State Consumer Disputes Redressal Commission
Himalayan Public Sec. School. vs M/S Educomp Solutions Ltd. & Anr. on 28 February, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 198/2017
Date of Presentation: 18.05.2017
Order Reserved On : 09.10.2017
Date of Order : 28.02.2018
......
Himalayan Public Secondary School Gangtoli near BDO Office
Rohru District Shimla H.P. - 171207 through its Principal and
authorized signatory Shri Dinesh Sharma.
...... Appellant/Complainant
Versus
1. M/s. Educomp Solutions Limited 1211 Padma Tower-I
5 Rajendra Palace New Delhi -110008 through Mr. Rakesh
Dahiya (A.V.P.)
2. M/s. Edu Smart Services Private Limited WZ 931 A/2
Street No. 14 A/2 Sandh Nagar Palam Colony New Delhi-
110008 through Mr. Promod Thatoi.
......Respondent s/Opposite parties
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Hoshiar Kaushal Advocate.
For Respondents : Mr. Sanjay K. Sharma Advocate.
JUSTICE P.S. RANA (R) PRESIDENT :
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 17.01.2017 1 Whether reporters of the local papers may be allowed to see the order? Yes. Himalayan Public Sec. School Versus M/s. Educomp Solutions Ltd. & Anr. (F.A. No.198/2017) passed by Learned District Forum in consumer complaint No.251/2012 title Himalayan Public Sec. School Versus M/s Educomp Solutions Limited.
Brief facts of Consumer Complaint:
2. Complainant Himalayan Public Sec. School filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite parties pleaded therein that complainant school is affiliated to Himachal Broad of School Education Dharamshala. It is pleaded that complainant school is operated under the management of Himalayan Education Society Rohru and all the affairs of school is under the control and supervision of Society and Shri Dinesh Sharma is Principal of complainant school. It is further pleaded that complainant school entered into an agreement with the opposite parties at Rohru to install smart class room programme. It is further pleaded that opposite parties agreed to provide hardware installation, software and service. It is further pleaded that amount to the tune of Rs.111500/- (One lac eleven thousand five hundred) was paid by complainant school to the opposite parties. It is further pleaded that opposite parties received consideration amount from the complainant school. It is further pleaded that equipments which were installed by the opposite parties did not function properly and opposite parties were informed. It is further pleaded that complainant paid consideration amount of Rs.56005/- (Fifty six thousand five) 2 Himalayan Public Sec. School Versus M/s. Educomp Solutions Ltd. & Anr. (F.A. No.198/2017) which was transferred in the payee account of the opposite parties at Rohru SBI Branch Rohru District Shimla and it is further pleaded that thereafter complainant also paid amount of Rs.24005/- (Twenty four thousand five) in favour of opposite parties. It is further pleaded that opposite parties installed defective equipments and committed deficiency in service. Complainant sought relief to the tune of Rs.751500/- (Seven lac fifty one thousand five hundred). Complainant also sought addition relief to the effect that opposite parties be directed to vacate the premises of the complainant school in which they have installed the equipments which are lying in non-working condition. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite parties pleaded therein that complainant has no cause of action against the opposite parties. It is further pleaded that complainant did not approach the learned District Forum with clean hands. It is further pleaded that controversy could not be decided by the learned District Forum in view of complicated facts involved in the consumer complaint. It is further pleaded that complainant approached opposite parties to install smart class room programme. It is further pleaded that training was conducted by very efficient persons. It is further pleaded that smart class coordinator was appointed well in time with the consent of school authorities. It is further pleaded that whenever any complaint was filed the same was rectified by the opposite 3 Himalayan Public Sec. School Versus M/s. Educomp Solutions Ltd. & Anr. (F.A. No.198/2017) parties expeditiously. It is further pleaded that payment made by complainant by way of cheque was not encashed and cheque was dishonoured by the bank. It is denied that opposite parties installed defective equipments. It is further pleaded that there were few hardware breakdowns for which complainant was compensated by way of giving six months free usage. Prayer for dismissal of consumer complaint sought.
4. Learned District Forum dismissed the complaint filed by complainant. Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal before State Commission.
5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
6. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
Findings upon point No.1 with reasons:
7. On dated 14.08.2014 learned advocate appearing on behalf of complainant has given statement before learned 4 Himalayan Public Sec. School Versus M/s. Educomp Solutions Ltd. & Anr. (F.A. No.198/2017) District Forum that complaint alongwith documents already filed be read in evidence and closed the evidence on record of complainant.
8. Opposite party filed affidavit of Shri Anil Kumar.
There is recital in the affidavit that deponent is posted as Manager (Legal) in the office of opposite parties and conversant with the facts of the matter. There is further recital in the affidavit that opposite parties did not commit any deficiency in service. There is further recital in the affidavit that matter involves complex questions of facts which could not be decided in summary manner and complainant be relegated to civil court for adjudication. There is further recital in the affidavit that software was installed by the company in the school for commercial purpose i.e. For conducting smart classes programme in the school. There is further recital in the affidavit that agreement was not signed at Rohru but was executed between the parties at Delhi. There is further recital in the affidavit that arbitration proceedings are pending before Arbitrator.
9. Submission of learned advocate appearing on behalf of complainant that order of learned District Forum is contrary to facts and contrary to law and on this ground appeal be allowed is decided accordingly. Complainant is a public school affiliated to Himachal Board of School Education Dharamshala and is operated through registered Himalayan Education Society 5 Himalayan Public Sec. School Versus M/s. Educomp Solutions Ltd. & Anr. (F.A. No.198/2017) and all affairs of complainant school was under the control and supervision of society. As per Consumer Protection Act 1986 person include society registered under Societies Registration Act 1860. It is held that society falls within the definition of person as defined under Consumer Protection Act 1986. State Commission is of the opinion that school is run by society for commercial activities. There is no recital in the complaint that society is running school exclusively for the purpose of earning livelihood by means of self-employment. State Commission is of the opinion that society is receiving fees from the students for commercial purpose. It is held that commercial purpose did not fall within the definition of consumer as defined under section 2(d) of Consumer Protection Act 1986. See 2017 (2) CPR 51 NC Santosh Hans and Ors. Versus M/s. TDI Infrastructure Limited & Ors. See 2017(2) CPR 52 NC Sunil Kishanlal Soi Versus Shirish Girish Dixit. See 2017(2) CPR 53 NC Ravi Kumar Versus M/s. S.S. Conbuild Private Limited. See 2017 (1) CPR 493 NC Sanjay Aggarwal Versus Ambuja Cement Ltd. & Ors. See 2017 (1) CPR 253 NC Kamal Kumar Jain and Anr. Versus M/s. DLF Commercial Complexes Limited & Ors. See 1991 (1) CPC 43 NC M/s. Oswal Fine Arts Versus M/s. H.M.T. Madras. See 2016 (4) CPR 773 NC M/s. Solar Impact & Anr. Versus M/s. Hotel Samrat Heavens.
10. It is also proved on record that dispute inter se parties is relating to violation of terms and conditions of 6 Himalayan Public Sec. School Versus M/s. Educomp Solutions Ltd. & Anr. (F.A. No.198/2017) agreement executed between the parties. It is proved on record that written agreement was executed inter se parties placed on record as annexure C-2. State Commission of the opinion that it is not expedient in the ends of justice to decide the dispute of violation of terms and conditions of agreement in a summary manner because detailed elaborate inquiry is required and it is expedient in the ends of justice that complainant be relegated to civil court because detailed elaborate inquiry is required relating to deficient service qua installation of hardware and software in the smart class room. See 1997 (2) CPJ 95 NC Supreme Chemical Industries Versus Rajasthan State Industrial Development and Investment Corporation Limited & Ors. See 2002 (1) CPC 77 NC Anil Kumar Aggarwal Versus Dena Bank. See 1993 (3) CPJ 290 NC Chaman Lal Grover Versus Area General Manager New Bank of India & Ors. See 2003 (1) CPC 37 NC M/s. Anvil Capital Management Pvt. Ltd. Versus M/s. Global Trust Bank Limited. See 1997 (1) CPR 24 NC Mahendra Kumar Hira Lal Shah Versus New India Assurance Company Limited.
11. Submission of learned advocate appearing on behalf of complainant that learned District Forum was not legally competent to dispose of consumer complaint on merits when learned District Forum held that consumer complaint was not maintainable before learned District Forum is decided accordingly. State Commission is of the opinion that learned District Forum has held in positive manner in para No.7 of order that complaint before learned District Forum was not 7 Himalayan Public Sec. School Versus M/s. Educomp Solutions Ltd. & Anr. (F.A. No.198/2017) maintainable. It is held that after deciding the point of non- maintainability of consumer complaint before learned District Forum thereafter learned District Forum was not legally competent to give any findings upon merits of consumer complain as mentioned in para No. 8 of the order of learned District Forum.
12. Submission of learned advocate appearing on behalf of opposite parties that complainant be relegated to civil court in view of complicated facts involved relating to violation of terms and conditions of written agreement is decided accordingly. It is held that it is expedient in the ends of justice and on the principle of natural justice to relegate the complainant to civil court for adjudication of violation of terms and conditions of written agreement. Point No.1 is decided accordingly. Point No.2: Final Order
13. In view of findings upon point No.1 above appeal is partly allowed and it is held that services of opposite parties were availed by complainant for commercial activities. Complainant is relegated to civil court for adjudication of dispute relating to violation of terms and conditions of written agreement executed inter se parties. Findings of learned District Forum mentioned in paras No. 8 & 9 of order are set aside. Findings of learned District Forum mentioned in para No.7 of order are affirmed. Order of learned District Forum is modified 8 Himalayan Public Sec. School Versus M/s. Educomp Solutions Ltd. & Anr. (F.A. No.198/2017) accordingly. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 28.02.2018.
*GUPTA* 9