Date of filing: 23.11.2022 Date of Disposal: 17.04.2023
BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU – 560 027.
DATED THIS THE 17TH DAY OF APRIL, 2023
CONSUMER COMPLAINT NO.249/2022
PRESENT:
SRI.RAJU K.S,
SMT.REKHA SAYANNAVAR,:MEMBER
Sri. Srinath Venkatarao Chintakunt,
Director Customer Relations,
Brisk win IT Solutions Private Limited,
No.53, 6th Cross, Maruthy Layout,
Basaveshwara Nagar,
(Rep by Sri. D.V.R. Swamy, Advocate)
1) M/s. Hindhusthan Times,
Represented by its C.E.O,
Sri. Praveen Someshwar,
No.18-20, H.T. House,
Connaught Place,
New Delhi-110001.
2) M/s. Shine.Com,
Represented by its C.E.O,
Sri. Akhil Gupta, No.18-20,
H.T. House, Connaught Place,
New Delhi-110001.
//JUDGEMENT//
BY SRI.SHIVARAMA K, PRESIDENT
01. The complainant has filed this complaint Under Section 35 of the Consumer Protection Act, 2019 seeking for a direction to the opposite party to refund the entire subscription money of Rs.2,30,100/- with interest at the rate of 12% per annum and such other relief as this Commission deems fit in the circumstances of the case.
02. In-spite of notice been served, opposite party No.1 & 2 remained absent.
03. It is the case of the complainant that, opposite party No.1 has been doing the business of journalism, publication and supply of data base information, and data base profiles of the needy candidates for requirement of software personals of employers to various establishments, industries, all over India. Opposite party No.2 is an associate of opposite party No.1 doing the services of the same and used to execute agreements, accepting of deposits, authorise to issue cash receipts and other transactions. Complainant entered in to a “Customer Service Agreement” with opposite party No.2 by paying the subscription amount of Rs.2,30,100/-. Further as per agreement the opposite parties shall provide datas i.e., profiles of the candidates for recruitment to the complainant - Firm. The complainant has paid the said amount on 20.12.2021. This being the fact the opposite party No.2 in-spite of several emails not sent proper profiles of the candidates. Further the profiles of the candidates supplied by opposite party No.2 on 07.01.2022 and 10.01.2022 were out updated, mismatching and many profiles were not ready to speak with the staff of the complainant - Firm. Hence the complainant has decided to break the relationship with opposite party No.2 and demanded for refund. Hence the present complaint came to be filed.
04. To prove the case, the Director of complainant - Firm has filed affidavit in the form of his evidence in chief and got marked EX.P.1 to EX.P.6 documents.
05. Counsel for the complainant has also filed written arguments.
06. The points that would arise for consideration are as under:-
(1) Whether there is deficiency of service on the part of the opposite parties?
(2) Whether the complainant is entitle for the
relief sought ?
(3) What order ?
07. Our findings on the aforesaid points are as follows:-
Point No.1 : In affirmative
Point No.2 : Partly in affirmative
Point No.3 : As per the final order for the following;
REASONS
08. POINT NO.1:- The complainant has reiterated the fact stated in the complaint, in the affidavit filed in the form of his evidence in chief.
09. EX.P.1 is the Tax Invoice for having paid a sum of Rs.2,30,100/- to opposite party No.2 on 20.12.2021. EX.P.2 is the copy of Customer Service Agreement executed by opposite party No.2 in favour of the complainant. The Customer Service Agreement indicates that, complainant has become the subscriber and ‘Services’ mean access to the resume database and posting of jobs and or any other product or service offered by the company to the Subscriber. Further “Tariff Plan” means the details as mentioned in the rate card for products, services and packages introduced by the Company from time to time for providing the Services as a whole or in part for fixed and/or variable charges. Further as per Clause 3.5 of the Customer Service Agreement “Subscriber shall use the Services for the sole and exclusive purpose of recruitment and for genuine jobs in existence, in accordance with the terms of this Agreement. The Subscriber hereby undertakes to use the Network and Licensed Data base for “Recruitment” purpose only.
10. As per the Customer Service Agreement vide EX.P.2 “the complainant shall use the network licensed data base for recruitment purpose only”. It is not the case of the opposite party that, the complainant had used the data other than for recruitment purpose. No doubt the complainant - Firm is an Information Technology Solutions and does the said business. The recruitment is for the complainant - Firm alone. No doubt recruiting the candidates to the Firm is to run the business and to earn profit. We feel since the data service by opposite party No.2 to the complainant is to recruit the candidates by looking the profiles of the candidates available in their data furnished by opposite party No.2. We feel the furnishing of data in the website of opposite party No.2 and the access by the complainant alone on the website of opposite party No.2 cannot be a service to earn profit. Hence the complainant is a Consumer as contemplated Under Section 2(7) of the Consumer Protection Act, 2019.
11. It is the contention of the learned counsel for the complainant that, on 07.01.2022 opposite party No.2 had supplied irrelevant, unwanted data base and the complainant had checked and searched and spoken to the candidates and there were few profiles matching to the recruitment. Further on 10.01.2022 the complainant had sent email to opposite party No.2 explaining that, the profiles of candidates supplied was out-dated mismatching and many profiles were not ready to speak the staff of the complainant. Hence it has no use at all and waste of time in-spite of several emails there were no support from opposite party No.2 and opposite party No.2 did not entertain to the complainant – Firm and there was zero response. Further even to the email dated: 07.03.2022 opposite party No.2 did not respond and not supported. Further in the email dated: 16.03.2022 opposite party No.2 promised to attend and support, but the same has not been materialized. Hence opposite party No.1 & 2 adopted a bad business policy which is opposed to public policy. Hence the complainant had sustained huge financial loss and mental agony. The complainant had produced series of email correspondence took place vide EX.P.3.
12. The above said fact has not been challenged by opposite party. If the data promised has not been supplied it amounts to Unfair Trade Practice within the meaning of Section 2(47) of Consumer Protection Act, 2019 and deficiency of service within the meaning of Section 2(11) of Consumer Protection Act, 2019. Hence we answer the point in the affirmative.
13. POINT NO.2:- The complainant claimed refund of the entire admission fee. It is stated in Clause 6.5 of the Customer Service Agreement vide EX.P.2 that, the charges or fee paid by the subscriber to the company under the agreement is non-refundable under any circumstances. We feel the said clause is a one sided and unilateral one. Since the assured service of that data has not been provided and it amounts to unfair trade practice. Hence the said clause does not bind the complainant. The complainant has paid the subscription on 20.12.2021 and the present complaint was filed on 23.11.2022 i.e., almost the completion of 11 months. The complaint is raised in the month of January-2022 itself. In the email dated: 14.10.2022 sent by opposite party No.1 to the complainant it is stated that, the complainant had due around 4,000 profiles and posted 88 jobs. Hence we feel the complainant is not entitle for the entire subscription amount paid. Since the service was not satisfactory we feel the complainant is entitle for a sum of Rs.1,30,000/- with interest at the rate of 9% per annum from the date of payment been made i.e., on 27.12.2021 till realization. Since the service was not proper the complainant had undergone mental agony and financial loss in his business. Hence the complainant is entitle for a sum of Rs.15,000/- towards mental agony. Further the activity of opposite parties made the complainant to file the present complaint, hence the complainant is entitle for a sum of Rs.10,000/- towards litigation cost. Accordingly we answer this Point partly in affirmative.
14. POINT NO.3:- In view of the discussion made above, we proceed to pass the following:-
ORDER
The complaint is allowed in part.
The opposite party No.1 & 2 are jointly and severally liable to pay a sum of Rs.1,30,000/- to the complainant with interest at the rate of 9% per annum from the date of payment i.e., on 27.12.2021 till realization and a sum of Rs.15,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost.
The opposite parties shall comply the order within 02 months. In case, the opposite parties fail to comply the order within the said period, the above said amount of Rs.25,000/- carries interest at the rate of 9% p.a. from the date of order till realization.
Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.
Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.
(Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 17th Day of April, 2023)
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
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//ANNEXURE//
Witness examined for the complainant side:
Sri. Srinath Venkata Rao, the complainant (PW-1) has filed affidavit in the form of his evidence in chief.
Documents submitted by the complainant side:
- Tax Invoice dt.20.12.2021 – EX.P.1.
- Customer service agreement – EX.P.2
- Copy of email conversation (Page No.19 to 42) – EX.P.3.
- Office copy of legal notice dt.25.10.2022 with postal receipt – EX.p.4.
- Reply dt.03.11.2022 – EX.P.5
- Letter of authorization – EX.P.6.
Witness examined for the opposite parties side:
Documents marked for the Opposite Parties side:
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
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