Opp.Party(s)

P.L. Dhaudhary

21 Mar 2016

ORDER

    DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :        81

Date of Institution :  22.06.2015

Date of Decision :    21.03.2016

Dasmesh Public School, Talwandi Road, Faridkot through its Director Sh Gurcharan Singh.                                                                                          

.....Complainant

Versus

1.      M/s Pearson Education  Services Pvt ltd (formerly known as Manipal K-12 Education Pvt Ltd) No. 10, 3^rd Main, Ashwini layout, International Ring Road, Bangalore-560047 through its Director.

2.       The Manager Edurite Smart Classes Ejipura, Koramangala, Bangalore.

                                                                                               .........OPs

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:     Sh. Ajit Aggarwal, President,

Smt Parampal Kaur, Member,

Sh P L Singla, Member.

Present:       Sh Purshotam Lal Chaudhary, Ld Counsel for complainant,

 Sh Atul Gupta, Ld Counsel for OPs.

 

(Ajit Aggarwal, President)

                                                         Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to refund Rs 2,68,000/- and has also prayed to direct Ops to pay Rs 5,00,000/- as compensation for inconvenience, harassment and mental agony besides litigation expenses.

  2                                                    Briefly stated, the case of the complainant is that OP-1 executed an agreement with complainant at Faridkot on 22.12.2009 for implementation of I – Class room programme in the school premises at Faridkot for a period of 5 years i.e from February 2010 and as per agreement, OPs has to install and provide the 25 I-class room system accessories, networking and other required components at the school premises and OPs would also provide the school with access to all existing and future digital resources. It is pertinent to mention that complainant was providing the I-classroom/ e-education system to its students free of costs. OPs agreed to maintain the hardware provided at the centre/premises throughout the duration of the agreement i.e till December 2014 and in case of any defect in the hardware, OPs would rectify the same. Complainant paid Rs 2,68,000/-in advance in addition to the monthly instalment amount to Rs 65,66,000/-paid upto March 2014 to OP-1 and in this way, complainant paid Rs 68,34,000/-in total. System installed by OP-1 for I-class remained sporadic and disrupted in the month of April 2014 onwards and is shutdown from June 2014. Complainant made various requests to OPs through e-mail on 28.04.2014, 20.05.2014 and also wrote registered letter on July 2014 and September 2014, but instead of rectifying the system, OPs withdrew even its resource person from school duty and this attitude of OPs in not providing satisfactory services to complainant without any valid reason, which adversely affected the studies of students and caused big loss to fair name of institution/complainant, which amounts to deficiency in service. Complainant has paid all EMIs and never defaulted in payment and this act of OPs has caused great loss to students. This act of OPs has caused great harassment and mental tension to complainant, which amounts to deficiency in service and unfair trade practice. Complainant has prayed for accepting the complaint and for seeking directions to OPs to pay Rs 5,00,000/- as compensation for inconvenience, harassment and mental agony besides Rs 11,000/- as cost of litigation besides main relief. Hence, the complaint.

  3                                              The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 24.07.2015, complaint was admitted and notice was ordered to be issued to OPs.

4                                                        On receipt of the notice issued by this Forum, OPs filed reply wherein asserted that M/s Manipal 12 Education (P) ltd has been merged with M/s Tutor Vista Global Pvt Ltd pursuant to scheme of arrangement sanctioned by the jurisdictional High Court and after that M/s Tutor Vista Global has changed its name to M/s Pearson India Education Services Pvt Ltd w.e.f 30^th September 2014. It is averred that present petition is not maintainable as it is based on false grounds and complainant has failed to perform his part of performance as per agreement. This Forum has no jurisdiction to adjudicate the present complaint as venue for arbitration was decided as Banglore and Laws of state of Karnataka are applicable as per agreement. it is further averred that complainant purchased material for commercial purpose. Moreover, despite repeated reminders and requests, complainant did not make the payment in full for the services used by him and has filed this complaint to evade its liability of making the remaining payment. Ops provided 25 Class Room service with access to digitally license and complainant opted the digital class room for commercial exploitation and for giving added competitive advantage to its school and thus, has commercially exploited the product for last five years. It is further averred that complainant made down payment of Rs2,68,000/-alongwith regular monthly EMI of Rs1,34,000/- from February 2010 to February 2014 and denied that complainant paid monthly EMI till March, 2014. It is asserted that hardware and software license was in complete working condition and school was using it without making any payment from February 2014 onward and on receiving e-mail from complainant, OPs renewed the CIN twice even though complainant had not made payment after February, 2014. It is further averred that complainant has distorted the real facts and has not come to the Forum with clean hands. The Resource Coordinator Narinder Singh was working in the school till 1^st August 2014 even though Company was not paid for the services from February 2014. Complainant school is liable to pay remaining amount of Rs 12,06,000/-which is due since march 2014 till the end of agreement terms and to avoid  and escape its liability of making payment of remaining amount, complainant has filed the present complaint. It is reiterated that there is no deficiency in service on the part of OPs and all the other allegations and allegation with regard to relief sought too were refuted with a prayer that complaint may be dismissed with costs against the answering opposite parties.

5                                                          Parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them.  The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to C-9, alongwith documents Ex C-5/a, C-8/a and C-9/a and then, closed the evidence.

6                                   In order to rebut the evidence of the complainant, OPs tendered in evidence affidavit of Sanjeev Sharma as Ex. OP-1 and documents Ex OP-2 to 3 and then, closed the evidence on behalf of OPs.          

7                                         Ld Counsel for complainant contended that OP-1 executed an agreement with complainant on 22.12.2009 and as per agreement, OPs have to install and provide 25 I Classroom system accessories, networking and other required components at school premises and OPs would provide the school with access to all existing and future digital resources and complainant was providing I-class room/e-education to its students free of cost. It is contended that OPs agreed to maintain hardware provided at premises throughout the duration of agreement i.e from 22.12.2009 till December 2014  and in case of any defect in hardware, the OPs would rectify the same. Complainant paid Rs2,68,000/-in advance in addition to monthly instalment of Rs65,66000/- paid upto March 2014 to OP-1 and in this way, complainant has deposited Rs68,34,000/-with OPs in total. It is contended that complainant has paid all the EMIs and never defaulted in payment and this attitude of Ops has caused great harassment to complainants especially when the real customers/users are the children, whose career is at stake. It is inhumane of the part of Ops.

8                                      To controvert the allegations of complainant, ld counsel for Ops disclosed before the Forum that complainant has not performed his part of performance well as per agreement executed between complainant and Ops and this Forum has no jurisdiction to hear and try the present complaint as venue for arbitration was decided on Banglore and now, only laws of State of Karnataka are applicable as per agreement clause 17 (j). It is further averred that matter involved in present complaint is not covered under Consumer Protection Act as complainant purchased the material for earning huge profits and is meant for commercial purpose. It is further averred that complainant is guilty of not making payment in full in terms of agreement dt 22.12.2009 for services used by complainant. Ops issued various reminders to complainant to make payment as per agreement but instead of making full payment, he has filed the present complaint to evade its liability to make payment. Amount of Rs12,06,000/-is due towards complainant and he has not made payment from the month of March 2014, despite regular reminder mails sent to him by Ops and instead of making payment of  remaining amount, complainant issued a legal notice on false and baseless allegations and now has filed the present complaint. Complainant has intentionally withheld the payment and has violated the terms of contract. It is also brought before the Forum that complainant availed the services of Ops only to get monitory benefit and for commercial purpose. Ld counsel for Ops asserted that if it is presumed that complainant was using the services of Ops for benefit of students, even then, it cannot be denied that complainant was charging amount from students as tuition fees and was not providing all education free of cost. In fact, he was availing the services of Ops for commercial purpose for giving added competitive advantage to its school. As such, they commercially exploited the services of Ops. The transactions between the parties are of commercial nature and complaint does not fall under the definition of Consumer under Consumer Protection Act. So, complainant has no right to file the present complaint before this Forum stating themselves as consumer. The present complaint is liable to be dismissed with costs only on this score.

9                                        The case of the complainant is that they are running a school and to provide better education to the students, they entered into an agreement with Ops to provide e-classes in their school. For this purpose, they paid license fee to the Ops in the shape of EMI. As per agreement, the Ops have to provide the school with access to all existing and future digital resources and had to maintain the hardware provided to them throughout the duration of the agreement and in case of any defect in the hardware, the Ops had to rectify the same but they failed to provide the services as per agreement, which amounts to deficiency in service and it caused great loss to the reputation of complainant and study of students. In reply, Ops argued that there is no deficiency in service on their part and they provided services as per agreement. They argued that the transaction between the parties is of commercial nature as complainant purchased the material from Ops for earning profit. So, they do not fall under the definition of consumer as per Consumer Protection Act. So, this Forum has no jurisdiction to try and decide this complaint. The main stress of the Ops is that the transaction between the parties is of commercial nature and complainant does not fall under the definition of consumer, so, in these circumstances, before going into the merits of the present complaint, first point is to be decided whether the transaction between the parties is of commercial nature or not ? Second, whether complainant is consumer of Ops under the Consumer Protection Act or not ? On this point, they argued that complainant charged fees from their students for providing them education and the services of e-class rooms. As such, they availed the services of Ops for commercial purposes and they have no right to file this complaint before Consumer Forum and they should go to the civil court for redressal of their grievance if they wish to do so. In his support, he has put reliance on the citation 2016 (1) CLT page 566 titled as Prem Kumar Bhardwaj & anr Vs Trigun Automobiles & others wherein our Hon’ble National Consumer Disputes Redressal Commission, New Delhi held that Consumer Protection Act, 1986, Section 2(1)(d)-Commercial purpose-Consumer-Defective bus supplied by the dealer-Held –That school was run by the petitioners for commercial purpose and the subject bus was purchased by them in furtherance of the said purpose-As the subject bus was purchased for commercial purpose, in view of section 2 (1) (d), the petitioners can not be termed as ‘consumer’ and they could not have maintained the consumer complaint-Revision petition dismissed. He has further placed reliance on the citation 2013 (3) CLT 226 titled as U.P.Power Corporation Ltd & ors Vs Anis Ahmad wherein our Apex Court held that Consumer Protection Act, 1986, Section 2 (1) (d), 2 (1) (b) & 2(1) (c)-Commercial purpose- Consumer-Complaint-Complainant-Person(s) availing services for ‘commercial purpose’ do not fall within the meaning of “consumer” and cannot be a “complainant” for the purpose of filing a “complaint” before the Consumer Forum. So, in these circumstances and in the light of the earlier decision, our National Commission and Apex Court, the present complaint may be dismissed. In reply, ld counsel for complainant argued that they provided facilities of e-class to their students free of cost and did not charge any extra fees from them for providing e-class rooms and as such, transactions between them are not of commercial nature as they do not charge any extra fees from students. So, they have rightly filed the present complaint before this Forum and this Forum has jurisdiction to try and decide the present complaint on merits.

10                                  We have thoroughly gone through file and pleadings and arguments led by both the parties. Ops argued that the transaction between them is of commercial nature and complainant charged fees from their students for providing them e-education and facilities of e-class whereas complainant argued that they have not charged any extra fees from their students for providing them e-classrooms. So, their transaction is not for commercial purpose. It is admitted fact that complainant charged tuition fees and other charges from their students for providing them education in their schools. Therefore, contention of complainant that they have not charged any extra fees from their students for providing them e-class rooms has no force as admittedly, they charged fees from their students and provided facilities of e-classrooms to their students is part and parcel of the education provided by complainant to their students for their better education. And therefore, they can not say that  they are providing the facilities of e-classrooms to their students free of charges whereas they are charging tuition fees from their students for providing them education.

11                                         From the above discussion, we are of the considered opinion that the complainant availed the services of Ops for commercial purpose and complainant does not come under the definition of consumer as per Consumer Protection Act. Therefore, this Forum has no jurisdiction to try and decide this complaint and hence, the present complaint in hand is hereby dismissed. However, complainant is at liberty to file it afresh before civil court or appropriate Forum. However, in peculiar circumstances of the case, there are no orders as to costs. Copy of the order be supplied to parties free of costs as per law. File be consigned to record room.

Announced in Open Forum

Dated :  21.03.2016

Member                Member          President         

(Parampal Kaur) (P  Singla)      (Ajit Aggarwal)