SMT. RAVI SUSHA : PRESIDENT
Complainant filed this complaint U/S 35 of Consumer Protection Act 2019 for getting an order directing opposite party to compensation of Rs.3 lakhs to the complainant together with Rs.25,000/- towards cost of the proceedings of the case.
Facts in brief of complaint are that on 5/11/2014 complainant has purchased OP’s software Medifox for an amount of Rs.35,000/- that after installation of 1 year , an Annual maintenance contract was entered between complainant and OP in the year 1/12/2015 to 31/11/2016 for Rs.12,000/-. Thereafter AMC was renewed every year for an increased rate of Rs.18.880/- till 2019-2020, thereby OP agreed to give proper maintenance time to time as needed by the complainant. Complainant further states that during the AMC period, several times complaints regarding the software were informed to OP and OP had breached the above contract several times without giving proper and apt service on time, whereby the complainant had suffered huge business loss. Complainant further says that OP were compelling to enter into AMC rather than going for service to service-payment method, and though he obliged for the OP were not giving proper service on time. It is further alleged that when any faulty hardware has to be replaced, his technician has to wait for OP’s intervention and approval due to some sort of locking method OP had made in the software, thereby incurring huge loss of time and money to complainant and that the OP had warned the retail medical shop owners who are the customers of complainant to look for other distributors who are customers of OP’s software and thereby complainant facing serious problems from the retail market. Complainant pleaded that the OP have thereby breached all terms of the contract and liable to compensate the complainant for all the inconveniences and loss of money and time incurred , due to OP’s failure and non performance of the contract entered between them. Further pleaded that thereby complainant was forced to install a new software and had to pay an amount of Rs.40120/- further for the installation. According to complainant all these losses and expenses had incurred only by the negligence and deficiency in service from the side of OP. Complainant alleged that he has incurred severe loss, hardship and mental harassment due to the deficiency in service by the OP. Hence the complaint.
After receiving notice OP filed written version . The OP denied the entire averments except those specifically admitted. He stated apart from the installation of software there was no agreement signed between him &complainant for the Annual maintenance contract . Though the OP prepared an AMC and send through mail, the complaint reluctant to sign on the AMC. So the OP repeatedly asked the complainant to accept the terms and condition and signs AMC. So the AMC dtd.11/12/2015 produced by the complainant is only a copy of mail send by OP which is not signed by the complainant. So the complainant is not entitled to claim on the strength of AMC. Though there was no AMC the OP continued his maintenance service till 2019 at the request of the complainant. The complainant used to pay for the service with bargaining. Further stated that since there was no AMC there was no renewal of AMC taken place as alleged in the complaint. It is stated that complainant never made any complaint to the OP about the breach of contract and the OP never adopted any locking method while installation or service was rendered to the complainant. If the software is locked it can be opened by using password, only known to the customer. In spite of the said allegation the complainant is even now using the software installed by the OP. There is no negligence and deficiency in service from the side of OP hence prayed for dismissal of the complaint.
Complainant has filed his proof affidavit and documents. He has been examined as PW1 and marked documents as Exts.A1 to A28. PW1 was cross examined for OP. OP has filed chief affidavit and has been examined as DW1. No document was marked on the side of OP.
After that the learned counsel of complainant filed written argument note
Complainant alleged that he has incurred severe loss, hardship and mental harassment due to the deficiency in service by the OP. Complainant alleged that after installation of software of OP in the computer in the year 2014, after the completion of 1 year , an Annual maintenance contract was entered between complainant and OP in the year 1/12/2015 to 31/11/2016. Thereafter AMC was renewed every year for an increased rate till 2019-2020, thereby OP agreed to give proper maintenance time to time as needed by the complainant. Through Exts. A4 to A10 complainant proved the renewal of AMC. Complainant further alleged that during the AMC period, several times complaints regarding the software were informed to OP but OP had breached the above contract several time without giving proper service to on time to complainant and thereby he had suffered huge business loss. Exts.A20 & A21 are the evidence to prove the said allegation. Complainant further alleged that severe hardship from the side of OP has been suffered by the complainant . Further pleaded that thereby complainant was forced to install a new software and had to pay an amount of Rs.40120/- further for the installation. According to complainant all these losses and expenses had incurred only by the negligence and deficiency in service from the side of OP.
On the other hand OP pleaded that there is no deficiency in service on the part of him to render service as alleged in the complaint. OP contended that his firm is providing correct and proper services to the customers including the complainant. OP has stated that there was no annual maintenance contract between complainant and OP, even then OP continued his maintenance service till 2019 at the request of the complainant. OP contended that there was no AMC and there was no renewal of AMC taken place as alleged in the complaint. OP further alleged that OP never adopted any locking method while installation or service was rendered to the complainant. Further the allegation of complainant that the OP had warned the retail medial shop owners who are the customers of the complainant to look for other distributors for their business, is not correct.
The documents produced from the side of complainant shows that(Emails & invoices of OP) the OP has pressurized the complainant to agree with the maintenance agreement and invoices has been raised and the payments has been made vide receipts ie, Exts.A4 to A8.
It is submitted by the complainant that the complainant has suffered severe hardship from the side of the OP.
According to OP, complainant has not signed the agreement. If the contention of OP is correct, OP should have cancelled the contract with complainant, but the invoices shows that OP has accepted the amount for the Annual maintenance from the complainant. Complainant alleged that though OP received the AMC amount, they had not given proper service to the complainant and the complainant has to wait so long for the technicians of the OP.
Complainant submitted that his firm is a supplier supplying life saving medicines, complainant was the dealer of medicines used for strokes, if at all the complainant cannot supply these life saving medicines, complainant is answerable to the Drugs controller as the stocks are verified by the Drug controller now and then and any halt in the supply will entail the complainant to cancellation of his drugs license.
Further submits that complainant was forced to look out for another software dealer for the smooth functioning of his firm and to prove this complainant has produced tax invoice from the reliable software regarding the installation of the new software for an amount of Rs.40,120/- dtd.9/9/2020 which was marked as Ext.A22, reliable software brochure dtd. Nil was marked as Ext.A23.
Here OP failed to substantiate his contentions through material evidence .
Hence from the facts and circumstances of this case we are of the view that there is dereliction of duty on the side of OP and thereby there is deficiency of service on his part. Hence complainant is entitled to get relief.
In the result complaint is allowed in part. Opposite party is directed to pay Rs.1,25,000/- towards compensation and Rs.10,000/- towards cost of the proceedings of the case. Opposite party shall comply the order within one month from the date of receipt of this order. Failing which the amount Rs.1,25,000/- carries interest @9% per annum from the date of order till realization. Complainant is at liberty to realize the awarded amount by filing execution application against opposite party as per provisions in Consumer Protection Act 2019.
Exts:
A1-Installation of the soft ware dtd.5/11/2014
A2-Invoice issued by OP dtd.19/12/14
A3-letter dtd15/5/2015
A4-letter for Annual maintenance contract dtd.11/12/2015
A5- 2015-2016 annual maintenance contract dtd.11/12/2015
A6& A7-AMC invoice dtd.23/11/16A8- Service break
A9 to A11- Invoices
A12- Quotation dt.28/1/2015
A13- Invoice dtd.29/2/18
A14- Maintenance agreement
A15- letter dtd.10/4/18
A16to A19- Invoice dtd.3/12/18,13/12/19, 14/12/1916/12/19,
A20- letter dtd.30/318
A21- Dereliction in service dtd.5/4/18
A22- Invoice dtd.9/9/20
A23-software brochure
A24-Copy of lawyer notice
A25- Reply notice
A26-system dated nil
A27 series-Cheque
A28- Partnership agreement
PW1-Venugopalan.A- complainant
PW2-Remya.K-wiotness of PW1
DW1-Jestine Thomas- OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
