Complaint filed on: 27.07.2016
Complaint Disposed on:09.11.2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.
COMPLAINT NO.86/2016
DATED THIS THE 9th DAY OF NOVEMBER 2017
:PRESENT:
HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT
HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER
HON’BLE SMT H. MANJULA, B.A.L., LL.B., - MEMBER
COMPLAINANT/S:
“Anivarya” Agriculture and Allied
Service Pvt. Ltd., Cold Storage and
Agri Clinic, Site No.B-26, A.P.M.C.
Market Yard, Kadur-577548.
Represetned by its Director
Smt Mangala G.T. W/o Nagabhushana G.
(By Sri/Smt. Basavaraj M., Advocate)
V/s
OPPONENT/S:
1.M/s Maruthi Electricals
Represented by its proprietor,
R.G.Nagaraj, Class I Contractor,
R.G.Koppalu, Kadur Taluk,
Chikmagalur District.
2. Mangalore Electricity Supply
Company Ltd., Represented by
its Assistant Executive Engineer(Ele)
Operation and Management,
Sub-Division, MESCOM, Kadur Taluk,
Chikmagalur District.
(Op 1 -By Sri.H.N.Mahesh, advocate)
(Op 2 -By Sri.H.C.Krishna, advocate)
By Hon’ble President Sri. Ravishankar,
:O R D E R:
The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against Op 1 and 2 alleging unfair trade practice in not performing their duty as per the estimate and undertaking. Hence, prays for direction against Op 1 and 2 to pay Rs.2,32,293/- which was collected excess by inserting low quality of items along with compensation of Rs.50,000/- and another Rs.15,000/- towards expenses in the interest of justice and equity.
2. The brief facts of the complaint is that:
The complainant with an intension to open Cold Storage and Agri Clinic in the A.P.M.C market yard, Kadur to make an agriculture as a profitable venture and to protect the farmers through science and technology and contacted both Op 1 and 2 for installation and erection of electricity power connection of 71 KVA to the cold storage. In this regard Op 1 approached the Op 2 to prepare estimate towards said work as per the norms. Subsequently, Op 2 had prepared the estimate for the said work excluding 100 KVA transformer and UG cable along with sketch copy vide estimate No.617, dated:15.03.2014. The cost of the estimation is Rs.4,98,098/-. There afterwards Op 1 included the cost of the transformer and UG cable of Rs.1,90,714/- in the estimate and totally Op 1 and 2 have demanded for Rs.6,88,839/- for carry out the said work in their proposal letter dated:17.03.2014.
After submission of the estimation the complainant entered into an agreement with Op 1 to execute the work of 71 KVA power connection to the cold storage unit at APMC market yard on 22.04.2014, at the time of execution of the agreement the complainant had paid Rs.6,88,839/- by way of RTGS to the account No.4422000100009001 of the Op 1 as per the letter dated:17.03.2014.
There afterwards Op 2 through their letter dated:06.05.2014 had demanded for Rs.48,082/- towards supervision charges and also demanded for deposit amount of Rs.1,04,668/-. The complainant also made the said payment by way of D.D. to the Op 2 on 02.06.2014. After payment of the said supervision charges the duty of the Op 2 is to supervise and execute the work as per the departmental norms and specification, but Op 2 failed to supervise the work properly, due to which Op 1 had installed substandard materials and done the substandard work and same was observed in the letter No.8784-83 dated:07.03.2015 issued by Op 2. After installation of the transformer the complainant found faults in HT meter cubicle, in this regard he made several letter correspondence to Op 1 and 2.
The complainant further alleges that the Op 1 and 2 inspite of knowing well that as per the estimate and agreement they have to install the HT meter cubicle with load breaker, but Op 2 had ignored the said fact and allowed the Op 1 to install HT meter cubicle without load breaker and thereby the Op 1 has taken extra amount of Rs.60,660/- against the agreed rates. The Op 1 also agreed to install 100 KVA copper wound transformer, for which he has charged Rs.1,78,480/-, but Op 1 has misled the complainant and installed the aluminum wound transformer which is worth of only Rs.80,150/- and thereby Op 1 has taken extra amount of Rs.98,330/- against the agreed estimate amount. The Op 1 also not done the work as per the agreed terms.
The Op 1 after completion of the work has not issued proper receipts to the complainant as per the agreed terms. He has not used the materials as per the agreed terms, inspite of that the he has charged an additional amount of Rs.73,303/- for the materials which Op 1` has never used, in total the Op 1 has extracted an amount of Rs.1,71,633/- against the agreement by complainant.
The Op 2 is also identified that the Op 1 has not used the materials which are approved by IBS, but has used substandard materials, the said authority has also wrote a letter to the complainant to rectify the defects identified by them as early as possible in order to avoid accidents or any other problems. Hence, Op 1 has not carried out the work through authorized wiremen under direct supervision of authorized supervisor.
The complainant further alleges that due to non completion of the work within the time agreed and poor quality of materials used the project was delayed and complainant suffered huge monetary loss. There afterwards the complainant has issued legal notice to both Op 1 and 2 dated:13.04.2016 and called upon the Op1 to pay the excess amount received by him towards substandard materials and non usage of materials as per the agreed terms, but Op 1 inspite of receipt of the notice also not complied. Hence, Op 1 and 2 rendered a deficiency in service and unfair trade practice in using substandard materials and not providing supervision. Hence, prays for direction against Op1 and 2 to pay an amount of Rs.2,32,293/- along with compensation of Rs.50,000/- and additional charges of Rs.15,000/- as prayed above.
3. After service of notice Op 1 and 2 appeared through their counsel and filed version.
4. Op 1 in his version has contended that, the complaint is not maintainable either in law or on facts, the ground urged by complainant are commercial transactions and this forum has no jurisdiction to entertain the complaint. The complaint is also barred by limitations. Hence, prays for dismissal of the complaint.
Op 1 further contended that, he has agreed to provide 71 KVA power connection along with 100 KVA transformer, an agreement was executed between the complainant and this Op, the complainant also deposited the amount with Op 2, but it is false that they have used substandard materials and done substandard work and it is also false that the Op 2 has written so many letters in this regard.
Op 1 further contended that, the complainant intends to open a cold storage at APMC yard, Kadur, to keep the agricultural produce from the formers on the rental basis. The said project is purely commercial project with the profit motive. As per the agreed terms this Op had completed the work in the year 2014 and had maintained the same for one year as per the norms of the Op 2 and thereafter handed over the same to Op 2. It is submitted that upon the supervision of the Op 2 this Op has carried out the work. This Op had used the quality materials as per the norms and specifications of the Op 2. The Op 2 had inspected and only after satisfaction had given service to the installation.
Op 1 further contended that, the agreement entered between the complainant and this Op was with respect to erection of poles, installation of transformer and drawing of poles up to the nearest pole of the installation. The inside work of the warehouse was not included in the work, even though the inside work of the warehouse was done by this Op upon the request of the complainant with extra charges. In this regard complainant has not made any payment to this Op and complainant has not settled the amount to this Op and this Op has demanded for settlement of the dues, instead of settlement of the dues complainant came up with false allegations and filed this false complaint alleging deficiency in service. The complainant has filed this complaint with the malice intension to make unlawful gain. There is no any deficiency in service on the part of this Op and complainant is not entitled for any relief as claimed in the complaint. Hence, prays for dismissal of the complaint.
5. The Op 2 also filed version and contended that, Op 1 has approached this Op to prepare the estimation for the Cold Storage and Agri Clinic in the APMC market yard, Kadur for installation of erection of the HT power connection of 71 KVA and as per the request of the complainant this Op prepared the approximate estimation, but this Op do not know with respect to the amount of transaction between the complainant and Op 1.
On self execution scheme this Op had sanctioned the work and the said work was done, as per the procedure the complainant had paid 10% of the estimated cost towards supervision of the work, accordingly the complainant has deposited the amount for service and electricity and supervision charges to this Op company as per the supply and distribution code. But it is false to say that this Op failed to supervise the work properly. There is an agreement between the complainant and Op 1 with respect to the work, installation of the materials, expenses for the materials and nature of work. There is no any deficiency in service on the part of this Op towards work done by Op 1. This Op do not know that Op 1 has charged Rs.1,78,480/- towards work of 100 KVA wound copper transformer and also this Op do not know that this Op had installed aluminum wound transformer which worth of Rs.80,150/-. It is also not known to this Op that Op 1 has not issued proper receipts to complainant as per the agreed terms.
Op 2 further contended that, as per the supply and distribution code the said line has to be maintained by the Op 1 for the period of one year, at that time one of the defect in the meter was noticed and same was rectified during the maintenance period. Hence, there is no any deficiency in service on the part of this Op as alleged by complainant and they are not liable to pay any amount claimed in the complaint. Hence, prays for dismissal of the complaint.
6. GPA holder of Complainant filed affidavit and marked documents as Ex.P.1 to Ex.P.8. Op 1 and 2 also filed affidavits and marked documents as Ex.R.1 to Ex.R.8.
7. Heard the arguments.
8. In the proceedings, the following points do arise for our consideration and decision:
- Whether there is a deficiency in service/unfair trade practice on the part of Op 1?
- Whether there is a deficiency in service on the part of Op 2 in not supervise the work?
- Whether complainant entitled for any relief & what Order?
9. Our findings on the above points are as follows:-
- Point No.1: Affirmative.
- Point No.2: Negative.
- Point No.3: As per Order below.
: R E A S O N S :
POINT NOs. 1 & 2:
10. On perusal of the pleadings, affidavits and documents produced by both complainant and Op 1 and 2, there is no dispute that the complainant with an intension to establish Cold Storage at APMC market yard, Kadur had approached Op 1 for installation of 71 KVA power connection along with 100 KVA transformer and also entered into an agreement in this regard on 22.04.2014. The Op 1 in this regard also approached Op 2 for estimation, accordingly Op 2 had issued an estimation towards the said work for Rs.4,98,098/-. It is also not in dispute that Op 2 had demanded for supervision charges of Rs.48,082/- and also paid a deposit amount of Rs.1,04,668/- to Op 2. But the only allegation made by complainant against Op 1 and 2 is that Op 1 had not installed HT meter cubicle with load breaker as per the estimate instead of that he had installed HT meter cubicle without load breaker and thereby he has collected the additional amount of Rs.60,660/- against the estimation. Further complainant alleges that the Op 1 had agreed to install 100 KVA copper wound transformer and as per the estimate he charged Rs.1,78,480/-, whereas, the Op 1 had installed aluminum wound transformer instead of copper wound transformer. The said aluminum wound transformer is only worth of Rs.80,150/-, whereas Op 1 has taken extra amount of Rs.98,330/-, thereby Op 1 had rendered a deficiency in service in not installing the transformer and HT meter as per the estimate and agreement.
Further complainant alleges that the Op 2 inspite of collection of supervision charges have not supervised properly, due to which Op 1 installed substandard materials. Hence, alleges a deficiency in service in the part of Op 2 also and prays for payment of Rs.2,32,293/- from Op 1 and 2.
11. The complainant has produced estimate issued by Op 2 dated:15.03.2014 marked as Ex.P.1, the letter dated:17.03.2014 issued to Op 1 marked as Ex.P.2, Reply to the said letter along with estimate and agreement towards installation of the Cold Storage marked as Ex.P.3, two intimations given by Op 2 marked as Ex.P.4 and different letter correspondence made by Op 2 marked as Ex.P.5, Office copy of the legal notice marked as Ex.P.6, Reply to the said legal notice issued by Op 1 marked as Ex.P.7 and other documents produced by complainant for kind perusal of this Forum.
Op 2 also produced completion report marked as Ex.R.1, Agreement between complainant and Op 2 with respect to supply of electricity marked as Ex.R.2, Wiring Diagram issued by Op 1 marked as Ex.R.4, Undertaking given by both complainant and Op1 to execute self execution work marked as Ex.R.5 and Ex.R.6, Inventory statement after completion of the work marked as Ex.R.7, Estimation given by Op 2 marked as Ex.R.8 in support of their defence.
12. On going through the estimate and agreement the Op 1 has clearly mentioned and undertaken to install HT line for 100 KVA HT transformer with copper wound and quoted the price of the said100 KVA transformer to Rs.1,78,480/- as per Ex.P.3, whereas on observation of the inventory given by Op 2 we noticed the Op 1 had installed HP aluminum wound transformer worth of rs.80,150/- only. Further, we noticed that Op 1 had installed HT meter cubicle without load breaker instead of HT meter with load breaker as per the agreement. The said items were noticed after the inventory given by Op 2, the Op 1 has clearly violated the terms of the agreement entered between the complainant at the time of execution of the installation of transformer. Hence, it is clear case of unfair trade practice on the part of Op 1 in not installing the materials as agreed.
13. During the course of trial the learned advocate for Op 1 had only argued with respect to the maintainability of complaint and argued that the complainant has established the said Cold Storage for the purpose of earning profit. Hence, the complaint is not maintainable and prays for dismissal of the complaint. Even the learned advocate for Op 2 also canvassed on the fact that the complaint is not maintainable as the complainant has established private limited for the purpose of earning profit, the said establishment is nothing but the industry established by complainant. Hence, this Forum has no jurisdiction to entertain the complaint and prays for dismissal of the complaint.
On observation of the affidavit filed by complainant that he has established the said Cold Storage for earning his livelihood, the private company is established for the purpose of earning his livelihood only, the complainant has argued that no required labours were engaged in the said firm to show that he has running an industry, of course we agree the arguments submitted by complainant and we are of the opinion that merely opening a private firm it is not mean that the complainant has established an industry for the purpose of earning profits. Here we noticed the complainant has established the Cold Storage in the APMC market yard, Kadur with their own family members as directors. Hence, the firm established by complainant is not an industry and it is established for the purpose of earning their livelihood. Hence, the plea taken by Op 1 and 2 is rejected.
14. The Op 1 received the entire amount to execute the work of installation of high tension transformer for the purpose of Cold Storage, even inspite of receipt of the entire amount towards the work he has used substandard materials as per Ex.P.3 and Ex.R.7. Further complainant alleges that the Op 1 has charged additional amount of Rs.73,303/- for the materials which Op has not used, but Op 1 has not raised any objections in this regard. Hence, it is established that Op 1 has taken an excess of amount of Rs.2,32,293/- from complainant. Hence, Op 1 is liable to refund the said amount to the complainant.
15. With respect to the failure of supervision on the part of Op 2 the complainant has not placed any materials before this Forum to show the Op 2 has not supervised the work as we observed as per Ex.R.5 and 6 Op 2 had sanctioned the work of installation of HT transformer on self execution scheme and Op 2 has received 10% amount as per the norms of MESCOM. Hence, we found there is no any deficiency in service on the part of Op 2 as alleged by complainant. Hence, the complaint is liable to be dismissed against Op 2.
Op 1 further liable to pay compensation of Rs.25,000/- for unfair trade practice and deficiency in service in not doing the work as per the estimate and agreement along with litigation expenses of Rs.1,000/- to the complainant. As such for the above said reasons, we answer the above Point No.1 and 3 in the Affirmative, Point No.2 in the Negative and proceed to pass the following:-
: O R D E R :
- The complaint filed by the complainant is partly allowed.
- Op 1 is directed to refund an amount of Rs.2,32,293/- (Two Lakhs Thirty Two Thousand Two Ninety Three) and compensation of Rs.25,000/- (Twenty Five Thousand) along with litigation expenses of Rs.1,000/- (One Thousand) to the complainant within one month from the date of receipt of this order, failing which the payable amount shall carry interest @ 9% P.A. till realization.
- The complaint against Op 2 is dismissed.
- Send free copies of this order to both the parties.
(Dictated to the Stenographer transcribed typed by her, transcript corrected by me and then pronounced in Open Court on this the 9th day of November 2017).
(B.U.GEETHA) (H.MANJULA) (RAVISHANKAR)
Member Member President
ANNEXURES
Documents produced on behalf of the Complainant/S:
Ex.P.1 - Copy of estimate dtd:15.03.2014.
Ex.P.2 - Proposal dtd:17.03.2014.
Ex. P.3 - Agreement.
Ex. P.4 - Intimation letter.
Ex. P.5 - Letters by Op 2.
Ex. P.6 - Office copy of legal notice.
Ex.P.7 - Reply to the said notice.
Ex.P.8 - Acknowledgment due.
Documents produced on behalf of the OP/S:
Ex.R.1 - Certified copy of completion report.
Ex.R.2 - Agreement.
Ex.R.3 - Wiring diagram.
Ex.R.4 - Intimation.
Ex.R.5 & 6 - Undertaking given by Op 1 and complainant.
Ex.R.7 - Inventory statement.
Ex.R.8 - Estimation.
Dated:09.11.2017 President
District Consumer Forum,
Chikmagalur.
RMA
