Date of filing:11.11.2013.
Date of disposal:12.1.2015.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM - II:
VIJAYAWADA, KRISHNA DISTRICT
Present: SMT N. TRIPURA SUNDARI, B. COM., B. L., PRESIDENT (FAC)
SRI S.SREERAM, B.COM., B.A., B.L., MEMBER
MONDAY, THE 12TH DAY OF JANUARY, 2015.
C.C.No.193 of 2013
Between:
Sri A.Venkateswara Rao, Vani English Medium School, Rep., by its Academic Head A.Ramesh Babu, S/o Venkateswara Rao, D.No.30-23-42, Near Electrical Sub Station, Annadana Samajam Road, Durga Agraharam, Vijayawada.\ .… Complainant.
AND
1. The Branch Manager, HCL Infosystems Ltd., HCL Learning, HCL Towers No.44, Dwarakadas Colony, Chikoti Gardens, Begumpet, Hyderabad – 500 016, Andhra Pradesh.
2. The Divisional Manager, HCL Infosystems Ltd., B-26, Sector 8, Noida – 201 301, Uttar Pradesh, India.
3. The Regional Manager, HCL Infosystems Ltd., Credit Controls, Registered office: 806 Siddharth, 96, Nehru Place, New Delhi – 110 019.
.… Opposite Parties.
This complaint coming on before the Forum for final hearing on 5.1.2015, in the presence of Sri P.Paul, Advocate for complainant and Sri S.Raja Sekhar, Advocate for opposite parties and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble President (FAC) Smt N. Tripura Sundari)
This complaint is filed under Section 12 of the Consumer Protection Act, 1986.
The averments of the complaint are in brief:
1. The opposite parties approached the complainant and explained about the excellent working of their DIGI SCHOOL content and also their customer service. Believing their words the complainant entered into an agreement with the opposite party on 1.12.2010 for providing DIGI SCHOOL content and for which the opposite parties collected an amount of Rs.1,50,000/- from the complainant. The opposite parties also informed the complainant that the said content will be ready by June, 2011. Accordingly the complainant tried to open the said content on 4th or 5th June, 2011, the same was not opened because the license was expired. The complainant informed the said fact to the opposite parties who in turn deputed their technician and renewed the license. The complainant’s school was reopened on 6.6.2011 and on the very first day itself the teachers of the complainant observed that there was no class, no subject and June, July syllabus was not available in the DIGI SCHOOL content. The complainant again informed the said fact to the opposite parties. But neither of the opposite parties responded. Then the complainant gave a mail to the opposite parties on 13.6.2011. After 10 days one of the Executives of the opposite parties came and noted the points on Call report on 23.6.2011 i.e., (1) cabinet will be rectified by 25.6.2011 (2) issues of content informed to S.D. Manager and Academic head (3) content is not according to A.P. State Curriculam etc. But till date no one of the executives of the opposite parties called the complainant on the above observations. The complainant has already informed to the opposite parties about the defects in the content. But the opposite parties have not provided any assured service inspite of the several demands made by the complainant. Therefore, the complainant got issued a legal notice demanding the opposite parties to pay compensation for mental agony and pay installation charges and rent for the said DIGI SCHOOL room. The opposite parties received the said notice and kept quiet, which amounts to deficiency in service. Hence the complainant is constrained to file this complaint against the opposite parties praying the Forum to direct the opposite parties to refund the amount of Rs.1,50,000/- by taking back the DIGI SCHOOL supplied by them, to pay Rs.1,98,000/- along with interest at 24% per annum towards DIGI SCHOOL formation charges, rent paid by the complainant towards DIGI SCHOOL and compensation and also to pay costs.
2. The version of the opposite parties is in brief:
The opposite parties denied all the allegations of the complainant and submitted that the transaction entered between the parties to the above dispute is commercial in nature and purpose. The complainant cannot claim any relief from opposite parties as the complainant is carrying on his business large scale and he purchased goods for services for earning large profit. Since the complainant had entered into agreement for profits in his school business. The complainant choose to enter into the agreement knowing the contents of the course were not as per the curriculum of the A.P. Educational Board as it was already communicated to the complainant at the time of negotiations between the parties. The complainant accepted the hardware and knowledge bank without protest. The complainant has only paid Rs.16,500/- to the opposite parties. In pursuant of the same a payment demand notice cum termination notice of DIGI SCHOOL agreement dated 25.10.2013 was served to the complainant. The complainant failed to make the payment of outstanding amount till date. The complainant has filed this complaint after three years of signing the agreement. He kept silence for two and half years and choose not to make payment till date. The complainant has not locus standi to initiate the present proceedings. The present complaint is barred by limitation as the complainant has been filed after passing of two and half years from the cause of action. The opposite parties are always willing to provide the service to the complainant if he makes the payments. As the whole transaction is of commercial in nature there is no deficiency in service and it was not covered under the Consumer Protection Act. Therefore the opposite parties prayed to dismiss the complaint with costs.
3. On behalf of the complainant he gave his affidavit and got marked Ex.A.1 to Ex.A.6. No affidavit and document is filed on behalf of the opposite parties.
4. Heard and perused.
5. Now the points that arise for consideration in this complaint are:
1. Whether the complainant is a consumer or not?
2. If so is there any deficiency in service on the part of the opposite parties
towards the complainant in refunding the amount paid by the complainant as
he prayed?
3. If so is the complainant entitled for any relief?
POINTS 1 AND 2:-
6. On perusing the material on hand as per the complainant he entered into an agreement with the opposite parties on 1.12.2010 for providing DIGI SCHOOL content. As per the terms and conditions of the agreement the complainant failed to pay the instalments and the opposite parties served a demand notice Ex.A.2 dated 1.12.2012 over due demand request for the installation of DIGI SCHOOL programme stating that the complainant did not pay Rs.33,670/- which was due as on 31.12.2011. The complainant sent a letter Ex.A.3 dated 17.1.2012 to the opposite parties informing that the DIGI SCHOOL content was not opened and license was expired. At the request of the complainant the opposite parties technician came and renewed the license but there was no class, no subject and June, July syllabus was not available in that content. As it was not opened he got issued legal notice Ex.A.4 dated 17.7.2013 to the opposite parties demanding the opposite parties to pay loss and damage caused for Rs.50,000/- towards DIGI SCHOOL formation and Rs.48,000/- towards rent within fifteen days. The opposite parties are call upon to make the payment within seven days. As per the opposite parties the transaction entered between the parties is a commercial in nature. The complainant is carrying his school business in large scale and he purchased goods for services for earning large profit. The complainant had entered into agreement for profits in his school business. The complainant had filed this complaint after three years of signing the agreement and kept silence for two and half years and not made payments till date. The present complaint is barred by limitation and as the whole transaction is of commercial in nature the complainant is not a consumer under the Consumer Protection Act.
7. We observed the documents filed by the complainant, the complainant is running Vani English Medium High School in Vijyawada and he purchased the said DIGI SCHOOL content for the purpose of his Educational society and he has number of branches in various places in Andhra Pradesh and doing education business and that DIGI SCHOOL content was not purchased for his own purpose it was purchased for the purpose of his school and he is collecting fees for providing DIGI SCHOOL content programes. Therefore it comes under commercial nature. The complainant is not a consumer under the Consumer Protection Act, 1986. Therefore there is no deficiency in service on the part of the opposite parties as the complainant is not a consumer under Section 2 d (i) As per the Consumer Protection Act, Section 2 (d)(i) "consumer" means any person who—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
(Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;)
As the complainant is not a consumer there is no need to discuss further. Accordingly these points are answered.
POINT No.3:-
In the result, the complaint is dismissed, without costs.
Dictated to the Stenographer K.Sivaram Prasad, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 12th day of January, 2015.
PRESIDENT(FAC) MEMBER
Appendix of evidence
Witnesses examined
For the complainant: For the opposite parties:
P.W.1 A.Venkateswara Rao None.
Complainant,
(by affidavit)
Documents marked
On behalf of the complainant:
Ex.A.1 . . Bunch of documents.
Ex.A.2 01.12.2012 Letter from the 2nd opposite party to the complainant.
Ex.A.3 17.01.2012 Photocopy of letter from the complainant to the 2nd opposite
party.
Ex.A.4 17.07.2013 Office copy of legal notice.
Ex.A.5 17.07.2013 Three postal receipts.
Ex.A.6 23.06.2011 CE Call report.
On behalf of the opposite parties:
Nil.
PRESIDENT(FAC)
