IN THE CONSUMER DISPUTES  REDRESSAL COMMISSION, KOTTAYAM.

Dated this the 26^th   day of February, 2021

Present:               Sri. Manulal V.S., President

                             Smt. Bindhu R. Member

                             Sri. K.M. Anto, Member       

CC No.157/19(filed on 30-9-19)

Complainant                             :  Bindu Jeevan

                                                              W/o Jeevan

                                                             Proprietrix

                                                             Hotel Arya Salkara, 6^th mile,

                                                             Manarkadu, Kottayam.

                                                                   (Adv. D. Zaibo)

                                                          Vs.

Opposite parties                                 : Magco Engineering and inspection

                                                                 services(Pvt) Ltd., Mini Industrial

                                                                Estate, Vijayapuram, Manarkadu,

                                                                repted by its Managing Director,

                                                                Reji E. Varghese

.

ORDER

Sri. K.M. Anto, Member

The brief of the complainant’s case is as follows.

The complainant is running a restaurant at Manarkad exclusively for earning her livelihood by means of self employment.  During 2017, the opposite party approached the complainant and offered to install a waste water treatment plant.  The opposite party offered that on commissioning of the plant, all used oils, and waste water will be collected and treated in the plant and after treatment in the plant, clear disposable quality water suitable for floor washing etc will be made available.  The complainant entered into an agreement on 15-06-2017 by which the opposite party agreed to install the treatment plant in the restaurant for a total consideration of Rs.4,48,000/-.  The opposite party installed the plant in the site during August 2017.  The complainant paid 5,20,000/- as demanded by the opposite party including additional cost incurred by the opposite party.

On installation of the plant, it was found that the filtering/purification system of the plant is not functioning and the outlet water was seen whitish in colour and was having foul smell.  On intimation opposite party suggested to do some modifications.  As per the suggestion of the opposite party additional land space, two additional water tanks arranged and started chlorinating the water.

But inspite of these modifications, done and after several other modifications and attempts done, the plant did not work successfully.  The waste water system was not working as promised by the opposite party and the complainant compelled to make alternative arrangements for collection and removal of waste water and  oil from the restaurant.  The opposite party failed to install the plant, successfully even after complainant provided additional support over and above the agreed terms.  The complainant suffered huge financial loss and hardships.  The act of the opposite party amounts to unfair trade practice and deficiency in service.  Hence the complaint.

On admission of the complaint, copy of the complaint was duly served to the opposite party.

The opposite party failed to file their version or appear before the commission to defend their case.  The opposite party is set exparty.

The complainant filed proof affidavit and exhibits A1 to A4 were marked.

On going through the complaint, proof affidavit of the complainant and evidence adduced, we would like to consider the following points.

1. Whether there is unfair trade practice or deficiency in service from the part of the opposite party?
2. If so what are the reliefs and costs?

Point No.1

          On going through the complaint, proof affidavit of the complainant and evidence on records, it is clear that the complainant and opposite party entered into an agreement as per Ext.A1 on 15/06/2017 for the installaltion of a waste water treatment plant for a total consideration of Rs.4,48,000/-.  The opposite party assured the commission of the plant within 60 days of the date of start of work at their workshop.  The petitioner agreed to pay 3,58,000/- to the opposite party as advance.  The opposite party installed the plant during August 2017.  As per the deposition of the complainant she had paid 5,20,000/- to the opposite party even if the complainant contractually liable to pay Rs.4,48,000/-  The financial terms and conditions given in Ext.A1 is as follows.

1. Magco Engineering treat this project as a no profit, no loss project.  And customer shall pay the actual cost of the project if the cost exceeds the below mentioned estimated cost.
2. Total expected cost of the project is estimated to be completed approximately Rs.4,48,000/- including the material and labour cost, however the cost may increase up to 20% more, in case of unforeseen reasons and shall be chargeable to the client.
3. 80% of the total cost or Rs.3,58,000/- shall be transferred to the company account for purchasing of the material.
4. A total bill of material will be purchased on the name of the client, Arya Salkara and the invoice of the project fabrication cost will be kept separately and given to the client to understand the actual cost of the project at the end.  This arrangement is done to avoid paying extra tax on taxed material price.
5. A service tax as [per the rule will be charged for the client only for the labour charges along with the final invoice as Magco is considering this contract as labour contract only.
6. Yearly maintenance and cleaning if required etc. will be carried out by Arya Salkara with reference to the supervision of the manufacturer.
7. Payment mode preferred is NEFT or RTGS.  No payment shall be accepted in cash or Cheque.

As per clause (7) payment mode preferred is NEFT or RTGS.  No payment shall be accepted in cash or Cheque.  According to the complainant, they paid 3,58,000/- as advance and paid a total amount  of Rs.5,20,000/- to the opposite party.  No evidence is produced to prove the payment of advance amount or any other later payment to the opposite party.  Even though the complainant deposed that Rs.5,20,000/- were paid to the opposite party, the details of the payment, the mode of payment or the amounts and dates on which such payment was made is not  produced as evidence.  As per clause (5)  A service tax will be charged for the client only for the labour charge along with the final invoice.  But no such final invoice or service tax receipt is produced as evidence.

     Even though the complainant deposed that on installation of the plant, the filtering/purification system of the plant was not functioning and even after making several modifications the system was not functioning properly, no evidence is adduced by the complainant to prove these defects.

Hence we are of the opinion that the complainant failed to prove unfair trade practice / deficiency of service on the part of the opposite party. The case is dismissed.

Pronounced in the Open Commission on this the 26^th day of February,2021

Sri. K.M. Anto, Member                  Sd/-

Sri. Manulal V.S., President            Sd/-

Smt. Bindhu R. Member                  Sd/-

Appendix

Exhibits marked on the side of the complainant

A1-Copy of agreement for construction

A2-Copy of lawyer’s notice

A3-Postal receipt

A4-AD card

By Order

Senior Superintendent.