By Sri. MOHANDASAN.K, PRESIDENT
The complaint in short is as follows: -
1. The complainant and opposite party entered in to an agreement on 15/04/2017 for a pollution recycling work at Munduparamba, Malappuram as part of a hotel project and the cost was fixed as Rs.9,92,223/-. The complainant entrusted Rs.8,93,000 to the opposite party towards the work. As per the agreement entered between the parties the opposite party was liable to provide permanent maintenance work. If at all any default on maintenance work the local people cause in convenience and hardship. Hence the opposite party is liable to provide maintenance work duly. But the opposite party did provide proper care during the installation of project. There was no proper response from the side of opposite party on approaching for various occasions. Moreover, the opposite party demanding an additional amount of Rs.3,000/- on every inspection. As per the terms of agreement the complainant had agreed to issue last instalment of Rs.99,223/-after finishing the work. But it appeared the materials supplied for the installation of the project was substandard and so the complainant interfered by suggesting some alternations to ensure the quality of the project. But the opposite party did not heed the suggestions of the complainant. Thereafter the complainant continuously issued messages on 08/02/2020, 06/06/2020 and 09/06/ respectively through watts up and emails. The opposite party sent reply on 15/07/2020 and also subsequently on 31/07/2020. Thereafter on 03/08/2020 also the opposite party sent reply. But the opposite party did not initiate any steps to address the grievance of the complainant.
2. The complainant submitted that the project of the complainant was materialized through availing financial assistance from various financial institutions and also from close friends and relatives. Due to the defective service, the complainant is liable to pay interest for the loan amount. The complainant prays for the refund of the paid amount Rs.8,93,000/- along with compensation of Rs.20,00,000/- on account of mental agony and financial loss.
3. On admission of the complaint notice was issued to the opposite party and on receipt of notice the opposite party entered appearance and filed a detailed counter denying the entire averments and allegations in the complaint. According the opposite party the complaint is malafide one, suppressing the material facts and so the complaint is not maintainable and deserves dismissal with cost of the opposite party.
4. The opposite party submitted that the complainant is not a consumer as per the definition of Consumer Protection Act. The perusal of the complaint itself it can be seen that the complainant is owner of hotel complex and for the pollution recycling project he approached the opposite party. Hence complainant cannot be treated as a consumer and so the complaint is not maintainable.
5. The opposite party denied the averment in the complaint that for the lively hood, the complainant invested his lifelong earnings to construct resort hotel complex and for that purpose approached the opposite party for pollution recycling project and thus entered in to an agreement with the opposite party on 15/04/2017 that as per the agreement the opposite party had agreed to complete the project for Rs.9,92,223/- The opposite party further denied that the complainant had given Rs.8,93,000/- to the opposite party, that as per the agreement the maintenance work was also the responsibility of the opposite party, if there any lapse in the maintenance work the local peoples may affect by foul smell and which may cause inconvenience to them that instead of completing the work the opposite party is not providing materials and on reporting the same the opposite party is not responding that the opposite party realized Rs.3,000/- for each and every visits etc. The opposite party further denied that as per the agreement the opposite party had agreed to receive the last instalment amount of Rs.99,223/- that the materials supplied for the project work were substandard that realizing the same the complainant approached the opposite party and examined the work of the opposite party that the complainant instructed appropriate alterations and also ensure quality of materials but the opposite party refused to accept the suggestions of the complainant that subsequently the complainant issued notices to the opposite party on various dates and the opposite party sent reply stating various reasons that the opposite party did not considered the suggestions of the complainant and the act of the opposite party amounts deficiency in service etc. The opposite party further denied the averment in the complaint that he invested huge amount availing from various financial intuitions and due to the defective service, the complainant is not able to complete the project etc.
6. The opposite party submitted the true facts according to them as follows: -
There was no agreement between the complainant and opposite party as alleged. During the end period of year 2016, the site manager of the complainant Mr. Bibin Benson contacted the opposite party over phone and informed that the complainant has started a project at Malappuram Kavungal and the green method engineering private limited had issued a quotation and drawing for sewage treatment plant (STP) and they had one civil work as per the project and the complainant is not in good terms with the green method engineering private limited and the amount quoted by them is on higher side and so the opposite party was requested to issue a quotation and accordingly the opposite party issued a quotation and drawings in the name of prism automobiles which includes techno commercial offer and drawings 35 KLD STP. The said copy of quotation has been produced before the Commission. The complainant had agreed the same and paid advance on 23/05/2017 and accordingly STP work was under taken by the opposite party. The project was not at all pollution recycling project as contended in the complaint. But the project was sewage treatment plant. The complainant had agreed to make certain changes in the drawings which has already prepared and submitted by green method engineering private limited. The opposite party had given the entire details about the martial, quality the aim of work of design including the quality of water after recycling. The quotation duly explained the iron, instrument capacity and efficiency. There is no any sort of deficiency in service form the part of the opposite party and the opposite party is performing the work for the last 20 years on various part of state of Kerala. The work done at the site of complainant was also in accordance with the various projects carried out by the opposite party. There was acceptance for the work of the opposite party and has received meritorious certificate for the excellence / projects carried out by the opposite party.
7. The site engineer Mr. Bibin Benson had issued the project drawings prepared by green method engineering along with quotation to the opposite party. The opposite party produced the same before the Commission. As per the quotation the amount quoted by the green method engineering private limited is above nearly 5.35 lakh than the quotation submitted by the complainant. The opposite party submitted a schematic flow diagram drawing and plant drawing along with techno commercial offer. That also produced before this commission. The opposite party is specifically contended there is no agreement between the complainant and the opposite party and usually all the sewage project describe all the technologies, civil construction drawing and pipe line drawing. It is also submitted that the details of the instrument’s qualities are also submitted along with quotation and there was no complaint from the side complainant till completion of 95% of project. The complainant approved the quotation of the opposite party on 23/05/2017 and paid the advance amount. The complainant had agreed to modify the designing which was already prepared on behalf of green method company but the complainant did not modify the designs and so the opposite party was compelled to modify the design.
8. The opposite party submitted that the project work of the complainant was too slow and so the opposite party was required to visit the site of the complainant many occasions and also compelled to issue messages. During 2018 December 24 and 28 the opposite party along with architects and other civil workers of the complainant met together and they approved modified design brought by the opposite party. The opposite party sought permission to supply articles to the site and accordingly the materials were supplied also. The opposite party from the moment of approval of the proposal and payment of advance approached the complainant and visited the site many of times and requested through various modes including email telephone but the complainant protracted the work. Thereafter the complainant informed the opposite party that he meant to commission the project during 2019 December. The opposite party started STP installation work and it was finished at most 95%. It is submitted that for the completion of remaining work the complainant has to release waste water to the starting point of STP but the complainant failed to do so.
9. The opposite party submitted that the payment of Rs.8,93,000/- was not in a single stretch, but it was paid on various occasions. The balance amount of 10% Rs.99,222/-, the opposite party will be received on completion of the work and after obtaining the test report of the sewage water. It is submitted that all the material used as part of the project is with standard certification. The pipes used at the STP as 6.0 kg pressure with ISI certification. The pumps belong to Kirloskar, Sharp etc are with international certification. The electrical control panel is as per KSEB norms and certification. All the STP related electric and plumbing works done by qualified experienced B class licensees. There is no deficiency in STP work. The cover slab and manhole work of STP are done as part of civil work of the complainant. There is no relation for the opposite party in the said work. The opposite party can submit instructions and accordingly the opposite party issued STP cover slab and manhole cover but it is submitted that the manhole cover was prepared by the complainant as part of civil work and which is not according to the drawing. The opposite party had instructed to provide fencing around the STP area using metal grills that was suggested on 08/06/2020 and it was messaged also. It was suggested since no workers or other persons are expected to enter in the areas of STP operation. But the complainant failed to do the same.
10. The opposite party submitted that the photographs produced by the complainant shows that 95% of the work has been completed. The photo reveals The STP and the article placed over the tank is filter media and chemicals it is entrusted to the complainant to keep in safe custody but it is left at un attended. The responsibility of the keeping the articles in a safe position is rest with the complainant as per the para 4 of the terms and conditions. It is submitted that a little work is remains to commission the project and which can be finished only on arriving sewage water from bath room and toilet at the starting point of STP. It is submitted the project was commenced in the 2016 and it is protracted for the last 4 years and so the opposite party requested enhancement of 5% of the agreed amount through email and also directly which provoked the complainant and started to cause nuisance and financial loss to the opposite party. There was no body to manage the project from the side of complainant from 2019 onwards. The complainant also was absent in the site. The opposite party visited the site nearly 40 occasions. But no responsible persons were available from the side of complainant and the complainant willfully dragged the project and approached this commission. The opposite party though supplied materials to the site of project there was delay of more than two years to commence the work at the site. Hence the opposite party issued notices to the complainant. Due to the non-progress of the work of the complainant site the workers of the opposite party was fed up. The work of the opposite party was finished up 95% during the October 2019 itself. It was also submitted that the opposite party had undertaken to visit the site for the observation of civil work only up to 4 or five occasions. The complainant though had agreed to finish the total project on or before December 2019, so far he has not completed the work. Even after completion of 95% work during 2019 October the opposite party visited the site then and there and had given instructions. The opposite party filed this complaint only on demanding of 5% enhancement of the agreement amount. The opposite party even during the corona period attend the meeting at the request of the complainant and discussed the matter and given proper advice which is needed. The opposite party supplied and used standard materials and there was no any sort of deficiency in service or unfair trade practice from the side of opposite party. There is no justification for the claim to refund the Rs.8, 93,000 received by the opposite party and also for the claim of compensation altogether Rs.20,00,000/-. The complainant filed this complaint without any merit and is liable to be dismissed with cost of the opposite party.
11. The complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A6 and the documents on the side opposite party marked as Ext. B1 to B 21. Ext. A1 is copy of email dated 09/06/2020. Ext. A2 is copy of email dated 09/06/2020. Ext. A3 is copy of email dated 03/08/2020. Ext. A4 is copy of communication from prism automations to the administrative manager woodbine hospitality group dated 15/04/2020. Ext. A5 is photographs 6 in number. Ext. A 6 is copy of CD. Ext. B1 is copy of quotation and drawing submitted by complainant to the opposite party dated 15/04/2017. Ext. B2 is certificate regarding the certification to prove the conformity with the standard of materials used for construction purpose dated 09/01/2018. Ext. B3 is copy of email sent by opposite party to the complainant dated 30/05/2019. Ext. B4 is copy of quotation issued by green method engineering private limited sent by complainant to the opposite party. Ext. B5 is copy of layout drawing flow diagram issued by opposite party to the complainant. Ext. B6 is copy of email print out issued by opposite party to the complainant dated 21/01/2019. Ext. B7 is copy of email sent by opposite party to the complainant dated 21/05/2019. Ext. B 8 is copy of email dated sent by the opposite party to the complainant dated 14/06/2019. Ext. B9 is copy of email sent by opposite party to the complainant dated 26/10/2019. Ext. B10 is copy of email sent by opposite party to the complainant dated 08/02/2020. Ext.B11 is copy of email sent by opposite party to the complainant dated 06/06/2019. EXT. B12 is copy of email sent by opposite party to the complainant dated 09/05/2019. Ext. B13 is copy of email sent by opposite party to the complainant dated 09/06/2020. Ext.B14 is copy of email sent by opposite party to the complainant dated 15/07/2020. Ext B15 is print out of email issued by complainant to opposite party and reply to the same issued by the opposite party to the complainant dated 31/07/2020. Ext. B16 is email print out issued by opposite party to the complainant dated 24/01/2019. Ext. B17 is print out of email sent by opposite party to the complainant dated 22/12/2018. Ext. B18 is copy of certifications issued for the materials used for construction of STP nil dated. Ext. B19 is certificates issued by various organizations to the opposite party. Ext. B20 is visitor’s card issued by the complainant displaying “woodbine “hospitality and resorts private limited. Ext. 21 is copy of bill issued on behalf of woodbine foliage, masai restaurant, hospitality and resorts private limited, by pass road Kavungal Malappuram. Commissioner’s report marked as Ext. C1.
12. Heard complainant and opposite party, perused affidavit documents. The complainant filed brief notes of argument also. The following points arise for consideration:-
- Whether the complaint is maintainable?
- Whether there is deficiency in service on the part of the opposite party?
- Relief and cost?
13. Point No.1
The opposite party submitted that the complainant is a business man and having several hotels in Malabar region and he is employing several persons as part of his business. The submission of the opposite party is that he is not a person doing business by self-employment to earn his lively hood and so the complaint is not maintainable as per the provisions of Consumer Protection Act.
14. The opposite party did not produce document to establish that the complainant is running business and heaving several hotels in Malabar region which are actually running by the complainant itself. It is can be seen that the complainant availed service of the opposite party as part of sewage treatment plant and the allegation is that the opposite party did not properly execute the service as agreed between the complainant and the opposite party and thus the complainant constrained to approach the commission for the redressal of the complainant. Since absence of sufficient evidence that the complaint is running business and he is not competent to approach the Consumer Disputes Redressal Commission, we find that the complaint is maintainable and the complainant has got right to approach the Commission to redress the grievance as alleged in the complaint.
15. Point No.2 & 3
The allegation of the complainant is that he entered in to an agreement with the opposite party on 15/04/2017 to carry out a sewage treatment plant and as per the agreement the total project cost was Rs.9,92,223/-. The complainant has given Rs.8,93,000/- to the opposite party. The complainant submits that as per the terms of agreement immediately after commencing the work, the opposite party is liable to provide maintenance work and if at all any sort of lapse the local people will cause in convenience and so the opposite party is liable to attend the complaint then and there. But the opposite party did not care to complete the work and in case of approaching for the issues there will not be proper response from the opposite party. More over the opposite party demanded 3,000/- rupees per visit of the site. As per the agreement it was agreed to pay last instalment amount of Rs.99,223/- on completion of the work. But the complainant submit that the materials provided for the project was substandard and requested the opposite party to verify the same and demanded visit of the site through various communications. Though the opposite party issued reply, no proper steps were taken to address the complaint. Hence the prayer of the complainant is to refund the entire amount and also to pay compensation and cost to the complainant.
16. On the other side the opposite party submitted detailed objection. As per the contention of the opposite party, it is submitted that the opposite party finished 95% of work. The submission of the opposite party is that the project was initially entrusted to another agency and due to dispute between complainant and the previous party, the complainant approached the opposite party and thus the opposite party came in to the picture. The opposite party submitted that the complainant protracted the work without making payment in due time. The submission of the opposite party is that the work undertaken by the opposite party is not a pollution recycling project but a sewage treatment plant. The opposite party had given the quotation regarding the materials and its quality and even has stated the quality of the water after the treatment. The opposite party specifically contended that there is no any sort of deficiency in service from the side of opposite party. The opposite party submitted that they did not enter any agreement with the complainant but has given a techno commercial offer/ quotation which explains all the technologies including construction drawing, pipeline etc. along with details of the capacity of machines utilizing as part of the work.
17. The opposite party contended that the project work of the complainant was lagging one and so the opposite party caused several notices to complete the project in a speedy way for those purposes there was joint sitting of the complainant, architect and other persons engaged in civil works. Due to protracting of the work of the project the opposite party was dragged to the work site many times which caused expenses additional as agreed between the parties. The submission of the opposite parties is that for the remaining work depends on arriving polluted water at the starting point of sewage treatment plant for which the complainant so far not succeeded. Whatever the work remains is not due to the fault of opposite party but due to act of the complainant. The specific submission of the opposite party is that all the materials used as part of the work is as per standard notification. Hence there is no merit in the allegation of the complainant.
18. The complainant filed an application 183/2020 to appoint an expert commissioner to examine the allegations in the complaint. Accordingly, the environmental engineer attached to Kerala state pollution control board, district office Malappuram appointed as expert commissioner. The commissioner after due inspection of the site filed a report duly explaining the condition of sewage treatment plant. The expert report reveals that the complainant had submitted application to obtain consent for establishing a hotel with 26 rooms, 24 seated coffee shop, 144 seated restaurant and 200 seated conference halls with an estimated consumption of 40,000 L/ day and an effluent generation of its 80% i.e., 32,000 L /day. The commissioner summarized his observations as follows: -
- The construction of the all the civil structures and installation of physical structures as per the modified proposal are completed.
- Not inter connected to start functioning
- Oil trap proposed in the approved plan is replaced with flocculation
Tank and mini collection tank.
4) The change / modification forms the already approved layout plan for STP.
is not intimated to board to get it approved, and again it is revised without board’s knowledge or approval.
5) Filing of media in the presser sand filter PSF, Activated Carbon Filter (ACF)
and MBBR reaction are pending (media material is ready to fill)
6) No significant changes from the rest of the approved proposal are noticed.
7) Blower pumps provided and from this connection pipes are provided to the aeration tank, connected through the man hole opening on the tank surface. This is not practical because, with the pipes connected so, the manholes cannot be closed fully and properly, and it is highly dangerous to keep the tanks open and wok the STP as it may cause accident of falling in to the tanks and may cause odor nuisance. This should remedy first before functioning the plant (the manhole covers are already made but it can be placed there with the connections under). Also, oil trap cannot be exempted for sullage treatment during primary treatment processes.
8) Regarding the electrical installation materials used the pipes and the panel board it is humbly submitted before this court that pollution control board is not the authority to comment on the strength and quality of materials used in civil / electrical constructions / installations hence it is submitted to approach NIT’s or government engineering colleges, for testing the same and they have strength of materials lags and technical personalities to give authorized personalities to give a statement on the strength and the quantity of the materials used .
19. The commissioner has stated the grievance submitted before this was regarding poor workmanship and un professional work delivered by the opposite party, arrogant attitude during communications, the quality of product used for plumping especially pipes used in STP are of very low inferior standard with thin walls, which will burst with very little pressure variation, out dated switch boards and materials are used for the electrical parts and panel board which is not at all accepted by today’s industry standards. The commission also reported the explanation given by the opposite party that the quotation for STP work was given to the opposite party by the previous site contractor Sri. Bipin and that he had look over the project in between the, and by the time he took over, all the civil works of underground tanks were completed “pour solutions “.
20. Now on perusal of the affidavit and documents it can be seen that the work of the opposite party was a subsequent under taking and so there was alteration in the work. The grievance of the complainant is that the opposite party used materials which are not up to the standard and which is a violation of the terms entered between the complainant and opposite party. But the complainant failed to establish that the opposite party used materials which are below the standard prescribed. It is also failed to establish that there was arrogant response from the side of opposite party during communication.
21. The above are being the facts revealed by affidavit and documents we cannot conclude that there were materials used which are below the standard prescribed for the work. It is also relevant to consider that the opposite party has finished 95% of the agreed work and he was taken to the work site several occasions than expected periodical inspections. There is also contention that the complainant dragged the project which is known to the complainant and the reason for the same. The opposite party submitted that he demanded enhancement of certain percentage of the agreed amount which provoked the complainant to proceed before the Commission.
22. Considering the above contentions, we are not inclined to allow the complaint as prayed, hence complaint stands dismissed.
Dated this 27th day of July, 2023.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A6
Ext.A1: email dated 09/06/2020
Ext.A2: email dated 09/06/2020
Ext A3: email dated 03/08/2020.
Ext A4: Communication from prism automations to the administrative manager
woodbine hospitality group dated 15/04/2020.
Ext A5: Photographs 6 in number.
Ext A6: Copy of CD.
Witness examined on the side of the opposite party: DW1 and DW2
Documents marked on the side of the opposite party: Ext. B1 to B
Ext.B1: Copy of quotation and drawing submitted by complainant to the opposite
party dated 15/04/2017.
Ext.B2: Certificate regarding the certification to prove the conformity with the
standard of materials used for construction purpose dated 09/01/2018.
Ext.B3: email sent by opposite party to the complainant dated 30/05/2019.
Ext.B4: Quotation issued by green method engineering private limited sent by
complainant to the opposite party.
Ext.B5: Layout drawing flow diagram issued by opposite party to the complainant.
Ext.B6: email print out issued by opposite party to the complainant dated 21/01/2019.
Ext.B7: email sent by opposite party to the complainant dated 21/05/2019.
Ext.B8: email dated sent by the opposite party to the complainant dated 14/06/2019.
Ext.B9: email sent by opposite party to the complainant dated 26/10/2019.
Ext.B10: email sent by opposite party to the complainant dated 08/02/2020.
Ext.B11: email sent by opposite party to the complainant dated 06/06/2019.
Ext.B12: email sent by opposite party to the complainant dated 09/05/2019.
Ext.B13: email sent by opposite party to the complainant dated 09/06/2020.
Ext.B14: email sent by opposite party to the complainant dated 15/07/2020.
Ext.B15: Print out of email issued by complainant to opposite party and reply to the
same issued by the opposite party to the complainant dated 31/07/2020.
Ext.B16: email print out issued by opposite party to the complainant dated
24/01/2019.
Ext.B17: Print out of email sent by opposite party to the complainant dated
22/12/2018.
Ext.B18: Certifications issued for the materials used for construction of STP nil dated.
Ext.B19: Certificates issued by various organizations to the opposite party.
Ext.B20: Visitor’s card issued by the complainant displaying “woodbine “hospitality and resorts private limited.
Ext.B21: Bill issued on behalf of woodbine foliage, masai restaurant, hospitality and
resorts private limited, by pass road Kavungal Malappuram.
Ext.C1: Commissioner’s report.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
