Karnataka

Chitradurga

CC/55/2016

The Authorised Signatory,Don Bosco School - Complainant(s)

Versus

The Authorised Signatory,M/s Educomp Solutions Ltd., - Opp.Party(s)

Shri.C.M.Veeranna

09 Jun 2017

ORDER

COMPLAINT FILED ON:16.06.2016

DISPOSED      ON:09.06.2017

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO: 55/2016

 

DATED:  9^th JUNE 2017

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

                   SRI.N. THIPPESWAMY        :MEMBER

                                 B.A., LL.B.,   

……COMPLAINANT	The Authorized Signatory, Don Bosco School, P.Box No.64, NH-4 Road, Kelagote, Chitradurga.      (Rep by Sri.C.M. Veeranna, Advocate)
V/S
…..OPPOSITE PARTY	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.   (Rep by Sri. P.M. Hanumantha Raya, 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 OP to pay a sum of Rs.10,00,000/- 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 18 years.  Now it has 2000 students with 40 full time facilities classes ranging from LKG to 12^th Standard.  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 OP and the OP gave an assurance of carrying out the above said smart class program.  On 15.12.2009 an agreement entered into between the complainant and OP 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 OP 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 January 2010 and this agreement shall be initially for a period of 60 months from the month 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 OP at that time.   It is further submitted that, the complainant has made regular payment to the OP i.e., on 01.10.2014 a cheque for Rs.5,40,000/- after reducing the TDS and the cheque amount of Rs.4,32,000/-.  The complainant has cleared all the outstanding bills after subtracting the payments for the period in which there was no service.  It is submitted that, as per the agreement, the duty of OP’s bound to provide the following services to the complainant such as facilitate the complainant School in impleading the above said program at complainant 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 OP 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 face problems from the parents, since there was no small 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 OP is held liable to pay compensation/damages for the same. It is crystal clear that, there has been specific deficiency in service rendered by the OP.  The deficiency in service of the OP has been communicated to the OP by several letters but, there was no proper reply from time to time, there was no proper service provided on OP part.  It is further submitted that, OP has 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 OP 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 OP.   The payment receipts and service receipts are part and parcel of this complaint.  The agreement with the OP was entered in the premises of complainant’s School which is in Chitradurga.  It is further submitted that, the complainant has issued legal notice on 19.05.2016 but, the OP has not replied nor paid any compensation towards damages/loss of goodwill and the cause of action for the complaint on 19.05.2016 which is within the jurisdiction of this Forum and therefore, prayed for allowing the complaint.  

 3.    On service of notice, OP appeared through                    Sri. P.M. Hanumantha Raya, Advocate and filed version denying the entire averments made in the complaint.  It is submitted by the OP that, the averments made in para 6 and 7 are true. The averments made in para 8 to 11 are totally denied as false.  It is further submitted that, the complainant has filed this complaint only with an intention to harassing and extracting money from the OP.  The OP has provide each and every service as per agreement but, school was not ready to pay the due amount as per agreement and OP has requested the complainant several times but, complainant not ready to pay the due amount.  The OP has already initiated the arbitration proceeding in this matter.  The transaction between the complainant and OP 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.  It is further submitted that, school is not a consumer because they are involving in commercial activities.  They use the name of smart classes to get the benefit from the students and also the use the name to attract the new students for admission in the school.  The OP has installed the accessories and have implemented the course as per their agreement without causing any delay in their work towards the complainant.  The OP has completed their obligations towards the complainant and have installed all equipments which has to be installed.  The hardware and the equipments provided and installed by the OP are very genuine and original, the complainant has not been able to maintain them effectively and neglected their responsibilities on them and hence, they might have got damaged for which, the OP in no manner is liable for that acts.  The notice issued by the complainant to OP terminating the agreement is not aware of OP.  It is also submitted that, OP also sent a notice for proposal of appointment of arbitrator to resolve the dispute.  The OP submits that, as on 25.07.2016, the complainant is due towards the OP for a sum of Rs.4,240,000/- which the complainant is not ready to pay even after several requests made by the OP.  That the complainant has also issued installation certificate dated 28.06.2010 which is clear that the OPs have successfully installed the equipments in the complaint’s school in time and that the equipments were in good condition during the installation.     That Sec.8 of the Arbitration and Conciliation Act clearly debar the jurisdiction of any judicial authority if contracting party through their mutual agreement entered into Arbitration Agreement.  If any dispute is raised before any judicial authority, which is subject matter of an arbitration agreement then such issue shall be referred for arbitration not withstanding any judgment, decree or order of the Hon’ble Supreme Court or any Court and therefore, the complaint filed by the complainant is liable to be dismissed.

4.     Complainant has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-3 were got marked. On behalf of OP one Sri.Lingananda K.M.S, the authorized representative has examined as DW-1 by filing the affidavit evidence and no documents have been got marked.   

5.     Arguments of both sides heard. 

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

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

              (2) What order?

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

        Point No.1:- Partly in Affirmative.

        Point No.2:- As per final order.

 

REASONS

8.     It is not in dispute that, complainant is running the educational institution for non-profit purpose and for imparting education since last 18 years.  Now it has 2000 students with 40 full time facilities classes ranging from LKG to 12^th Standard.  It is argued by the complainant 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 which 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 OP and the OP gave an assurance of carrying out the above said smart class program.  On 15.12.2009 an agreement entered into between the complainant and OP for a period of five years titled as Agreement for Smart Class Program between Educomp Solutions Ltd.,.   The same was supposed to commence from the month of January 2010 and this agreement shall be initially for a period of 60 months from the month 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.  The complainant has made regular payment to the OP i.e., on 01.10.2014 a cheque for Rs.5,40,000/-.  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 bound of OP is to provide to the complainant such as facilitate the School in impleading the above said program by sending experts to the same providing training to the School Teachers regarding implementing the above said program, installation of the required devices etc., but, the OP 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, had faced problems from the parents.  Due to non-functioning of smart classes, complainant’s school has lost several admissions for not providing digital class facility and also lost its reputation/goodwill in the society, for which the OP is held liable to pay compensation/damages for the same. OP has been communicated by several letters but, there was no proper reply from time to time, there was no proper service provided on OP part.  OP has 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 OP 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 OP.  

 9.    In support of her contention, the complainant has filed her affidavit evidence and reiterated the contents of complaint and relied on documents like Agreement for Smart class Programme marked as Ex.A-1, which clearly shows that, there is an agreement between complainant and OP to conduct Smartclass Programme, Legal Notice dated 19.05.2016 issued by the complainant to the OP marked as Ex.A-2 and Postal receipt marked as Ex.A-3.

10.   On the other hand, it is argued by the OP that, as per agreement the OP has provided each and every service but, school was not ready to pay the due amount and OP has requested the complainant several times but, complainant not ready to pay the due amount.  The OP has already initiated the Arbitration proceeding in this matter.  The transaction between the complainant and OP 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 OP has installed the accessories and have implemented the course as per their agreement without causing any delay in their work towards the complainant.  The OP has completed their obligations towards the complainant and have installed all equipments which has to be installed.  The hardware and the equipments provided and installed by the OP are very genuine and original, the complainant has not been able to maintain them effectively and neglected their responsibilities on them and hence, they might have got damaged for which, the OP in no manner is liable for that acts. 

11.   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.A-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 OP has received a sum of Rs.5,40,000/- from the complainant.  But, the OP failed to conduct the smartclass programme as per the agreement.  The OP has taken a contention in its version, affidavit and written arguments that, the case is already pending before the Arbitrator and this Forum has no right to entertain this complaint.  The Education institution is not comes under the C.P. Act.  But, the OP never produced any document to show that, the case is pending before the Arbitrator.  Without producing any documents, the contention taken by the OP in its version cannot be believed, prima-facie shows that, the OP has committed a deficiency of service and unfair trade practice.  As per the document produced by the complainant, it clearly shows that, the OP has received the amount from the complainant.     The OP has provided sub-standard electronic equipments and they never functioned properly since beginning.  The same was communicated to the OP about the deficiency on its part but, OP 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 OP.  Accordingly, this Point No.1 is held as partly affirmative to the complainant.

 

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

ORDER

It is ordered that, the above complaint filed by the complainant u/Sec.12 of C.P. Act is hereby allowed in part.

It is further ordered that, the OP is hereby directed to pay a sum of Rs.5,40,000/- to the complainant along with interest at the rate of 9% p.a from the date of complaint till realization. 

It is further directed the OP is directed to pay                   Rs.10,000/- towards mental agony and Rs.5,000/- towards cost of the proceedings to the complainant.

It is further ordered that, the OP is 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 09/06/2017 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. Lingananda K.M.S, the Authorized Representative by way of affidavit evidence. 

Documents marked on behalf of Complainants:

01	Ex-A-1:-	Agreement
02	Ex-A-2:-	Office copy of the Legal Notice dated 19.05.2016
03	Ex.A-3:-	Postal Receipt

 

Documents marked on behalf of OPs:

-Nil-

 

MEMBER                                                            PRESIDENT

Rhr**