State Consumer Disputes Redressal Commission
M/S Educomp Solutions vs Shri Sanatan Dharam on 2 June, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No. 398 of 2017
Date of institution : 30.05.2017
Date of decision : 02.06.2017
1. M/s Educomp Solutions Limited, 1211 Padma Tower-15,
Rajendra Palace, New Delhi, through Harvinder Singh duly
Authorized Representative.
2. M/s Educomp Solutions Limited, 1211 Padma Tower-15,
Rajendra Palace, New Delhi, through Harvinder Singh duly
Authorized Representative.
....Appellants/Ops
Versus
1. Shri Sanatan Dharam Sabha (Registered), Gaushala Bazar,
Hoshiarpur, through its Secretary, Sh. Subash Chander Khullar.
2. S.D. City Public School, Chintpurni Road, Hoshiarpur,
through its Principal Mr. Shashi Kant.
....Respondents/Complainants
First Appeal against the order dated
21.04.2017 of the District Consumer
Disputes Redressal Forum, Hoshiarpur.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Gurcharan Singh Saran, Judicial Member.
Present:-
For the appellants : Sh. Arun Kumar, Advocate
First Appeal No. 398 of 2017 2
GURCHARAN SINGH SARAN, JUDICIAL MEMBER
ORDER
The appellants/Ops (hereinafter referred as Ops) have filed the present appeal against the order dated 21.4.2017 passed by the District Consumer Disputes Redressal Forum, Hoshiarpur (hereinafter referred as the District Forum) in consumer complaint No. 196 dated 15.10.2015 vide which the complaint filed by the complainant was partly accepted and Ops were directed to provide Coordinator for smooth functioning of the smart classes as per the agreement and not to claim the amount of quarterly instalment during the period the smart classes were not functioning and it be considered in the form of compensation. They were further directed to pay Rs. 5,000/- as litigation expenses. It was further ordered to comply with the order within a period of 30 days.
2. Complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the Ops on the averments that complainant is a charitable society registered under the Societies Registration Act. Complainant No. 1 is not running commercial business and it is imparting education to students through different schools including complainant No. 2. There is no motive on the part of complainant No. 1 to earn any profit. Ops provide the services to set up Educomp smart Class Programme and approached complainant on 18.12.2012 and offer to set up Educomp smart classes programme in their premises Chintpurni Road, Hoshiarpur. The complainant agreed the proposal and agreement dated 18.12.2012 was executed between First Appeal No. 398 of 2017 3 the parties. As agreed Ops supplied the hardware to the complainants for Rs. 7,58,856/- and were agreed to get the payment form the complainants in 20 quarterly installments. They also provided content licence to the complainants for Rs. 8,83,644/- and agreed to receive it in 20 quarterly installments. As per Clause 3.3.2, it was agreed to give part time smart classes Coordinator, who will make periodical visits to the School premises for atleast 1 full School working day per week during the period of agreement. The Coordinator will attend calls received from the School within 48 working hours from the receipt of the same. He will ensure that all the equipments provided by the Ops to the complainants are in working conditions. As per Condition No. 3.3.3, it is the responsibility of the Ops to ensure that all hardware remains in working condition. However, Ops provided the Coordinator sometime in the beginning but lateron inspite of repeated requests by the complainant, the Coordinator was not visiting the school despite various requests to the Ops. Further the Ops failed to provide the services with regard to upkeep of hardware. On 5.8.2015, a representative of the Ops visited the School but was unable to rectify the defects in the hardware. In fact Smart classes are not working since January, 2015 as no Coordinator was visiting. Alleging deficiency in service on the part of Ops, complaint was filed before the District Forum seeking directions against the Ops to provide Coordinator for smooth functioning of the smart classes; not to claim for quarterly installments during the period the smart classes were not First Appeal No. 398 of 2017 4 functioning in the form of compensation; to take back the hardware and content licence and to pay Rs. 15,00,000/- as damages and Rs. 35,000/- as litigation expenses.
3. Upon notice, Ops appeared and contested the complaint. It filed the written reply taking preliminary objections that the complainant is not a consumer as defined under Section 2(1)(d)(i) of the Act; as per agreement between the parties dated 18.12.2012, if any dispute arises between the parties then parties shall go for arbitration. On merits, agreement between the parties dated 18.12.2012 was accepted. However, it has been stated that as per Clause 9.1 of the agreement, in case of any dispute or difference, the matter is required to be referred to the Arbitrator under Arbitration and Conciliation Act, 1996. It was further stated that the complainant had chosen to nominate one of its own staff member employed by it to support the School in smooth functioning of smart classes, who was given training. The staff members of the Complainant School were given training to make repair of the smart classes programme by the Ops and that the complainant shall be solely responsible for the smooth functioning of the programme. The complainant was also responsible to ensure proper security and safety of the hardware and all the material supplied by the Ops. In case of any default by the complainant, the agreement shall be terminated. However, in the present case the complainant had opted to appoint their own staff as Coordinator to look after the hardware installed by the Ops and it solely was responsibility for its smooth functioning. No deficiency First Appeal No. 398 of 2017 5 in service on the part of Ops. Complaint is without merit, it be dismissed.
4. Before the District Forum, the parties were allowed to lead their respective evidence.
5. In support of his allegations, the complainants had tendered into evidence affidavit Ex. C-1 and documents Exs. C-2 to C-12. On the other hand, Ops had tendered into evidence affidavit of Harwinder Singh Ex. Op-1,2/1 and documents Exs. Op- 1,2/2 & 3.
6. After going through the allegations in the complaint, written version filed by the Ops, evidence and documents brought on the record, the complaint partly allowed as referred above.
7. Aggrieved with the order passed by the learned District Forum, the appellants/Ops have filed the present appeal.
8. We have heard the learned counsel for the appellants.
9. It was argued by the counsel for the appellants that the order passed by the District Forum is based upon false, frivolous and baseless facts because firstly they are not consumer qua the Ops because the services were for commercial purposes. However, in the complaint, it has been specifically mentioned that the complainant is a charitable society, duly registered under the Societies Registration Act. It is being run by Association of 30 Members, who have no financial interest in the functioning of the complainant, rather, they are providing services without any salary. It is imparting education to its student to different schools including complainant No. 2. It is not to earn profit, rather, to work for the First Appeal No. 398 of 2017 6 welfare of the Society. Constitution of the Sabha has been attached, which verify the version of the complainant. On the other hand, the counsel for the complainant simply denied it. They have failed to lead any evidence that the complainants are running the School for commercial purposes and not for the welfare of the students getting education there. Therefore, once there are averments in the complaint and Constitution of the Society, that they are imparting education for the welfare of the students and not to earn any profit. In case the Ops were of the opinion that the complainants are running these schools to earn the profit and is not a charitable school then they should have referred to a particular evidence, which they neither tendered before the District Forum nor before this Commission. The counsel for the Ops has not referred any evidence which may make it clear that the complainants are running a school not for commercial purposes. In the absence of any rebuttal to the averments stated in para 1 of the complaint, it is to be admitted that the school is being run for charitable purposes and not for commercial purposes. In case it is so, then in case there is deficiency in service, according to the allegations in the complaint because payment was made to the Ops to appoint a Coordinator and for smooth functioning of the hardware supplied by them for running the smart classes then they will be deficient in service and it is a consumer dispute and the complainant comes under the definition of consumer, therefore, we do not agree with the plea as raised by the counsel for the First Appeal No. 398 of 2017 7 appellant that complainant is not a consumer as defined under Section 2(1)(d)(ii) of the Act.
10. It was further argued that as per Clause No. 9.1 of the agreement, in case there was any dispute or difference between the parties then the matter was to be referred to the sole arbitrator to be appointed under the provisions of Indian Arbitration and Conciliation Act, 1996. No doubt that there is a clause in the agreement but in case the Ops were really interested to refer it to the Arbitrator then application under Section 8 of the Act should have been filed but no such application has been filed. Otherwise, under Section 3 of the Act, there is an additional remedy provided under the Act and under that Section, the Consumer Fora have a right to entertain the complaint. Therefore, we do not subscribe to the view taken by the Ops that the Consumer Fora did not have the jurisdiction or that the matter should have been referred to the Arbitrator under the provisions of Indian Arbitration and Conciliation Act, 1996.
11. As per the averments in the complaint, it has been stated that as per the agreement, the Ops were to provide Coordinator, who will make periodical visit to the School premises for atleast 1 full school working day per week during the period of agreement. It was further provided that the Coordinator within 48 hours the receipt of the call from the School will ensure that all the equipments provided by the Ops to the complainant are in a working condition. For ready reference, provision of 3.3.2(relevant part), 3.3.3 and 3.3.4 of the agreement are reproduced as under:- First Appeal No. 398 of 2017 8
"3.3.2 Part time smartclass Coordinator (indicate the smartclass coordinator option chosen - Full Time/Part Time/NIL by school and cross-out other options below) Party B has opted for a Full time smartclass coordinator, this person shall be deployed at the premises of Party B during the period of the agreement. The full time smartclass coordinator so appointed shall ensure that all the equipment provided to Party B, as per Annexure A-1 is in working condition throughout the duration of the agreement with the help and support provided by the customer services team deployed for the purpose by Party C. In case of any defect in the equipment provided to Party B by Party C, the same shall be intimated by Party B to the smartclass coordinator who shall ensure that the defect is rectified and if necessary, the equipment is replaced by Party C, for the smooth functioning of the Educomp smartclass program in the premises of Party B. Any problem reported will be attended within 48 working hours. However, in the event of provision of replacements, it is expressly agreed between the parties hereto that a reasonable amount of time shall be taken by Party C for procuring and deployment of the replaced components at the premises of Party B. The full time smartclass coordinator shall also abide by the rules, regulations and disciplinary guidelines of Party B at all times and shall attend the school during the regular school timings during all school working days.
First Appeal No. 398 of 2017 9
OR
xxxx xxxx xxxx xxxx
OR
xxxx xxxx xxxx xxxx
3.3.3. Party C will ensure all hardware remains in working condition throughout the term of this Agreement. Subject to clause 3.3.4 below, in case of any default in the equipment provided by Party C, the same shall be rectified and if necessary replaced for the smooth functioning of the Educomp smartclass program in the school. It shall supplied to Party B by Party C. In the event of theft, loss or destruction of the whole or any part of the material and equipment supplied by Party C to Party B, it shall be the responsibility of Party B to take all necessary steps to recover the same. Failure to take appropriate steps by Party B shall entitle Party C to treat the same as a default event, which may lead to termination.
3.3.4 Any damage to the hardware due to mishandling and intentional damage from Party B's side shall not be covered under clause 3.3.2 above and Party B shall bear the cost of such damage replacement and/or disruption in classes, if any; and it shall be the responsibility of Party B to pay for the same. The decision to categorise such damage shall be taken by Party C in consultation with Party B. It is however clarified that the decision taken by Party C in regard to the First Appeal No. 398 of 2017 10 contents of the present clause shall be final and binding on Party B."
12. The version given by the complainant is fortified from Clause 3.3.2 of the agreement reproduced above. However, in case we go through the written reply filed by Ops, they have stated that the complainant had chosen to nominate one of its staff member employed by it to support the School in smooth functioning of smart classes installed by the Ops and the said staff Members of the complainant School were given training to make repair of the smart classes programme by the Ops, therefore, the complainant was solely responsible for the smooth implementation and running of the programme. However, in the written reply, no name of any official of the complainant's School has been referred. In case Ops had given the training to the staff Members of the complainant then they most have the data to whom they had provided the training but neither in the written reply nor any document has been placed on the record to prove this fact. Therefore, in case any fact alleged in the written reply is not corroborated by way of any evidence then such a plea taken in the written reply cannot be accepted. Once there is a provision under the agreement that they were to provide the Coordinator then they were bound by it but they have failed to provide any Coordinator as per the agreement, therefore, the order passed by the District Forum giving direction to the Ops to provide Coordinator for First Appeal No. 398 of 2017 11 smooth functioning of the smart classes as per the agreement is quite justified.
13. The next order of which Ops is effected is that amount of quarterly installments during the period smart classes were not functioning be considered as compensation paid to the complainant. As per Clause 3.3.2 and 3.3.3 of the agreement referred above, the Ops was bound to sort out the problem within 48 working hours and according to Clause 3.3.3, Ops were to ensure all hardware remains in working condition throughout the terms of the agreement, subject to Clause 3.3.4, exception to it is mis-handling and intentional damage. However, no report has been referred by the counsel for the Ops, which may prove mis- handling and intentional damage to the hardware. During the course of arguments, he had referred to one email dated 3.6.2015 (Annexure C-2) regarding physical damage due to construction going on and same is also there in email dated 9.7.2015 (Annexure C-3). However, physical damage is a very wide term. There is no specific report from the Ops by visiting the School to give detailed report that there was a physical damage to the hardware and that it is covered under Clause 3.3.4, otherwise, in case due to normal routine working, damage has been caused to the hardware then Ops were bound to repair it. Therefore, in the absence of any specific evidence on the record that there was any mis-handling or intentional damage to the hardware, the plea taken by the Ops cannot be accepted.
14. No other point was argued.
First Appeal No. 398 of 2017 12
15. Sequel to the above, we are of the opinion that the order passed by the District Forum is justified. During the course of arguments, counsel for the appellants was unable to make it out any point for admission of the appeal, the same is hereby dismissed in limine.
16. The appellants had deposited an amount of Rs. 2,500/- with this Commission in the appeal. This amount along with interest accrued thereon, if any, shall be remitted by the registry to the concerned District Forum, after the expiry of 90 days, from the despatch of the certified copy of the order to the parties; subject to stay, if any, by the higher Fora/Court; for the release of the above amount and the District Forum may pass the appropriate order in this regard.
17. Order be communicated to the parties as per rules.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (GURCHARAN SINGH SARAN) JUDICIAL MEMBER June 02, 2017.
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