BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC MEMBER – II CC. 5/2002 WEDNESDAY THE 23rd DAY OF FEBRUARY 2011. The Vellore Municipality, Rep. by its Commissioner, Municipal Office, Officer’s Line, Vellore. … Complainant. - Vs – M/s. Philips India limited, Rep. by its Regional Manager, Philips India Limited, No.3, Haddowns Road, Chennai 600 006. … Opposite party. . . . This petition coming on for final hearing before us on 22.2.2011, in the presence of Thiru. A.G.Srinivasan, Advocate for the complainant and Thiru.Ramasubramanian, Advocate for the opposite party, and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The complainant is public body and for the welfare of the people, the complaint has resolved to install a High mast light at Vellore Bus stand under the 1999-2000, 10th finance commission plan. The orders were placed to the opposite party by the order of the complaint’s office dt. 17.12.99 and the opposite party has also executed an service agreement on 7.2.2000 and commenced the work. As per the agreement the opposite party has to install the High mast light, commission and maintain the High Mast light. The agreement includes the annual maintenance, break down maintenance and periodical maintenance for a period of five years. A sum of Rs.3,83,998/- has also been paid to the opposite party towards the same on 25.7.00 after the installation. The High mast light installed in the Vellore bus stand worked only for a period of six months and there after it did not function. From 14.2.01 it did not function due to some repairs and the opposite party has been informed immediately and in spite of several repeated letters, phone calls and telegrams the opposite party did not care to rectify the defect. In fact the officer of the opposite party by name S.Sridar Executive projects was also informed in person by the officials of the complainant. Further the commissioner of Municipal administration, Chennai has also informed the opposite party about the non-functioning of the High Mast light. The opposite party under the service contract is liable to rectify the defects and repair the same. The complainant is a public body and the non-functioning of the High mast light for several months has also been reported in newspapers and the name of the municipality is being defamed because of the deficiency of service of the opposite party. The complainant has also issued a lawyer’s notice to the opposite party calling upon them to carry out the repairs the opposite party has received the same but has not replied for the same nor has carried out the repairs. Hence the opposite party to be directed to carry out the repairs of the High Mast light and rectify the defects and restore the same to its working condition and Rs.50,000/- as damages for the defame, inconvenience, hardship and distress suffered by the complainant and Rs.1000/- towards the expenses incurred by the complainant and also Rs.3,500/- with cost. 2. The averments in the counter filed by the opposite party is as follows: The Municipality is not a consumer as defined in the C.P. Act and therefore the complaint is liable to be dismissed for maintainability. The case in hand involves complicated questions of facts and therefore needs to be filed in the Civil Court for remedy. This complaint has been filed before the Consumer Forum to surpass the payment of court fee and therefore on this ground also the above complaint is not maintainable under C.P. Act. Without prejudice to the above submissions the opposite party puts forth the facts for an easy understanding of this Court. The complainant had appointed the opposite party for installation of High Mast Light at various Municipalities in Tamil Nadu including the Vellore Municipality. An Roc No.26601/99 dt. 17.12.99 was entered into by the complainant and the opposite party for installation. The specifications as to the height of the mast and the illumination area were specified in the agreement by the municipality. The total valuation of the order as per the agreement was Rs.4,03,998./- which was payable to the opposite party on completion of the installation and further amount of Rs.4,986/- towards annual maintenance including break down maintenance, replacement of spares and periodical preventive maintenance payable annually. The installation was completed in June/July 2000. As per the clause 13 of the agreement the unit was handed over to the complainant after testing and full satisfaction. After the installation care was taken to see that training was given to the worker of the complainant through the contractor Infinite Chem “N” Rights to ensure maintenance. The equipment supplied and erected, excepting the bulb/light was guaranteed for a period of 12 months from the date of installation that was agreed by the complainant at the time of agreement. There can be no guarantee for the light or bulb because the life of a light is dependent on external factors such as exposure to water, moisture, fluctuation in the voltage level, breakage due to unforeseen circumstances, theft of bulbs and so on. No light company extends guarantee for bulbs due to the above said reason. Moreover the guarantee is applicable only if the agreement is kept alive by payment of the Annual maintenance amount and return of the retention amount given to the complainant. After the installation, the opposite party had requested the complainant many times to pay the maintenance and to return the retention amount withheld by them. But the complainant has not bothered to keep the contract alive by payment of the amounts due. After receiving the complaint sought the complainant for payment of the amount, and also explained that the bulb is not guaranteed for damage arising out of external reasons. However the complainant has neither agreed to the payment or has called the opposite party for rectification till date and has chosen to file the present complaint before this Forum for remedy without a just cause. It is willing to look into the complaint on the payment of amounts due. There was no deficiency in the service rendered by the opposite party in such circumstances the complainant is not entitled for any amount as claimed in the complaint against the opposite party. Hence, this complaint is liable to be dismissed with costs. 3. Now the points for consideration are: a) Whether there is any deficiency in service, on the part of the opposite party? b) Whether the complainant is entitled to the reliefs asked for?. 4. Ex.A1 & ExA2 were marked on the side of the complainant and Ex.B1 to Ex.B4 were marked on the side of the opposite party. Proof affidavit of the complainant and Proof affidavit of the opposite party have been filed. No oral evidence let in by either side. 5. POINT NO. (a) ; The complainant contented that as per the agreement the opposite party installed the High Mast Light in the Vellore Bus stand, and the agreement includes the annual maintenance, break down maintenance and periodical maintenance for a period of five years and a sum of Rs.3,83,998/- has been paid to the opposite party towards the same on 25.7.00 after the installation. The High Mast Light did not function due to some repairs from 14.2.01 and the opposite party has been informed immediately and in spite of several repeated letters, phone calls and telegrams the opposite party did not care to rectify the defect. The complainant is a public body and the name of the municipality is being defamed because of the deficiency in service of the opposite party. 6. The opposite party contended that an Roc.No.26601/09 dt. 17.12.99 was entered into by the complainant and the opposite party for installation of High Mast Light. The total valuation of the order as per the agreement was Rs.4,03,988/-, towards annual maintenance including break down maintenance, replacement of spares and periodical preventive maintenance payable annually. The installation was completed in June or July 2000 and the unit was handed over to the complainant after testing and full satisfaction. It is further contended that the equipment supplied and erected, excepting the bulb / light was guaranteed for a period of 12 months from the date of installation that was agreed by the complainant at the time of agreement. There can be no guarantee for the light or bulb because of life of a light is dependent on external factors such as exposure to water, moisture, fluctuation in voltage level, breakage due to unforeseen circumstances, theft of bulbs and so on. Moreover the guarantee is applicable only if the agreement is kept alive by payment of the Annual Maintenance amount and the payment and return of the retention amount withheld by them. But the complainant has not bothered to keep the contract alive by payment of the amounts due. Therefore there was no deficiency in the service rendered by the opposite party. 7. From the perusal of letter Ex.B1, dt. 30.11.99 sent by the Commissioner of Municipal Administration, Chepauk, Chennai to the opposite party it is mentioned that the lowest negotiated rates offered by the opposite party have been accepted as detailed bellow: I. Design, Fabrication, Supply, Installation, Testing and Commissioning of 20m Height High Mast Lights in various Municipalities in Tamil Nadu. 1. Supply of 20 metre High Mast System totally Rs.4,03,998/- per unit hot dip galvanized suitable for 50 mts/see wind (Rupees Four lakhs three thousand velocity, fixed Head frame with canopy, movable nine hundred and ninety eight only) lantern carriage, Three/double drum winch, Hoisting ropes, flexible multicore power cable capable of withstanding upto 50 mts/see air velocity as specified in the relevant ISS and with Automatic switch ON and switch OFF of the Mast at a pre set time with all accessories as detailed in Schedule “A” of the tender. 1A) Annual Maintenance of the above all items Rs.4,986/- per unit per annum including break down maintenance, replacement (Rupees Four thousand nine hundred of spares an periodical preventive maintenance and eighty six only) (Exclusive of Guarantee period) Payable annually II. Design, Fabrication, Supply, Installation, Testing and Commissioning of 30M Height High Mast Lights in various Municipalities in Tamilnadu. 1. Supply of 30 metre High Mast System totally, Rs.5,59,250 per unit. hot dip galvanized suitable for 50 mts/see wind (Rupees five lakhs fifty nine thousand velocity, fixed Head frame with canopy, movable two hundred and fifty only) lantern carriage, Three/double drum winch, Hoisting ropes, flexible multicore power cable. capable of withstanding upto 50 mts/see air velocity as specified in the relevant ISS and with Automatic switch ON and switch OFF of the Mast at a pre set time with all accessories as detailed in Schedule “A” of the tender. 1A. Annual maintenance of the above all items Rs.4,986 per unit per annum including break down maintenance, replacement (Rupees four thousand nine hundred of spares and periodical preventive maintenance and eighty six only) (Exclusive of guarantee period) Payable Annually. Regarding the maintenance it is mentioned in para-7 that the contractor will maintain the Mast during the guarantee period free of cost and for a minimum period of 5 years on contract basis. The Annual maintenance shall commence from the second year (After the guarantee period). The Annual Maintenance Charges shall be paid at the beginning of every maintenance year. Regarding the guarantee period it is mentioned in para-12 that the equipment to be supplied, erected and commissioned shall be guaranteed for a period of 12 months against any manufacturing defects from the date of handing over of the installation. 8. Based on the above letter the opposite party has executed a service agreement on 7.2.2000 and commenced the work to install the High Mast Light in the Vellore Bus stand. The installation was completed in June or July 2000 and after the installation the unit was handed over to the complainant after testing and full satisfaction. It is admitted facts of the parties that the total valuation of the order as per the agreement was Rs.4,03,998/- and after completion of the unit, the complainant has been paid Rs.3,83,988/- to the opposite party on 25.7.2000. According to the complainant after installation the unit worked only for a period of six months and from 14.2.01 it did not function due to some repairs and the opposite party has been informed immediately but they did not rectify the defects. The contention of the opposite party that the guarantee is applicable only if the agreement is kept alive by payment of the Annual Maintenance amount and the payment and return of the retention amount withheld by the complainant. After the installation of High Mast light the opposite party had requested the complainant many times to pay the maintenance amount and to return the retention amount. But the complainant has not bothered to keep the contract alive by payment of the amounts due. 9. As per agreement the total valuation of the order of installation of High Mast Light was Rs.4,03,998/- after installation the complainant has paid only Rs.3,83,988/- the remaining amount of Rs.20,010/- withheld by them. Further, as per agreement Rs.4986/- per unit pr annum for annual maintenance, including break down maintenance replacement of spares on periodical preventive maintenance payable annually was not paid by the complainant. The complainant has not denied the contention of the opposite party that after installation the opposite party had requested the complainant many times to pay the maintenance amount and to return the retention amount withheld by them, but the complainant did not pay the amount due to the opposite party. Therefore it is clear that the complainant has not bothered to keep the contract alive by payment of amounts due. But the opposite party is willing to look into the complaint on the payment of amounts due. Therefore the contention of the complainant that the non-function of the High Mast Light for several months and the name of the municipality is being defamed because of the deficiency of service of the opposite party is not acceptable. 10. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of both the parties, and from the documents Ex.A1 & A2 and Ex.B1 to Ex.B4, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. Hence we answer this point (a) as against the complainants herein. 11. POINT NO : (b) In view of our findings on point (a), since, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. We have also come to the conclusion that the complainant is not at all entitled to any relief asked for by him, in this complaint. Hence we answer this point (b) also as against the complainant herein. 12. In the result this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 23rd day of February 2011. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1- 9.8.2001 – X-copy of Lawyer’s Notice. Ex.A2- -- - Ack. Card. Opposite party’s exhibits: Ex.B1 – 30.11.99 - X-copy of letter from Commissioner of Municipal Administration to the opposite party. Ex.B2- 17.12.99 - X-copy of letter from complainant to the opposite party. Ex.B3- -- - X-copy of Terms and conditions pertaining to the Tender. Ex.B4- -- - X-copy of Statement of Accounts. MEMBER-I MEMBER-II PRESIDENT.
| | [ Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[ Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | | 
