State Consumer Disputes Redressal Commission
Loaba Matriculation High School,Rep. ... vs M/S.Tata Class Edge, Formerly Known As ... on 5 June, 2023
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER
F.A.No.31/2020
(Against the order made in C.C.No.10/2016 dated 23.11.2018 on the file of
the District Commission,Tuticorin.)
MONDAY, THE 05th DAY OF JUNE 2023
Loaba Matriculation High School,
Eral - 628 801,
Thoothukudi District,
Tamilnadu. Appellant/Complainant
(Represented through its
correspondent A.Murugan).
-Vs-
M/s.TATA Class Edge,
Formerly Known as M/s.TATA interactive System,
(Through its President-Finance & CFO),
5th Floor, Donear House,
Plot No.49/50, Moral Industrial Area Road No.1,
MDC, Andheri East,
Mumbai - 400 093. Respondent/Opposite Party
Counsel for Appellant/Complainant : M/s.R.Alagumani, Advocate.
Counsel for Respondent/ Opposite Party : Mr.V.P.Rajan, Advocate.
This appeal coming before us for final hearing on 27.04.2023 and upon
perusing the material records, this Commission made the following:
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ORDER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER.
1. Aggrieved by the dismissal of the complaint the complainant preferred this appeal.
2. The facts:
The complainant is a school and they entered into an agreement bearing No.CEA/CV/08/01/2013/153 with the opposite party. The opposite party promised the school to provide various education techniques i.e., TATA Class Edge Programme. The programmes started in the month of June 2013. From the inception itself the service of the opposite party is below satisfactory and hence repeated e- mails were sent to rectify the mistakes but that was not rectified. The complainant paid Rs.81,000/- three times totally Rs.2,43,000/-. The legal notice was also sent for which the opposite party falsely replied. Hence, the complaint is filed claiming refund of Rs.2,43,000/- and Rs. 10,00,000/- towards compensation for insufficiency of service, and Rs.2,00,000/- towards compensation for inconvenience and also cost of the proceedings.
3. The opposite party in their written version has stated that, they entered into an agreement with the complainant. As per the agreement they have to provide electronic materials, software, and hardware with multiple educational techniques. The complainant as per the invoices sent by the opposite party failed to pay their installment. The agreement is valid up to 31.05.2018 and the total sum to be paid by the complainant is Rs.16,20,000/-. Till 30.03.2015 the complainant was in arrears of Rs.4,16,248/- though the complainant availed the techniques, software and other hardware materials of the opposite party; failed to honour the agreement. Hence, 3 after sending due notice the opposite filed a Civil Suit in 2826/2015 and as per the agreement only courts at Bombay can entertain the dispute so the complaint is liable to be dismissed.
4. Before the District Commission both sides filed their affidavit, Ex.A1 to Ex.A14, Ex.B1 to Ex.B12, after perusal of the above the District Commission dismissed the complaint.
5. Aggrieved with the dismissal order, the appeal has been preferred by the complainant on the following:
Grounds: That, the order of the District Commission is erroneous in nature. The District Commission failed to note that Consumer Commission Jurisdiction was not ousted by way of the agreement clause and by filing a Civil Suit. Hence the above dismissal order is liable to be set aside and the appeal is to be allowed.
6. Both sides filed their written arguments and we perused the same.
7. As already stated, it is the contention of the school that as per the agreement the service and techniques offered by the opposite party is not satisfactory from the beginning. Inspite of repeated requests the defects were not rectified hence they suffered monetary loss reputation of his school name. On the other hand, the opposite party contended that the jurisdiction of Consumer Forum is ousted as per agreement and as per the agreement the complainant alone failed to pay the installments in time and they filed a suit for realization of amount and the consumer complaint is an afterthought to take revenge upon the Civil proceedings. 4
8. Now the point for consideration is:
1. Whether the consumer complaint is maintainable or not?
2. Whether the consumer Commission is having jurisdiction to decide the issues or not?
Point no.1: As discussed the opposite party offered to provide Educational techniques by installing electronic hardware system and also some programmes software. The agreement was marked by the opposite party as Ex.B2. In Ex.B2 it has been clearly mentioned License Fees is Rs.2,00,000/-, Support Services Rs.7,10,000/-, Hardware materials Rs.7,10,000/- totally Rs.16,20,000/-. As per the schedule of payment in Annexure-2 every three months the complainant is liable to pay Rs.81,000/-. As per the case of the complainant he paid only three installments totally Rs.2,43,000/- which is also admitted by the opposite party. The opposite party terminated the agreement only on 30.03.2015 as per Ex.B4 the complainant though alleged deficiency on the part of opposite party did not terminate the agreement. Though, the complainant marked certain e-mails, that e-mails were not specific about the deficiency or defect committed by the opposite party. As per the agreement the opposite party grant license to the school to utilize the Class Edge Programme developed by the opposite party. It is a software programme which provided educational inventions, techniques and other materials. If, Let us assume this as a service offered by the opposite party then their service is related to importing education.
9. In a recent Judgement of the National Commission passed a detailed order after consolidating many cases in this regard. It addressed many issues and answered them in detail. Finally it concluded that the Educational Institutions are not 5 service provider and importing Education is not a service and the Commission did not have request Jurisdiction in the following words:
National Consumer Disputes Redressal Commission C.Deepak Tyagi & 14 Others -Vs- Shree Chhatrapati Shivaji ... on 20 January, 2020.
"In view of the foregoing discussion, we are of the considered opinion that the Institutions rendering Education including Vocational courses and activities undertaken during the process of pre-admission as well as post-admission and also imparting excursion tours, picnics, extra co-curricular activities, swimming, sport, etc. except Coaching Institutions, will, therefore, not be covered under the provisions of the Consumer Protection Act, 1986".
So, the opposite party which is rendering education through this school is not a service provider as such the complaint is not maintainable as it is not a consumer complaint.
10. Similarly, the opposite party is also providing education and techniques. The complainant is also a school. The complainant availed a software techniques evaluated by the opposite party for their school and thereby they derived income collecting fees from students and parents. So, this is not a service hired for the livelihood of the school and it amounts to commercial transaction as such on this score also the complaint is not maintainable and answered the point 1 accordingly.
11. Point no.2: The opposite party contended that, as per the agreement clause only courts at Bombay alone has got exclusive jurisdiction to try the dispute and the 6 consumer Fora jurisdiction is barred. This argument was not accepted by us because as per the Judgement National Consumer Disputes Redressal Commission, in Smt. Shanti .Vs. M/S. Ansal Housing & Construction ... on 11 April, 2002 has held that, "We do not think State Commission examined the whole issue in a pragmatic manner. Complainant is a consumer and raised a consumer dispute under the Consumer protection Act, 1986. To help and assist a consumer and to achieve the objects of the Act, Section 11 of the Act was amended".
"This Section relates to the jurisdiction of the District Forum. Now a complaint could be filed against the opposite party not only at the place where he actually or voluntarily reside or personally works for gain but also where he carries on business or has branch office. The words carries on business or has a branch office were added by the amending Act of 1993".
"Jurisdiction of a District Forum is exclusively covered by Section 11 of the Act. For this we do not have to refer any provisions of the Code of Civil Procedure".
"Any provision of the agreement which oust the jurisdiction of a District Forum even from a place where the opposite party has a branch office cannot be held to be valid or binding. Moreover, the clause on which the complainant was non-suited refers to the jurisdiction of Lucknow Courts. District Forum is not a court as understood in the Code of Civil 7 Procedure. That clause in the agreement will have no meaning as far as jurisdiction of the District Forum where the opposite party has even branch office is concerned".
12. So, the jurisdiction clause will not bar the District Commission from entertaining the complaint. At the same time, as per judgement of the National Consumer Disputes Redressal Commission which was also relied by the District Commission, in 2017 (4) CPR 179 (NC) Vinod kumar Kataria -Vs- Arufa it was held that if a matter is already pending adjudication in a Civil Court, same cannot be considered by Consumer Forum simultaneously.
13. For which the complainant relied upon the Judgement of National Consumer Disputes Redressal Commission reported in II (2003) CPJ 170 (N) in, Vijay Shankar .Vs. Mandeep Singh & Others. For the preposition that the consumer Forum should avoid technicalities . There is no dispute about the principle laid down by the Hon'ble National Commission. We wish to emphasize that the proceedings before Consumer Fora is summary in nature. In this case the complainant did not satisfy what are the defects alleged by him, or what are the deficiencies committed by opposite party in providing service.
14. Moreover the correspondence between the parties shows the complainant alone failed to pay requisite equated EMI's as per agreement. The agreement was terminated only by the opposite party. The complainant alleged the services were defective from inception also seems to be unacceptable. If the services are not up to expectation what is the necessity for him to pay three monthly installments and keep alive the agreement for nine months. The opposite party installed all the hardware 8 materials in this school premises and the complainant failed to pay the amount of Rs.7,10,000/- towards installation of equipments. All these things were pending before competent Civil Court. So, it is only beneficial for the complainant to work down his remedy only from the Civil Forum and he cannot pursue his remedy before the Consumer Forum. So, on this aspect also the complaint is liable to be dismissed. So, in every respect the finding of the District Commission did not suffer any infirmity and there is no necessity for us to interfere. So, we confirmed the order of the District Commission and we dismiss the appeal without cost and answered the point 2 accordingly.
15. In the result,
1. The appeal is dismissed.
2. The order passed by the Learned District Commission, Tuticorin, in C.C.No.10/2016, dated 23.11.2018 is hereby confirmed.
3. There shall be no order as to costs in this appeal.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by us on this the 05th day of June 2023.
Sd/-xxxxxxxxxx Sd/-xxxxxxxxxx
S.KARUPPIAH, N. RAJASEKAR,
JUDICIAL MEMBER. PRESIDING JUDICIAL MEMBER.
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Corrected