State Consumer Disputes Redressal Commission
V.Ramakrishna S/O Vpr Vithal vs 1. M/S Iss Hicare Pvt Ltd., on 17 April, 2013
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD C.C.NO.49 of 2012 Between: V.Ramakrishna S/o VPR Vithal Aged 37 years, Occ: Chartered Accountant R/o 12-10-121, 1st Floor, Sitaphalmandi Secunderabad-061 Complainant A N D 1. M/s ISS Hicare Pvt Ltd., (formerly known as Godrej Hicare Ltd.,) Rep. by its Director Mr.Jolly Joseph Kochery Authorized signatory Head Off: Godrej Industries Complex, Eastern Express Highway Vikhroli (E) Mumbai-079 2. M/s ISS Hicare Pvt Ltd., (formerly known as Godrej Hicare Ltd.) Rep. by its Branch Manager, Local Office At B-7, Road no.4, Vikrampuri Colony Secunderabad-009 Opposite parties Counsel for the Complainant M/s T.Surya Kiran Counsel for the Opposite parties M/s G.Nagesh QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER WEDNESDAY THE SEVENTEENTH DAY OF APRIL TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The complaint is filed claiming a sum of `65,00,000/- towards loss, damages and compensation for suffering mental agony.
2. The averments of the complaint are that the complainant entered into service contract on 31.12.2009 with the opposite parties no.1 and 2 for a period of 5 years commencing from 31.12.2009 to 30.12.2014 for the purpose of pest control treatment to the complainants house. The purpose of seeking for pest control treatment is to safeguard the files, documents, papers, books furniture, domestic articles and fittings in the complainants house. The opposite parties gave treatment to wooden doors, window frames, residential furnishings, office furniture and fittings in all the six portions of the complainants house and they did not effect pest control treatment to the aforementioned items.
3. On account of not administering pest control treatment as contemplated in the service agreement, the wooden furniture and fittings in the complainants house got damaged, entire data of the complainants clients stored in files was damaged due to termite attack as a result of which the complainant suffered monetary loss, loss of reputation and he suffered mental tension. The complainant through several letters and on phone requested the opposite parties to effect the pest control treatment . The complainant got assessed the expenditure to be incurred for carrying out civil work and wooden furniture work. The contractor estimated the wooden furniture work at `18,30,000/-
and civil work at `11,70,000/-
. On account of loss of data, the complainants reputation is damaged which resulted in monetary loss to the complainant. The complainant got issued notice on 30.03.2012 to the opposite party for which there was no response from the opposite parties.
4. The opposite parties resisted the claim on the premise that the causes of pest infestation in the premises are water seepage, dumping new soil in and around the house, piling up of infested wood material, bought and brought untreated new wooden and plywood material, chances of spread of termite from one house to another house due to a common wall, building with structural cracks, expansions, joints, abandoned water pipes, closed ducts, poor maintenance, walls covered by glass, stone cladding, wooden paneling, false flooring, false ceiling etc.. The technicians of the opposite parties had found in the complainants premises the wooden and plywood fittings already affected by termites which were consequently affecting the goods lying therein. There was water seepage resulting in dampness of the walls which dilute the chemicals used in termite treatment. Furniture lying in the premises was affected by termites.
5. In order to have permanent solution, the opposite parties advised the complainant to replace wooden and plywood fittings and the treatment thereafter provided on the new fittings would be more effective to protect them from termites. It was suggested that the walls of the complainants premises be repaired as they are likely to cause termite infestation. The opposite parties informed the complainant that treatment rendered in the present conditions would not be effective. The complainant insisted on the opposite parties to proceed with the termite treatment on the existing wooden and plywood fittings which were already severely affected by the termite. In terms of the service agreement, the opposite parties diligently and efficiently provided the termite treatment service to the complainant and they have always been willing to provide the same service to the complainants house till the expiry of term of contract.
6, The opposite parties were required to do 9 check-ups in 6 months interval within a period of 5 years. The check-ups could be done only once the opposite parties were provided a date and time as per the complainants convenience or when the complainant himself calls the opposite parties to do the checkup.
7. The complainant has filed affidavit and the documents, Exs.A1 to A15. On behalf of the opposite parties, its employee filed his affidavit and the documents, Exs.B1 to B3.
8. The learned counsel for the complainant and the opposite parties have filed written submissions.
9. The point for consideration is whether there is deficiency in service on the part of the opposite party and if so, to what relief the complainant is entitled to?
10. The complainant entered into service contract with the opposite party on 31.12.2009 for service of pest control treatment to his premises consisting of three floors and each floor comprising of two portions at Seethaphalmandi locality of Secunderabad for a period of five years commencing from 31.12.2009 to 30.12.2014. The complainant has stated that his intention of entering into agreement with the opposite party is to safeguard furniture, fittings and to protect files, documents, papers, books and domestic articles etc., kept in the wooden cupboards.
11. The complainant has stated that after entering into the contract, the technicians of the opposite party visited his premises to give treatment to wooden doors, wooden frames, residential furnishings, office furniture and fittings in all portions of his house and thereafter they did not turn up to effect pest control treatment whereas the opposite party contends that its technicians requested the complainant to replace the termite affected part wooden furniture and plywood fittings and to get the walls of his house repaired as they were dampened due to water seepage causing termite infestation.
12. The complainant addressed letter dated 22.06.2011 to the opposite party complaining of improper pest management treatment and requested the opposite party to effect complete treatment to his premises on 25.06.2011. In the next letter dated 18.08.2011 the complainant complained of his request made by making several calls did not evoke response from the opposite party and the complainant referred to his handing over letter to technician of the Opposite Party, Layout with a request to the senior supervisor to visit the premises and assess the damage. The letter reads as under:
This is again to put you in Light about the recurrence of termites at the above address time & again and further your inability to attend to visit our place and take up appropriate steps for eradication of termites as per the subsisting Warranty, (Erst while with M/s Godrej Hicare Limited No known as ISS Hicare Limited).
We have made numerous calls requesting your office/people to visit our place and take up stringent measures to eradicate termites. But there is no appropriate response from your side. But still we persisted with our calls and finally on 22.06.2011, one Mr.Liyaquiat has come to our place for service. We have reminded Mr.Layaquat about the importance of timely service and have handed over a letter personally, requesting the presence of a Senior Supervisor to assess the situation and also the Damage caused due to negligence of service But till date nothing has happed from your side. This is causing unnecessary inconvenience to me, my staff and other residents of the place. Various Door Frames, Window Frames and also Wooden Doors & Windows & almirahs have been extensively damaged.
I once again make a request that, any Senior Supervisor shall visit the place and assess the damage and take appropriate steps for eradicating the recurrence of termites, and also provide me complete details of Replacement Costs, else I have no other option except to proceed legally.
12. The letter dated 18.11.2011 had drawn response from the opposite party in the shape of reply dated 25.08.2011 wherein the opposite party mentioned the visit to the premises of the complainant on 25.06.2011, 8.07.2011 and 3.08.2011 and on one occasion the premises was locked and on another occasion the complainant refused access to the technician of the opposite party to the premises and on yet another occasion the suggestion to get the wall of the premises repaired was made. The three visits of the technician to the complainants premises and consequences thereof is mentioned in the letter as under:
I acknowledge the receipt of your letter dated 18/08/2011, I am surprised to receive the said letter, we have visited your premises on 25/06/2011, and found the place to be locked, you are aware we have visited your premises on 08/07/2011, on the said date you have refused our technical accessing into your premises and made baseless allegations against the company.
There after we visited your premises on 03/08/2011 and suggested to you that unless the dampness on the walls rectified there can be no effective treatment for terminate the infestation. Please see that treatment extended by us will be put to waste unless the dampness/seepage is stopped by effecting repairs to the wall.
13. The complainant denied service of the aforementioned letter dated 25.08.2011 on him and he has stated that the letter is fabricated. Apart from the disputed visits of the technician of the opposite party, the opposite party has contended that its technicians attempted to contact the complainant telephonically so as to conduct the required periodical check-ups and due to fault on the part of the complainant, they could not conduct the checkups as also on one occasion the premises was locked and during their next visit the complainant did not permit them to conduct the checkup .
14. The complainant complains of non-adherence of terms of the agreement by the opposite party pointing out its failure to effect pest control treatment to the premises. He has stated that;
I submit that I have made several requests to the opposite parties through letters as well as through phones to effect the pest control treatment for eradication of termites as per the service contract cum invoice dated 31.12.2009 but all such my requests went futile and there was no response from the side of opposite parties. Thus there is gross deficiency in service on the part of the opposite parties in rendering services as promised by them under service contract cum invoice dated 31.12.2009.
15. The Branch Manager of the opposite party company has stated that the complainant did not allow them to effect the pest control treatment to the premises and he did not follow their advice to replace the termite affected furniture and plywood and to get the dampened walls of the house repaired. He has stated that:
It was informed to the complainant that in order to achieve the best results, it was necessary to treat the entire affected area of the premises.
Reoccurrence of termites may take place in absence of any treatment as mentioned above. It was further informed to the complainant that in case he wished for the opposite parties to provide the termite treatment, in light of the present condition of the premises; the opposite parties would not be able to provide any warranty with respect to the treatment to be provided. As such, for reasons best known to the complainant with clear malafide intentions, in the entire complaint, the complainant has not mentioned any respect of the observations reported to him by the technicians of the opposite party no.2 at the time of initial inspection Despite aforesaid suggestions and warnings from us, the complainant was adamant and insisted us to proceed with the termite treatment on the existing wooden and plywood fittings and furniture, which as stated above, were already severely affected by termite and which further had already damaged the goods lying therein.
16. The complainant has stated that the opposite party has forged his signature in the job card and check-up visit slips. He has stated that:
I submit that the documents, i.e., job card along with checkup visits slips are created documents with forged signatures of mine, which signatures of mine can be compared from the signatures appearing on the service contract cum invoice dated 31.12.2009, letter dated 22.06.2011, letter dated 18.08.2011, Vakalat and signatures appearing on the above complaint and on a bare perusal, it can be easily ascertain my signatures are forged. The visit checkup slip filed by the opposite parties will negativate the averments of the opposite parties at para 3(J) & (K) and which by itself proves the contentions of the opposite parties to be untrue. I further submit that the job card filed by the opposite party shows the payment of Rs.15,000/- by me on 31.12.2009 and it is not disputed. The letter dated 25.08.2011 filed by the opposite parties has not been served upon me and my signatures appearing on it is also forged.
17. Apart from the dispute of complainants signature in job card and the check-up visit slips, there is dispute between the parties in regard to service of letter dated 25.08.2011 and the opposite party submits that even if it is presumed that the opposite party failed to render service in terms of service contract, what made the complainant to keep quite from 1.01.2010 till 22.06.2011 and not to call upon the opposite party to provide service or to protect the goods from any damage which were lying in the termite affected wooden fittings and fixtures. All the disputed questions of facts require elaborate examination of parties and documents for such huge claim of Rs.65,00,000/-which is not possible in summary proceedings. The parties are required to be relegated to civil court for proper adjudication of the matter.
18. In Oriental Insurance Co., Ltd., Vs Munimahesh PatelIV (2006) CPJ 1, the insurance company disputed the genuineness of the documents and the Honble Supreme Court held that where the matter involves adjudication of issues involving disputed factual questions, Consumer Forum cannot adjudicate the matter and the complainant was entitled to seek relief in court of competent jurisdiction.
9. The Commission noted that the specific stand of the appellant was that there was mis-declaration in the proposal form and the false claim that the respondents wife was a teacher which as now appears is not the correct position. It also accepted that she was really not a teacher.
10. Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that Commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.
11. The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done.
12. The nature of the proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission.
13. Above being the position, the Commission was not justified to deal with the matter in the manner as was done. In our view, the directions of the State Commission were more appropriate keeping in line with the nature of dispute. Accordingly, the appeal is allowed but with no order as to costs.
19. The National Commission in Transport Corporation Employees Provident Fund Trust vs Orissa small Industries and another III(2007) CPJ 316(NC) and Omprakash vs Allahabad Bank III (2206) CPJ 418, held that the matter involving adjudication of disputed questions of facts has to be tried by competent court. Thus, we are inclined to give opportunity to the complainant to approach competent court for adjudication of the matter.
20. In the result, the complaint is returned to the complainant giving him liberty to approach the Civil Court or any other competent Forum. In the event the complainant approaches the Civil Court or any other Forum, the period spent between the filing of the claim before the District Forum and the disposal of the matter today by us will be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Honble Supreme Court in Trai Foods Ltd vs National Insurance Company Ltd and others reported in III (2012) CPJ 17.
MEMBER MEMBER Dt.17.04.2013 కె.ఎం.కె* APPENDIX OF EVIDENCE WITNESSES EXAMINED For complainant for opposite parties NIL NIL EXHIBITS MARKED For complainant Ex.A1 Service Contract Form Cum Invoice dt.31.12.2009 Ex.A2 Copy of letter dt.22.06.2011 addressed by the complainant to the opposite party Ex.A3 Copy of letter dt.18.08.2011 addressed by the complainant to the opposite party Ex.A4 Quotation dated 26.12.2011 Ex.A5 Estimate Report dt.2.1.2012 Ex.A6 Legal Notice dt.30.03.2012 Ex.A7 Postal receipts Ex.A8 Acknowledgement card Ex.A9 Photographs Ex.A10 Copy of certificate of Incorporation Ex.A11 Fresh copy of certificate of incorporation Ex.A12 Fresh copy of certificate of incorporation Ex.A13 Copy of list of signatories Ex.A14 Copy of Memorandum of Association Ex.A15 Copy of Articles of Association For opposite party Ex.B1 Letter of authorization Ex.B2 Job Card Ex.B3 Copy of letter dt.25.08.2011 addressed by the opposite party to the complainant.
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