Date of Filing: 16-05-2015

                                                                                         Date of Order:24 -09-2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD

P r e s e n t­

HON’BLE Sri P.VIJENDER, B.Sc. L.L.B.  PRESIDENT

                     HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER

Tuesday, the  24^th day of September, 2019

C.C.No.341 /2015

Between

The School (VHS), rep. by its Correspondent

Mr.R.N.Chary, # LalBahudur Nagar, Shapur,

Jeedimetla, Hyderabad – 500 055, Telangana State

Correspondent R.N.Chari,

S/o.Late Yadhagiri, aged -48 years                                            ……Complainant

And

1. Educomp Solutions Limited, having regd. Office at 1211,

Padma Tower -1, 5 Rajendra Palace, New Delhi-110 008,

Rep. by its Vice President Mr.Rajesh Bharadwaj

2. Edu Smart Services Pvt.Ltd., rep by its

Director having registered office at L-74,

Mahipalpur Extension, New Delhi -110 008

3. Educomp Solutions Ltd., rep. by its Manager,

# Amsri Classic, 5^th floor, S.D.Road,

Near Kotak Mahindra Bank Secunderabad,

Hyderabad – 500 003, Telangana State                        ….Opposite Parties

Counsel for the complainant          : M/s. Rama Krishna. A

Counsel for the opposite Parties    :  Mr. A.M.Rao

O R D E R

(By Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)

            This complaint has  been preferred under Section 12 of C.P. Act  1986 alleging  that the  opposite parties  having promised  to provide service towards Smart class  programme collected amount of Rs.6,92,000/- but failed to provide  the service and it amounts to  deficiency of service hence a direction to opposite parties   to refund the said amount with interest at 18% P.A from the date of payment  to the date of realization  and to award a compensation of Rs.1,00,000/-  for causing mental agony to the management of the complainant’s institution and its students and also for  the cost of this complaint. 

1. The complaint averments in brief are that  opposite  party No.1 is a  Global Diversified  education solutions  provider to provide innovative solutions  to critical problems relating to quality of Education  and Access  to Education.  It has developed digital curriculum under the name and style  of Smart Class   in the education field and distributed the same through  opposite party No.2.  Opposite party  No.2 having  adopted the  education programme  of Smart class  in schools and  institutions developed by opposite party No.1  offered to provide the same to the students of complainant institution.  A 3^rd party agreement was entered into  by the complainant  with  opposite party No.1&2 on 23-12-2009 for setting up   and implementation  of Smart class programme  in the complainant institution.  The term of agreement is for five years from the date of installation.  Thereupon the  opposite parties have installed hardware in the month of June 2010 and smart class commenced in the   school  of the complainant’s institution. 

        The opposite parties  have appointed a female Resource Coordinator   but  she was not up to the  standard  and unable to teach the content of the  module.  On complaint  of the complainant’s school opposite parties have changed the coordinator after   two months and appointed another female coordinator  but she was     irregular  to attend the classes and not having any experience and she  took only 8 days training before her appointment as coordinator.   Hence opposite parties changed and appointed another  coordinator  and during the change of coordinators several problems were  cropped up  to the management   of the school.  The last coordinator was also unable to visualize the theme  of  the  lessons as per  curriculum. 

              On account of lack of knowledge of the  coordinator   with regard to the problem of  smart  class the opposite parties  frequently changed the coordinators which lead to lot of inconvenience  to the school.    Academic classes were disturbed and opposite parties 1 &2 also have not upgraded the programme.  All these problems were intimated to the person-in-charge  of opposite party No.1&2 but there was no response and problem continued to proceed.  The school management received number of complaints from the  parents and teachers  on account of  inadequate service  provided by the  opposite parties in smart class programs. 

           In the meanwhile, opposite party No. 1&2 have got issued a legal notice on 23-1-2012  demanding  the complainant  school to pay amount  due.  A reply was  sent by the complainant’s school on 14-2-2012   informing  that  Tripartite agreement  copy was not provided to the  school  soon after its execution and on repeated demands the copy of it was served on 13-2-2012 i.e, two years  after the execution  of the same.  The complainant school was kept in  dark for these  two years with regard to the  terms of agreement.  Under the agreement  licensing of content  clause 3.2.1 provides  non exclusive, royalty-free license to  school  to use the  repository  as licensed by opposite  party 1 to 2 for the agreement  period.  The content repository shall cover all classes from Nursery to Class XII.  But the opposite parties  did not provide   content of repository  and it is not available in module installed by  the opposite parties.  The contents supplied was not matching perfectly  or not getting   mapping properly.  The coordinator appointed  by opposite parties  did not  comply the  classes and did not allow the  teacher  to preview even   fortnight to  help them to prepare the lessons after  previewing the content in smart class repository as per the agreement.  If any  syllabus of the school  is not covered in smart class content they say  that  they are helpless  to  cover the  said syllabus. 

             Originally the opposite parties  promised that they will  cover the entire content as syllabus of the school for  all classes.  The coordinator promised to upgrade the said content into the smart class programme but same was  not done.  Whenever a complaint was made with the people of the opposite parties   during their visit to the school they promised to rectify but did not upgrade  as per school syllabus.  Opposite party No.2 had agreed to  appoint  trained and deploy   one full time small class resource  coordinator  to provide necessary instructions  and training to the existing  teachers or any new incumbents to  enable them to utilize the repository  of smart class  applications and  resources effectively.  But  the opposite parties have  not complied  the  clauses mentioned in the  Tripartite agreement  and they have not provided good quality of  hardware and proper equipment  for smooth functioning of the smart class program. 

             The complainant despite not giving proper services by the opposite parties  regularly   paid  equated  quarterly installments as per the agreement and  paid  a  total sum of Rs.6,92,000/- byway of  cheque as  well as  cash during the period from 11-1-2010  to 06-04-2013 and same is confirmed by opposite party No.3. The school  management  made a complaint with opposite party No.3 on  29-12-2011 stating that   at the time of introduction  of  project  opposite party No.1& 2 stated that   they will charge at Rs.8,000/- per ETEC for month which  will comes to Rs.96,000/- per quarter  whereas opposite parties are charging Rs.1,19,572/-.  On 22-08-2012 the  complainant  school requested  three months  grace period as  the school did not use  smart class  from March, 2012 to May 2012 on account of  not giving  clarity   of price in the agreement.    The  school did not utilize the service as smart class  has not been functioning  due to lack of proper  resource coordinators  and the said smart classes were  stopped in the month of March 2013 by which  time an amount of Rss.5,92,000/- was paid.  Despite number of requests the opposite parties  failed to  rectify the  equipment installed by opposite party No.2 by sending their  people  and because of that smart classes were  stalled for some days.  On the oral  promises  and requests made by the opposite parties  to  conduct  smart classes, the complainant school paid Rs.1,00,000/- on 06-04-2013 but even then opposite  party  did not  fulfill  their promise  and did not respond to conduct  the smart classes.  On 21-01-2014 opposite  parties got issued another  legal notice demanding  the alleged outstanding  amount  for the entire period of five years though service has not provided in the school.  It is  also stated  in the notice that  in the event of failure to make the payment within 30 days from the date of receipt of  the notice agreement  shall automatically  stand terminated  without  any further notice.  The version of  opposite parties is  in view of the  earlier notice,  agreement  was terminated  but issued second notice on 21-1-2014  mentioning that agreement  stands  terminated  between the parties   and also illegally demanded the  amount  without providing  services  of smart class.  On 8-02-2014 the complainant school  sent email to opposite party stating that  the coordinator has stopped  coming to school from the March 2013  to till date  but there was no response from them. 

        Again another email was sent on the same day  informing that huge amount was paid  for the usage of smart class but  usage of smart  class was not up  to the mark.  Remainder was issued on 23-02-2014 to the opposite parties  but there was no response. Hence it amounts to deficiency of service.  The opposite parties are harassing the school management  for payment despite  having defects in smart class  programme.  Complainant learnt that  opposite parties will settle the matter by terminating the  agreement  with other schools as their services  were unable to provide  bright concept High  school  in Twin cities and Ranga Reddy District.  The opposite parties are disturbing the school management   very seriously causing mental agony to the management people. Hence the present complaint. 

2. The opposite parties in the written version have admitted about tripartite agreement with the complainant institution and installation of equipment and hardware  to smart class program  but denied the allegation of deficiency of service on their part.  The stand of the  opposite parties is opposite party No.1 is a Global  diversified    education solutions  provider  relating to quality of education and Access of Education.  It has developed   digital curriculum under the name and style  of Smart Class   in the education field and it has created  of world-class digital curriculum  sourced developed and owned by opposite party No.2.  The  repository consists of animations, graphics audio and video content and every subject taught with the  class room  ranging from  pre-primary to class 12.  Opposite party No.2 provides turnkey solutions including  setting up and implementing  the smart class program to each and every licensee. 

               Opposite party No.1&2 explained about  the smart class program to the complainant  institution by way of demonstration  and having seen it the complainant school  agreed to install  smart class program and accordingly a try party agreement was entered into on 23-12-2019 for setting up and implementation  of smart class programme  to the complainant school.  Thereafter  opposite parties  have  installed  the hardware   and commenced the smart classes in the  complainant school. 

            After installation of hardware  equipment the opposite parties  have appointed resource coordinator  to teach the content.  When a complaint was received stating  that  coordinator  was unable to  teach  the contents of  the module  the coordinator  was  changed and appointed another in his place. After sometime the school management made a complaint for change of  coordinator  and accordingly  coordinator was changed  with  another one. Thus opposite parties  very quickly responded to the complaint of the complainant  school from time to time.  The opposite parties provided  content according to the agreement  but complainant school has not paid their quarterly installments as scheduled in the agreement.  The complainant  school paid only Rs.5,92,000/- by 28-02-2013 but they were  to pay  a further sum of  Rs.1,19,572/- per quarter for  ETEC but paid only Rs.96,000/- per quarter which differences only Rs.23,572/- per quarter.  Hence for payment of the due amount legal notice  was sent to the  complainant school  under Section 21 of Arbitration and  Conciliation Act, 1996 and informed that  failure to make payment within 30 days from  the date of service of the said notice  the agreement shall automatically  stand terminated.  It is further  mentioned that in the  event of nonpayment of the amount due  within 30 days from the date of service of the  notice    it will be deemed  that disputes  have arisen  between the  parties and the dispute  shall be  referred for arbitration  to the sole Arbitrator  nominated  on behalf  of complainant  institution. 

          The  complainant school stopped quarterly payments  to opposite party No.1&2 who  have installed  hardware and software  programme and rectified the problems  and obligations  on smart class program  from time to time and provided service to the  complainant institution.  Thus there is  no deficiency  of service on the part of the  opposite parties  to the complainant school the present complaint has been filed for avoid of payment of amount payable to the opposite parties  by the complainant.  Hence the complaint is   liable to  be dismissed.

        In the enquiry  the  evidence affidavit of correspondence  of the complainant’s  school got filed and material facts narrated in the  affidavit  are  in tune of the complaint averments.   Ten (10) documents are exhibited  to support the allegation of deficiency of service.     Similarly for the  Opposite Parties  evidence affidavit  of Sri  Satish Goud  stated to be  Area Manager  of  opposite party No.1 to 3 company   and  Power of Attorney  is got filed  and  substance of the same is in line with stand taken  in the written version.  No document is exhibited  for  opposite parties.    Both sides  have filed written arguments

            On a consideration of material available on the record the following points have emerged for consideration .        

1. Whether  the complainant’s institution  could make out a case of  deficiency of service  on the  part of the opposite parties  so as to seek  refund of the amount paid with interest  and compensation for inconvenience caused by not providing  promised services  ?
2. Whether the complainant is  entitled for  any relief  claimed in the complaint?
3. To what relief?

Point No.1:  Material fact  relating to development of innovative solutions to critical problems of quality education  under the name and style of Smart class  by opposite party No.1 and its adoption by opposite party No.2 for marketing  and approach of  opposite party No.1 & 2 for complainant institution  offering to implement Smart classes  programme to the complainant’s students are not in dispute.   It is  specifically  stated by the complainant  that  the 1^st coordinator  appointed by the opposite party to teach the  smart class Curriculum  to the students with the hardware and other equipment  installed by the opposite parties  in the school premises  of the complainant was unable to cope up with the subject  hence on a complaint by the management  of the complainant’s school  the coordinator  was replaced  the same thing  happened of  with subsequent  coordinators sent by the opposite parties.  In fact  the opposite  parties  have also  in the written version categorically stated that  whenever a complaint was received from the complainant school against the coordinators  they have responded  quickly  by replacing the coordinator  but  denied the allegation that  the  coordinator  failed to provide  necessary instructions  and  training  to existing  teachers of the school  and so unable to utilize the  repository  smart class  applications and resources effectively.  Even according to the complaint the Tripartite agreement entered into on 23-12-2019 and pursuance  to it the opposite party installed to hardware and software and  coordinator attended  then  the payment of amount   as agreed under agreement  commenced in   January, 2010.  As per the  statement made in the complaint the  1^st payment  was  by way of cheque to the opposite parties  in 11-1-2010 i.e., within 20 days from the date of Tripartite agreement  and it means during  the 23 days  itself the opposite parties  have installed the equipment and hardware of the  Smart class  programme.  It is specifically stated by the complainant  that at the time of introducing  the project  opposite party No.1 & 2 informed  that  Rs.8,000/- payable  per ETEC for month  and it comes to Rs.96,000/- per quarter but contrary to it  opposite parties charged  at Rs.1,19,572/- and the request for grant  of grace period  for three months  post agreement  on account of  not using the smart classes  since March 2012 to May 2012 owing to clarity of price  in the agreement was not considered.  But as already said  when the complainant’s school  did not use the smart class since March 2012  what made it to  pay the subsequent amount from 16-5-22012 to 27-7-2012 is not explained.  The complainant also alleged that  the students and parents have made  complaint with regard to the content of the smart class room  programme  and on account of  it the management people of the school faced embracement.  In evidence of alleged complaint  the complainant’s institution has not filed the copy of complaint either from the parents  or students of the institution.  Even according to the complaint opposite parties  have issued  notice for payment of the due amount  firstly  on 23-1-2012 and to the said notice a reply stated to have been issued 14-2-2012 stating that  the copy of Tripartite  entered into by 23-12-2009 was not furnished.  As already said payment of amount  to the opposite party was commenced on 11-1-2010, when copy of agreements were not  furnished  and   since agreement  contents  terms and conditions  of the payment  were not  gave to the complainant institution what made complainant institution to pay the amount to the opposite parties is not stated.  It is  quite unbelievable  to say  that  a party to the agreement  without  collecting the copy  of either agreement  or  copy agreement  went to make payment for two years to other party of the agreement. 

              The allegations in the  complaint are that the opposite parties failed to provide  contents of  repository  to the satisfaction of the  institution and coordinator  was unable to cope up with the  subject  and  the  coordinator was  not properly  trained by the opposite parties.  So the   essence of the  complaint is right from the beginning the service offered by the opposite parties  were  not satisfactorily.  But according to the complaint even after  issuance of  the 1^st notice  on 23-1-2012 the complainant’s institution   went on to pay the amounts  till 6-4-2013.  As per the  statement made in at page 5 of the complaint the complainant institution  paid the amount on 16-5-2012, 18-5-2012 by way of  three cheques totaling for Rs.1,00,000/-.  Again in the months of August, October, December, 2012 and the  April  2013  paid Rs.1,00,000/- so out of Rs.6,92,000/- which is being sought to be refunded  the complainant’s institution  has paid  Rs.5,00,000/-  after the  issuance of first notice  by the opposite parties on 23-1-2012.  So as rightly said by the opposite parities the complainant in order to avoid   the amount due payable   has come  with the present complaint.  Because   if the services  agreed to be provided by the opposite party were not to the satisfaction and in terms of the  Tripartite agreement  could have stopped all payments or at least after receipt of the  1^st legal notice on 23-1-2012.  That apart  except  the self serving  affidavit  of the  complainant side  no independent  evidence is brought on the  record by complainant to substantiate that the services provided by the opposite parties is not in accordance with the terms  and agreement   in the parties.  Thus absolutely  there is no acceptable material  from the complainant side to substantiate  the allegation of deficiency of service on the part of the opposite parties.  Accordingly point is answered against the complainant. 

Point No.2: In view of the above findings  it is to follow that the complainant is not entitled for the reliefs as prayed for.   

Point No.3: In the result, the complaint is dismissed.  No order as to costs. 

                        Dictated to steno, transcribed and typed by her, pronounced  by us on this the   24^th  day of September , 2019

MEMBER                                                                                            PRESIDENT

APPENDIX OF EVIDENCE

Exhibits filed on behalf of the Complainant:

Ex.A1-Tripartite agreement  dt.23-03-2009

Ex.A2-bunch of receipts issued by opposite party No.2

Ex.A3- payment details

Ex.A4- statement of customary copy issued by OP No.3

Ex.A5-  copy of confirmation of payment  issued by opposite  parties

Ex.A6-Smart classes performance

Ex.A7- legal notice dt.23-01-2012 issued by opposite party No.1&2

Ex.A8-reply given by the complainant dt.14-02-2012

Ex.A9-legal notice dt.21-01-2014

Ex.A10-Emails (2)

Exhibits filed on behalf of the Opposite parties : Nil-

MEMBER                                                                                            PRESIDENT