Karnataka

Chitradurga

CC/108/2016

Secretary, Amma Vidya Samsthe (Regd) - Complainant(s)

Versus

The Authorised Signatory RNS Motors, Limited, - Opp.Party(s)

Sri.P.S.Sathyanarayanarao

07 Oct 2017

ORDER

COMPLAINT FILED ON:16.06.2016

DISPOSED      ON:07.10.2017

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO: 108/2016

 

DATED:  7^th OCTOBER 2017

PRESENT: - SRI. T.N. SREENIVASAIAH  : PRESIDENT                                   B.A., LL.B.,

                   SRI.N. THIPPESWAMY        :MEMBER

                                 B.A., LL.B.,   

……COMPLAINANT	Amma vidya Samsthe ®, Represented by its Secretary, NH-4 Road, M.K. Katty, Chitradurga.      (Rep by Sri.C.M. Veeranna, Advocate)
V/S
…..OPPOSITE PARTIES	1. The Authorized Signatory, M/s Educomp Solutions Ltd., Ms. Edu Smart Services Pvt. Ltd., No.1211, Padma Tower, 1.5 Rajendra Palace, New Delhi 110008.   2. The Authorized Signatory, M/s Educomp Solutions Ltd., Shed No.8, No.31, 18 KM, Old Madras Road, Vigro Nagar, Bangalore-560049, Karnataka.     (Rep by Sri. N. Lokesh, Advocate)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P Act, 1986 for the relief to direct the OPs to pay a sum of Rs.18,00,000/- towards damages/loss of goodwill, Rs.20,000/- towards mental agony and legal expenses of Rs.20,000/- and such other reliefs.

2.     The brief facts of the case of the above complainant are that, it is running the educational institution for non-profit purpose and for imparting education since last 6 years.  Now it has 250 to 300 students with 40 full time facilities classes ranging from LKG to SSLC.  It is further submitted that, in order to improve the system of imparting education system in its school by way of digital class rooms/smart class with an innovative facilities of learning science and other subjects by testing out scientific theories in a practical space with experiments and problem solving and project based activities being the crux of learning through the smart classes. It complements the existing school lab, which brings technology on to the class rooms having exhaustive repository by world class digital models or lessons helpful to teaching staff.     Complainant approached the OPs on 02.01.2012 and the OP gave an assurance of carrying out the above said smart class program.  On 02.01.2012, an agreement entered into between the complainant and OPs for a period of five years titled as Agreement for Smart Class Program between Educomp Solutions Ltd.,.   Right to Use the Copyright Assets and Service Agreement.  According to the OPs the same is replicated in their standard agreement that, it has developed and extends rights to use of certain Educational contents known as “Educomp and provides Services associated therewith”.  The same was supposed to commence from the month of May-2012 and this agreement shall be initially for a period of 60 months from the date of installation and at the end of stipulated time for a period of five years, mutually by the parties as per the terms and conditions as agreed between the complainant and the OPs.   It is further submitted that, the complainant has made regular payment to the OPs i.e., an amount of Rs.2,74,000/- up to 13.03.2013.   The complainant has cleared all the outstanding bills after subtracting the payments for the period in which there was no service.  It is further submitted that, as per the agreement, the duty of OPs was bound to provide the following services to the complainant such as facilitate the complainant School in impleading the above said program at complainant’s School by sending experts to the same providing training to the School Teachers in regard to implementing the above said program, installation of the required devices etc.  It is further submitted that, the OPs failed to impart training during the Academic year from 2013 to August 2014.  Non-functioning of the small class caused great inconvenience to the students and the school management.  The school management had to face problems from the parents, since there was no smart class in the Academic year, the loss that caused to the complainant’s school cannot be compensated so easily.  Totally, the OP has failed to provide quality services to the complainant’s school.  Due to non-functioning of smart classes, complainant’s school has lost several admissions for not providing digital class facility.  Moreover, the complainant’s school has lost its reputation/goodwill in the society, for which the OPs are held liable to pay compensation/damages for the same. It is crystal clear that, there has been specific deficiency in service rendered by the OPs.  The deficiency in service of the OPs have been communicated to the OPs by several letters/phone calls but, there was no proper reply from time to time, there was no proper service provided on the part of OPs.  It is further submitted that, OPs have provided sub-standard electronic equipment required for digital classes such as e-projector, Desktop, White Board and sound systems but, they never functioned properly since beginning.  There is a defects in VGA splitter, projector not working satisfactorily, non-working of Iken library software, windows not working properly after formatting by the technical men of OPs and library supporting files not supporting.  The complainant has maintained all the services receipts given in regard to above repairs, which shows the dereliction of duty on the part of OPs.   The payment receipts and service receipts are part and parcel of this complaint.  The agreement with the OPs was entered in the premises of complainant’s School which is in Chitradurga which is within the jurisdiction of this Forum and therefore, prayed for allowing the complaint.  

 3.    On service of notice, OPs appeared through                    Sri. N. Lokesha, Advocate but, not filed version but, filed I.A supported by an accompanying affidavit stating that, the complaint is not maintainable in view of the passing an order in Arb.Case No.ARB/JN/214/2014 by the Hon’ble Arbitral Tribunal dated 19.10.2015 by Mr. J.N. Yadav, District Judge (Rtd.,) at Chamber No.427, Patiala House Court, New Delhi and prays for dismissal of the complaint. 

It is further submitted that, the OPs have entered into a tripartite agreement.  As per the agreement, OP No.1 was to supply and install the requisite hardware at the premises of OP No.2, who in turn was to provide the repository of digital curriculum, support services and necessary consumables.  As such, OPs have provided the material and installed the hardware within premises of complainant.  It is further submitted that, the complainant was to make payment to the OPs.  OPs have performed their part of contract by providing and installing the entire instrument at the premises of the complainant as per the terms of the agreement.  But, the complainant despite having availed services to its complete satisfaction failed to fulfil its payment. As per clause 5 of the agreement, in consideration for services provided by OPs, complainant was required to make payment of the fees to the OPs as specified in the agreement.  It is further submitted that, as per clause 9.1 of the agreement, if any dispute or difference of any kind whatsoever arise between the parties in connection with or arising out of this agreement or any part thereof, such dispute or difference shall be referred to an acceptable sole arbitrator under the provisions of the Indian Arbitration and Conciliation Act, 1996, or any enactment or modification thereunder.  The sole arbitrator shall be appointed by party A.  The venue for arbitration shall be at New Delhi and the language shall be English subject thereto, the Courts in New Delhi shall have jurisdiction to entertain all disputes between the parties.  It is further submitted that, the complainant has definitely a dispute regarding the issue on hand, he has to approach the competent Arbitral Tribunal to resolve its dispute.  The complainant without exhausting the available remedy under the Special Act has come before this Forum without clean hands, therefore, the complaint is not maintainable and is liable to be dismissed.

4.     The complainant has filed objection to the I.A filed by the OP stating that, the application filed by OP No.1 is not maintainable in law.  OP No.1 has sworn false allegations in its application supported by an affidavit.  The complainant is the permanent resident of Chitradurga and running the educational institution at Matada Kurubarahatti, Chitradurga.  The said institution was established in the year 2010.  Presently it has 250-300 students studying in LKG to SSLC.  The OPs have entered into a tripartite agreement on 02.01.2012 in the premises of complainant at Chitradurga.  The complainant has made regular payment to the OPs up to 13.03.2013 for Rs.2,74,000/-.  The complainant has filed this complaint against the OPs seeking for a direction to the OPs to pay a sum of Rs.18,00,000/- towards damages.  The application filed by the OPs is not maintainable and this Forum has got every jurisdiction to try and entertain this complaint.  Hence, prays for dismissal of the I.A.  The Forum has verified the I.A and objections filed by the complainant.  The Forum comes to the conclusion that, this I.A will be considered on merits. After verification of all the documents filed by the complainant and OPs, the Forum comes to the conclusion that, this Forum has got jurisdiction to entertain this complaint.  Hence, I.A. is hereby dismissed.       

5.     Complainant has examined as PW-1 by filing affidavit evidence and no documents have been got marked. On behalf of OPs one Sri. Subhash Pawar, the authorized representative has examined as DW-1 by filing the affidavit evidence and Ex.B-1 to B-6 documents have been got marked.   

6.     Arguments of both sides heard. 

7.     Now the points that arise for our consideration for decision of above complaints are that;

(1)  Whether the complainant proves that the OPs have committed deficiency of service and unfair trade practice and entitled for the reliefs as prayed for in the above complaint?

              (2) What order?

        8.     Our findings on the above points are as follows:-

        Point No.1:- Partly in Affirmative.

        Point No.2:- As per final order.

 

REASONS

9.     It is not in dispute that, complainant is running the educational institution for non-profit purpose and for imparting education since last 6 years having 250 to 300 students with 40 full time facilities classes ranging from LKG to SSLC.  In order to improve the system of imparting education system in its school by way of digital class rooms/smart class with an innovative facilities of learning science and other subjects by testing out scientific theories in a practical space with experiments and problem solving and project based activities being the crux of learning through the smart classes. Complainant approached the OPs on 02.01.2012 and OP gave an assurance of carrying out the above said smart class program.  On 02.01.2012, an agreement entered into between the complainant and OPs for a period of five years titled as Agreement for Smart Class Program between Educomp Solutions Ltd.,.   Right to Use the Copyright Assets and Service Agreement.  The same is replicated in their standard agreement that, it has developed and extends rights to use of certain Educational contents known as “Educomp and provides Services associated therewith”   supposed to commence from the month of         May-2012 and this agreement shall be initially for a period of 60 months from the date of installation and at the end of stipulated time for a period of five years.  The complainant has made regular payment to the OPs i.e., an amount of Rs.2,74,000/- up to 13.03.2013.   The complainant has cleared all the outstanding bills after subtracting the payments for the period in which there was no service.  As per the agreement, the duty of OPs was bound to provide the following services to the complainant such as facilitate the complainant’s School in impleading the above said program at complainant’s School by sending experts to the same providing training to the School Teachers in regard to implementing the above said program, installation of the required devices etc.  But, the OPs failed to impart training during the Academic year from 2013 to August 2014.  Non-functioning of the small class caused great inconvenience to the students and the school management.  The school management had to face problems from the parents, since there was no smart class in the Academic year, the loss that caused to the complainant’s school cannot be compensated so easily.  The complainant’s school has lost its reputation/goodwill in the society, for which the OPs are held liable to pay compensation/damages for the same.  Therefore, the same has been deficiency in service rendered by the OPs.  The deficiency in service of the OPs have been communicated to the OPs by several letters/phone calls but, there was no proper reply from time to time, there was no proper service provided on the part of OPs. 

10.   In support of his contention, the complainant has filed his affidavit evidence and reiterated the contents of complaint and no documents have been got marked.   

11.   On the other hand, it is argued by the OPs that, as per agreement they have provided each and every service but, school was not ready to pay the due amount and OPs have requested the complainant several times but, complainant not ready to pay the due amount.  The OPs have already initiated the Arbitration proceeding in this matter.  The transaction between the complainant and OPs is a commercial transaction and as per the provisions of the C.P Act u/Sec.2(1)(d) is not maintainable, so the complainant is not entitled for any relief.  The school is not a consumer because they are involving in commercial activities and they use the name of smart classes to get the benefit from the students and also use the name to attract the new students for admission in the school.  The OPs have installed the accessories and have implemented the course as per their agreement without causing any delay in their work towards the complainant.   

12.   In support of their contention, the OPs have filed affidavit evidence of authorized representative and the documents Ex.B-1 to B-6 have been got marked.  Ex.B-1 is the certified copy of tripartite agreement dated 02.01.2012,     Ex.B-2 is the certified copy of Annexure A-1, i.e., list of Hardware and Consideration for Hardware, Ex.B-3 is the certified copy of Annexure A-2 i.e., Payment for Hardware, Ex.B-4 is the Annexure B i.e., the consideration for content licenses, Ex.B-5 is the Annexure C i.e., the consideration for consideration for provision of support services, Ex.B-6 is the Award dated 19.10.2015 before the Sole Arbitrator at Chamber No.427, Patiala House Court, New Delhi in Arb. Case No.ARB/JN/214/2014.         

 

13.   On hearing the rival contentions of both parties and on perusal of the documents including the affidavit and documentary evidence, it clearly made out from the Ex.B-1 agreement entered into between the parties that, the OP agreed to conduct the smart class programme at the premises of the complainant and the OPs have received a sum of Rs.2,74,000/- from the complainant.  The contention taken by the OPs in its version cannot be believed, prima-facie shows that, the OPs have committed a deficiency of service and unfair trade practice.  As per the document produced by the complainant, it clearly shows that, the OPs have received the amount from the complainant.     The OPs have provided sub-standard electronic equipments and they never functioned properly since beginning.  The same was communicated to the OPs about the deficiency on its part but, OPs never replied to the same.  Therefore, we come to the conclusion that, there is a deficiency of service and unfair trade practice on the part of OPs.  Accordingly, this Point No.1 is held as partly affirmative to the complainant.

 

          14.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

          The complaint filed by the complainant U/s 12 of CP Act 1986 is partly allowed.

          It is ordered that, the OPs are hereby directed to pay a sum of Rs.2,74,000/-, the amount paid by the complainant to the OPs and Rs.4,00,000/- towards damages and loss of goodwill to the complainant’s institution for the year 2013-14, in all a sum of Rs.6,74,000/- to the complainant.

          It is further ordered that, the OPs are hereby directed to pay a sum of Rs.10,000/- towards mental agony and Rs.5,000/- towards costs of this proceeding.  

          It is further ordered that, the OPs are hereby directed to comply the above order within 30 days from the date of this order.

            (This order is made with the consent of Member after the correction of the draft on 07/10/2017 and it is pronounced in the open Court after our signatures)         

 

                                     

 MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OPs:

DW-1:  Sri. Subhash Pawar, the Authorized Representative by way of affidavit evidence. 

Documents marked on behalf of Complainant:

-Nil-

Documents marked on behalf of OPs:

 

01	Ex-B-1:-	Certified copy of tripartite agreement dated 02.01.2012
02	Ex-B-2:-	Certified copy of Annexure A-1, i.e., list of Hardware and Consideration for Hardware
03	Ex.B-3:-	Certified copy of Annexure A-2 i.e., Payment for Hardware
04	Ex.B-4:-	Annexure B i.e., the consideration for content licenses
05	Ex.B-5:-	Annexure C i.e., the consideration for consideration for provision of support services
06	Ex.B-6:-	Award dated 19.10.2015 before the Sole Arbitrator at Chamber No.427, Patiala House Court, New Delhi in Arb. Case No.ARB/JN/214/2014.

 

 

 

MEMBER                                                             PRESIDENT

Rhr**