BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    04^th DAY OF NOVEMBER 2019

Complainant/s: -                           

M/s.Martin Luther

English Primary School No.208, 15^th Main,

Nagendra Block, BSK 3^rd Stage, Bengaluru-50.

Rep. by its Chairman Sri.C.Sunil Kumar

By Adv.Sri.H.N.M.Prasad

V/s

Opposite party/s:-    

M/s.Educomp Solutions ltd., Reg.Office at No.1211,

Padma Tower-1-5,

Rajendra Palace,

New Delhi-110008.

Rep.by Managing Director

By Adv.Sri.Shree Ram Singh.B

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, seeking direction against the Opposite Party (herein after called as OP) to pay Rs.45,000/- paid towards initial amount; to pay Rs.2 lakh towards creating infrastructure; to pay damages of Rs.2 lakhs; altogether to pay interest at 12% p.a. and to award such other reliefs.

2. The brief facts of the complaint are as under:

The Complainant submits that, OP is a company which provides the technology in the name of ‘smart class’ and enable the teachers to supplement the class room education with digital curricular modules that can be projected through hardware provided in the class room in order to elucidate and explain concepts to students. The Complainant agreed and accept the said smart class by paying initial amount of Rs.45,000/-. Initially, OP supplied some hardware but failed to provide any support service and consumables and as a result, the smart class program never took any shape and the program was never implemented by the OP. The Complainant repeatedly requested for installation of smart class, but OP did not respond. The Complainant further submits that, just for eyewash, OP installed only 5 systems in the building but the systems were not in working condition. The remaining materials were not at all installed but, were dumped in a class room. No training whatsoever was provided to the teachers to use the smart class. Hence, without complete installation and training, the smart classes program did not take off. Hence, the Complainant school was put in to great embarrassment and the parents of the students who were informed of the new technology had to question the Complainant. OP did not send any of its officers/managers/resource coordinators to look in to the problems faced by the Complainant. The said act amounts to deficiency of service. Hence this complaint.

3. After issuance of notice, OP did appear, but failed to file version within stipulated period. On 25.06.16, OP filed an IA U/s.151 of CPC seeking permission to file version. On 15.07.16, it is ordered that since the stipulated period for filing the version is already over, hence rejected the said IA.

3a. On 10.03.17, OP filed an IA U/s.13(4)(6) of CP Act seeking permission to dismiss the complaint as the arbitration award is already passed on 24.09.16 (In the application it is mentioned as ‘advocate for Complainant’, but it ought to have been ‘advocate for OP’ which appears to be typing error). To which Complainant not filed any objection. On 29.06.17 it is ordered that, the said IA will be taken up for disposal along with merits of the complaint.

4. The Complainant to substantiate his case filed affidavit evidence and produced the documents. The Complainant also filed written arguments. Heard. We have gone through the available materials on record.

5. The points that arise for our consideration are:

1. Whether the application dtd.10.03.17 filed by OP U/s.13(4)(6) of CP Act for dismissal of the complaint is to be allowed ?

2. Whether the Complainant proves the deficiency of service on the part of OP, if so, entitled for the relief sought for?

3. What order?

        6. Our answer to the above points are as under:

Point No.1:- In the affirmative

Point No.2:- Does not survive for consideration

Point No.3:- As per final order

REASONS

7. Point No.1: We have briefly stated the contents of the complaint as well as the application filed by OP on 10.03.17 U/s.13(4)(6) of CP Act. In the instant case, though OP sought permission to take the version on file at the belated stage, the same was negated. Hence, the version filed by the OP is not taken in to consideration. So also, the Complainant did not file any objections to the said application filed U/s.13(4)(6) of CP Act. It is averred in the complaint that, to provide innovative solutions to critical problems relating to quality of education and access to education and the OP also claimed itself to be a pioneer in the business of E-Education and E-Educational Aids that allow technology to be brought in to the class room to enable the teachers to supplement class room education with digital curriculum modules that can be projected through hardware provided in the class room in order to elucidate and explain concepts to students. In other words, this is a supplemental education program through technology and it is claimed to have been developed by the OP under the name and style as ‘smart class’. According to the case of the Complainant, it has agreed to accept the smart class program and agreed to set up and implement the smart class program at its school. In this context, the OP informed the Complainant that it will send a supply agreement to be signed by the Complainant. However, till date no such agreement was ever sent to the Complainant and the Complainant was asked to pay an initial amount of Rs.45,000/-. Though paid the said amount, OP did not provided the said facilities. Hence, he has no other go except to sought for the refund of the amount of Rs.45,000/- being spent by the Complainant to start the program, Rs.2 lakh for creating infrastructure and Rs.2 lakh towards damages.

8. OP by way of filing the said IA stated that, the bipartite agreement entered between the Complainant and the OP consists of a clause arbitration, wherein if any disputes arises between them, such dispute shall be resolved before arbitrator and the Complainant has accepted the clause and has signed the agreement. As the Complainant did not keep up their promise, hence informed them for the payment in respect of the service rendered by it. Inspite of it, the Complainant did not fulfill the terms and conditions. Hence, approached the Sole Arbitrator and the Sole Arbitrator issued the notice to the Complainant herein, but the Complainant did not appear before the Arbitrator. When the facts stood thus, the Sole Arbitrator has no other go except to pass arbitral award in Arb.Case.No.RG/ARB/ 08.12.15/LOT-1/421, ERP Code:EDUTRANS/00427 dtd.22.12.15, fixing the liability on the respondent therein/Complainant herein as follows:

1. The respondent to pay to the claimant a sum of Rs.9,01,801/- together with interest calculated on this outstanding due amount Rs.9,01,801/- at 18% p.a. from 22.12.15 till the payment by the respondent or realization thereof by the claimant.
2. The respondent, in the first instance, to pay to the claimant the costs of arbitral proceedings including the fee of arbitrator quantified at Rs.20,000/- and an amount of Rs.910/- towards expenses incurred in stamp duty imposed on this award, as the same has been received by the claimant. The claimant is further directed to deduct the amount from the award amount.

The said order neither challenged nor honored by the Complainant. As on today, the said arbitral award passed by the Sole Arbitrator reaches its finality. In this context, order of the Hon'ble National Commission in RP.No.1936/2015 between Magma Fincorp Ltd., vs. Praveen Benson and Anr., wherein it was held that, it is binding with arbitration award and the award passed by the arbitrator is first in time and Sec.3 of the CP Act, provides only alternative remedy, but the parties cannot take benefit of both the remedies. In order to avoid the conflict of the judgments, the complaint before this forum is considered as not maintainable.

9. Hence, in the light of the decision cited supra, we come to the conclusion that,  the only option left open to the Complainant is to invoke Sec.34 of the Arbitration Act to challenge the said arbitral award before the competent court of law having got jurisdiction. Accordingly, we come to the conclusion that, the complaint filed by the Complainant before this forum is not maintainable. Accordingly IA dtd.10.03.17 filed by OP U/s.13(4)(6) of CP Act is liable to be allowed by dismissing the complaint and thereby, we answered the point no.1 in the affirmative.

 10. Point no.2: In view of our findings on point no.1, this issue does not survive for consideration. Accordingly it is answered.

11. Point no.3: In the result, we passed the following:

ORDER

          The complaint filed by the Complainant is dismissed as not maintainable.

2. Anyhow, an option left open to the Complainant is to invoke Sec.34 of the Arbitration Act to challenge the said arbitral award before the competent court of law having got jurisdiction, if he desire to do so.  

          3. Looking to the circumstances of the case, we direct both the parties to bear their own cost.  

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 04^th day of November 2019)

        MEMBER                                             PRESIDENT

Witnesses examined on behalf of the Complainant dated.05.02.16

Sri.C.Sunil Kumar, Chairman

Copies of Documents produced by the Complainant:

Copies of Documents produced by the OP:

            MEMBER                                           PRESIDENT