JUDGEMENT
Date - 08.10.2013
(Through Shri.Vinayak Raoji Londhe, President )
The complainant filed the present compliant U/sec.12 of Consumer Protection Act for recovery of compensation and damages on account of deficiency in the service at the hands of the respondents.
Following are the brief facts given arise to the decision of complaint. It is the case of complainant that, the complainant intended to engaged in manufacturing Edible Oil at Beed. For this plant, to erect structor, the complainant has placed order bearing JOB No.2W-0603 with the respondents. The respondent no.1 is the registered office of Zamil Steel and respondent no.2 its Zonal Office. The respondent has accepted the offer for supply of Pre-engineering structure for industry as per quotation.
The order proposal and acceptance the order was relating to Supply and errection by respondents which includes—
i) Scope of work- Design and Supply of built-up, Hot rolled, clips, Anchor Bolts, Brace Rods, Panels, Trims, Panel related accessories, Pre-Galvanized secondaries, connection bolts, Pain materials and errection of complete building.
ii) 1. Desing and supply of built-up, Hot rolled, clips, Anchor Bolts, Brace Rods, Connection bolts, Pre-Galvanized Secondaries, Panels, Trims, Panel related accessories,Paint materials, Mastics fand sealents.
iii) 2. Errection Price for steel framing plus panel framing plus site painting labour charges is calculated at Rs.34,87,503/- and VAT at the rate of 5 % extra i.e. Rs.1,74,375/- i.e. total CIF Job Site at Beed is Rs.36,61,878/- which is total price.
It was agreed that, 40 % payment is to be made in advance with order and 60 % before dispatch. The total floor area of factory is 1296 Sq.meters. The total weight of the material of building is 42.5 M.T. with plus or minus 5 % equal to 42500 K.G. with plus or minus 5 %. The rate of per K.G. is approximately Rs.85/-. The complainant has paid 40 % amount in advance. That on 26.08.2011 the complainant received mail from respondent. In which tonnage on the building would be around 42.5 M.T. with plus or minus 5 % and delivery of the materials would be around last week of September, 2011. The errection was agreed to be completed by 15 days after receipt of the material at the site.
It is the contention of the complainant that, the complainant had telephonic talk with the General Manager of the respondent. As to whether, material of complainant was ready for dispatch. The General Manager informed do not release the remaining amount of bill, as the material was not ready to dispatch and asked complainant to sent the amount in the last week of October, 2011.
The complainant has received the material in two trucks. The complainant has also received invoice and total quality of the goods in K.G. The respondent have sent 30115.760 kg. material instead of 42500 kg. The complainant is entitled to get back the amount of difference Rs.10,52,660/-.
The respondent is supplied material for errection of structure in the month of November, There was delay in commencement of errection work. The respondent send only two workers as crew members. No proper alienment and the errections carried engineers of respondent have not examine the structure. Colour is not painted. Though, the errection work is over all on 28.12.2011. The structure is not handed over to the complainant.
It is the contention of the complainant that, the complainant has obtained the huge loan for the said project and placed the order for purchase of equipment. The complainant has to pay the huge interest. The respondents are responsible for disobeying time bond programme. The respondent are solely responsible for loss. The complainant has issued notice to the respondent on 07.01.2012 by R.P.A.D. The respondent received the said notice and denied the liability. The respondent has taken wrong stand that, errection work order was not issued to the respondent no.1. The representative of the respondent visited the side and admitted deficiency in service. The respondent failed to comply and thus complainant constrained to file the present complaint for grant of compensation of Rs.19,52,660/- with interest @ 12 % p.a.
The respondent has been duly served with notice, respondent appeared and contested the claim by filing Written Version. The respondents have contained that, the complainant has made baseless allegations. The Consumer Fora has no jurisdiction of entertainment and try the complaint. The claim of complainant is barred by limitation. Messrs. Zamil Steel Building India Pvt. Ltd. is not at all concerned with the construction work of complainant. The said Job Order no.2W-0603 was for supply of goods and not for erection. The supply was made by respondent to the satisfaction of complainant. There was privity of contract regarding supply of Pre-engineering structure. Messrs. Nirman Engineering Structures was the errection contractor of the complainant. Separate errection contract was executed by the complainant with Messrs.Nirmal Engineering Structures. If, any cause of action arise is against Nirmal Engineering. The complaint suffers from non-joinder of necessary party. And thus, respondent prayed for dismissal of complaint.
The complainant filed affidavit of one Shri.Santosh Hanumant Upare in liue of evidence. Complainant has produced documents (1)copy of letter send to respondent about delay on 18.10.2011, (2) Copy of letter send to respondent about mails on 07.11.2011, (3) Copy of completion letter send by respondent dt.30.01.2012, (4) Copy of minutes of meeting between complainant and respondent on dt.30.01.2012, (5) Legal notice send to the respondent dt.07.01.2012, (6) Reply of respondent to legal notice dt.20.01.2012, (7) Copy of work order dt.05.08.2011, (8) Communication letter dt.13.02.2012, (9) Reply to communication letter dt.24.02.2012, (10) Tax Invoices copies. The complainant filed the notes of argument. The respondent has also produced the certain document i.e. Technical offer, supply of steel, structural documents. Heard, the argument of respective counsel of both the parties.
Following points arise for determination, the points/answered against it for the reasons to follow,
POINT ANSWER
1. Whether the complainant is consumer as
Contemplated U/s.2(d) of C.P.Act ? Yes.
2. Whether complainant is entitled for compensation
For deficiency in service ? Yes.
3. What order ? As per final order.
REASONS
POINT NO.1 TO 3 :-
On considering the pleadings and documents of the complainant it reveals that, the complainant is intending to engage in manufacturing Edible Oil at Beed. And for the said plant, the complainant has placed order with respondent no.1 for supplying errection materials. It is the contention of complainant that, there was agreement and inpersuation of the terms of agreement, the material was agreed to be supplied. It is also seen from the pleadings that, complainant allages that, the respondent has sent the less quantity of the material. And for that purpose complainant is entitled for the refund of money with come to the tune of Rs.10,52,660/. The complaint also contended that, there is delay in commencement of erection work. The respondent has sent only two workers. The worker was not carried as per the plan. And thus, the complainant has urged that, there is Unfair Trade Practice by the respondent. The respondents are responsible for deficiency in the service.
The learned Advocate for the complainant urged that, the complainant is not seeking any claim for the machine, equipment used of edible oil. The compensation is claimed for defect and delay caused by opposity party in supplying and errection material. The activities does not fall within commercial purpose. The reliance is placed on following authority.
( 2012 (4) Civil LJ 274 ) SUPREME COURT Narne Construction Private Limited and others Vs. Union of India and others. The Lordship of the Supreme Court in part no.8 and 10 of the judgement has held that, having regards to the nature of the transaction between the appellant company and its customers which involved much more than a simple transfer of a piece immovable property it is clear that the same constituted Service within the meaning of the Act.
The another case relied is reported in AIR 2004 SUPREME COURT 2141 Ghaziabad Development Authority, Appellant V. Balbir Singh, Respondent.
It is observed that, deficiency in service by Development Authority – National Consumer Disputes Redressal Commission has jurisdiction to award compensation.
The another case relied is reported in 2004 NCJ 462 (NC) Polymoch Past Machines Ltd. and another Vs. Apple Plast Pvt. Ltd. The Hon ble National Consumer Disputes Redressal Commission, New Delhi in para no.9 of the judgement has held that on perusal of the material record there is no doubt that there was an inordinate delay in installing the machine and it is also stated in the affidavit of the complainant and not rebutted that there were several visits by the employees and engineers of the appellant to rectify the errors, but still the machine did not work properly. It is clear case of deficiency in service on the part of the appellant.
On relying above stated authority it is urged that, the complainant is entitled for the compensation for delay in erecting the said and defects occurred therein.
On behalf of the respondent, it is contended that, the construction work was not undertaken by the respondent. The construction work was done by M/s Nirmal Engineering Structures if any cause of action arises in of deficiency in the service. The same is against Nirmal Engineering Structures and not against respondent. It is urged that, the copy of errection of contract is within the knowledge of complainant and therefore the respondent are not responsible for any delay cause in errection of structure. It is further contended that, the erection materials are send as per the proposal and acceptance as per the agreement. And therefore, there is no Unfair Trade Practice and deficiency in the service while sending the material.
Having clearly gone through the entire documents and evidence, we find that, so far as the contention of the complainant that, the respondent has sent less material for erection for that purpose, the party have entered into agreement. The rights of the liability of the parties are governed by the agreement. If, there is entire breach of terms of the agreement by and between the parties. The appropriate remedy to approach the Civil Court where the full flaze evidence is required to be adduced to prove the case. And therefore, we are of the opinion that, so far as supply the errection material is concerned and any dispute to that effect will have to be filed before the Civil Court and not before the Consumer Fora.
We are of the view that, so far as the deficiency in service, inrespect of erection of the said. We are of the view that, the respondents have undertaken of errect the construction. There is delay carrying the construction and the commencement of erection work only two workers were provided. Though, the work of construction was over on 28.12.2011. The structure was not handedover to the complainant. Considering the visit of one Mr.Saikumar Thota, Mr.G. Apparao on behalf of respondent on 20.01.2012 and the spot inspection there were deficiency in the service. The respondent has not rebbutted the evidence of the complainant and therefore, in our consider view, the complainant is entitled for damages for deficiency in the service on the part of respondent.
We are of the opinion that, delay caused in carrying the construction work is certainly deficiency in the service. The complainant is consumer and therefore, this Forum has jurisdiction to entertain and try the complaint. We have also observed that, so far as the claim of complainant against less weight in the structural material. The complainant can approach the Civil Court as the right and liability of the party are governed by the contract. Evidence on this aspect is short. We are unable ascertain this aspect. Complainant can approach Civil Court.
Having carefully considering the entire circumstances of the case, delay caused in construction probable loss sustain by complainant and we are of opinion that, the complainant is entitled for sum of Rs.5,00,000/- (Rupees Five lacks only) for deficiency in service by the respondent. In additional of that, the complainant is entitled for sum of Rs.5,000- towards Mental harrashmenbt and the sum of Rs.3,000/- towards the cost of litigation.
Accordingly, we answered point no.1 to 3 affirmative.
Hence, following order.
ORDER
1. The complaint is partly allowed.
2. The respondent no.1 and 2 are jointly and severally order to pay the sum of Rs.5,00,000/- (Rupees Five Lacks only) towards deficiency in service within 30 days of this order, failing which the complainant is entitled to recover the said amount with interest @ Rs.9% p.a. from the date of filing of complaint till realization of entire amount.
3. The respondent no.1 and 2 shall pay the sum of Rs.5,000/- towards Mental Agony and sum of Rs.3,000/- towards Cost of litigation.
4. The Complainant be returned the complaint set as per section 20 (3) Consumer Protection Act,.1986.
Smt.Manjusha Chitalange Shri.Vinayak Londhe
Member President
District Consumer Disputes Redressal Forum,Beed.
