BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 107/2001 Filed on 02.03.2001

Dated : 15.10.2009

Complainant:

Secretary, represented by Kaduvayil Muslim Jama-ath Trust, Thottakkadu, Thiruvananthapuram District.

(By adv. K.S. Ummer)

Opposite party:

Mr. Sajidas, Director, Biotech, Centre for Development of Bio-Gas Technology & other Conventional Energy Sources, M.P. Appan Road, Vazhuthacaud, Thycaud P.O, Thiruvananthapuram-14.

(By adv. Vanchiyoor K. Sivasankaran Nair)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 19.12.2003, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been taken as heard on 31.08.2009, the Forum on 15.10.2009 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that opposite party had approached the complainant and on the basis of deliberations and discussions the opposite party had conducted a feasible study for installation of an organic waste treatment plant in the premises of Kaduvayil Muslim Jama-ath Trust Auditorium, that opposite party had submitted a project report and the same was accepted by the complainant, that according to the terms and conditions of the project report the installation of the plant would be completed within 5-6 weeks from the date of receipt of work order dated 14.06.2000, that the first payment was effected on 03.08.2000 vide cheque No. 029226 for Rs. 2,00,000/- and that the second payment was effected by cheque No. 642113 for Rs. 1,00,000/-, Though opposite party had received Rs. 3,00,000/-, the installation of the machinery was not completed and plant not functioning. Because of the non-performance of the plant, the petitioner suffered a daily loss of Rs. 250/-, thereby complainant suffered a great financial loss of Rs. 4,00,000/- including cash payment of Rs. 3,00,000/-. Complainant had already sent a lawyer's notice dated 22.12.2000 and opposite had replied the same on 01.01.2001 incorporating false and frivolous allegation. Hence this complaint to direct opposite party to pay an amount of Rs. 4,00,000/- to the complainant and to remove the non-functioning plant already installed in the premises of the K.T.M. Auditorium.

Opposite party filed version contending that Centre for Development of Bio Gas Technology and other non-conventional Energy Sources is an implementing organisation on non-conventional energy functioning in Thiruvananthapuram as its head quarters for the last 12 years. The said organisation is registered under Travancore-Cochin Charitable Societies Registration Act. Complainant requested the opposite party to construct a Bio Waste Treatment Plant in the KTM Auditorium. Opposite party prepared project report and handed over the same to the trust on 14^th June 2000, the total estimate cost of the project after subsidy is Rs. 3,76,600/-. After detailed discussion and deliberation the trust accepted the proposal and a cheque dated 03.08.2000 for Rs. 2,00,000/- was issued as advance payment. Opposite party commenced work after the clearance of cheque issued. After appraising the progress of the work complainant had released a sum of Rs. 1,00,000/- as part payment vide cheque dated 06.09.2000. The entire installation work was completed to the satisfaction of the complainant. In between the commencement of work and completion complainant asked opposite party to do some additional work for the effective operation of the plant. After completion of the project complainant issued a completion certificate. The plant had started functioning from 13.12.2000 and it was functioning properly. As per the terms and conditions opposite party will provide the service of necessary skilled technician for the first one year for effective functioning of the plant. Accordingly opposite party sent a letter dated 14.12.2000 seeking co-operation of the trust for proper operation of the plant by skilled technician. No reply was sent by the complainant. The balance payment of Rs. 1,06,600/- is pending clearance from the complainant. So opposite party issued a letter dated 15.12.2000 to the complainant demanding payment. No reply was sent by the complainant. On getting information that some marriage functions will be held in the Auditorium opposite party sent their skilled technician for the operation of the treatment plant on 22.12.2000. But they were prevented from operating the plant. Opposite party has taken every care for perfection in installation and system involved is free from defects. The allegation that the construction of plant is not completed is not true. On 30.11.2000 the plant was completed. Trial run started on 01.12.2000 and it was ready for operation on 13.12.2000. The allegations levelled against the opposite party are baseless and irrelevant. Hence opposite party prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether there has been defects in the plant or deficiency in service on the part of opposite party?

2. Whether the complainant is entitled to get compensation? If so at what amount?

In support of the complaint, complainant has filed proof affidavit and Exts. P1 to P4 and C1 were marked. In rebuttal, opposite party has filed counter affidavit and Exts. D1 to D7 were marked.

Points (i) & (ii):- It has been the case of the complainant that on acceptance of the project report for setting up of an Organic Waste Treatment Plant furnished by the opposite party, complainant decided to instal the garbage treatment plant in their KTM Auditorium, that as per the terms and conditions of the Project Report the installation would be completed within 5 or 6 weeks from the date of receipt of work order dated 14.06.2000, that on 03.08.2000 the first payment of Rs. 2,00,000/- was effected and the second payment of Rs. 1,00,000/- was effected thereafter, that even after acceptance of Rs. 3,00,000/- from the complainant, the installation of the machinery was not completed and plant not functioning till today. It has been the say of the opposite party that the total estimate cost of the said project after subsidy is Rs. 3,76,000/-, that after detailed discussion and deliberation the opposite party accepted the said proposal and received a cheque dated 03.08.2000 for Rs. 2,00,000/- as advance payment, that opposite party commenced the work after clearance of the said cheque, that after appraising the progress of the work, the complainant had released a sum of Rs. 1,00,000/- as part payment vide cheque dated 06.09.2000 and that the entire installation work was completed to the satisfaction of the complainant, for which complainant had issued a completion certificate also. It is argued by the opposite party that as per clauses of terms and conditions under 18 of the Project Report, “Biotech will provide the services of necessary skilled technician for the first one year for the effective functioning of the plant”, that accordingly a letter dated 14.12.2000 was sent to the complainant by the opposite party seeking co-operation of the Trust for the proper operation of the plant by opposite party's skilled technicians, but no reply was sent by the complainant. Ext. P1 is the copy of the Project Report dated 14.06.2000 issued by the opposite party. As per Ext. P1 the total establishment costs after subsidy is Rs. 3,76,000/-. The project cost is inclusive of one year operation expenses. As per clause (2) of the terms and conditions under para 18 of Ext. P1, Biotech will provide the services of necessary skilled technicians for the first one year for the effective functioning of the Treatment Plant. Although no agreement was executed between the complainant and opposite party in regard to the installation of the said plant, the Project Report (Ext. P1) submitted by the opposite party was accepted by the complainant. As per para 19 of Ext. P1, 60% of the estimate cost of the Project may be along with work order, 30% of the estimate cost may be paid at the time of completion of digester, and the balance amount of 10% may be released at the time of installation and commission of the plant. Ext. P2 is the copy of the advocate notice dated 22.12.2000 addressed to opposite party demanding him repayment of Rs. 3 lakhs with interest along with Rs. 2 lakhs towards damages due to non-functioning of machines already installed by the opposite party. Ext. P3 is the postal receipt. Ext. P4 is the acknowledgement card. Ext. C1 is the commission report dated 05.12.2001. As per Ext. C1, a KVIC floating drum model Biogas plant stands installed behind right side corner of the Auditorium premises, the inner diameter of the digester is 380 cm and depth is 325 cm. The digester is constructed by joining concrete rings. The diameter and height of gas holder are 360 cm and 125 cm respectively. The plant has 1 inlet tank and 2 outlet tanks having 160 cm diameter and 125 cm depth. It has an additional tank for storing water. Inlet tank has a lid with locking facility. A 3 HP pulveriser is provided with this unit for grinding banana leaves, vegetables wastes etc. 2 Nos of 30 CFT Biogas burner are also provided with the system for cooking purpose. Outlet pipe is in blocked condition and undigested slurry is seen accumulated in one of the outlet tank giving foul smell. As regards the present status of Biogas plant, it is reported that the plant is not in operational for the past 10 months. No maintenance works have been carried out during this time. The burner is not functioning due to the blockage of the gas distribution system. The holder was filled with the capacity of biogas. This gas might have been accumulated over the long past. As regards short falls, it is stated in Ext. C1 that no mutual agreement on implementation strategy, model, design, drawing, operation and maintenance etc. are seen executed, no proper awareness and training have been imparted to the beneficiary on servicing, maintenance and operation of plant and lack of knowledge in selection of sites, skill etc. of the implementing agency. As regards, outcome of the study, commission report says, according to design and dimension of plants, a maximum of 625 kg waste, such as food waste, biriyani waste, vegetable waste, fruit waste, sambar, dal and other waste including rice water effluent can be treated per day in this biogas digester. Whereas present collection of waste in this auditorium is only 300 kg to 500 kg per marriage function. Hence the digester is digested suitably. Completion report in respect of completion of the biogas plant and its performance is seen furnished by the complainant. Due to non-feeding and inadequate operation and maintenance of the plant for the past 10 months Anaerobic bacteria which is responsible for biogas production is less/nil. The plant is not functioning presently. In order to assess proper functioning of the biogas plant, the biogas plant is to be restarted by emptying the entire waste from the digester and by feeding fresh waste with initial feed of cow dung. One month regular feeding and monitoring is needed to assess the proper functioning of the biogas plant. It is further reported by the commission that the work is executed as per plan. This plant is not suitable to curb entire waste generated in the Auditorium, only biodegradable waste such as food waste, vegetable waste, fruit waste, rice water etc. can be treated (upto 625 kg per day) in this plant. Waste such as plastic carry bag, plastic cup, plastic plate, plastic bottle, broken glass, tin and metal, ammonia water, detergent and other toxic material cannot be treated and should not be fed also. Opposite party has filed objection to commission report. It is submitted by the opposite party that outlet pipe is in blocked condition and undigested slurry is seen accumulated in one of the outlet tanks giving foul smell is on account of the fact that the plant is not being properly used by the complainant. As regards the present status of the plant, it is submitted by opposite party that they are totally ignorant of the present condition of the plant and opposite party had properly operated the plant to the satisfaction of the complainant and completion report (Ext. D1) was also given to opposite party by the complainant. As regards training, opposite party says they were ready to impart training to the nominees of complainant for operation and maintenance of the plant. But complainant did not co-operate with opposite party. It is evident from Ext. D2 letter dated 14.12.2006. As regards the selection, opposite party says they have no role to play and the site selected was the only site available in the Auditorium. It is further pointed by the opposite party that commission has no complaint regarding the digester. Ext. D1 completion certificate carries signature and seal of the beneficiary organisation (complainant). Though complainant has raised objection in marking Ext. D1 alleging it to be a manipulated and fabricated document, the burden is on the complainant to prove that Ext.D1 is a manipulated or fabricated one. It is to be noted that in Ext. C1, it is reported by the commission that the gas accumulated in the floating drum has been treated for combustion and found to burn. In the light of Ext. C1 and Ext. D1 completion certificate, we find the opposite party has installed the plant which started functioning from 13.12.2000. Complainant has not denied Ext. D2 letter dated 14.12.2000. In Ext. D2 it has been specifically mentioned that as per the terms and conditions of the project the feeding work of the plant should be undertaken by opposite party's technicians. Hence opposite party requested the complainant to inform them the dates of marriage in the coming month so that they could arrange the technician in time to avoid the improper operation of the plant. Similarly, complainant is silent about the letter dated 15.12.2000 issued by opposite party requesting the complainant to release the balance amount of Rs. 76,000/-. Though complainant had accepted the project report prepared by the opposite party, including the total establishment cost of Rs. 3,76,000/- after subsidy, there is nothing to show that complainant has remitted the balance amount of Rs. 76,000/- to opposite party which would include working expenses for one year. No agreement is seen executed between parties with specific terms and conditions, in order to find any breach of agreement so as to find out the extent of defect/deficiency if any on the part of opposite party. Commission has also pointed out the non-existence of mutual agreement. Commission has reported that the digester is digested suitably, the gas accumulated in the floating drum has been tested for combustion and found to burn and the work is executed as per design. The said findings of the commissioner is corroborated by the completion report (Ext. D1) also. The reason for inadequate operation and maintenance of the plant is not reported by the commissioner. The initial onus of proving the case would rest on the complainant. Complainant failed to prove any defect in the plant or deficiency on the part of opposite party. In view of the foregoing discussion and in the light of evidence available on record, we find there is nothing to attribute any deficiency on the part of opposite party. Complaint has no merit, which deserves to be dismissed.

In the result, complaint is dismissed. The parties are left to bear and suffer their own costs.

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, this the 15^th day of October 2009.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

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O.P. No. 107/2001

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Project Report for setting-up of organic waste treatment

plant.

P2 - Copy of advocate notice dated 22.12.2000 issued by the

counsel for complainant.

P3 - Postal receipt

P4 - Acknowledgement card

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Completion certificate

D2 - Copy of letter dated 14.12.2000 issued to the complainant.

D3 - Copy of letter dated 15.12.2000 issued to the complainant by the opposite party.

D4 - Copy of letter dated 23.12.2000 issued to the complainant by the opposite party.

D5 - Copy of reply notice issued by the opposite party's counsel.

D6 - Postal receipt dated 02.01.2001.

D7 - Acknowledgement card

V COURT EXHIBIT

C1 - Copy of Inspection Report dated 05.12.2001.

PRESIDENT