DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 14^th day of June 2024

                           Filed on: 05/08/2021

PRESENT

Shri.D.B.Binu                                                                            President

Shri.V.Ramachandran                                                               Member Smt.Sreevidhia.T.N                                                               Member

C.C. No. 256/2021

COMPLAINANT

          Dr.Balu Soman, Director and Dental Consultant, Soman’s Cosmetic Dental Care, Ernakulam

(By Adv.Sangeeth C U, Amrita Jayaram)

VS

OPPOSITE PARTIES

1. Guru Daksha Consultancy and Services LLP, ‘Saikripa’ Central Road, Chalakkudy P.O., Thrissur District Kerala India, Pin-680 307

2. Anvita Tours 2 Health Pvt. Ltd., Devadaram, Infopark, Thrissur, Nalukettu Road, Koratty P O., Thrissur District Kerala India , Pin-680 308

(Ops 1 to 2 rep. by Adv.P.Rahul & Rajesh V.Prasad, Kaskarilla Mahal, 1^st Floor, Kombara, North End, Ernakulam-682 018)

F I N A L   O R D E R

V.Ramachandran, Member

1. A brief statement of facts of this complaint is as stated below:

This consumer complaint is filed by Dr.Balu Soman, Director, Director and Dental Consultant, Soman’s Cosmetic Dental Care, Ernakulam against Guru Daksha Consultancy and Services LLP and others alleging deficiency of service and unfair trade practice from the side of the opposite party.  The complainant states that the complainant is a dentist by profession and running his own Dental Clinic by name “Soman’s Speciality Dental Clinic” at Ernakulam and is a consumer as defined under Section 2 (7) of the Consumer Protection Act 2019.  The 1^st opposite party is a service provider in the field of Web site development and web marketing.  The 2^nd opposite party is the sister concern and technical wing of the 1^st opposite party. It is submitted by the complainant that the complainant approached the 1^st opposite party for creating website www.dentistinkerala.com and for hosting the same.  After discussions, the 1^st opposite party issued proforma invoice No.1178 dated 09.07.2018 to the petitioner.  As per the proforma invoice, the total charges for the creation/ development and web marketing of the website www.dentistinkerala.com for one year (Basic Plan with 25 pages of website) is Rs.3,26,400/- (Rupees three lakhs Twenty Five Thousand Four Hundred only) in which hosting was the important factor which was assured by the opposite party. 

The payment terms for the above service as described in the Proforma Invoice of the 1^st opposite party are as follows:

As per the above payment terms, the complainant paid an advance amount of Rs.75,000/- towards the creation/development of the website on 31.07.2018.  On 07.12.2018 the complainant paid an amount of rs.41,900/- towards hosting of the web site.  It is submitted that as per the terms with the 1^st opposite party for the development of the website, the opposite parties are duty bound to host the domain www.dentistsinkerala.com immediately after they received the payment for hosting from the complainant.  As per the statement of the opposite party the payment receivable date for hosting of the domain is 11.12.2018 but the complainant made the payment 4 days prior to the stipulated date ie., 07.12.2018.  The complainant has not hesitated or delayed in doing his part.  Even after making the payment the opposite party did not host the domain as promised by them.  It is submitted that the opposite party even after the stipulated date did not host the domain as mutually agreed and assured by the opposite party though they have received the payment for hosting the domain.  The complainant had made ever so many communications with the 2^nd opposite party in this regard to host his website and provide with his credentials but of no result.  It is stated that the complainant had paid Rs.1,16,900/- as advance and instalments the opposite parties were duty bound to host the website as per the terms.  After collecting the requisite amount for hosting the website they violated the terms and conditions in hosting the website. It is further submitted that several attempts to contact the opposite party by telephone and email communications were made but there was no proper response from the opposite party.  After collecting the initial payments the opposite party was evading from hosting the site thus violating their terms.   On 18.09.2019 the complainant realized that the opposite party is refraining from his promise.  Complainant requested the 2^nd opposite party through email to provide or transfer the ownership, details and technical data of their website www.dentistsinkerala.com  To this request Mr.John Philip, the Chief operating officer of the 2^nd opposite party informed the complainant that the domain has expired on 18 July 2019 and it needs to be renewed prior to transferring to the complainant.  In the beginning complainant was not informed about the expiry of domain within 1 year from the date of hosting.  There was no whisper about the expiry of domain, as the complainant was promised by the opposite party and the complainant is the owner of the domain and requisite payment is made by the complainant.  The opposite parties even after receiving an amount of Rs.1,16,900/- did not host the website as agreed.  They also did not provide any information to the complainant regarding the hosting of the website, where by cheating this complainant and taken away with his hard earned money.  It is duty and responsibility of the opposite parties to host the website since they have already received an amount of Rs.1,16,900/- which includes the charges for hosting.  Further they did not furnish any communication from “Goddaddy” regarding the expiry of the domain to the complainant. Therefore the complainant approached the Commission praying for issuing orders to the opposite party to refund the entire amount paid to them by the complainant along with interest and also for compensation of Rs.5 lakh for deficiency of service of the unfair trade practice along with other reliefs. 

2. Notice

Upon notice from this Commission, the opposite party entered into the Commission and filed their separate version.

3. Version of the 1^st opposite party

The opposite party contended that the complainant is not a ‘consumer’ as defined under the Consumer Protection Act, 2019.  The alleged services availed by the complainant from the 1^st opposite party was exclusively for the commercial purpose of the complainant’s business and hence the transaction between the complainant and the 1^st opposite party will not fall within the purview of a ‘consumer dispute’ as defined under the Consumer Protection Act.  Hence the above complaint is liable to be dismissed on that ground as well.  The 1^st opposite party submits that all the allegations contained in the above complaint are absolutely false and hence denied , except those that are specifically admitted hereunder.  The averments in paragraph 1 of the complaint that the complainant is a dentist by profession and running a dental clinic by name ‘Soman Speciality Dental Clinic’ at Ernakulam and that the 1^st opposite party is a service provider in the field of website development and web marketing are correct.  The 1^st opposite party is a limited liability partnership firm and the 2^nd opposite party is a private limited company and both are separate legal entities carrying their own business.  The 2^nd opposite party has absolutely no connection or bearing with the alleged business transaction between the complainant and the 1^st opposite party.  There is no privity of contract between the complainant and the 2^nd opposite party.  As such the 2^nd opposite party is not a necessary party in the above complaint and therefore the above complaint is bad for misjoinder of parties. The document produced by the complainant along with complaint was absolutely false, fabricated and concocted document.  The 1^st opposite party never published or handed over any such social media proposal to the complainant and hence the complainant may be put to strict proof of the authenticity of the said documents produced along with the complaint. The averments of complaint that the opposite parties’ are duty bound to host the domain www.dentistinkerala.com immediately after they received the payment for hosting from the petitioner and that the statement issued by the opposite party shows that the payment receivable date for hosting of the domain is 11.12.2018, but the complainant made the payment 4 days prior to the stipulated date ie., on 07.12.2018 etc are distorted version of the true state of affairs transpired.  The above payment was actually issued by the complainant to the first opposite party by way of a post-dated cheque.  The payment by way of cheque was thereafter cleared by the 1^st opposite party on 07.12.2018, which was on Friday.  The next two days were holidays for the employees of the 1^st opposite party.  Hence on resumption of work on 10.12.2018 after having done all the final checks, of course in consultation with the complainant, the website was hosted on 11.12.2018 with the consent and concurrence and to the satisfaction of the complainant. The opposite party did not host the domain and that the complainant had made ever so many communication with the 2^nd opposite party in this regard but of no results etc., are utter falsehood and hence denied by the first opposite party.  After receiving the total amount of Rs.1,16,900/- the 1^st opposite party had hosted the domain with the effect from 11.12.2018.  After hosting the website, the 1^st opposite party had also carried out web marketing for a period 3 month for the said domain for the development of the complainant’s business ‘Soman’s Cosmetic Dental Care’. The online traffic data of the domain www.dentistinkerala.com during this period as available in Google analytics world show that subsequent to the hosting of the said domain there was considerable improvements in the visibility of the said website. .  It is submitted that after hosting of the domain on 11.12.2018 the complainant refused to pay the further instalments payable to the 1^st opposite party as per the payment schedule, in spite of repeated request on the part of the 1^st opposite party.

4. Version of the 2^nd opposite party

The 2^nd opposite party also filed their version in which they stated that they are only the technical wing of the 1^st opposite party and is a Limited Liability Partnership Firm and there is no privity of contract between the 2^nd opposite party and the complainant.  The 2^nd opposite party stated that the complaint is bad for misjoinder of parties and prayed that they are misjoinder of the parties in the complaint.

5. Evidence

The complainant produced Exbts.A1 to A3 and the opposite party produced Exbts B1 to B4.  Exbt.A1 produced by the complainant is the proforma invoice of the 1^st opposite party. Exbt.A2 is the copy of letter.  Exbt.A3 is the communication between the complainant and the opposite party. 

     Exbt.B1 is a copy of resolution of Anvita Tours 2 Health Pvt. Ltd dated 11.07.2023.  Exbt.B2, B3 and B4 are analytics of all web site data, electronic communication letter address of the complainant.

 6)      The following are the main points to be analysed in this case:

(i)      Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainants?

ii)       If so, whether the complainants are entitled to get any relief from the side of the opposite parties?

(iii)     Costs of the proceedings if any?

 On going through the complaint and evidences produced from either side the Commission came to the following inferences

7)        Point No. (i)

The complainant and the opposite party had entered into an agreement for the creation of a website and after discussions the opposite party issued proforma invoice to the complainant and the total charges for creation (development) of the web marketing maintained in the website www.dentistinkerala.com for one year @ Rs.3,26,400/- with the 25 pages of website in which hosting was an important factor assured by the opposite party.  The complainant had paid an advance amount of Rs.75,000/- (Rupees Seventy Five thousand only) and Rs.41,900/-(Rupees Forty one thousand and nine hundred only) on 31.07.2018 and on 07.12.2018 to the opposite party.  Infact, the opposite party is duty bound to host the domain but had not fulfilled the transactions as mutually agreed into.  The complainant had paid an amount of Rs.1,16,900/- (Rupees One lakh sixteen thousand nine hundred only) as advance to the opposite party.  The main averment of the opposite party is that the complainant had not paid the remaining portion of amount after the development and hosting as the previously agreed and the total charges for the creation and web marketing of the website for one year is Rs.3,26,400/- in which hosting was the important factor.  The main averment taken by the opposite party is that Exbt.B2 produced by the complainant is only a fabricated and concocted document.  The reality of the such an argument and originality of the documents had not been made clear by both sides by moving the Commission.  The opposite party contended that they have hosted the domain on 11.12.2018 and had also carried out web marketing for 3 months for the development of complainant’s business with online traffic domain  www.dentistinkerala.com which was live for a period of seven months.  Inspite of repeated requests the complainant had not paid the subsequent instalment amount and therefore the opposite party stopped the service and the domain expired on 18.07.2019.  The opposite party also had failed to establish with support of proof and documents and evidences that they have discharged their promises eventhough the consideration of Rs.75000 + 41,900 = 1,16,900/- only is given by the complainant, which is accepted by the opposite party.  

Hence the Commission had assessed and evaluated the complaint, version and also probed into the contents of the documents and have come to the following inferences that the complainant had partly proved his case and therefore the point Nos. (i) to (iii) are found in favour of the complainant and the following orders are issued.

1. The opposite parties shall refund an amount of Rs.75,000/- and Rs.41,900/- which the opposite party had received from the complainant to the complainant with interest @7.25% from the date of order till the date of realization.
2. An amount of Rs.10,000/- (Rupees Fifty Thousand only) shall be paid by the opposite parties to complainant as compensation.
3. The opposite parties shall pay an amount of Rs.10,000/- (Rupees ten thousand only) as cost of the proceedings to the complainant.

The opposite parties are jointly and severally mandated to comply with the directions within 45 days from the date of receipt of copy of this order.  Failure to comply with the payment order point (1) and (2) shall attract interest at the rate of 9% from the date of filing of the complaint (05.08.2021) till the date of  full payment realization.

      Pronounced in the Open Commission this  14^th day of June 2024.

                                                                                       Sd/-

                                                                                                V.Ramachandran, Member

                                                                                                            Sd/-

                                                                                                D.B.Binu, President

                                                                                                            Sd/-

                                                                                                Sreevidhia.T.N, Member

                                                                              Forwarded by Order

Assistant Registrar

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