State Consumer Disputes Redressal Commission
Basher vs K Sivakumar on 16 February, 2016
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO.329/2014 JUDGMENT DTD:16/02/2016 (Appeal filed against the order in CC.No.309/2009 on the file of CDRF, Kollam, order dated : 16.01.2014) PRESENT SHRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER SHRI.V.V. JOSE : MEMBER APPELLANT Basher, M/s. Wintech Systems and Services, Pulliman Junction, Karunagappally. (By Adv: Sri.Rajmohan C.S) Vs. RESPONDENT K. Sivakumar, Sivaas Agencies, Shoppers Plaza, Main Road, Kollam. (By Adv: Sri. G.S. Kalkura) JUDGMENT
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER Appellant was the opposite party in CC No.309/2009 in the CDRF, Kollam. The respondent complainant had got installed an exclusive accounting software package in this computer system to help his business. The system initially installed by one Liju of Kollam became inoperative when it remained idle for some time. Thereafter the opposite party offered to provide a perfect and more efficient package with simple operational method to meet the day to day necessities of the complainant in accounting his transactions. It is alleged in the complaint that the offer was accepted and the opposite party agreed to install the system for Rs.8,000/-. The complainant paid an advance amount of Rs.4,000/-. The opposite party offered to install the system within 10 to 20 days but to the disappointment of the complainant, the software installed was neither complete nor functioned to the satisfaction of the complainant. When the opposite party continuously demanded the balance amount the complainant paid the balance Rs.4,000/- also with the hope that payment would not stand in the way of perfecting the installed software. The installed package did not function to the satisfaction of the complainant. The continuous attempts to make the system perfect only made it worse. Hence alleging deficiency in service, the complainant approached the consumer forum.
2. The opposite party contended before the consumer forum that as part of their business they are developing customised software solution for their clients. As per discussion with the complainant they agreed to develop a software for the complainant for a consideration of Rs.8,000/-. The opposite party conducted system study on the premises of M/s. Sivas Agencies of the complainant and collected all information required for the custom made software. The complainant paid Rs.4,000/- as advance. The opposite party installed the software in the computer of the complainant on 24.10.2008. It was mutually agreed that balance Rs.4,000/- would be paid after the complainant is satisfied with the software. But the opposite party's software engineer was disappointed with the improper function of the hardware and the pirated operating system used by the complainant at the time of installation. But later the opposite party knew that the complainant was satisfied with newly installed software and accordingly he paid the balance amount of Rs.4000/-. Later demand was made to add a wide range of programmes for which the opposite party demanded additional reasonable charges but the complainant disagreed. The allegations that frequent attempts to rectify defect spoiled the condition of the computer system etc. are false. There was no virus problem as alleged. Software as agreed between the parties had been already installed. There is no deficiency in service on the part of the opposite party.
3. Before the consumer forum one witness was examined on the side of the complainant as PW1. Exts. P1 to P8 were marked on his side. Two witnesses were examined on the side of the opposite party and Exts. B1 to B3 were marked on his side. An expert commissioner was appointed by the consumer forum who filed report. Relying on the report of the expert commissioner the consumer forum allowed the complaint. Hence this appeal. The short question is whether the order of the consumer forum can be sustained.
4. Admittedly, the appellant agreed to develop a software application for installation in the computer system of the complainant who is conducting a business. The total consideration agreed was Rs.8,000/-. There is no dispute that the entire amount agreed was paid. The accounting software developed by the opposite party was installed but according to the complainant the same is defective and not functioning properly. The appellant has a contention that out of the agreed amount Rs.4000/- was paid as advance and remaining amount was paid only after the complainant was satisfied that the system developed by the opposite party was functioning properly. This is an aspect to be borne in mind. The main evidence to see whether the operating system installed by the opposite party was functioning properly or was defective is the report of the expert commissioner.
4. He has reported among other things that the system configuration provided in both the machines of the complainant was sufficient to run the software package. He further reported that the operating system installed in the machines were not genuine (non licensed) but that does not affect the normal working of the installed software package. The commissioner found that the software package runs partially that is only some of the screens were displayed. The displayed screens were not accepting all the field values. Some non- standard values given in fields were also accepted etc. According to the commissioner some of the menus provided in the package were not relevant to the application. One report called load entry report was displayed in printable format but the records were not in sorted order. In almost all the cases the software was showing RUNTIME ERROR message. According to the commissioner that error might be due to missing of some necessary files most probably some data base files. He has reported some format problems. The commissioner reported that at present the software was neither running error free nor according to the requirement specifications.
5. Thus the report shows that the contentions of both parties have some force. For example pirated version of operating system was initially used in the computer. But the report is that that was not affecting the functioning of the software package. The report also shows that at the time of inspection the software package installed by the opposite party was not running properly or error free. Thus at the time of inspection deficiency in the software package was found by the commissioner, but observed that the error may be due to missing of some necessary files most probably some data base file.
6. Relying on the above observation after adducing evidence the opposite party filed application before the consumer forum to forward the software in the possession of the complainant and model software in the possession of the opposite party to the forensic science laboratory to examine when the data file in the software in the possession of the complainant was deleted. Further the opposite party wanted to examine whether there is original operating system and antivirus in the CPU, alleging that the complainant produced his software before the expert after deleting the data file to manipulate the result. The consumer forum dismissed the application holding that it was filed after the evidence was recorded. But the nature of the evidence and the circumstances under which the application is filed are relevant. The application was filed in the light of the doubt expressed by the commissioner. The vital data base file might have been deleted to affect the running of the software system. It was only when the report came such a possibility was suggested. Hence the application cannot be said to be belated. The result of such an examination is highly necessary to render justice having regard to the fact that technical questions that can be resolved by the forensic science laboratory arise for consideration. So we are inclined to set aside the order of the consumer forum for the purpose of sending the software for examination by the forensic science laboratory and decide the complaint afresh in the light of the report.
In the result, the appeal is allowed. The order of the consumer forum dtd.16.1.14 in CC No.309/09 is set aside. The matter is remanded to the CDRF, Kollam with direction to allow the application to forward the software in the possession of the complainant to the forensic science laboratory and get it examined as required in the application. There after the consumer forum shall decide the complaint in accordance with law. Both parties shall appear before the consumer forum on 15/04/2016.
K. CHANDRADAS NADAR : JUDICIAL MEMBER V.V. JOSE : MEMBER nb KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO.329/2014 JUDGMENT DTD:16/02/2016 nb