The Manager, M/s. BENAKA MEDITECH, Bangalore- 560 096. V/S Dr. Nagaraj.V. Gadwal, Medical Practitioner, Raichur - Consumer Court Case

Karnataka

Raichur

CC/10/5

Dr. Nagaraj.V. Gadwal, Medical Practitioner, Raichur - Complainant(s)

Versus

The Manager, M/s. BENAKA MEDITECH, Bangalore- 560 096. - Opp.Party(s)

Sri. Harishchandra.B. Rathod,

30 Apr 2010

ORDER

Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
consumer case(CC) No. CC/10/5

Dr. Nagaraj.V. Gadwal, Medical Practitioner, Raichur						...........Appellant(s)
Vs.
The Manager, M/s. BENAKA MEDITECH, Bangalore- 560 096.						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

JUDGEMENT By Sri. Pampapathi President:- This is a complaint filed by complainant Dr. Nagaraj V. Gadwal against opposite under section 12 of Consumer Protection Act for to direct the opposite to complete the work of fixing gas pipeline, and to award an amount of Rs. 5,00,000/- as damages with cost and other reliefs as deems fit to the circumstances of this case. 2. The brief facts of the complainants case are that, he is Neuro Surgeon, Specialist running Superspeciality Hospital, at Raichur under the name and style as G.P.V. Neuro Superspeciality Hospital. He entered into a memorandum of understanding with opposite for fixing of medical gas pipe line in his hospital with approximate cost of Rs. 4,65,000/-. Opposite not completed the work of project, inspite of taking revised payment through bank cheques, he paid excess amount to the opposite, but opposite not completed the work which causes greater hardship, he requested orally and in writing to complete the work, but opposite replied on 04-10-09 with false contentions. Hence legal notice was issued and thereafter this complaint was filed for the reliefs as prayed in it. 3. Opposite appeared in this case, filed his written version by contending that, the dispute of the complainant will not fall under Consumer Act and this Forum has no jurisdiction to try it. Complainant has filed this complaint to avoid his liability for making balance payment, complete work done as per the project on 10-03-09. Complainant not paid balance amount of Rs. 1,65,000/- there was no memorandum of understanding or written agreement in between the parties, accordingly he prayed for to dismiss the complaint among other grounds. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant has proved that, himself and opposite have entered into memorandum of understanding dt. 05-05-07 for to complete the project of fixing medical gas pipe line to his hospital as per the quotation with approximate cost of Rs. 4,65,000/- and he paid the excess amount, but opposite not completed the project work inspite of oral and in writing request and thereby opposite found guilty under deficiency in its service.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint.? 3. What order? 5. Our findings on the above points are as under:- (1) In the affirmative (2) As discussed in the body of this judgement and as noted in the final order. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 :- 6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-6 are marked. On the other hand the affidavit-evidence of opposite was filed, he was noted as RW-1. The documents Ex.R-1 to Ex.R-9 are marked. 7. In view of the pleadings of the parties, their respective affidavit-evidences and documents. It is a fact that, complainant entrusted the work of fixing of medical gas pipeline to his hospital to opposite as per the quotation for Rs. 4,65,000/-. It is also a fact that, opposite under took the work in the hospital of complainant. In the light of the above said undisputed facts in between the parties. Now the material point for our consideration is whether the complainant and opposite have entered into the memorandum of understanding dt. 05-05-07 with regard to the said project work. No doubt opposite has denied the execution of memorandum of agreement or any written documents in between it and complainant regarding the said work, however at the later stage it was admitted by the opposite in its letter Ex.P-14 dt. 04-10-09 and in subsequent correspondence. The complainant filed this memorandum of understanding and it is marked as Ex.P-11. The existence of said memorandum of understanding was admitted by the opposite in his letter Ex.R-2. In the said circumstances there is no meaning in the contention of opposite to say that it not entered into any agreement with the complainant for to undertake the said work. Hence this contention of the opposite is rejected. 8. The second material point for our consideration is as to whether both parties have acted upon the memorandum of understanding at Ex.P-11. The said document is having five conditions for execution of the work, as per the said document 50% of the total cost of the project has to be paid by complainant as soon as the shipment of the material reaches the sight and thereafter the remaining payment will be done on prorate basis. Fifth condition is material to note that, opposite has not completed the work within 30-06-2007 as it is also one of the essential condition. The said memorandum of understanding will not speak the remedy, if breach of condition by any of the parties. 9. It is very much clear from Ex.P-1 and Ex.R-1 said to be a letter written by opposite in the name of complainant that project was completed on 10-03-09 and demonstration took place, this fact is clearly denied by the complainant. After seeing Ex.P-1 and Ex.R-1 which is said to be a letter not received by complainant either by post or in person, no postal acknowledgements or any other authenticated records filed by the opposites to show that, the project was completed and system demonstration took place on 10-03-09 which is against to condition No.1 of Ex.P-11. Ex.R-2 the letter dt. 04-11-09 and Ex.P-14 clearly goes to show that, dispute arose in between the parties regarding payment as demanded by the opposite. 10. Except Ex.P-1 and Ex.R-1 which are the documents mainly relied by the opposite to substantiate its contention that, it completed the work as per the memorandum of understanding of Ex.P-11 is not acceptable for the above said reasons, as such there is no necessity for to get the experts opinion by the complainant to prove the fact that, opposite not completed the project work, as submitted by the learned advocate for opposite, the allegations made by the complainant appears to be vague in nature but he clearly stated that, opposite not completed the pipeline project work as per the memorandum of understanding, then it is the duty of the opposite to say that, he has completed the work as per the memorandum of understanding and demonstration took place with technical reports by adducing experts evidence, but it not done so, we are not entering in detail with regard to excess payment or non payment of the bill as, if complainant paid excess bill then he is at liberty to recover it from opposite, if less amount is paid, then opposite is entitled to recover it. It is a matter outside the purview of our jurisdiction, we have restricted ourselves to appreciate the evidences and record of the parties to see as to whether, is there any deficiency in service on the part of opposite, we have clearly noticed the deficiency in service on the part of opposite as he has not completed the work undertaken vide Ex.P-11. The say of opposite that, work was completed and complaint was filed by the complainant only to avoid balance payment is not established. 11. As regards to the jurisdiction of this Forum to try this case, we have no material grounds to dismiss the complaint on this ground. 12. We have noted that it is a clear case of deficiency in service on the part of opposite, complaint is well within time and cause of action arose in Raichur City, as such this Forum has got jurisdiction to try this case, complainant is the consumer and opposite is the service provider, accordingly this objection of the opposite is rejected and answered Point No.1 in affirmative. 13. As regards to the reliefs claimed by the complainant is concerned, opposite is hereby directed to complete the work of installation of medical gas pipeline project in the hospital of complainant as per the memorandum of understanding Ex.P-11 dt. 05-05-07 to the satisfaction of the complainant. 14. As regards to the compensation claimed by the complainant is concerned, we have no records to grant such huge amount of Rs. 5,00,000/-, however we have taken note of the entire case of complainant and the case of opposite and his negligence in completion of the work undertaken by him vide Ex.P-11. The complainant is entitled to get a lumpsum amount of Rs. 10,000/- from opposite. Another lumpsum amount of Rs. 3,000/- is awarded towards cost of this complaint, accordingly complainant is totally entitled to recover Rs. 13,000/- from opposite in addition to the relief granted at Para No-13, accordingly we answered Point No-2. POINT NO.3:- 15. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. Opposite is hereby directed to complete the work regarding the fixing of gas pipeline as per the memorandum of understanding dt. 05-05-07 in Ex.P-11 within one month from the date of this judgment to the satisfaction of the complaint. The complainant is entitled to recover a total amount of Rs. 13,000/- from the opposite and opposite is hereby directed to make the payment within one month from the date of this order. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 30-04-10) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.

JUDGEMENT By Sri. Pampapathi President:- This is a complaint filed by complainant Dr. Nagaraj V. Gadwal against opposite under section 12 of Consumer Protection Act for to direct the opposite to complete the work of fixing gas pipeline, and to award an amount of Rs. 5,00,000/- as damages with cost and other reliefs as deems fit to the circumstances of this case. 2. The brief facts of the complainants case are that, he is Neuro Surgeon, Specialist running Superspeciality Hospital, at Raichur under the name and style as G.P.V. Neuro Superspeciality Hospital. He entered into a memorandum of understanding with opposite for fixing of medical gas pipe line in his hospital with approximate cost of Rs. 4,65,000/-. Opposite not completed the work of project, inspite of taking revised payment through bank cheques, he paid excess amount to the opposite, but opposite not completed the work which causes greater hardship, he requested orally and in writing to complete the work, but opposite replied on 04-10-09 with false contentions. Hence legal notice was issued and thereafter this complaint was filed for the reliefs as prayed in it. 3. Opposite appeared in this case, filed his written version by contending that, the dispute of the complainant will not fall under Consumer Act and this Forum has no jurisdiction to try it. Complainant has filed this complaint to avoid his liability for making balance payment, complete work done as per the project on 10-03-09. Complainant not paid balance amount of Rs. 1,65,000/- there was no memorandum of understanding or written agreement in between the parties, accordingly he prayed for to dismiss the complaint among other grounds. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant has proved that, himself and opposite have entered into memorandum of understanding dt. 05-05-07 for to complete the project of fixing medical gas pipe line to his hospital as per the quotation with approximate cost of Rs. 4,65,000/- and he paid the excess amount, but opposite not completed the project work inspite of oral and in writing request and thereby opposite found guilty under deficiency in its service.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint.? 3. What order? 5. Our findings on the above points are as under:- (1) In the affirmative (2) As discussed in the body of this judgement and as noted in the final order. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 :- 6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-6 are marked. On the other hand the affidavit-evidence of opposite was filed, he was noted as RW-1. The documents Ex.R-1 to Ex.R-9 are marked. 7. In view of the pleadings of the parties, their respective affidavit-evidences and documents. It is a fact that, complainant entrusted the work of fixing of medical gas pipeline to his hospital to opposite as per the quotation for Rs. 4,65,000/-. It is also a fact that, opposite under took the work in the hospital of complainant. In the light of the above said undisputed facts in between the parties. Now the material point for our consideration is whether the complainant and opposite have entered into the memorandum of understanding dt. 05-05-07 with regard to the said project work. No doubt opposite has denied the execution of memorandum of agreement or any written documents in between it and complainant regarding the said work, however at the later stage it was admitted by the opposite in its letter Ex.P-14 dt. 04-10-09 and in subsequent correspondence. The complainant filed this memorandum of understanding and it is marked as Ex.P-11. The existence of said memorandum of understanding was admitted by the opposite in his letter Ex.R-2. In the said circumstances there is no meaning in the contention of opposite to say that it not entered into any agreement with the complainant for to undertake the said work. Hence this contention of the opposite is rejected. 8. The second material point for our consideration is as to whether both parties have acted upon the memorandum of understanding at Ex.P-11. The said document is having five conditions for execution of the work, as per the said document 50% of the total cost of the project has to be paid by complainant as soon as the shipment of the material reaches the sight and thereafter the remaining payment will be done on prorate basis. Fifth condition is material to note that, opposite has not completed the work within 30-06-2007 as it is also one of the essential condition. The said memorandum of understanding will not speak the remedy, if breach of condition by any of the parties. 9. It is very much clear from Ex.P-1 and Ex.R-1 said to be a letter written by opposite in the name of complainant that project was completed on 10-03-09 and demonstration took place, this fact is clearly denied by the complainant. After seeing Ex.P-1 and Ex.R-1 which is said to be a letter not received by complainant either by post or in person, no postal acknowledgements or any other authenticated records filed by the opposites to show that, the project was completed and system demonstration took place on 10-03-09 which is against to condition No.1 of Ex.P-11. Ex.R-2 the letter dt. 04-11-09 and Ex.P-14 clearly goes to show that, dispute arose in between the parties regarding payment as demanded by the opposite. 10. Except Ex.P-1 and Ex.R-1 which are the documents mainly relied by the opposite to substantiate its contention that, it completed the work as per the memorandum of understanding of Ex.P-11 is not acceptable for the above said reasons, as such there is no necessity for to get the experts opinion by the complainant to prove the fact that, opposite not completed the project work, as submitted by the learned advocate for opposite, the allegations made by the complainant appears to be vague in nature but he clearly stated that, opposite not completed the pipeline project work as per the memorandum of understanding, then it is the duty of the opposite to say that, he has completed the work as per the memorandum of understanding and demonstration took place with technical reports by adducing experts evidence, but it not done so, we are not entering in detail with regard to excess payment or non payment of the bill as, if complainant paid excess bill then he is at liberty to recover it from opposite, if less amount is paid, then opposite is entitled to recover it. It is a matter outside the purview of our jurisdiction, we have restricted ourselves to appreciate the evidences and record of the parties to see as to whether, is there any deficiency in service on the part of opposite, we have clearly noticed the deficiency in service on the part of opposite as he has not completed the work undertaken vide Ex.P-11. The say of opposite that, work was completed and complaint was filed by the complainant only to avoid balance payment is not established. 11. As regards to the jurisdiction of this Forum to try this case, we have no material grounds to dismiss the complaint on this ground. 12. We have noted that it is a clear case of deficiency in service on the part of opposite, complaint is well within time and cause of action arose in Raichur City, as such this Forum has got jurisdiction to try this case, complainant is the consumer and opposite is the service provider, accordingly this objection of the opposite is rejected and answered Point No.1 in affirmative. 13. As regards to the reliefs claimed by the complainant is concerned, opposite is hereby directed to complete the work of installation of medical gas pipeline project in the hospital of complainant as per the memorandum of understanding Ex.P-11 dt. 05-05-07 to the satisfaction of the complainant. 14. As regards to the compensation claimed by the complainant is concerned, we have no records to grant such huge amount of Rs. 5,00,000/-, however we have taken note of the entire case of complainant and the case of opposite and his negligence in completion of the work undertaken by him vide Ex.P-11. The complainant is entitled to get a lumpsum amount of Rs. 10,000/- from opposite. Another lumpsum amount of Rs. 3,000/- is awarded towards cost of this complaint, accordingly complainant is totally entitled to recover Rs. 13,000/- from opposite in addition to the relief granted at Para No-13, accordingly we answered Point No-2. POINT NO.3:- 15. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. Opposite is hereby directed to complete the work regarding the fixing of gas pipeline as per the memorandum of understanding dt. 05-05-07 in Ex.P-11 within one month from the date of this judgment to the satisfaction of the complaint. The complainant is entitled to recover a total amount of Rs. 13,000/- from the opposite and opposite is hereby directed to make the payment within one month from the date of this order. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 30-04-10) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.