Karnataka

Belgaum

CC/689/2014

T S Swamy - Complainant(s)

Versus

Samadevi Engineering Works - Opp.Party(s)

04 Feb 2016

ORDER

(Order dictated by Shri. B.V.Gudli, President)

: ORDER :

          The complainant has filed complaint against Opponent U/s. 12 of C.P. Act alleging deficiency in service for supply of defective and substandard pipes.

          2) Opponent has appeared through his advocate Opponent has filed his version and Opponent has denied contents of the complaint. Hence prays for dismissal the complaint.

          3) In support of the claim of the complainant, complainant has filed his affidavit by way of evidence and opponent has filed his affidavit and produced some documents by the complainant.

          4) We have heard the arguments and perused the records.

          5) Now the point for our consideration is that whether the complainant has proved deficiency in service on the part of the opponent and entitled to the reliefs sought?

          6) Our finding on the point is partly in affirmative, for the following reasons.

:: REASONS ::

          7) On perusal contents of the complaint, the complainant has alleged in his complaint that he is an Engineer and Contractor working in Shimoga and surrounding districts for his livelihood. The complainant further alleges that the opponent is a manufacturer of quality casting’s, water supply and Drainage accessories, C.I. fittings, C.I. double flanged pipes etc., and the complainant placed order for supply of C.I. double flanged pipes suitable for use 2.5 lacs Lts. Capacity R.C.C. over head Tank on 15 Mtrs. At N.R. Pura Town in Chikkamangalore District. The complainant further alleges that the opponent supplied the material under invoice No.128, 173, 174, 271 and 299 dated 16/10/2013, 18/11/2013, 14/1/2014, 14/1/2014 and 29/1/2014 respectively, and after taking the delivery of the material same were erected to the newly constructed R.C.C. over head Tank and tank was filled with water for purpose of tasting the pipes and after discharge of water from the tank through the pipes the complainant observed that the pipes of 150 mm. dia and 100 mm dia started leaking through weep holes and brushed out in different places. After noticing the defect the complainant informed the opponent about the un-sustaining of water in pipes through his worker by Name Sri. Nayak and also informed through Telephone and on the same date the opponent sent one staff person with two workers on 28/1/2014 and the workers pasted some paste on leakage pipes but pasting work was failed and defect was continued and remained the same. The complainant further alleges that he requested to replace the pipes with new one on wrote letter on 4/2/2014, 28/2/2014, 8/4/2014, 13/5/2014, and 14/6/2014 and accordingly opponent replied on 26/2/2014 assuring to replace the material and requested the complainant to dismantle the pipes. The complainant further alleges that in the absence of opponent the complainant did not dismantle the pipes and the opponent there after did not care to replace the material nor refund the cost of the material pipes. The complainant further alleges that on 4/8/2014 he issued legal notice to replace the material and refund the cost with interest and accordingly opponent replied making false and baseless averments and requested the complainant to personally visit factory and select the material etc., the complainant further alleges and prayed to order in all Rs.3,98,668/- and prayed to allow the complaint.

          8) On perusal contents of objection and evidence affidavit filed by the opponent, that the complaint is false frivolous and untenable and complainant is not consumer under C.P. Act and opponent further contends and partly admits and denies the para No.3 and 4 of the complaint and contends that the complainant has placed the order for supply of C.I. double flanged pipes and denies the knowledge that the complainant is using the materials for over head Tank and also contends that para No.5 of the complaint are not true and correct that material supplied are defective and started leaking and were and bursted out. The opponent further contends that to maintain the good relationship with the complainant in business agree to replace the materials and requested to dismantle the pipes but the complainant did not bother to return the materials and further contended that there is no deficiency on his part and complainant has suffered no loss and the forum has no jurisdiction and complaint is not maintainable. The opponent further contends that the complainant inspected the product of the opponent and after satisfying the material as placed the order and as per the demand specification, choice and order placed by the complainant the opponent supplied the pipes. The opponent further contends that the complainant threatened to return the cost of the material and the complainant being Engineer and he is capable of judging the quality, quantity and size of material required for his work, and the complainant was explained with the terms and conditions printed overleaf on the invoice and complainant purchase the pipes etc., the opponent prays to dismiss the complaint.

9) We have perused the document produced by the complainant and also the invoices for purchase of pipes and also the replies given by the opponent. As discussed above the opponent has admitted the supply of the pipes as per order placed by the complainant but denied the supply of substandard and defective pipes to the complainant and also that the opponent has denied the requirement of pipes to be erected in the construction of R.C.C. over head tank. Now the point for our consideration is that whether the pipes supplied are defective substandard one? We have perused the photographs produced by the complainant wherein we can see that the complainant has constructed the water Tank and also the Photographs reveal that pipes are erected inside the column like structure and also we can perused that there are some rusting and leakage of pipes etc., moreover the opponent in his reply had requested the complainant to dismantle the pipes and is ready to replace the same and the letter dated 22/6/2014 which is also reply given by opponent to the letter dated 8/4/2014, 13/5/2014 and 14/6/2014 which is on letter head of the opponent. We can notice that through this reply the opponent was ready to replace the pipes but requested the complainant to dismantle the pipes but the complainant did not dismantle the pipes nor according to the request made by the opponent the complainant went to the opponent office to replace the old pipes with new pipes. The complainant on the other hand alleges that as the opponent or his workers were not present before dismantling the pipes hence he did not dismantle the pipes cannot be accepted and believed. It is also to be noted that the complainant is Government Contractor as alleged by him that he under takes the contractor work and having vast experience and getting good works to discharge and maintain the work etc., by this we can say that it was also duty cast on the complainant to verify the materials that pipes supplied by the opponent before purchased, as he himself contends that is having work experience etc.

10) The complainant has produced the original invoices No.s.128, 173, 174, 271 and 299 dated 16/10/2013, 18/11/2013, 14/1/2014, 14/1/2014 and 29/1/2014  for amount of Rs.19,420/-, 1,68,821/- and Rs.8,409/-, Rs.11,400/-, Rs.6,107/- respectively. The total cost of the pipes as alleged by the complainant in his complaint are worth Rs.2,93,668/- and the complainant has prayed for compensation and interest and other expenses totaling Rs.3,98,668/- as per the prayer in the complaint.  We are of the opinion that after perusing the documents and more specifically reply given by the opponent for his willingness to replace the pipes immediately after complaint by the complainant has to be appreciated and moreover after going through the contents of the objection and affidavit of the opponent that the complainant did not turn up for the replacement, as to be looked into. But by overall looking to the facts and as alleged by the complainant and also that the complainant has accepted that he is ready to replace the pipes it can be said that even the complainant being Engineer and Contractor placed for the order after verifying the pipes in the opponent office but it was duty cost of the opponent to see that the pipes are of good quality and not of substandard quality and after observing the photographs and also acceptance of the opponent that he is ready to replace the pipes it is very well in our opinion is that the opponent has supplied substandard and defective pipes to the complainant. Hence, the complainant has proved the deficiency of service and unfair trade practice and supplied defective and substandard pipes. Considering the prayer of the complainant in regards to the compensation in the form of damages to the tune of Rs.1,00,000/- and demand of interest to the tune of 18% P.A. cannot be granted as prayed because even though there is deficiency of service on the part of the opponent but it is to be seen the opponent has immediately replied for replacement of the pipes but we can by the discussion above supra can be noticed that the complainant has not acted for the reply for the replacement. Hence the order of compensation and interest is according to the order bellow;

 11) Taking into consideration of the facts, evidence on record and the discussion made here before deficiency in service on the part of the O.P. have been proved.

          12) Hence we proceed to pass the following order;

: ORDER :

          The complaint is partly allowed.

          The opponent is hereby directed and liable to pay to the complainant an amount of Rs.2,14,157/- the cost of the pipes and material supplied as per invoices with interest at the rate of 8% P.A. from 16/10/2013 till realization of entire amount.

          Further opponent is hereby directed and liable to pay compensation to the complainant Rs.10,000/- and also directed to pay to the complainant a sum of Rs.2,000/- towards costs of the proceedings.

          The complainant is hereby directed to dismantle the pipes erected and hand over the said pipes to opponent after compliance of the order immediately.

          Order shall be complied within one month from the date of the order.

If the order is not complied within stipulated period, the opponent will be liable to pay additional interest at the rate of 6% P.A. in addition to the interest order above that is 8% for the amount of Rs. 2,14,157/- till the order is complied.

          (Order dictated, corrected & then pronounced in the Open Forum on this 4^th day of February 2016)

                   Member                    Member                    President

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