State Consumer Disputes Redressal Commission
Consumersprotection Association vs 1.Visesh Infotechnics Ltd. 508, ... on 31 December, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, TRIPURA Complaint Case No.C.C-02/2010 Consumers Protection Association, 29, Central Road, P.O-Agartala P.S.West Agartala, Dist. West Tripura. . . . . Complainant. Vs Visesh Infotechnics Ltd. 508, Arunachal Building, 19, Barakhamba Road, Connought Palace, New Delhi-110001 The Managing Director, Visesh Infotechnics Ltd. 508, Arunachal Building, 19, Barakhamba Road, Connought Palace, New Delhi-110001 . . . . Respondents. PRESENT : HONBLE MR.JUSTICE A.B.PAL, PRESIDENT, STATE COMMISSION MR.B.K.SHARMA,IAS (Retd), MEMBER, STATE COMMISSION. For the Complainant : Mr.T.K.Debbarma,Adv. Mr.J.Paul,Adv For the Respondents : Mr.D.R.Choudhury,Adv. Date of Hearing : 12-12-2011. Date of delivery of Judgment :30-01-2012. J U D G M E N T
Pal,J, Consumers Protection Association, a registered society, has lodged this complaint against Visesh Infotechnics Ltd, a company (for short company) based in Delhi which develops and hosts website. The complainant-society (for short society) approached the said company to develop a website for it and paid a price of Rs.50050.00 for development of website, domain name registration and web hosting for one year. Accordingly, website was developed by the company in 2007 with a domain name www.indianconsumers.org registered for the society. The registration was renewed initially for one year and then for nine years more till 02-02-2018. The website of the society was uploaded on 16-08-2007 which contained a home page, eight static pages and seven dynamic pages. The related links of the website were TRI, NHRC, NCDRC, INDIAN COURTS and CENTRAL INFORMATION COMMISSION. There was also an administrative control page for editing, adding, deleting registered users, news, events, opinion poll questions. The web hosting service was renewed up to August 2010. But the grievance of the complainant is that right from inception the website had shown various problems and errors. It was noticed that the serial numbers of the registered users of the website were changed after registration of every new user. The website could not be opened for few days in 2008 as it could not be kept virus free by the company. Again from 24-6-2010 to 13-7-2010, for about 20 days the website became inaccessible. Though thereafter it came to be accessible, the errors and problems continued to associate the website. In spite of several requests the service provider company could not rectify the defects. Finally on 08-10-2010 the website was attacked by hackers and since then it went out of the net. The service provider failed to restore it even at the time of filing this complaint. The disputes thus surfaced was sought to be resolved by the complainant several times with no favourable response from the O.Ps. The complainant was, thus, compelled to issue a notice on 18-09-2010 that if the defects were not rectified within a month the complainant would take legal action for recovery of compensation of more than Rs.20,00,000/- and other reliefs. Though the company received the notice it failed to rectify the defects. The complainant claimed pecuniary loss of Rs.61,757/- paid to the company to develop the website including three years hosting charges and another Rs.60,000/- for expenses on account of airfare, boarding and lodging of the members of the society for visiting the office of the company in Delhi on four occasions. A compensation of Rs.20,00,000/- on account of harassment, sufferings, inconvenience, frustration, loss of time and energy and mental agony has also been claimed. Thus, by this complaint Rs.21,21,757/- with interest and cost has been claimed.
2. The respondent company in its written reply contended inter alia that the Commission does not have jurisdiction to entertain the complaint as the company does not have any branch office in the state of Tripura. In support of this contention provision of section 17 of the Consumer Protection Act has been invoked. It has however been admitted that the company had designed and hosted the website for the society for Rs.50,508/-. In addition Rs. 4291 was received for one year hosting. Another amount of Rs.429/- was for registration of the domain name for one year. Thus, the society paid Rs.55,228/- to the company. After a year the society renewed the hosting and the domain name. The renewal itself goes to show that the society was satisfied with the website designed and hosting. But the alleged malfunctioning of the website was due to virus infection for which anti virus system was not installed by the complainant. Admittedly the website was later attacked by hackers. For both the virus infection and hacking the company can not be held responsible as the contract for hosting the website did not include any responsibility against virus infection or attack by hackers.
3. We first take up the question of jurisdiction of this Commission in entertaining the complaint. Section 17(2) of the Consumer Protection Act 1986 on which reliance has been placed by the respondent includes clause (b) providing that a complaint in the State Commission shall be instituted if within its limits of jurisdiction the O.P. carries on business. Because of the disjunctive or in that clause it is not necessary that the O.P. must voluntarily reside or have a branch office or personally work for gain within the limits. Admittedly, the respondent-company designed the website and hosted it from its server for a price. Such business of hosting by a server do not have geographical limits for such activity. It is today not necessary for such a company to have a branch office for carrying out business. It is possible to use internet for such business throughout the world. In the context of internet it is always difficult to establish with any certainty the traditional requirements which generally encompasses two areas firstly, the place where the defendant resides and secondly where the cause of action arises. The place where a web server is located, the place where a user initialises the transaction and the server where the payment is collected may be different. Although webserver is the virtual agent representing a company, it does not constitute a permanent establishment. The website of the complainant-society hosted by the company is mainly for use of the people of this state though others also are expected to visit the website. This being the position we are of the view that this Commission has jurisdiction to entertain the present complaint.
4. There is no denying the fact that every website needs a server for getting into the cyberspace and therefore, it can be said that the website of the society which is a property was residing in the server of the company during the hosting period. For every such server there are certain security requirements as provided in schedule II of the Information Technology (Certifying Authorities) Rules, 2000. Rules II of that rules provides for measures to handle computer virus. It is therefore, the responsibility of the owner of a server and personal computer to equip them with upto date virus protection and detection software. It is also necessary to use virus detection software to check storage drive both internal and external to the system on a periodic basis. The respondent-company examined only one witness, Sri Prakash Choradia. There is no statement in his deposition regarding compliance with the above rules to prevent unauthorized access or computer virus. It is not in dispute that the website was hacked out of the internet when it was residing in the server of the host company. The witness stated that the server of the company had crashed and as a result 5000 website including that of the complainant society had vanished from the net. But he has not informed us what security measures were taken against hackers and virus for security of the websites the company was hosting for a price. It seems the company had no additional server to continue hosting service when one server crashed. It is also admitted position that the company failed to restore back up data of the website. It could not even give to the society the test report of the website which is necessary to approach other company for hosting the website.
5. On 18-11-2008 the President of the society had written a letter to the Managing Director of the respondent-company stating that the company failed to deliver a defect free website in a C.D with a delivery in- voice. The automated registration of members was defective and one could not go from administrative page to home page or other pages. The visitors were prevented to visit the site as there was a caution that the site might harm the computer from which visitors intended to visit the website. Google dynastic repeatedly indicated that badwares were up loaded on the website on several occasions. This loss and harassment to the society. It was alleged that the company could not ensure a defect free website and was unable to maintain the website with necessary security. The President of the society personally visited the office of the company at Delhi on three occasions and discussed the problems for solution. But in spite of assurance nothing could be done by the company to remove the defects from the website and maintain it with necessary security. There is several other communications from the society to the company about the errors in the website. But the website could not be rectified. The technical manager of the company had written a letter to Mr. Pankaj Arora stating that in the website of the society the old news were not available in the home page and registration form was not functioning properly. It is thus clear from the communications between the officials of the company that the defects in the website could not be rectified even after several approaches from the society. From the above discussions it is evident that the website had defects in design which could not be rectified fully during the period before it was hacked out of the net in 2010. It is the responsibility of the web hosting company to ensure smooth running of the website and monitor their server most of the time for the benefit of the users. It is also the responsibility of the company to give free back up services so that in case of a website goes wrong the back up files can be used to restore the website to its previous working form. The deficiency which we have noticed in the present case are as follows :-
1. The website of the society designed by the company had a nagging problem. It was not functioning smoothly and performing optimally.
2. The website was attacked by virus and hackers. The company failed to show that it had taken enough security measures against such attack.
3. The company failed to give to the society back up services for restoring back files. It also failed to give the test report to the society to enable it to approach other webhosting company.
For the above deficiencies we allow this complaint petition and direct the respondent company to pay to the complainant society Rs.61,757/- which was paid for development and hosting for three years, and compensation of Rs.5,00,000/-(five lakhs) for inconvenience, sufferings, harassment and mental agony. Thus an amount of Rs.5,61,757/-(five lakhs sixty one thousand seven hundred fifty seven) shall be paid by the company to the society within a period of two months from today. The amount shall bear interest @ 9% p.a. from the date of filing the complaint petition on 1-12-2010. In default the interest shall be 12% p.a. from the date after expiry of two months and cost of Rs.15,000/- in addition.
MEMBER PRESIDENT State Commission State Commission Tripura Tripura