Final Order / Judgement | IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MADIKERI PRESENT:1. SRI. C.V. MARGOOR, B.Com.LLM,PRESIDENT 2. SRI.M.C.DEVAKUMAR,B.E.LLB.PG.DCLP,MEMBER | CC No. 72/2016 ORDER DATED 21ST DAY OF JULY, 2018 | | Sri. Jeffry Muthanna, Aged 58 years, S/o. late C.S. Poonacha, Ammangala Village, Valnoor Post, Via Kushalnagar, Kodagu District., (Sri.B.B. Ananda, Advocate) | -Complainant | V/s | Sri. Sunny Rodrigus Aged 54 years, MAXY ELECTRICALS, License (10423), Electrical Contractor Class I, Opp: Ganapathy Temple Polibetta, Kodagu District. (Sri.M.P. Thimmanna, Advocate) | -Opponent. | Nature of complaint | Miscellaneous | Date of filing of complaint | 22/11/2016 | Date of Issue notice | 31/01/2017 | Date of order | 21/07/2018 | Duration of proceeding | 1 year 7 month 29 days |
SRI. C.V. MARGOOR,PRESIDENT O R D E R - This complaint filed under Section 12 of the Consumer Protection Act, 1986 by Sri. Jeffry Muthanna, s/o. late C.S. Poonacha, resident of Ammangala Village, Valnoor Post, Kodagu District seeking direction to the opponent to refund an amount of Rs.1,07,000/- paid by him at the rate of 6% per annum from 29/02/2016, compensation of Rs.2,000/- towards mental agony, harassment and emotional distress suffered by him and litigation expenses.
- The opponent is Sri. Sunny Rodrigus, Maxy Electricals and he being class 1st contractor bearing license No.10423. The complainant owns coffee estate and for the irrigation facility he has installed a submersible pump 12 years back. On account of low voltage around 230 KV power is not sufficient to lift water by submersible pump. To improve the power capacity and stop inconsistent drop up voltage the complainant got advise from the opponent to put up 25KVA CESC approval transformer to improve the instant drop up voltage.
- The opponent after negotiation with the complainant gave estimation for 25KVA CESC approval transformer with GMT RCC pole with TC structure full set and further the opponent has taken the responsibility to approach the concerned officials of CHESCOM. The opponent has quoted Rs.1,10,000/- for installation of transformer in the estate of complainant and lastly he agreed to complete the work for Rs.1,07,000/-. The complainant has paid Rs.1,00,000/- on 25/10/2016 as advance through cheque of State Bank of India, Madikeri.
- The complainant further submitted that the opponent has completed the work on 05/03/2016 with oil cooled aluminum pole mounting type 3 star rating distributor transformer, but he wrote in his final cash bill with single pole structure. The complainant has questioned the work done by the opponent for using Aluminum pole and for not using gay wire as per negotiation and CHESCOM Rule. The installation of the opponent was week as a result 25KVA CESC was fallen on the ground. Later on the opponent visited the spot and agreed for correction of installation with proper RCC poles. When the opponent has failed to his words the complainant got issued legal notice dated 07/10/2016 for which the opponent gave an evasive reply on 25/10/2016 hence, this complaint.
- After the service of notice the opponent has appeared through his learned counsel and filed version admitting that he has installed 25KVA CESC approval transformer in the estate of complainant. It is the case of opponent that he has carried out the work in terms of estimation given to the complainant. The opponent has denied the allegations made in the complaint that the work done by him was week as a result 25 KVA CESC was fallen down thereby he suffered loss. It is the case of opponent that due to fall of a jungle wood tree near by pole and due to force of the tree transformer has fallen down. The opponent denied that he had cheated the complainant and agreed to rectify the mistake committed by him. The opponent has not committed any deficiency in service rendered by him. On the above grounds, the opponent prays to dismiss the complaint.
- The complainant filed his affidavit evidence and produced four documents. The opponent has filed his affidavit evidence and not produced any document.
- When the case was posted for arguments on 11/04/2017 the complainant has filed I.A under Order XXVI Rule 10A of CPC for appointment of Commissioner to visit the spot and submit report. The opponent has taken time to file objections and to hear I.A till 20/01/2018. On the said day the complainant has filed one more I.A under Order XVI rule 1 and 2 CPC to issue witness summons Junior Engineer, Chettalli CHESCOM, Chettalli. The order sheet dated 17/02/2018 recorded for reporting settlement as per memo filed by the complainant and opponent and for reporting settlement was adjourned to 17/03/2018. On 17/03/2018 both the parties were present and opponent paid Rs.20,000/- to the complainant. The case was posted for balance payment and settlement on 28/04/2018. Then either of the parties were remained absent in the proceedings till 07/07/2018. Hence the case is posted for orders. On perusal of the complaint, version, affidavit evidence and documents the points that would arise for determination are as under;
- Whether the complainant proves that the work done by opponent amounts to deficiency of service?
- To what order?
- Our findings on the above points is as under;
- Point No.1:- In the Affirmative
- Point No.2:- As per final order for the below
R E A S O N S - Point No.1& 2:- It is not in dispute that the opponent has installed 25 KVA CESC approval transformer on 05/03/2016 in the estate of complainant to improve the instant drop up voltage. The complainant has produced the estimation given by the opponent dated 29/02/2016. The opponent has agreed to install 25 KVA CESC approved transformer with 9 meter RCC pole for Rs.1,07,000/-. The estimation is given by the opponent on the letter head of Maxy Electrical. On the estimation the opponent has made endorsement that he received Rs.1,00,000/- and balance payable is Rs.7,000/-. The complainant further produced cash bill dated 05/03/2016 issued by the opponent on the letter head addressed to the complainant that he has installed 25 KVA Vijaya Vidyuth Udyog make oil cooled aluminum wound pole mounting type three stars rate up distribution transformer with single pole structure. The complainant has produced three photos which show that the transformer along with pole has fallen on the ground.
- The opponent in the version denied that he has used aluminum pole for fixing 25KVA CESC transformer. According to the estimation dated 29/02/2016 the opponent should use 9 meters RCC pole but on the contrary cash bill indicates that he used aluminum wound pole for installation of transformer. Though the opponent has received the entire amount as per the estimation, but the quality of the pole used for install transformer is contrary to the estimation. Therefore, there is a deficiency of service on the part of the opponent while installing 25KVS CESC transformer in the estate of complainant.
- When the case was posted to hear on IA filed by the complainant for appointment of Commissioner to make local inspection and submit report. All of a sudden on 17/02/2018 the learned counsel for the complainant and opponent have submitted compromise petition under Order XXIII rule 3 of CPC which signed by the complainant and OP. It is stated in the compromise petition that the opponent is ready to pay Rs.40,000/- to the complainant within 30 days from 17/02/2018 towards full and final settlement of the disputed amount. The complainant is ready and willing to the said offer and he is ready to accept Rs.40,000/-. On 17/03/2018 the complainant and opponent were present and later has paid Rs.20,000/- to the complainant. The case was adjourned to 28/04/2018 for balance payment of Rs.20,000/-. On 28/04/2018 the complainant had only present hence, the case was adjourned to 05/05/2018. On the said day the complainant and opponent were absent but the opponent counsel took time. On 26/05/2018 the opponent had present and took time for balance payment till 30/06/2018. On 30/06/2018 and 07/07/2018 both the parties and their counsel were absent and no representation on behalf of them. Hence the case is posted for orders.
- Already the compromise petition submitted by the learned counsels which signed by the complainant and opponent is on record. Subsequent to filing compromise petition the opponent has paid Rs.20,000/- to the complainant out of the proposed settlement of amount of Rs.40,000/-. There after the opponent has failed to pay the balance amount of Rs.20,000/- nor appeared before this Forum. The complainant and his counsel were also absent to know as to whether the opponent has paid the balance amount or not. The opponent would have reported to the Forum that he has paid the balance amount to the complainant or deposited in the Forum. It shows that negligence on the part of opponent to comply the terms of compromise petition. The opponent shall liable to pay Rs.5,000/- for his default to make balance payment as per the compromise petition submitted before the Forum on 17/02/2018. In view of the above circumstances, the complainant is not entitled to the full claim amount of Rs.1,07,000/- as already he has received Rs.20,000/- in consequence of the compromise petition dated 17/02/2018. Therefore, we proceed to pass the following;
O R D E R - The complaint filed by Mr. Jeffry Muthanna is partly allowed directing the opponent to pay Rs.25,000/- to the complainant with interest at the rate of 10% per annum from 29/02/2016 within two months from the date of order. In case the opponent fails to pay the said amount with interest he shall liable to pay interest at the rate of 18% per annum till its payment.
- The opponent shall pay the litigation cost of Rs.5,000/- to the complainant within two months.
- Furnish copy of order to the complainant and opposite party at free of cost.
(Dictated to the Stenographer and got it transcribed and corrected and pronounced in the open Forum on this 21stday of JULY, 2018) (C.V. MARGOOR) PRESIDENT (M.C. DEVAKUMAR) MEMBER | |