D.O.F:30/01/2021

                                                                                                   D.O.O:15/12/2022

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

CC.No.27/2021

Dated this, the 15^th day of December 2022

PRESENT:

SRI.KRISHNAN.K                         :PRESIDENT

SRI.RADHAKRISHNAN NAIR.M : MEMBER

SMT.BEENA.K.G                            : MEMBER

Mr. Mashood N.A,

S/o. Abbas M, MKH House            ,                                   :  Complainant

Nayanmarmoola, Vidyanagar,

Kasaragod 671123, Kerala.

(Adv. K.Vinod Kumar)                                            

                                                                        And

1. Fayaz,

S/o. Fareeda,

Vadakkekara House,

Near Arafa Cement Shop, Cherkala,

Chengala Post,

Kasaragod - 671542

                                                                                    :  Opposite Parties

2. Rashid Parasheri,

S/o. Moosakutty.

Rahmath Manzil, Near Mini estate,

Muttathody Post,

Kasaragod - 671123

(Adv. Samsuddeen B.K OP 1&2)

                                                                        ORDER

SRI.RADHAKRISHNAN NAIR.M : MEMBER

 The complaint is filed on the ground of service deficiency and unfair trade practice on the part of the opposite Parties.

The fact of the case in brief is that as induced by the opposite party the complainant entrusted the work of a software to run their business under a single server based portal. It was offered by the opposite Parties that it will be a complete solution for the inventory and accounting of all the business concerns under the MKH group of the complainant. The opposite Parties agreed to do the work for a total amount of Rs.3,90,000/- out of which the complainant paid Rs.3,25,000/-. It was also agreed that the full software would be provided within 60 days. There after the opposite party provided a simple billing software to Kullukki shop of the complainant, but they failed to provide the software for the new company of the complainant and his other business concerns as agreed. The inauguration of the company had to be postponed for the sole reason that the opposite party failed to provide the software as agreed. After much delay they provided the software for the company alone. But it was not working at all. Even though the complainant approached the opposite Parties to cure the defects and complete the software work by incorporating all the necessary facilities, they prolonged the same for one or the other reason. The opposite Parties provided only a billing software and it was not possible for the complainant to do any other work with that. The complainant had given a detailed note of the defects of the software and the difficulties faced by him while using the software to the opposite party on 21.10.2019.

The opposite Parties agreed to cure all the defects and to provide the full and final software by 31.12.2019, but the opposite party could not do it till date. The complainant caused to send a lawyers regd. notice dated 31.12.2019 calling upon to cure the defects and provide the full software as agreed, but the opposite Parties neither complied with the demands nor replied to the notice. The act of opposite Parties is service deficiency and unfair trade practice due to which the complainant suffered loss and hardships. Hence this complaint is filed for a direction to the opposite Parties to pay Rs.10,00,000/- towards compensation for mental agony and hardships along with costs.

            The notice issued to the Opposite Parties are served and they entered appearance through their counsel, who filed written version. As per the version of the Opposite Parties the complaint is false frivolous vexatious and not maintainable in law and as such it is liable to be dismissed. The Opposite Parties submit that they never approached the complainant but the complainant approached them for supplying a software. The contention that the inauguration of the company had to be postponed for the sole reason that the opposite Parties failed to provide the software as agreed is incorrect and hence denied. There is no negligence on the part of the Opposite Parties in providing the software in time. The Opposite Parties provided all the features in the software as agreed, which was mentioned in detail in the software proposal. There was no defects in the software supplied by the Opposite Party. It is submitted that the complainant approached the Opposite Parties for doing a software for their firm namely, Kullukki and primary proposal was given for the same. Then after few discussions, the complainant asked to extent the  addons in to the Kullukki software and to use the same for their hardware form MKH. The software was designed as per the instructions and information given by Mr. Shamseer, who was introduced to the opposite parties by the MKH directors. They have started using the software for Kullukki on 01.01.2019 and MKH on 24.06.2019. All the features said in the proposal except the customer app. were handed over, since the price for the customer app Rs.65,000/- was not paid by the complainant. The complainant paid a total of Rs.3,25,000/- but the payment was in different instalments and not in agreed times and payment of Rs.65,000/- is still pending. The Annual Maintenance charge(AMC) was agreed  as 20% of the billing amount (Rs.78,000/-yearly)and in that account Rs.1,56,000/- is pending for 2 years, but the opposite party is paying the server rent. Mr.Shamseer left the firm due to some misunderstanding and now the discussion is to be done with new staffs of the complainant, who demand new features in the software which were not mentioned in the proposal. The scope was changed multiple time, and for the same the complainant did not give any charge to the opposite party. Since the changing of the scope continue, the complainant asking for ERP (Enterprise Resource Planning) for the same price and the opposite party find it difficult to provide the same, yet the server is still running and they have used the same till the  month of December 2020. The complainant did not have an experienced team to handle and use the features in the software provided by the opposite party and they have not done trial entries and the opposite party without checking and using the features which are provided by the complainant and accusing the opposite party that the features doesn’t exist. It is submitted that the complainant have used the software supplied by the opposite party for Kullukki on 01.01.2019 to 13.08.2020 and MKH from 24.06.2019 to 05.12.2020.

The complaint is devoid of merit and the complainant is not entitled to for any relief claimed in the complaint. There is no deficiency of service on the part of the Opposite Parties. The complaint is liable to be dismissed.

The Complainant filed the proof affidavit in lieu of chief examination and   produced documents which are marked as Ext. A1 to Ext. A4. The Ext - A1 is the copy of the Proposal submitted by the opposite party dated 31.12.2019, Ext. A2 is the copy of the details given to the opposite party regarding the infirmities of the soft wares, Ext. A3 is the copy of regd. notice dated 02.12.2020, Ext. A4 is the Postal A/D card.

From the side of the Opposite Parties, no evidence is adduced. No document marked. The complainant PW – 1 was not Cross-examined in spite of several postings were given for that purpose. At last the evidence was closed after recording no cross. There after the case was posted for opposite party’s evidence and that time also the opposite parties didn’t adduce any evidence.

Based on the pleadings and evidence in this case the following issues are framed for consideration.

1 . Whether there is any unfair trade practice or service deficiency on the part of the

Opposite parties?

2.If so, what is the relief?

For convenience, both these issues are considered together.  Here the case of the complainant is that as induced by the opposite party the complainant entrusted the work of a software to run their business under a single server based portal. It was offered by the opposite party that it will be a complete solution for the inventory and accounting of all the business concerns under the MKH group of the complainant. The opposite party agreed to do the work for a total amount of Rs.3,90,000/- out of which the complainant paid Rs.3,25,000/-. It was also agreed that the full software would be provided within 60 days. There after the opposite party provided a simple billing software to Kullukki shop of the complainant, but they failed to provide the software for the new company of the complainant and his other business concerns as agreed.

The inauguration of the company had to be postponed for the sole reason that the opposite party failed to provide the software as agreed. After much delay they provided the software for the company alone. But it was not working at all. Even though the complainant approached the opposite party to the cure the defects and complete the software work by incorporating all the necessary facilities, they prolonged the same for one or the other reason. The opposite party provided only a billing software and it was not possible for the complainant to do any other work with that. The complainant had given a detailed note of the defects of the software and the difficulties faced by him while using the software to the opposite party on 21.10.2019.The opposite party agreed to cure all the defects and to provide the full and final software by 31.12.2019, but the opposite party could not do it till date. The complainant caused to send a lawyers regd. notice dated 31.12.2019 calling upon to cure the defects and provide the full software as agreed, but the opposite parties neither complied with the demands nor replied to the notice.

To prove the case, the complainant has produced and marked the documents Ext.A1 to A4.The Ext-A1 is the copy of the Proposal submitted by the opposite parties dated 31.12.2019,Ext. A2 is the copy of the details given to the opposite party regarding the infirmities of the soft wares, Ext. A3 is the copy of regd. notice dated 02.12.2020, Ext.A4 is the Postal A/D card.

Therefore considering the facts and circumstances of the case, in the absence of any rebuttal evidence, this commission is of the view that there is negligence service deficiency and unfair trade practice on the part of the Opposite Parties No.1 to 2, due to which the complainant suffered mental agony and hardships apart from financial loss. The complainant prays for a direction to the opposite parties to provide full software after curing the defects as agreed.

The complainant states that due to the service deficiency and unfair trade practice of the opposite parties he suffered a loss of Rs.10,00,000/- But in the absence of data and details, this commission is not inclined to allow such a huge amount towards compensation.  This commission hold that Rs.50,000/- will be a reasonable compensation in this case.

In the result the complaint is allowed and the Opposite Parties No.1 and 5 are jointly and severally directed to provide full software after curing the defects as agreed and pay Rs.50,000/- (Rupees Fifty Thousand only) towards compensation and Rs.5,000/-(Rupees Five Thousand only)  as costs to the complainant.

Time for compliance is 30 days from receipt of receipt of the copy of this judgement.  

       Sd/-                                                            Sd/-                                                 Sd/-

A1. Copy of the proposal

A3. Copy of the registered notice

A4. Postal acknowledgement card

Forwarded by Order

                                                                                    Assistant Registrar

Ps/