BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 31st of May 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
COMPLAINT NO.261/2010
(Admitted on 08.10.2010)
Manjunath Navada,
So. Subraya Navada,
Aged about 40 years,
RA. Sri.Vatsa, Katla,
Iddya Village, Surathkal, Mangalore Taluk,
Prop. of Chitra Electricals Enterprises,
New City Lunch Home Building,
1st Floor, N.H. 17, Surathkal,
Mangalore. …….. COMPLAINANT
(Advocate for the Complainant: Sri.M.Rajesh Kudva).
VERSUS
The Managing Director,
VYOMA Electricals,
Plot No.33, A1, II Phase,
Peenya Industrial Area,
Bangalore 560 058. ……. OPPOSITE PARTY
(Opposite Party: Appeared in person)
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
It is stated that, the Complainant is the licenced Electrical Contractor carrying on his business in the name and style “M/s.Chitra Electricals” at New City Lunch Home Building, Mangalore. During the course of his business, he was placed with an electrical contract work including the installation of 11 K.V. H.T metering and switching panel from his customer. Accordingly, the Complainant has placed an order for 11 KV HT metering and switching panel worth Rs.1,15,000/- on 09.07.2010 from the Opposite Party. The Complainant has paid a sum of Rs.1,15,000/- on 09.07.2010 and issued the invoice. It is also stated that, the Complainant has paid transportation charges and other miscellaneous of Rs.15,000/-.
It is stated that, as per the principles adopted by MESCOM and other Regional Power Transmission Corporation, the aforesaid instrument should have approval for installation and if any instrument without approval is installed, the same will not be considered and power will not be sanctioned. At the time of placing order, it was made clear to the Opposite Party and asked to provide the approved instrument to the Complainant but the Opposite Party supplied the instrument which is not approved by the MESCOM and thereby his customer one Vidyadayini Sangha was not provided with power supply as on this day after installation. It is stated that, the Complainant make to pay Rs.5,000/- per day for no fault of him as penalty which is costing around Rs.40,000/-. It is also stated that, the Opposite Party Company has not having approval from the MESCOM or any other local electrical supplying bodies as required under law. Thereafter, the Complainant issued a legal notice to comply the Opposite Party with regard to the approval of the instrument but the Opposite Party failed to comply the same and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay damages of Rs.1,15,000/- along with transportation charges and other miscellaneous of Rs.15,000/- and also claimed Rs.5,000/- per day as penalty till this day and Rs.20,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Party by RPAD. Opposite Party filed a statement in their letter head stating that they manufacture 11 KV H.T switch gear units under the brand name of M/s.Vyoma Switchgear since from 1985 and supplied throughout India and abroad. It is also stated that, Vyoma Switchgear is a sister concern of Vyoma Electricals. It is stated that, they have general approval for the manufacturing and supplying of the same units from all Electricity Supply Companies (approval copies from the BESCOM, CHESCOM, HESCOM or GESCOM are enclosed along with the statement). It is stated that, the MESCOM Zone not issuing general approval for manufacturing and supplying of 11 KV HT switch gear units from past three years but they provide service to the units supplied by them. It is stated that, after changing the procedure from the MESCOM Authorities, the Opposite Party will take suitable actions to get the approval for M/s. Chitra Electricals customer and stated that there is no fault on the part of the Opposite Party and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri.Manjunath Navada (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. The Complainant produced two documents as listed in the annexure in detail. One Sri.Krishna P (RW1), Proprietor of the Opposite Party filed counter affidavit and answered the interrogatories served on him. Ex R1 to R10 and R10(a) were marked for the Opposite Party as listed in the annexure.
We have considered the oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
It is the definite case of the Complainant that, he is a licenced Electrical Contractor carrying on his business in the name and style “M/s.Chitra Electricals”. During the course of his business, he was placed with an electrical contract work including the installation of 11 K.V. H.T metering and switching panel (outdoor type) from his customer. The Complainant placed an order for 11 KV HT metering and switching panel worth Rs.1,15,000/- on 09.07.2010 from the Opposite Party and paid a sum of Rs.1,15,000/-. It is stated that, as per the principles adopted by MESCOM and other Regional Power Transmission Corporation, the aforesaid instrument should have approval for installation and if any instrument without approval is installed the same will not be considered and power will not be sanctioned. At the time of placing order, it was made clear to the Opposite Party and asked to provide the approved instrument to the Complainant but the Opposite Party supplied the instrument which is not approved by the MESCOM and thereby his customer one Vidyadayini Sangha was not provided with power supply as on this day after installation. It is stated that, the Opposite Party has sent defective instrument and made to pay Rs.5,000/- penalty per day for no fault. Hence, it is stated that because of the deficiency on the part of the Opposite Party, the Complainant put to inconvenience and mental tension apart from that he has put to financial hardship and filed affidavit evidence and produced two documents.
The Opposite Party on the other hand stated that, they have taken permission and obtained an approval and order from the MESCOM to supply 11 KV H.T cubical panel is in accordance with law and the order obtained from the MESCOM in order to do the needful to the Complainant is totally legal and justifiable and also stated that, they have obtained vendor approval for the supply of 11 KV H.T Metering Cubical to the Complainant and produced Ex R2 to R5. It is stated that, the approval obtained from the MESCOM in order to done the work for the Complainant is in normal course and routine one, the MESCOM is permitting to do the above work is on the individual and case to case work. Now the MESCOM is not permitting or giving an order on the basis of time span of one or two years or so. The Complainant knowing fully well, lodged this complaint and stated that there is no deficiency and filed affidavit evidence and produced Ex R1 to R10 and R10(a).
However, in the instant case, the Opposite Party admitted that the Complainant placed an order for 11 KV H.T. Metering and Switching Panel worth Rs.1,15,000/- on 09.07.2010 and paid a sum of Rs.1,15,000/- to the Opposite Party and also paid additional VAT at 13.5% i.e., Rs.15,525/- to the Opposite Party as per Ex R1 dated 09.07.2010. It is further admitted that, the MESCOM as well as BESCOM and other Regional Power Transmission Corporation shall approve the instrument for installation if the above instruments without approval is installed, the same will not be considered and power will not be sanctioned by the MESCOM or other Regional Power Transmission Corporation. But the statement of the Opposite Party, wherein, the Opposite Party admitted that the MESCOM authorities changed their procedure and implemented a new rule of case to case of approval structure. According to the new Rule, the manufacturer should take separate approval for different customers from MESCOM to supply the 11 KV H.T. switch gear units and also stated that they were heard about the new rule and they will take suitable actions to get the approval for M/s.Chitra Electricals customer and after getting approval, they send the same to M/s.Chitra Electricals i.e. the Complainant. The above statement of the Opposite Party made it very clear that, they are not aware of the new rule and the MESCOM authorities changed their procedure and implemented a new rule to the case of approval structure. According to the new Rule, the manufacturer should take separate approval for different customers from MESCOM to supply the 11 KV H.T switch gear units. That means, the order placed by the Complainant dated 09.07.2010 for 11 KV H.T. Metering and Switching Panel to his client was not approved by the MESCOM and the same was manufactured by the Opposite Party in this case. We need not discuss much on this aspect because the Opposite Party himself admitted that they were not aware of the new rule and also admitted that they are the manufacturer of 11 KV H.T switch gear units under the brand name of ‘M/s. VYOMA Switch Gear”. Since they are the manufacturer, they are bound by the new rules and they cannot contend that they are not aware of the new rules introduced by the Power Transmission Corporations. But we noticed that, the Opposite Party in their version admitted that they were heard about the new rule and they will take suitable actions to get the approval for M/s. Chitra Electricals customer and after getting approval they send the same to M/s.Chitra Electricals i.e., the Complainant. The memo dated 28.05.2011 reveals that the 11 KV H.T metering and switching panel which is the subject matter of the dispute in the above case which was installed by the Complainant in favour of Hindu Vidyadayini Sangha is being used after filing the complaint and restricted his claim only Rs.40,000/- which was paid as penalty to the MESCOM at the rate of 5,000/- per day for about 8 days. The Opposite Party not filed any objection to the above said memo. That itself shows that, the Opposite Party got the approval during the pendency of this complaint. That means, the above subject unit supplied by the Opposite Party was not approved at the time of selling the same which amounts to deficiency. Since the claim is restricted for Rs.40,000/- which was paid as penalty to the MESCOM. By considering the above aspect, we hereby direct the Opposite Party to pay Rs.40,000/- towards compensation and Rs.1,000/- as cost of the litigation expenses to the Complainant. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party is hereby directed to pay Rs.40,000/- (Rupees forty thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
On failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Party is hereby directed to pay interest at the rate of 12% p.a. on the total amount from the date of failure till the date of payment.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.
(Page No.1 to 10 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31st day of May 2011.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri.Manjunath Navada – Complainant.
Documents produced on behalf of the Complainant:
Doc. No.1:29.07.2010: Lawyer’s notice issued to the Opposite Party.
Doc. No.2: : Postal acknowledgement.
Witnesses examined on behalf of the Opposite Party:
RW1 – Sri.Krishna P, Proprietor of the Opposite Party.
Documents produced on behalf of the Opposite Party:
Ex R1 – 09.07.2010: Invoice No.075 for Rs.1,30,525/- issued by the Opposite Party.
Ex R2 – 30.10.2010: Approval from the BESCOM.
Ex R3 – 09.02.2010: Approval from the CHESCOM.
Ex R4 – 28.05.2009: Approval from the HESCOM.
Ex R5 – 30.09.2003: Approval from the GESCOM.
Ex R6 – 17.06.2010: Official memorandum of GESCOM.
Ex R7 – 02.04.2010: Tax invoice No.001 for Rs.1,19,000/- issued by the Opposite Party to N.R.S. Electricals.
Ex R8 – 03.08.2010: Letter / reply of the MESCOM to the Opposite Party.
Ex R9 – 31.07.2010: Letter of the Opposite Party to the Complainant’s advocate.
Ex R10 & 10(a) - : Courier receipts (2 in numbers).
Dated:31.05.2011 PRESIDENT
