DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, CAMP COURT AT AMRITSAR, PUNJAB.

 

Complaint Case No : RBT/CC/2018/234

Date of Institution : 28.03.2018/29.11.2021

Date of Decision : 01.09.2022

Shri Sunil Anand son of Shri Vinod Kumar Anand, Proprietor of M/s. AK Finance, resident of H. No. 10/21, Kashmir Avenue, Near Gopal Mandir, Amritsar.      …Complainant

Versus

M/s Cyrus Technology Solutions Private Limited, a company incorporated under the provisions of the companies Act, 2013 through its Managing Director/Authorized Signatory/Authorized Person having its registered office at 84/248, Madhayam Marg, Mansarovar, Jaipur-302021. 

…Opposite Parties

Complaint U/S 12 (1) read with Section 2 C (i), (ii) and (iii) of The Consumer Protection Act, 1986.

Present: Sh. Sumant Tuteja Adv counsel for complainant.

Sh. Amit Kapoor Adv counsel for the opposite party.

Quorum.-

1. Sh. Ashish Kumar Grover : President

2. Sh. Navdeep Kumar Garg : Member

(ORDER BY ASHISH KUMAR GROVER PRESIDENT):

    The present complaint has been received by transfer from District Consumer Commission, Amritsar in compliance of the order dated 26.11.2021 of the Hon'ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh. The complainant filed the present complaint under Section 12 (1) read with Section 2 C (i), (ii) and (iii) of the Consumer Protection Act 1986 against M/s Cyrus Technology Solutions Private Limited, Jaipur. (in short the opposite party). 

2. The facts leading to the present complaint as stated by the complainant are that he is into the business of finance exclusively for earning his livelihood by means of self employment. The opposite party doing the business of developing customized computer software. The complainant required computer software for his business accounts and in this regard he approached the opposite party and requested for software for accounting and book keeping purpose. The opposite party demanded a sum of Rs. 1,00,000/- from the complainant to program the said software for the complainant which was give by the complainant and in this regard one agreement was also executed between the parties on 14.11.2017 containing terms and conditions of the said project. 

3. It is further alleged that the opposite party programmed the said software for the complainant and provided the same to the complainant at Amritsar and complainant installed the said software in his computer and started maintaining his accounts but said software was not working according to which it was programmed by the opposite party. Whenever the complainant started working on the said software it gives errors while using the same and did not work properly. The complainant approached the opposite party many a time and complaints made by the complainant were temporary rectified by the opposite party through internet but the said software did not work properly. The complainant sent emails to the opposite party to rectify the said software permanently or to program the said software according to the needs of the complainant but of no use which amounts to deficiency in service and unfair trade practice on the part of opposite parties. Hence, the present complaint is filed seeking the following reliefs.-

1) The opposite party may be directed to refund the amount of Rs. 1,00,000/- to the complainant alongwith interest at the rate of 18% per annum till the realization of payment.  

2) To pay Rs. 30,000/- on account of compensation for mental agony and harassment and litigation expenses.  

3) Any other relief to which the complainant is found entitled. 

4. Upon notice of this complaint, the opposite party filed written reply taking preliminary objections that the complainant is not a consumer as a person is not a consumer if he/she purchases a good or hires a service for commercial purpose. Further, both the parties have agreed by signing a mutual business policy an agreement on 14.11.2017 with the terms and conditions of the said project. As per point K of Page No. 5 of 16 it has been clearly mentioned that Cyrus is providing free technical support for first one year from the date of go live stage and free technical i) support includes the errors, bugs reporting related issues and functional problems. ii) Support not includes Web Design Changes, Internal Panel Design Changes, New Pop-up and other designing additional functionality, additional job work other than in scope. The period of free technical support is one year and one year is still left to complete and free technical support is still being given as and when required by the complainant. Further, as per Clause 5 of page No. 6 of 16 the software is ownership of Cyrus has authorized and is original creator of software source, logics, blue prints, diagrams, glow chart, Internal design and data base structure and it has the right to modify/manage on. Cyrus is authorized to its client to use the license software which will be developed based on scope of work and client requirements. Client can use this software complete copyrights are reserved with Cyrus, client can not duplicate copy and modify the software or any part of it. The opposite party are not providing any source code at any cost. Products are here in after collectively referred to as the intellectual property products. Both the parties mutually agreed for settling the disputes and this agreement at the courts at Jaipur Rajasthan.

5. On merits, it is submitted that complainant is maintaining his business account which is a commercial work and does not fall within the definition of consumer. It is admitted that opposite party is in business of developing customized computer software. It is also admitted that the complainant approached the opposite party and requested for installing the software for the purpose of maintaining the accounts. It is also admitted that both the parties have agreed by signing a mutual business policy and an agreement dated 14.11.2017 and according to the terms and conditions of the said project as well as GST charges were also included in this agreement. It is admitted that the opposite party installed the said software of the complainant at Amritsar. It is admitted that there was a complaint regarding the errors of the said software and complainant informed the opposite party telephonically as well as through mails and whenever there was a problem of errors in the software it was rectified by opposite party through internet service. It is admitted that opposite party received emails regarding the error problems and it was sorted out whenever there was call to sort out. It is denied that said software is full of errors. There is no deficiency in service and unfair trade practice on the part of the opposite party.

6. To prove his case the complainant tendered in evidence his  own affidavit Ex.CW-1/A, copy of agreement Ex.C-1, copy of email Ex.C-2, affidavit of Gaurav Chohan Ex.CW-2/A and documents Ex.C-3 to Ex.C-6 and closed the evidence. 

7. To rebut the case of the complainant the opposite party not tendered any document in their evidence. 

8. We have heard the learned counsel for the parties and gone through the record on the file.

9. It is admitted fact between the parties that the complainant purchased a software from the opposite party for his business purpose. It is also admitted by the opposite party that the said software was installed by the opposite party at Amritsar, so the question of territorial jurisdiction does not arise. The opposite party has taken another objection that the complainant purchased the software for commercial purpose. The complainant mentioned in his complaint that he is into the business of finance exclusively for earning his livelihood by means of self employment, therefore, the complainant falls under the definition of consumer under the Consumer Protection Act. It is also admitted that the opposite party installed the software after receiving the charges from the complainant and both the parties signed an agreement dated 14.11.2017. Further, the opposite party also admitted that opposite party is providing free technical support for first one year from the date of go live stage. It is also admitted by the opposite party that they have receiving complaints from the complainant through emails regarding the errors in the software within one year from the date of installation of software. It is mentioned by the opposite party that they have sorted out the complaints as and when received by them but in our view occurring of problems again and again in the software has given lot of inconvenience and harassment to the complainant. 

10. Further, the complainant mentioned in the complaint that problems in the software were temporary rectified by the opposite party through internet but the said software did not work properly. The complainant sent many emails to the opposite party to rectify the said software permanently or to program the said software according to the needs of the complainant but opposite party not listen the complainant. 

12. To prove that the software is full of errors the complainant filed copy of technical opinion of an expert Ex.C-6 alongwith his affidavit Ex.CW-2/A. In his opinion he duly mentioned that the said software does not fulfill the requirement of business of finance. The said software is full of errors due to incorrect coding and often suffers system crash. It is also mentioned in his opinion Ex.C-6 that the basic accounting principles in the said software are incorrect and it does not calculated correct interest as per accounts. The said software does not support ledger modification and entries made neither can be edited nor erased. The cashbook shown in the said software does not show exact cash in hand and statement of account in the said software does not show the due installments and remaining installments/balance in account. Further, despite the proper entries the net balance always shows faulty figures and does not show exact balance. In the last of his opinion he mentioned that the software is incorrectly coded and basic principles of accountancy have not been followed while programming the said software. This opinion is duly signed by Gourav Chauhan Proprietor of RGS Infotech, Amritsar. Further, to support his expert opinion the expert witness Gaurav Chohan also filed his affidavit Ex.CW-2/A in which he deposed that he has done B.Sc. Computer science course and providing services of computer software designer to his customers. Further, the same errors and shortcomings are mentioned in the affidavit as mentioned in the expert opinion. 

13. On the other hand, to rebut this evidence of the complainant the opposite party has not filed any expert opinion or affidavit of any expert and also not denied this opinion by way of any other evidence. So, from this opinion of expert and his affidavit it is proved on the file that the software is defective and it is full of errors. In this way, by installing a defective software in the computer of the complainant due to which he suffered loss is clear cut deficiency in service and unfair trade practice on the part of the opposite party. 

14. In view of the above discussion, present complaint is partly allowed. The opposite party is directed to repair the software of the complainant and remove all the defects in it. The opposite party is also directed to pay Rs. 3,000/- to the complainant as compensation for mental tension and harassment and Rs. 2,200/- as costs and litigation expenses. Compliance of this order be made within the period of 45 days from the date of the receipt of the copy of this order, failing which the opposite party is directed to replace the software of the complainant with new defect free software alongwith above mentioned compensation and litigation expenses. Copy of the order will be supplied to the parties by the District Consumer Disputes Redressal Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar. 

ANNOUNCED IN THE OPEN COMMISSION:

        1st Day of September 2022

 

 

            (Ashish Kumar Grover)

            President

              

(Navdeep Kumar Garg)

Member