BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER O.P. No. 465/2002 Filed on 06/11/2002 Dated: 30..11..2009 Complainants:
M/s. Loyola School, Sreekariyam, Thiruvananthapuram. Represented by its Principal, Rev.Fr. Varghese Anikuzhy. S.J. The Parent Teacher's Association, M/s. Loyola School, Sreekariyam, Represented by its President, Dr.S. Vasudevan Potti.
(By Adv. A. Ajakumar) Opposite party:
Anil Sarangadharan, Amaravathy, Koyikkal Road, Medical College – P.O., Thiruvananthapuram – 695 011.
(By Adv. C.R. Sudheesh)
This O.P having been heard on 30..10..2009, the Forum on 30..11..2009 delivered the following:
ORDER
SMT. S.K.SREELA, MEMBER:
The facts of the case are the following: The 1st complainant is an Educational Institution. The complainants had decided to establish a new computer lab and a multimedia classroom in the school with the assistance of PTA and for executing the works, the complainant invited tenders for the civil, electrical and furnishing works. On finalization of various tenders, the proposal made by the opposite party was selected. The opposite party had agreed to the complainants that he would carry out the work within the time frame using the standard products/materials without sacrificing quality. He had delayed the work without any valid reasons and most of the civil works were carried out with low standard materials and products, which resulted in poor quality of the work executed. On 14/6/2001, the opposite party furnished the detailed bill for the work stated to have carried out by him in connection with the civil, electrical and furnishing works for computer lab and multimedia class room. The bill amount was Rs.12,63,034/- and was much higher than the mutually agreed cost of the total contract Rs.10,45,697/-. In addition to the same, some of the major items of works were left unfinished and some other items were carried out at very poor workmanship using poor quality products. The original estimate and tender submitted by the opposite party was only to the tune of Rs.10,45,697/- for the execution of the above said work, but the final bill was submitted claiming Rs.12,63,034/-. The matter was discussed in a joint session of the PTA officials with the opposite party, held on 26/6/2001. The meeting observed that as some other works had to be carried out before the commissioning of the works, the same was also directed to be carried out after getting the estimate of the works approved by the Principal. The PTA discussed the total work contract and took a lenient view and decided to approve the claim of the opposite party in respect to the extra work to the tune of Rs.1,29,488/- and had further decided to make an immediate payment of Rs.1,25,000/- to the opposite party. It was further decided that the balance payments claimed in the bill dated 14/6/2001 would be decided only after the final scrutiny of the bills and after inspection of the works by competent persons. The opposite party issued a letter dated 10/8/2001 to the 1st complainant demanding a balance payment of Rs.1,38,034/-. The detailed discussions and scrutiny of the claims of the opposite party was made on 1/10/2001 and taking into account the various part payments made by the complainants from 12/4/2001 to 1/10/2001, the PTA, the School authorities and expert team decided to settle the issue by making a payment of Rs.59,125/- reducing Rs.28,909/- from the total claim of Rs.12,63,034/-. Though the opposite party had raised some protest in relation to the deductions made in the final bill he did not make any further claims on that respect and the same was considered final in all respects. As part of the works awarded to the opposite party, he installed 7 airconditioners in the multimedia classroom and in the computer lab. Right from the date of installing, these 7 AC units were not functioning satisfactorily. The opposite party was informed of the defects of these units then and there itself. But the opposite party never took any interest to attend to the complaints and he took inordinate delay to attend to the break down and complaints. Though it was attempted on many occasions to have a test run of all AC units with full load, the same could not be carried out till date. The opposite party never took seriously the complaints reported by the complainants all these days. The complainants realized at this juncture that the delay on the part of the opposite party in attending to the regular complaints in respect of the systems was deliberate and intentional. All the AC units supplied and installed by the opposite party were assembled units and hence he alone knew about the genuiness of the components used in those units. The opposite party supplied AC units, which are fitted with reworked/defective components making the complainants believe that the units are assembled with new and original components. Due to the defects in the systems, these units could never function properly right from the date of their installation. At the same time some of the old units, which were installed in the school earlier, are functioning smoothly all these days without any problem. The very purpose of air conditioning the multimedia classroom and computer lab was totally defeated. The students and teachers using the above classroom and computer lab could not concentrate on their lessons because of the excessive temperature there due to the malfunctioning/non -functioning of those units. They are also exposed to health hazards. The conduct on the part of the opposite party amounts to clear deficiency in service and amounts to unfair trade practice on his part. Hence this complaint.
2. The opposite party has filed his version contending as follows: To the knowledge of the opposite party, no tenders were invited for the works carried out by the opposite party. It is true that during the academic year 2000-2001, the complainants had decided to establish a new computer lab and a multimedia classroom in the school with the assistance of PTA, which was evident to the opposite party from a notice issued to the parents by the school seeking contribution to the minimum tune of Rs.1,000/- each per student for a new computer lab and a multimedia classroom in the school. The opposite party was asked by the Principal and the then President, Mr. Narayanan, to prepare an estimate for the civil, electrical and furnishing works for the aforementioned computer lab and multimedia classroom. The venture being benevolent to the children including the opposite party's son, the opposite party offered to prepare the estimate without incurring any expenditure for the preparation. Next day, the opposite party accompanied with one Architect, Mr. V.S. Gireesh visited the school for the preparation of the estimate and an estimate was submitted on 3rd April 2001 amounting to Rs.9,78,855/-. During the meeting on the same day, many changes in the proposal were discussed and therefore the estimate had to be revised. The proceedings were recorded and the opposite party was also asked to sign in the minutes as a special invitee, and accordingly the opposite party affixed his signature on the minutes. The opposite party was requested to do the work and it is true that the opposite party had agreed to the complainants that the opposite party would arrange to carry out the work within the time frame mentioned in the estimate prepared by the opposite party, provided there was no alteration, modification or addition, in the work, as any alteration, modification or addition would delay the work and as the same was being contained in four rooms only. The complainants did not issue any work order and time frame for completion to the opposite party before starting the work. The complainants did not furnish the electrical drawings and the work suffered a slight delay. As high chances prevailed for the work getting further delayed indefinitely and as there was no signs of the complainants furnishing the electrical drawings, the opposite party was forced to hire the services of a qualified electrical consultant, M/s. Mohan's Power Controls, to prepare the drawings. The expenditure incurred towards consultancy charges was not reimbursed by the complainants as on this date, despite repeated requests. The opposite party has carried out the work not being in the capacity as a paid contractor but against the request of the school and being a parent of a Loyolite. The primary aspiration of the opposite party was to complete the work in the required time in the best quality. On determination of the quality and pace of the work of the opposite party, the complainants adjured the opposite party for alteration, modification and various additions in the work of the multimedia classroom and computer lab apart from obligating certain other civil works in the Principal's room. The opposite party had heeded to these requests of the complainants and it may be noted that the opposite party personally supervised the work during the entire period of work at site so as to adhere to quality and time. The entire expenditure statement was explained in detail and the complainants were convinced of the fact that there were many additional and altered items of work. It may also be noted that there was no mutually agreed lump sum cost of Rs.10,45,697/-. Most of the alleged items were not part of the original specifications. The opposite party was compelled to do these extra items of work, as the balance payment was at stake. To the surprise of the opposite party, new stipulations and conditions like test run, warranty and bank guarantee which did not exist in the original estimate or in the revised estimate which the opposite party had submitted earlier, suddenly emanated into the picture and the opposite party was cornered, ensnared and left with no other alternative but to be advertent to the unlawful requests of the complainants, as the opposite party had to settle payment with suppliers who had supplied materials and services for the work, upon receipt of the balance payment. Thereafter the complainants wringed the opposite party by coercion and intimidation to execute a warranty on the opposite party's behalf and a bank guarantee for Rs.29,000/- for getting the balance payment. The test run of all AC units with full load, fans etc was carried out after the installation. It is also to be noted that the opposite party's son is a student of the school and hence the opposite party was forced to accept the knavish manners, illegal and unlawful demands of the complainants. The only conscious choice and intention of the complainants was to delay and defer the legitimate payments due to the opposite party and put him into monetary loss. Even though the opposite party did not intimate the Principal in writing again and again, the opposite party orally requested him several times for the balance payment, but there was no response from the Principal. The balance outstanding of Rs.28,909/- is still pending with the complainants and the opposite party seeks a relief in the proceeding itself to pass an order directing the complainants to pay the balance outstanding of Rs.28,909/- with 18% interest till the payment. To the knowledge of the opposite party all the seven units are working properly without any sort of complaints. The opposite party vide letter dated 29th August 2002, requested the complainants that a mutually convenient date may be intimated to inspect the air conditioners, enabling the opposite party to ascertain and assess the position and the alleged complaints. The opposite party also requested the complainants that a technical person from the part of the complainants may also be made available during the inspection. Regarding the guarantee cards of the stabilizers provided by the manufacturers, it is to be noted that it was handed over to the school authorities during the installation itself and therefore it did not find a place in the warranty and bank guarantee demanded from the opposite party by the complainants. All the AC units supplied and installed by the opposite party were arranged through a supplier and were assembled units as per the behest of the complainants. Hence M/s. Kirloskar Copeland is also a necessary party in these proceedings. Accordingly this complaint does not sustain for non joinder of necessary parties. There is absolutely no deficiency of service and unfair trade practice from the part of the opposite party. The opposite party had extended his services without any remuneration and service charges. Hence a preliminary issue may arise regarding the maintainability of the case. The complainants are not entitled for any relief from the side of opposite party. Hence prays for dismissal of the complaint with costs and prays for a direction to the complainants to pay Rs.57,909/- with 18% interest to the opposite party.
3. The 1st complainant has filed affidavit and marked Exts. P1 to P19 series on their behalf. The report of the expert commissioner appointed by the Forum is marked as Ext.C1 and he has been examined as CW1 through an Advocate Commissioner. The opposite parties had no evidence. 4. From the contentions raised by the complainants the following issues arise for consideration: Whether there is any deficiency in service and unfair trade practice on the part of the opposite party? Whether the complainants are entitled for any of the reliefs claimed in the complaint?
5. Points (i) & (ii): The complaint is with regard to the defects in the airconditioners installed in an educational institution. The learned counsel for the complainants had argued that right from the date of installation all these 7 AC units were not functioning satisfactorily and due to the defects in the system, these units never functioned properly. The complainants have produced Ext.P19 series, which are the warranty cards. Ext. P19 series, the warranty cards are all photocopies, but the opposite party never turned up to deny the same and since the same have not been challenged, it is admitted on evidence. As per the warranty card, 1 ton split air conditioner has been assured a warranty for a period of 18 months. The air conditioners have been purchased on 1/6/2001. As per Ext.P6 dated 19/8/2002, the opposite party has been seen informed the break down of air conditioners besides other defects. Ext. P7 shows that the opposite party had received the above referred Ext.P6. Hence from the above it could be concluded that as the alleged defect having been arisen within the period of warranty, the complainants come under the definition of consumer as stipulated under Sec 2(1)(d) of the Consumer Protection Act.
6. It has been pleaded in the complaint that, after repeated complaints, the authorized representative of the opposite party came to school on 7/8/2002 and attended to various complaints in respect of these AC units and he had notified the defects noticed by him in writing and had acknowledged the removal of certain components from these units for replacement and repair. We have perused the documents produced by the complainants. Exts. P5 & P16 go to prove the above contention. The opposite party has contended that, as the complainants did not furnish the electrical drawing, a slight delay has been caused, further more he has contended that complainants had not engaged any electrical consultant to prepare the drawings for such complicated circuits where data lines should not cross directly over electrical lines and the opposite party was forced to hire the service of a qualified electrical consultant to prepare the drawings, the charges of which have not been re-imbursed by the complainants. Inspite of the above contention, it has not been supported by any evidence. 7. The expert commissioner in his Ext.C1 report has reported that all the units are seen locally assembled units. Furthermore CW1 has observed that the functioning of most of the units are found unsatisfactory and a test under full load has not been made, the discharge pressure could not be taken since the discharge service valve guage port is not seen provided with the units. It has been reported that for CR 30K 6M compressor, the rated current is 11 Amps whereas in most cases the current taken is low which indicates wrong capillary selection, poor insulation of refrigerent pipes and wrong gas charging. The entire refrigerent pipes are to be reinsulated for sub cooling effect. The expert commissioner has attached the photographs also. The opposite party has not filed any objection to the said report and moreover CW1 has not been cross examined by the opposite party. Hence Ext. C1 report and deposition of CW1 stand unchallenged and uncontroverted. 8. Undoubtedly, the defects in the AC are to be proved by the consumer who complaint. In the present case, the report of the expert commissioner proves that the ACs are defective. The warranty for the ACs are breached when it does not perform properly and when the opposite party fail to act according to the warranty. From the records it could be seen that reasonable opportunity had been given to the opposite party to repair the ACs and yet there is a failure and the opposite party has failed to prove otherwise. The complainants have succeeded to establish their case with ample evidence and by the testimony of expert. 9. As per Ext. P2, which is seen signed by the opposite party also, it is revealed that 'the total amount claimed is Rs.12,63,034/- and an advance of Rs.10,00,000/- was received by Mr. Anil. S during the course of work. The balance amount payable as per claim of Mr. Anil. S is Rs.2,63,034/-. The opposite party has not furnished any documents or adduced any evidence on his behalf. 10. Considering the above discussion we find that the opposite party has miserably failed to comply with the warranty conditions which amounts to deficiency in service on his part and the complainants have succeeded in establishing their complaint. The opposite party has made a counter claim from the complainants which this Forum cannot entertain as this Forum lacks jurisdiction to entertain the same and this Forum could entertain the same only if it is a consumer dispute. 11. The complainants have claimed Rs.2,54,500/- towards the cost of the air conditioners for which they have not furnished any documents to prove its price. The complainants could not produce any convincing evidence to support the said claim amount. In the absence of any evidence to corroborate the same, the above claim is not allowable. From Ext.C1 it could be seen that one unit is working. Regarding the other 6 units the remarks show the performance as unsatisfactory. This would show that even at this stage the ACs are lying at the complainants' premises unused and the complainants are deprived of the money spent on purchasing such types of air conditioners which immediately after the purchase started giving constant trouble. In view of the facts and circumstances referred to above, we are of the view that it will be more equitable to direct the opposite party to rectify the defects in the AC units.
12. Hence the opposite party is directed to rectify the defects in the AC units within two months from the date of receipt of the order OR to replace the air conditioners in dispute with new defect free air conditioners of the same make on the condition that the complainants shall return the air conditioners in dispute with them within two months from the date of receipt of the order OR in case the said Air Conditioners have been rectified already by the complainants on their cost, then the opposite party shall pay a compensation of Rs.1,00,000/- with future interest @ 9% from the date of receipt of the order. The opposite party shall also pay Rs.25,000/- as compensation and Rs. 4,000/- as costs of the proceedings to the complainants.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 30th day of November, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD PRESIDENT.
BEENA KUMARI.A, MEMBER.
ad.
O.P.No.465/2002
APPENDIX
I. Complainants' witness: NIL
II. Complainants' documents:
P1 : Photocopy of unfinished items of work letter issued by complainant. P2 : “ minutes of the PTA meeting held on 26th June 2001. P3 : “ letter dated 10/8/2001 to the complainant P4 : “ letter dated 28/9/2001 from the complainant to the opposite party. P5 : “ letter dated 7/8/2002 P6 : “ registered letter dated 19/8/2002 from the complainant to opposite party. P7 : “ letter dated 29/8/2002 to the complainant. P8 : “ letter dated 30/8/2002 to opposite party P9 : “ inspection report dated 7/09/2002 P10 : “ letter dated 7/9/2002 to complainant. P11 : “ receipt issued by opp. Party dated 7/9/2002. P12 : “ letter dated 12/9/2002 to the opp. Party. P13 : “ letter dated 19/9/2002 to the complainant. P14 : “ letter dated 30/9/2002 to opposite party. P15 : “ letter dated 20/2/2002 to complainants P16 : “ letter dated 7/8/2002 P17 : “ letter dated 25/11/2002 issued by opposite party's P18 : “ unfinished items of work issued by complainant dated 9/7/2001 P19 : “ warranty
III. Opposite party's witness:
DW1 : NIL
IV. Opposite party's documents : NIL
V. Court witness:
CW1 : A. Rajendran
VI. Court document:
C1 : Commission Report.
PRESIDENT
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