The Managing Director, Trimex Industries Ltd., Chennai 600 018 and 2 Others. The Executive Director, Trimex Industries Ltd., Chennai. The Director, Trimex Industries Ltd., Hyderabad.
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
BEFORE THE DISTRICT CONSUMERS FORUM AT KHAMMAM Dated this, the 31st day of May, 2010 CORAM: 1. Sri Vijay Kumar, B.Com., LL.B., President 2. Smt. V.Vijaya Rekha, B.Sc. B.L., Member 3. Sri.R.Kiran Kumar, B.Sc., LL.B., Member C.C.No.626 of 2007 Between: Sakhamuri Chandra Shekar, s/o.Rama Krishnaiah, age: 38 years, occu: Proprietor, Sri Kalanadha Sai Consultancy Services, R/o.H.No.11-10-695/2, Burhanpuram, Khammam Town and District. Complainant And 1.The Managing Director, Trimex Industries limited, Corporate office, trimex towers, No.1 Subbraya Avenue, C.P.Rama Swamy Road, Alwarpet, Chennai 600 018. 2. The Executive Director, Trimex Industries limited, Corportate office, Trimex towers No.1, Subbaraya Avenue, C.P.Rama Swamy Road, Alwarpet, Chennai- 600 018. 3. The Director, Trimex industries limited (An Export House), 8-2-293/82/A/1052-F1, Road No.45, Jublee hills, Hyderabad-33. Opposite parties. This C.C. is coming on before this Forum for final hearing in the presence of Sri.K.Babji, Advocate for complainant; Notice of opposite party No.1 served and called absent; Sri.M.Srinivasa Rao, Advocate for opposite party No.2 and 3; upon perusing the material papers on record; upon hearing the arguments, and having stood over for consideration, till this day, this Forum passed the following:- ORDER (Per Sri.Vijay Kumar, President) This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The averments made in the complaint are that the complainant is doing business in the name and style of Sri Kamalanadha Sai Consultancy Services, having their head office at Khammam, used to undertake activities of mining on contract basis. On 6-10-2005 the complainant sent the quotation of mining expenses to the opposite party No.3 and requested to give work order in their leased mine situated at Nachigunta, Karnataka state. On 25-10-2005 the opposite party No.3 had given work order to the complainant to carry out the work at the mine with the terms and conditions i.e. Mining, Equipment and manpower, payment, quantity, advance and force measure. On receipt of work order, on 11-11-2005 the complainant commenced the work with his men and machinery. In the work order, the opposite party No.3 also instructed to produce a minimum of 1500 MT of Fledspar Mineral. According to the complainant it is very difficult to work there, as it is a deep fit. Since he accepted the work order, commenced the work and raised a total material of 2456 MT Feldspar up to June, 2006. Out of which, the opposite party No.3 had lifted 1838 MT of feldspar only, till December, 2006 the opposite parties was not lifted the feldspar stock. The opposite parties has given the initial amount of Rs.50,000/- as advance and the said amount was collected through the bills paid to the complainant. The opposite parties No.3 paid Rs.4,91,200/- to the complainant for the work done by the complainant by way of bills. But the complainant incurred an expenditure of Rs.6,81,030/-, the said expenditure caused to the complainant only due to the misguidance and negligence of opposite parties. If the physical conditions are good and if the material is really deposited in the mine, the complainant could have produce a minimum of 1500 MT feldspar for which he will gets nearly a profit of Rs.6,00,000/-. As such the opposite parties are liable to pay an amount of Rs.1,89,830/- and also liable to pay the loss of profit of Rs.6,00,000/- to the complainant at the mine spot. The complainant informed the problems to the opposite parties, for several times. The complainant made correspondence for discontinuation of work, but he did not relieve by the opposite parties. Hence, the complaint. 2. Apart from the complaint, the complainant filed affidavit, reiterating the contents of the complaint. 3. On receipt of notice, opposite parties No.1 to 3 did not care to attend the Forum. One M.Srinivasa Rao, Advocate filed vakalath for opposite party No.3, but did not file counter. The case underwent a number of adjournments. The time has been extended repeatedly to enable the opposite parties to file counter. Even on some adjournments, the case adjourned on payment of costs enabling the opposite parties to file counter. On repeated adjournments, the time has been extended for filing of counter on payment of costs. On 24-3-2009 the case was posted for filing of counter by opposite parties No.1 to 3. On that day, costs of Rs.100/- paid. But counter not filed. Hence treated as there is no counter to offer from opposite party side and posted for enquiry. At last on 27-4-2009 a petition is filed in I.A.79/2009 praying to reopen the case for proper adjudication of the matter and for filing of counter. After giving notice to the other side, after hearing both sides, the said petition was allowed on 26-6-2009 enabling opposite parties No.1 to 3 to file counter and the matter adjourned to 27-9-2009. On reopening of the matter, only opposite party No.1 filed counter and right of opposite parties No.2 and 3 for filing of counter has been forfeited and the matter adjourned for written arguments of opposite party No.1 and complainant. Even on that date also there was no representation from opposite parties, hence treated the matter as heard on one side and the matter reserved for orders. In this case, except opposite party No.1 counter, opposite parties No.2 and 3 did not even care to file counter. 4. In the counter, opposite party No.1 denied the averments made in the complaint and submitted that the complainant has misconstrued the provisions of the Act, they issued the work order for Rs.200/- per MT after negotiating with the complainant taking the signature of complainant, after accepting the terms and conditions, copy has given to the complainant. It is denied that they have to pay Rs.1,89,830/- in view of the fact that under the contract the complainant is entitled to payment of Rs.200/- per MT of finished product and payment had been made accordingly, the complainant is not entitled to any further payment over and above the agreed rate of Rs.200/- per MT, he is bound to bear all the expenditure on removal of O.B. where necessary to develop the mine to produce feldspar of the quantity as specified in the contract, seizing, sorting of the same and to deliver at plot the finished product. It is submitted by the opposite parties that as per the contract they are not liable for alleged expenses incurred by the complainant, denied that they did not lift 2456 MT of feldspar, in fact the complainant is obligated under the terms and conditions of work to deliver the finished sized feldspar material at the plot. It is further submitted that out of the material of 2456 MT offered only 1838 MT of feldspar was finished and sized material and the balance quantity of 618 MT, which was in the mine pit requiring sort of the mineral into required grades and sizing and delivery at the plot under the contract was also lifted in as is where is basis at the normal rate benefiting the contractor, as such there is no truth much less justification to allege that they have to lift the total material of 2456 MT further the bill for the quantity of 618 MT was raised on 22-12-2006 and the payment was made at normal rate after adjusting the earlier advances given to the complainant. It is further stated by the opposite party No.1 that as the contract awarded on tonnage basis, there is no need of looking into the petty expenses of the contractor, because of non supply of target production of even 1500 MT under the contract, they could not honour the commitment with the reputed buyers and has lost credibility and reputation, irretrieverably in the international market. It is further submitted by the opposite parties that there is no deficiency in service on their part and there is no part to the complainant, the damage to the reputation of their company as the complainant is unable to honour the supplies in time, they are not the lease holders of mine, the mine has taken on raising and sale contract basis, paying a premium of Rs.110/- for A grade feldspar, Rs.55/- for B grade feldspar, they are not employees, as such there is no deficiency in service on their part. Hence, they prayed to dismiss the complaint with exemplary costs. 5. On behalf of the complainant, produced Exs.A.1 to A.20 are marked. Ex.A.1 - Quotation for mining of feldspar Ex.A.2 - work order issued by opposite party No.3 Ex.A.3 - Letter addressed by the complainant Ex.A.4 - Letter addressed by the complainant Ex.A.5 - Letter addressed by the complainant Ex.A.6 - Letter addressed by complainant, showing the expenditure Ex.A.7 - Letter addressed by the complainant Ex.A.8 - Letter addressed by the complainant for discontinuation of mining Ex.A.9 - Letter addressed by complainant for supervisory charges Ex.A.10 - Bill submitted by the complainant for the release of amount for 483.38MT Ex.A.11 - Bill submitted by the complainant for the release of amount for 135.05 MT Ex.A.12 - Bill submitted by the complainant for the release of amount for Rs.9,100/- Ex.A.13 - Letter submitted by the complainant for JCB charges of Rs.56,245/- Ex.A.14 - Letter submitted by the complainant for the payment of bills. Ex.A.15 - Bill submitted by the complainant for Feldspar mining expenses of Rs.1,89,111/- Ex.A.16 -Payment of draft in favour of the complainant. Ex.A.17 - office copy of legal notice, dt.5-3-2007 Ex.A.18 - Reply notice of opposite party No.3, dt.23-3-2007 Ex.A.19 - Letter addressed to the opposite party No.1 with postal receipt and acknowledgment. Ex.A.20 - Rejoinder given by the complainant to the reply notice, dt.23-3-2007. 6. On behalf of opposite parties No.1 to 3, no document is filed. 7. On behalf of the complainant, written arguments filed. Perused the oral and documentary evidence. Upon which the points that arose for consideration are, 1. Whether this Forum has got jurisdiction to entertain the complaint? 2. Whether the complaint is entitled to the relief sought in the complaint? 3. To what relief? Point No.1: 8. On presenting the complaint, the office has taken objection No.1, as to how the complainant is a consumer under Consumer Protection Act, 1986, objection No.2 as to how this forum has got territorial jurisdiction to entertain the complaint and returned the complaint. On 7-5-2007 the complaint is resubmitted by rectifying the objections stating that the complainant is a sub contractor under the opposite parties, who have given work order for specific purpose, failed to provide service to the complainant. Hence under section 2(d)(i), the complainant is the consumer. Regarding the second objection, it is submitted that the opposite parties have paid the last payment in Khammam town through their person. As such, this forum has got jurisdiction to entertain the complaint. On resubmitting the complaint, the then Male Member directed the office to register the complaint. Accordingly, the complaint is taken on file. Once the objections have been answered by the complainant to the satisfaction of the then member, it could not be proper to raise the same objections even after registering the complaint. Hence, this point is answered in favour of the complainant. Point No.2: 9. The complainant has agreed to undertake the work, which was entrusted to him, is mining of feldspar mineral raw material used for making ceramic tiles, separation of quartz and for the removal of overburden. In the work order that was entrusted to the complainant, opposite party No.3 had given instructions to produce a minimum of 1500 MT of feldspar mineral. Having accepted the work order, the complainant was commenced work up to June, 2006 and raised the total material of 2456 MT of feldspar. Out of which opposite party No.3 had lifted 138 MT feldspar only. The ground stock of material was not lifted by the opposite party No.3 company till December, 2006. On that the complainant approached the opposite parties a number of times and represented the matter to the representatives of the opposite parties by name Kanaka Babu, Dhanya Kuar and S.R.Subramanyam. On this aspect of the case, the complainant refers to a number of representations made through correspondence. It is a fact that the complainant was paid an amount of Rs.50,000/- to the opposite parties as advance. This amount was adjusted through the bills paid to the complainant. Opposite party No.3 paid the total amount of Rs.4,91,200/- to the complainant for the work done by him by way of bills. In fact the complainant had spent an amount of Rs.5,90,065/-during the period of work at mine and also paid Rs.8,000/- to the employees of opposite parties and Rs.1,100/- to the farmers and invested an amount of Rs.56,235/- for the development of mine without producing any material an also incurred an amount of Rs.25,000/- for segregation. In total the complainant had spent the total expenditure of Rs.6,81,030/-. As against this amount, an amount of Rs.4,91,200/- is paid to the complainant for the work done by him by way of bills. Leaving aside, an amount of Rs.1,89,830/- as balance payable to him. These figures are born by record. Even though the complainant made several requests through correspondence as in the exhibits for discontinuation of work, but the opposite parties did not relieve him and they made him forcible to continue the same work. Hence, the opposite parties are liable for this amount. The opposite parties did not respond to the correspondence made by the complainant. The failure of opposite parties to settle and finalise the account of the complainant and also they failed to provide infrastructure as assured by them and made the complainant to sustain huge loss. This act on the part of opposite parties amounts to deficiency in service. In the light of the above circumstances, we feel that the opposite parties are liable to pay the amount of Rs.1,89,830/- to the complainant. With regard to the loss of profit is concerned, it is resulted on the ground that the complainant can pursue the matter before the Civil Court. Similarly so far as the damages of Rs.50,000/- is concerned, for causing inconvenience pain and suffering the same is also rejected. 10. In the result, the complaint is partly allowed, directing the opposite parties No.1 to 3 to pay an amount of Rs.1,89,830/- (Rupees One Lakh, Eighty Nine Thousand, Eight Hundred and Thirty Only) to the complainant together with interest at 9% P.A. from the date of complaint till the date of deposit and also directed to pay an amount of Rs.2,000/- (Rupees Two Thousand only) towards litigation charges. Dictated to the steno, transcribed by her, corrected and pronounced by us in the open forum on this day of May, 2010. PRESIDENT MEMBER MEMBER DISTRICT CONSUMERS FORUM, KHAMMAM APPENDIX OF EVIDENCE Witnesses examined for complainant: -None- Witnesses examined for opposite parties: -None- Exhibits marked for complainant: Exhibits marked for opposite parties: Ex.A.1 - Quotation for mining of feldspar Ex.A.2 - work order issued by opposite party No.3 Ex.A.3 - Letter addressed by the complainant Ex.A.4 - Letter addressed by the complainant Ex.A.5 - Letter addressed by the complainant Ex.A.6 - Letter addressed by complainant, showing the expenditure Ex.A.7 - Letter addressed by the complainant Ex.A.8 - Letter addressed by the complainant for discontinuation of mining Ex.A.9 - Letter addressed by complainant for supervisory charges Ex.A.10 - Bill submitted by the complainant for the release of amount for 483.38MT Ex.A.11 - Bill submitted by the complainant for the release of amount for 135.05 MT Ex.A.12 - Bill submitted by the complainant for the release of amount for Rs.9,100/- Ex.A.13 - Letter submitted by the complainant for JCB charges of Rs.56,245/- Ex.A.14 - Letter submitted by the complainant for the payment of bills. Ex.A.15 - Bill submitted by the complainant for Feldspar mining expenses of Rs.1,89,111/- Ex.A.16 -Payment of draft in favour of the complainant. Ex.A.17 - office copy of legal notice, dt.5-3-2007 Ex.A.18 - Reply notice of opposite party No.3, dt.23-3-2007 Ex.A.19 - Letter addressed to the opposite party No.1 with postal receipt and acknowledgment. Ex.A.20 - Rejoinder given by the complainant to the reply notice, dt.23-3-2007. PRESIDENT MEMBER MEMBER DISTRICT CONSUMERS FORUM, KHAMMAM
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