By. Sri. Ananthakrishnan. P. S, President:
This is a complaint filed under section 12 of the Consumer Protection Act 1986.
2. The complainant’s case in brief is as follows:- The complainant executed a contract with opposite party for construction of water and waste water treatment plant at it’s factory known as Biowin Agro Research for a total consideration of Rs.91,72,000/- and entrusted the work to opposite party as per purchase order. The complainant entrusted the work to the opposite party on believing the words of opposite party that they are very reputed firm and having good experience in water and waste water plant. The opposite party assured the
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complainant that they will complete the work and issue the completion Certificate on or before one year from the date of purchase order. The opposite party has received an amount of Rs.81,50,000/- through bank and by way of cash from the complainant for the work. They have also availed various things including some machineries, manpower and other expenses from the complainant and so the complainant personally spent Rs.11,75,037/-. So the same has to be deducted from the agreed rate or it is to be added with the consideration fixed. Thus, the opposite party had obtained an amount of Rs.93,25,037/- from the complaint and thus they obtained an excess amount of Rs.1,53,037/-. So, the opposite party is liable to return this amount with interest. As per the agreement, the opposite party is bound to complete the work on or before 2013. But they have not completed the work within the agreed period. Due to the non completion of the work, the complainant could not commission the water and waste water plant with in that period. At last, the opposite party assured that the construction of the plant will be commissioned within 30.04.2016. Believing the words of opposite party, the complainant made all arrangements and invited several Honorary people and general public and spent huge amount for inauguration of the plant by 03.05.2016. Even then, the opposite party intentionally violated the assurance and not completed the work till this date. This is unfair acts of the opposite party. So, complainant suffered huge loss and mental agony. Hence, the complainant is entitle to get Rs.10 lakhs as compensation from opposite party. The complainant sent a lawyer notice to opposite party on 17.05.2016 for completion of the work and compensate the loss suffered by them. Instead of completing the work and compensating the loss, opposite party sent a false reply. The water and waste water plant combines several
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machineries and main purpose of the water and waste water treatment plant is to purify the waste water into drinkable condition. The opposite party has assured the purity of water and quality of components used in the plant. It is also noticed that the Memmerain tank used in the plant is of low quality and it seems to be bulged at different angles. The complainant informed about this to opposite party. But, they have not replaced it. Therefore the opposite party is bound to replace the Memmerain tank. The complainant has spend huge amount for the construction of plant and due to malice intention of opposite party, the complainant suffered huge loss. Due to non functions of plant, the factory is not functioned properly. So, complainant suffered huge loss in production and income. It is also noticed that the oil and greece tap is not working, sludge pumps were not installed, wiring not completed in plant and an unusual smell coming from plant. Hence this complaint to direct the opposite party to complete the work of plant and commission the project in excellent condition, to return Rs.1,53,037/- with 18% interest, to direct the opposite party to replace the Memmorine tank with high quality tank, to get compensation of Rs.10 lakh and cost of Rs.1,50,000/-.
3. The opposite party filed version contenting as follows:- They admitted that the complainant entrusted them to construct a water and waste water Treatment Plant in it’s factory known as Biowin Agro Research and they started the construction as per purchase order dated 10.11.2012 for Rs.90 lakhs. But the complainant has paid only Rs.81,55,000/- to them and Rs.2,58,658/- has been paid to M/s. Vel Associates. Thus, they received a total a sum of Rs.84,13,658/-. Therefore the complainant has to pay Rs.7,17,866/- to them. The delay in
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completion of the plant was just because of the delay in payment by the complainant. The complainant has not forwarded the necessary ‘C’ Forms and without making the balance payment, they have filed this case to escape from the liability. The opposite party has sent true reply to the notice of the complainant. Even after the receipt of notice, the complainant failed to issue necessary ‘C’ Forms and payment of arrears. Therefore, the opposite party sent a notice to the complainant on 22.07.2016 and when they received the notice, they immediately forwarded all ‘C’ forms except one for Rs.61,200/-. The complainant has filed another consumer complaint before this Forum as CC No.88/2016. The complainant has not made any allegation against opposite party therein. There after, the complainant filed this case by adding additional allegations. The opposite party has completed the project by 12.12.2015 and after making partial payment and accepting the successful test result, in order to avoid further payments, the complainant filed this case falsely. The complainant has started the plant by May 2016 after lapse of 6 months. Hence the complaint is to be dismissed with exemplary cost of opposite party.
4. On the above contentions, the points raised for consideration are:-
1. Whether there is any unfair trade practice from the opposite party. If so,
whether the complainant is entitled to get anything as claimed?
2. Reliefs and Cost.
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5. The evidence in this case consists of oral testimony of PW1, PW2, OPW1,CW1 and CW2. Ext.A1 to A5 series, Ext.B1 to B4, Ext.C1, C2 and Ext.X1 series marked. Heard both parties.
6. Point No.1:- This is a complaint filed by the Wayanad Social Service Society against the Hydro Sewdew India private Limited alleging unfair trade practice. The case of complainant is that they entrusted the opposite party to construct a water and waste water treatment plant at their factory known as Biowin Agro Research and though the opposite party obtained excess amount they have not completed and commissioned the plant within time. According to them, they executed an agreement with the opposite party and entrusted the work as per a purchase order. The opposite party denied the execution of agreement between them. It is also evident that there was no such agreement. But, admittedly the complainant entrusted the work to the opposite party as per a purchase order. The grievance of the complainant is that though the opposite party took more time and received excess amount, they have not completed and commissioned the work as agreed. Their further grievance is that the Memmerain tank installed by the opposite party is defective. Therefore they filed this complaint to direct the opposite party to complete the work, to return the excess amount received and to replace the defective Memmerain tank. But the case of the opposite party is that they have completed and commissioned the plant and a sum of Rs. 7,17,866/- is due from the complainant.
7. Ext.A1 is the Purchase Order. As per Ext.A1, the complainant entrusted the opposite party to design, procurement, supply, errection and commission of effluent treatment plant.
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Ext.A1 provides that the project stands completed once the treated water shows characteristic results of drinkable water. It is stipulated in Ext.A1 that the commissioning operations must start 30 days prior to the tentative commencement of production on commercial scale and these days are to be fixed at the time of awarding the work order. The case of the complainant is that they entrusted the work to opposite party for Rs.91,72,000/- and opposite party agreed to complete the work and issue the commission certificate of plant on or before one year from the date of purchase order. Ext. A1 gives warranty to the works. As per Ext.A1, warranty coveres for poor workmanship or materials valid for a duration of 365 days from the date of commissioning will apply to the product. It is also stipulated that the liability of opposite party is limited to the repair of defected parts and replacement of un repairable parts to the maximum amount billed or invoiced only. As per the said conditions, admittedly opposite party started the work. The complainant alleged that though they have given one year time to the opposite party to complete the work, subsequently they took more time. Complainant specifically alleged that even though they fixed 03.05.2016 as the date of inauguration of the plant on assurance from the opposite party, opposite party never completed the work.
8. The first prayer of the complainant is to direct the opposite party to complete the work of water and waste water plant and commission the project. To prove the case of the complainant, the Director of complainant’s society has given evidence as PW1. One of the staffs of PW1 has also given evidence as PW2 to support the evidence of PW1. CW1, Water treatment Consultant and CW2, Environmental Engineer, Kerala State Pollution Control Board
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have also been examined from the side of the complainant. Both are expert commissioners and their reports are Ext. C1 and C2 respectively. The director of the opposite party has given evidence as OPW1 to disprove the case of the complainant. The specific case of opposite party is that they completed the work by 12.12.2015 and even then the complainant failed to give their full remuneration. According to PW1 and PW2, opposite party has not completed the work till day. Since both compainant and opposite party have taken rival contentions with regard to the completion of the plant, the evidence of CW1 and CW2 are relevant in this regard. CW1 deposed that he has not operated the plant. So, his evidence is not helpfull in this regard. CW2 specifically deposed that at the time of his inspection, the work of the plant was completed. Ext.C2 is his report. He noticed working of the unit. CW2 reported in Ext.C2 that several products are seasonally manufactured in the unit and during the time of his inspection, turmeric washing and oregano washing were carried out in the unit. He has also reported that treated water was collected in the presence of opposite party while the plant was functioning and it was asseessed in the lab. In Ext.A1, a remark is noted and as per this remark, the project stands completed once the treated water shows characteristic results of drinkable water. Ext.C2 shows that tested water does not confirm to the drinking water quality. But this does not mean that plant is not completed as per the remarks in Ext. A1. In Ext.C2, CW2 reported that because of the manufacturing of several products in the plant, there is no uniformity in the effluent quality. Therefore though PW1 and PW2 deposed that opposite party has not completed the work of the plant, Ext.C2 and evidence given by CW2 would clearly shows that the plant was being operated at the time of inspection of CW2 and thus it is evident that
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opposite party has completed the work of the plant. The complainant has no case that since the opposite party has failed to complete the work of the plant, they completed the work with the help of another company. Therefore it can be seen that the allegation of the complainant that opposite party has not completed the work is not at all true. So we held that opposite party has completed the work.
9. The next claim of the complainant is to get back Rs.1,53,037/- with 18% interest from the opposite party. According to them, they want to get back this amount because, opposite party received this much amount in excess. There is some difference between both with regard to the consideration of opposite party for the work. As per Ext, A1, the consideration is fixed as Rs.90,00,000/-. It is an admitted fact that the complainant has given some amount to another company which is a part of the consideration fixed. According to the complainant, the opposite party received excess amount of Rs.1,53,037/-. But, according to opposite party, the complainant has to pay a balance of Rs.7,17,866/- to them. So, we have to find out whether the opposite party is liable to pay anything to the complainant. Ext.A3 series are the bills. But those bills do not show that complainant has given anything in excess to the opposite party.
10. The complainant alleged that the memmerain tank installed by opposite party is defective. Though the opposite party denied it, from the evidence of CW1 and CW2 coupled with Ext.C1 and C2, it can be seen that the tank is defective. According to them it is bulged. As I already stated, as per Ext.A1, the opposite party is liable to replace the defective parts of the
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plant. The complainant wants to get replacement of the said tank or to get back the cost of memmerain tank with transportation and installation charges. The opposite party agreed in Ext.A1 his liability to repair or replacement of unrepairable parts to the maximum amount billed or invoiced. Ext.A1 doesn’t contain a condition to give back the amount of any of the parts. Therefore the opposite party is liable only to replace the memmerain tank. As I already stated, as per warranty they only liable to replace memmerain tank. Therefore the opposite party is liable to replace it as stipulated.
11. The complainant wants to get compensation of Rs.10 Lakh and cost of Rs.1,50,000/-. According to them, they are entitled to get compensation and cost because the opposite party has not completed the work of the plant and that they have to return excess amount and that they are liable to replace the defective memmerain tank. Since we found that the opposite party completed the work, the complainant is not entitled to get a direction to that effect. So also the complainant is not entitled to get back the alleged excess amount. They are only entitled to get replacement of memmerain tank. Therefore according to our opinion, the complainant is not entitled go get any compensation. But complainant entitled to get Rs.5,000/- towards cost of this proceedings since evidently the opposite party has installed a defective memmerain tank. Opposite party has no case that the memmerain tank became defective due to tampering of the machines by unauthorized workmanship, natural calamities, communal or any other riots, intentional damages by anybody other than the supplier,
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authorized work men, mal operation of the system or over/under voltage of frequencies in electric power supply as stipulated in Ext.A1. Therefore the Points are answered accordingly.
12. Point No.2:- Since we found point No.1 as discussed above, the complainant is entitled to get a partial relief with cost.
In the result, the complaint is partly allowed and the opposite party is directed to replace the defective memmorine tank as stipulated within 30 days from this Order. They are also directed to pay cost of Rs.5,000/- (Rupees Five Thousand Only) to the complainant within 30 days from the date of this Order.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 10th day of December 2019.
Date of Filing: 15.07.2016.
PRESIDENT :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the complainant:-
PW1. Fr. John Joseph. Father-Priest and Director WSSS.
PW2. Gilson. Electrical Supervisor, Biowin Agro-Research,
Mananthavady.
CW1. Mahadevan. Consultant, Water Treatment.
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CW2. Revathi. Assistant Engineer, Kerala State
Pollution Control Board, Kalpetta.
Witness for the Opposite Party:-
OPW1. Suresh Kannan. Director, Hydro Sewdew India Private
Limited, Chennai.
Exhibits for the complainant:
A1. Copy of Purchase Order. Dt:10.11.2012.
A2(1). Lawyer Notice. Dt:17.05.2016.
A2(2). Acknowledgment Card.
A3(Series). Voucher and Bills (186 Numbers).
A4(1). Copy of Email. Dt:26.05.2017.
A4(2). Copy of Email. Dt:21.12.2015.
A4(3). Copy of Email. Dt:26.05.2017.
A4(4). Copy of Email. Dt:26.05.2017.
A4(5). Copy of Email. Dt:26.05.2017.
A4(6). Copy of Email. Dt:26.05.2017.
A5(1). Photograph.
A5(2). Photograph.
A5(3). Photograph.
A5(4). Photograph.
A5(5). Photograph.
A5(6). Photograph.
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A5(7). Photograph.
A5(8). CD.
C1. Commissioner Report.
C2. Commissioner Report. Dt:06.05.2017.
X1(Series). Documents produced by the Environmental Engineer,
Kerala State Pollution Control Board, Kalpetta, Wayanad.
Exhibits for the opposite party:-
B1. Copy of Email. Dt:06.07.2017.
B2. Copy of Cross-statement recorded by Advocate Commissioner.
B3. Certified Copy of the Resolution passed at the Registered
Office of the company. Dt:30.01.2018.
B4. Copy of Civil Suit in OS 172/2018 before Hon’ble IV Assistant City
Civil Court at Chennai.
PRESIDENT :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
SENIOR SUPERINTENDENT,
CDRF, WAYANAD.
