KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 350/2009
JUDGMENT DATED: 27-01-2011
PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
SHRI. S. CHANDRA MOHAN NAIR : MEMBER
APPELLANT
M/s Aag India (Pvt) Ltd.,
Represented by its Managing Director,
Sharma Building, YMCA Junction,
Chittoor Road,
Ernakulam, Kochi – 11.
(Rep. by Adv. Sri. C.A. Chacko & others)
Vs
RESPONDENT
Bharat Sanchar Nigam Ltd.,
Represented by its Sub Divisional Engineer,
Digital Tax (MTCE),
Carrier Station Road, Ernakulam.
(Rep. by Adv. Sri. P. Muraleedharan)
JUDGMENT
JUSTICE SHRI. K.R. UDAYABHANU: PRESIDENT
The appellants are the opposite parties who are under orders to pay a sum of Rs. 2,66,550/- with interest at 6% per annum to the complainants in OP No. 626/2003 in the file of CDRF, Ernakulam.
2. The case of the complainants/BSNL is that the quotations submitted by the opposite party/appellants for servicing the fire fighting equipment installed in the Digital Tax Exchange for the period of 3 months from 01-10-2001 was accepted. On 22-11-2001 the employees of the opposite party while doing maintenance works mistakenly activated two fire fighting globes containing halom gas and as a result the whole gas contained in the globes were completely leaked out. They omitted to disconnect the initiator assembly attached to the globes. Evidently, the employees of the opposite party were highly incompetent. A sum of Rs. 3,20,250/- was claimed as the amount expended for refilling the gas.
3. On the other hand, the opposite parties/appellants have contended that there was no consumer relationship, that there was no valid or concluded contract and that the opposite party has not done maintenance works as alleged. It is stated that on 22-11-2001 the employees of the opposite party went to the particular exchange in furtherance of a telephone call to manage the situation of leakage of gas.
4. The evidence adduced consisted of the testimony of PWs 1 to 4, DWs 1 and 2, Exts. A1 to A7 and Exts. B1 and B2.
5. It is contended by the Counsel for the complainant that Ext.A1 is only a quotation dated 03-07-2001 and that it has not been accepted. It is specifically provided in Ext.A1 that the validity of the quotation is limited to 20 days. Negotiations were going on thereafter. It is the procedure to execute an agreement with respect to the AMC as is done with respect to the other exchanges of the complainant as evident from Exts. B1 and B2. Ext.A7 said to be the letter accepting the quotation dated 13-09-2001 has not been received by the opposite parties. It was also pointed out that the evidence of PW1 is contradictory to the evidence of PWs 2 and 3 as to the number of employees of the opposite party who allegedly came to the office of the complainant to service the equipments. It was also contended that the globes are not the items covered by Ext.A1 quotation. It is also contended that Ext.A6 produced to show the value of halom gas is a document created for the purpose of the case. It is also contended that no visitor’s diary were produced and no work order was issued. It is pointed out that it is mentioned in the version itself that it was the practice that a letter will be issued permitting the service personnel to do the maintenance work, which is absent in the present case. It is also pointed out that without entry in the visitor’s diary nobody used to be permitted to enter the exchange.
6. We find that PWs 1 to 3 the Engineers attached to the particular exchange have testified as to the presence of service personnel of the opposite party in the exchange. We find that the alleged contradiction is a non existing one. Both PWs 2 and 3 have stated that at the time they came to the exchange ie, around 10.30 am they found two persons working inside the exchange room. But PW1 has stated only that on the particular day three employees of the opposite party came to the exchange for conducting annual maintenance and to test the fire fighting equipments. PW1 is the Sub Divisional Engineer who has filed the complaint on behalf of BSNL. She has not mentioned the time when she came to the office, in the proof affidavit filed. In the proof affidavits filed by PWs 2 and 3 two other Sub Divisional Engineers, they have mentioned that at 10.30 am they found two persons working in the exchange switch room near fire fighting detector and on enquiry from PW1 they came to know that the above persons were the employees of the opposite party doing the annual maintenance testing of fire fighting equipments. It has not been specifically brought out the contradictions alleged in this regard as mentioned in the proof affidavits of PWs 1 to 3 to the notice of the above witnesses. The Forum has relied on Ext.A5 letter written by the Managing Director of the opposite parties dated 14-12-2002 which is written in response to Ext.A4 letter of the complainant dated 29-10-2002. It is specifically mentioned In Ext.A5, that during the first visit after the award of AMC the officials of the complainant informed the technicians of the opposite party that the fire fighting globes were activated due to false alarm. The admission therein as to the award of AMC is highlighted. The above aspect stands not properly explained by the opposite parties. Further, Ext.P5 is dated much subsequent to the date of the incident ie, 22-11-2001. According to the complainant, Ext.P2 dated 22-11-2001 and Ext.P3 dated 16-04-2002 are also letters addressed to the opposite parties with respect to the incident. PW1 has testified as to the due dispatch of the above letters and that no reply was received for the same. Ofcourse, a similar contract as in the case of Exts. B1 and B2 has not been executed. But the same is no reason to discard the evidence as to the incident consequent to the alleged action of the employees of the opposite party. The case is that at 12 noon of 22-11-2001 there was a loud noise of explosion and gas from the two globes escaped and the employees of the exchange ran out. The case is that due to the action of the incompetent employees of the opposite party the required closure of the valves leading to the globes was not done and that in response to the false alarm the gas was ejected automatically. As pointed out the particular employees of the opposite parties who were admittedly in the exchange was not examined. DW1 had not gone to the exchange on the particular day. The case that in response to the call of the complainant after the leakage of gas the opposite parties went to the spot is not mentioned in Ext.A5 letter of the opposite parties. There is no explanation for the same. In the circumstances, we find that the case set up by the complainant in this regard appears to be correct as held by the Forum below.
7. PW4 has testified as to the value of gas required for refilling. He has also produced Ext.A6 dated 30-07-2003 the letter mentioning the same. The value of the gas as per the same is Rs. 2,250 per kg. The initiator assembly items required at the time of refilling would cost Rs. 13,500/- each, it is mentioned. In view of the fact that the date of Ext.A6 is 30-07-2003 the Forum has effected a reasonable reduction with respect to the cost of gas. As contended by the Counsel for the opposite parties/appellants no objective evidence with respect to the payment for refilling was produced. But we find no reason to disbelieve the case of the complainant that the globes was filled with gas without which it will not be possible to operate the system. The contention that the globes are no part of Ext.A1 quotation is without merits as it is the entire system that has to be serviced and maintained. In the circumstances, we find that no interference in the order of the Forum is called for. The order of the Forum is sustained. The opposite parties are directed to make the payments within three months from the date of receipt of this order, failing which the complainant would be entitled for interest at 12% per annum from 27-01-2011, the date of this order.
JUSTICE K.R. UDAYABHANU: PRESIDENT
S. CHANDRA MOHAN NAIR: MEMBER
Sr.
