BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 29th day of June, 2009

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

O.PNo.07/2001

Between

Complainant : Gracy Joseph,

Urumpil House,

Mulakuvally P.O.

Kokkarakkulam,

Idukki District.

(By Adv: C.M.Binoy)

And

Opposite Parties : 1. K.T. Joseph,

Manager,

Malanadu Development Society,

Thankamony P.O.

Idukki District.

(By Adv: Siby Joseph)

2. Shaji Kurian, Oversear,

Mundackal House,

Malanadu Development Society,

Thankamony P.O.

Thankamony, Idukki District.

(By Advs: Siby Joseph & V.K. Shaji)

3. Malanadu Development Society,

Reg No.K.201/77,

Parathodu, Kottayam.

(By Adv: V.C. Sebastian)

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

The complainant by availing loan through opposite parties from Vazhathope Service Co-operative Bank, entrusted the construction of a biogas plant to the opposite parties. The opposite parties convinced that the loan was for 4 years and the interest for the same was 12%. The plant was entrusted by the opposite parties with a guarantee of 18 years and they also gave an undertaking that it would work for 3 hours. After the construction, when the plant was started to use, it produced gas for only 15 minutes. The complainant revealed that it was due to the manufacturing defect. The matter was informed to the opposite parties. But they have not cared to rectify the defect caused to the plant after repeated demands. The plant constructed by opposite party in other houses were working for 3 hours. The complainant spend Rs.7,000/- for the construction of the plant. The complaint is filed for getting a direction to cure the defect of the plant and also for compensation.

2. The 1st and 2nd opposite party filed written version. As per written version, they have admitted the construction of the plant. But 1st and 2nd opposite parties are only the staff of the 3rd opposite party. There was no manufacturing defect for the plant. The 2nd opposite party inspected the plant on 04/12/2000 and found that the plant was working. The plant was not covered by soil by the complainant as per the direction of the opposite parties. The plant was constructed by the technical effect of ferro cement, so it needed soil cover, because it will expand when sun rise falls in it. The complainant did not care for that. Moreover the loan was availed by the complainant itself. The complainant ought to have made objections before the bank at the time of availing the loan, if there was any dispute regarding the interest of loan. No such complaint was given by the complainant to the opposite party or before the Malanadu Development Society. So there is no deficiency in the part of 1st and 2nd opposite parties.

3. The 3rd opposite party filed written version. As per written version, the 3rd opposite party is not having any relation ship with the complainant. Complainant never paid any consideration to 3rd opposite party for the construction of the biogas plant. There is no relationship between the "Malanad Development Society at Thankamany" and with 3rd opposite party. They have only office at Parathode, near Kanjirappilly. No other branches in Kerala. The 1st opposite party is not the branch Manager of 3rd opposite party. The Malanad Development Society, running at Thankamany is not a branch of the 3rd opposite party. No authorization given to them by 3rd opposite party. Neither the staff of the 3rd opposite party nor the OP3 directly engaged in the construction of the biogas plant of the complainant. So OP3 is not responsible for the act of OP1 and OP2.

4. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

5. The evidence consists of the oral testimony of PW1 and Exts.P1 to P4 marked on the side of the complainant and the oral testimony of DW1 to DW5 and Exts.R1 to R7 marked on the side of the opposite parties.

6. This case was once decided by this Forum on 16/10/2002, but considering the appeal filed by the 1st and 2nd opposite parties, the case was remanded from the Honourable C.D.R.C for non jointer of necessary party. Hence the 3rd opposite party was impleaded and the evidence was adduced.

7. The POINT:- The complainant constructed the biogas plant through 1st and 2nd opposite party, but it was not properly working. The complainant was examined as PW1. As per PW1, 1st opposite party approached the complainant for the construction of the biogas plant. They also offered bank loan for 12% interest and a guarantee was provided for 18 months for the plant. They also convinced the complainant that the plant would work for three hours. But it was not getting gas for more than 15 minutes. 2nd opposite party was the supervisor of the plant. The matter of defects in the plant was duly informed to OP1 and OP2, but they never repaired the same. Complaint was given to OP1 about this. Copy of the same is Ext.P1(series). The bill for the supply of materials for the construction is marked as Ext.P2(series). The loan was for 5,000/- rupees. From that amount Rs.4,740/- was given to opposite party. The complainant suffered a lot because of the non-functioning of the plant. The loan was repaid with 22% interest. The 1st opposite party was examined as DW1. DW1 deposed that he is the manager of Malanad Development Society, which is having several branches at Kerala. The Director of the Society was DW4, at the time of construction of the plant. The plant was constructed by the Technology of Fero-Cement. The Supervisor was 2nd opposite party. The materials were bought by the complainant and Rs.4,750/- was paid to the society through Thankamany Service Co-operative bank. They have issued a bill of Rs.6,750/- for the materials of the plant. The balance amount was the subsidy of the government. There was a report filed by the supervisor, which is Ext.R1. The plant was working, there was no defect for the plant as per the report of 2nd opposite party. The complainant did not cover the plant with soil, this was the reason for default. Another report of the supervisor of opposite party is Ext.R2. It reported that the plant was not filled up with cow dung. The Co-ordinator of OP3 was examined as DW3. He was the Chairman of Malabar Development Society. At the time 2001, he was the supervisor. The biogas plants were built by the society in various places. The materials are also supplied by the society. OP1 is familiar to DW3 for more than 10 years. It is with the construction of biogas plants. OP1 several times came to the office of OP3. Subsidy for the plants were arranged by OP3. The bills issued from the Malanad Development Society Parathode office, for the purchase of materials in Thankamany office is Ext.R3(series), which is admitted by DW3. DW4 was the Secretary of Malabar Development Society for 25 years. DW4 deposed that, DW4 knows OP1, OP1 constructed several biogas plants as per the direction of the Malanad Development Society. Subsidy was also issued through M.D.S. for that plants. It is also admitted by DW4, that the plant of the complainant was also constructed by OP1. There was no extension center to the society and there was no branch office for M.D.S.

DW2 is the Commissioner, who inspected the plant on 01/12/2001. DW2 was the Agriculture Assistant of Krishi Bhavan, Vazhathope. DW2 inspected the plant with another technical expert. As per C1 report, the complainant's plant is having manufacturing defect. Considering the evidence, it is admitted that OP1 and OP2 constructed the biogas plant of the complainant. As per DW3, OP1 and OP2 were the staff of the Malanad Development Society, DW3 was working for M.D.S for the last 21 years and was the supervisor of M.D.S in the period 2001. Morethan thousands of plants were constructed by OP1 for OP3 at that time and subsidy was also arranged for those plants by OP3. This is not denied by DW3. DW4 also not denied the letter written by the complainant, which is Ext.P4. DW4 who was also working in that society for 25 years. DW4 deposed that OP1 had constructed several plants for the society and subsidy was also arranged by the society.

As per C1 report, the plant was having manufacturing defect. The complainant spend Rs.7,000/- for the construction of the plant. But the bill issued by the opposite parties was only for Rs.6,750/-, and the loan amount was only for Rs.5,000/-. There was a subsidy of the government for the loan. The opposite party never tried to make good the defect of the plant. So she suffered a lot because of that. The loan amount was Rs.5,000/- and the repayment was with 22% interest which was not challenged by the opposite parties. Rs.2,000/- can be award for the mental suffering caused to the complainant due to non repair of the plant. OP1 and OP2 who constructed the same have the duty to cure the defects, the matter was duly informed to them.

Hence the petition allowed. The OP3 is directed to pay Rs.5,000/- to the complainant with 22% interest from 17/07/2000 to the complainant and Rs.3,000/- for the cost of this petition. The OP1 and OP2 are directed to pay Rs.2,000/- as compensation to the complainant for the delay caused in repairing the defect of the biogas plant, within one month of receipt of this copy of this order, failing which the amount shall carry 12% interest from the date of default.

Pronounced in the Open Forum on this the 29th day of June, 2009.

Sd/-

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

SMT.SHEELA JACOB(MEMBER)

Sd/-

SMT.BINDU SOMAN(MEMBER)

    APPENDIX

Depositions :

On the side of Complainant :

PW1 - Gracy Joseph

On the side of Opposite Parties :

DW1 - K.T. Joseph

DW2 - K. Viswambharan

DW3 - Joseph K.M.

DW4 - Father Mathew Vadakkemuriyil

DW5 - K. Chandra.

Exhibits:

On the side of Complainant:

Ext.P1 - Copy of complaint dated 09/10/2000.

Ext.P2(series) - Bill for the supply of materials.

Ext.P3 - Copy of Transfer Receipt for Rs.4,740/-.

Ext.P4 - Copy of Receipt for Rs.260/-.

Ext.C1 - Commission Report.

On the side of Opposite Parties :

Ext.R1 - Supervisor Report dated 04/12/2000.

Ext.R2 - Supervisor Report dated 11/05/2001.

Ext.R3 series (a-o) - Bills issued from Malanadu Development Society.

Ext.R4 - Letter dated 18/12/2001.

Ext.R5 - Letter dated 14/05/2001.

Ext.R6 series (a) - Copy of Account dated 04/07/2000.

Ext.R6 series (b) - Copy of Savings Bank Account Ledger.

Ext.R7 - Copy of Letter application dated 03/06/2000.