State Consumer Disputes Redressal Commission
M/S.Appu Hotels Limited, No.1, Gst ... vs M/S. Ion Exchange Services Ltd., ... on 14 November, 2011
Date of filing : 18.02.2009
Date of order : 14.11.2011
BEFORE THE TAMILNADU
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
(BENCH
II)
Present: Thiru.A.K.Annamalai, M.A., M.L., M.Phil., Presiding Member Judicial
Thiru.S.Sambandam,
B.Sc., Member
C.C.No.12/2009
MONDAY THE 14th DAY OF NOVEMBER 2011.
M/s.Appu Hotels Limited, No.1, GST Road, St. Thomas Mount, Chennai 600 016, Rep. by its Legal Executive Mr.B.Naagarajan.
Complainant Vs. M/s. ION Exchange Services Ltd., Regional Office: New No.20, South Road, West CIT Nagar, Rep. by its Engineer: Mr.Rajaram.
Head Office: No.16 Venugopal Layout, Anand Nagar, Bangalore 560 024. .. Opposite party.
This complaint coming on before us for hearing finally on 28.09.2011, upon perusing the material documents, and upon hearing the arguments of counsel for both sides and having stood over till this day for consideration, this Commission made the following order.
Counsel for the Complainant :
M/s. S.Siva Sangarane, Advocates.
Counsel for the Opposite party : M/s.
K.A.Prakash, Advocates A.K.ANNAMALAI, PRESIDING MEMBER JUDICIAL
1. The complaint filed under Section 17 of the Consumer Protection Act- 1986 :
Complainant is a 5 Star Hotel having his brand name Lee Royal Meridian, Chennai and in the hotel premises at No.1, GST Road, Saint Thomas Mount for the purpose of water producing by Reverse Osmosis Plant for the use of the complainant.
The opposite party at the cost of the complainant, supplied, installed and commissioned the plant and thereafter it was entrusted for maintenance under an agreement contract dated 26.9.06 for the period from 26.9.06 to 25.10.08 on monthly charges of Rs.25,000/- and as per the contract the opposite party agreed to operate the R.O. Plant for 3 shifts deputing skilled operator for one shift and to maintain all log books and records with supervision once in a month and the Engineer to visit once in 15 days and before the performance of the R.O to the complainant. During the 2nd week of February 2007 when the engineer inspected the R.O Plant found out the permeate flow is dropped down to 80 LPM and the log book was not maintained by the opposite party.
On the advise of opposite party the membrane cleaning was made and in spite of that cleaning no improvement was made in the water flow and during the September 2008 when the Engineer of the complainant inspected the R.O plant found the permeate flow is dropped down to 8- LPM there was leakage in the pipelines and the high pressure pump set water hardness was 50 PPM was very much above the expected limit which would affect the performance of the equipments of the R.O. Plant. Consequent to the improper maintenance other equipments like boilers imported kitchen equipments also damaged. Apart from the maintenance charges of Rs.25,000/- every month paid till May 2008 as per the suggestion of the Area Manager of the opposite party another sum of Rs.60,000/- was spent to improve the flow rate but was not achieved.
Hence a legal notice was issued on 20.10.2008 for the refund of amount paid for the service charges amounting Rs.5,00,000/- together with Rs.25,00,000/- being the damages to the R.O plant and other equipments for which a false reply was received was by the opposite party on 6.11.08 demanding Rs.1,51,735/- being the maintenance charges and cost of spare parts. Hence the complainant filed this complaint claiming to refund the sum of Rs.5,00,000/- being the total operation and maintenance charges received from the complainant to pay a sum of Rs.25,00,000/- to the complainant towards damages to the R.O plant and other equipments and Rs.50,000/- towards compensation for mental agony and for costs.
2. The opposite party denied the allegations of the complainant in their written version and the brief details of the version are as follows :- The R.O plant installed by the complainant is not supplied by the opposite party and it is admitted that the opposite party entered in to an agreement for annual maintenance and there is no fixed guarantee for the quantity/quality of specifically treated out put water which depends on the quality and condition of the membrane which is one of the important parts in the R.O plant and the quality of out put depends upon the quality of input water when the flow is reduced membrane has to be cleaned with some special chemical and accordingly the opposite party carried out the maintenance of the R.O. Plant and pressure tube supplied by the opposite party as given life up to April 2007 and it was replaced in May 2007 which is working in good condition only after cleaning was made the flows of the water lever was increased in February 2007 which was continued up to September 2007 due to technical and thorough knowledge of the opposite party. As per the contract spares are to be supplied by the complainant and in the month of August 2008 the complainant was suggested for replacement of some critical spares in the R.O. plant and other units. But the complainant did not change even a single spare part and ordered. The opposite party to operate the plant without change any spares. The opposite party is to maintain only up to the out let of the R.O plan and pressure regarding the other parts like boiler kitchen etc., The persons employed by the complainant are very weak knowledge in their field and they have devoid from the standard norms of operation. The complainant paid maintenance charges only up to May 2008 at the rate of Rs.25,000/- p.m but the operators and engineers of the opposite party worked in the plant till end of October 2008 and from June 2008 to October 2008 complainant has not paid the maintenance charges and spare parts value Rs.26,7235/- in all Rs.1,51,735/- and thereby there was no deficiency of service on the part of the opposite party complaint to be dismissed.
3. Both sides have filed their proof affidavits and documents of both sides are marked as Exhibit A1 to A13 and Exhibit B1 to B5.
4. Exhibit A1 Xerox copy of Contract Agreement between the complainant to the opposite party dated 26.9.06. Exhibit A2 Xerox copy of Minutes of the Meeting by the complainant and the opposite party dated 26.03.07. Exhibit A3 Xerox copy of Email from opposite party to the complainant dated 2.4.07. Exhibit A4 Xerox copy of Email from complainant t the opposite party dated 10.4.07.
Exhibit A5 Xerox copy of Email by the complainant to the opposite party dated 20.9.07. Exhibit A6 Xerox copy of Reply by the opposite party to the complainant dated 21.9.07. Exhibit A7 Xerox copy of Email from complainant to the opposite party and the reply by the opposite party to the complainant dated 10.7.08. Exhibit A8 Xerox copy of Email from complainant to the opposite party dated 16.9.08. Exhibit A9 Xerox copy of Reply email by the opposite party to the complainant dt. 17.9.08. Exhibit A10 Xerox copy of Inter office communication of the complainant dt.22.9.08. Exhibit A11 Xerox copy of Email by the complainant to the opposite party dated 22.9.08. Exhibit A12 Xerox copy of Legal notice issued by the complainant to the opposite party with A.D.Card dated 20.10.08. Exhibit A13 Xerox copy of Reply issued the opposite party to the complainant dt.6.11.08.
Exhibit B1 Xerox copy of the filed service report for the services done to R.O. Plant on 31.7.08 and also on 2.8.08 Annexure-A, dated 31.7.08. Exhibit B2 Xerox copy of the filed service report for the services done to R.O.Plant on 29.9.08
- Annexure B.B3 Xerox copy of the email communication sent by the opposite party to the complainant Annexure C dated 21.5.08.B4 Xerox copy of the offer letter issued by the opposite party to complainant Annexure D dated 6.8.08. B5 Xerox copy of reply legal notice sent by the Advocate for opposite party to the Advocate for complainant-Annexure dated 6.11.08.
5. Points for consideration are :-
1) Whether the opposite party has committed any deficiency of service regarding the maintenance of R.O plant installed by the complainant in the premises as per the terms of the contract agreement dated 26.9.06 ?
2) Whether the complainant is entitled the claim as prayed for ?
3) To what relief ?
6. Point No.1 : In this complaint enquiry it is the admitted case of both sides that for the installed R.O plant of the complainant the opposite party has to maintain the plant for the period from 26.9.06 to 25.10.08 at the rate of Rs.25,000/- per month in terms of the operation and maintenance of the contract the opposite party agreed and also it is not in dispute that as per the agreement the complainant has to provide spare parts and other equipments at his cost for proper maintenance. It is also not in dispute that the R.O plant could be operative more efficiently by cleaning process of membrane with chemical then and there extending upon the usage and the life of the membrane alleged to be for 3 years which was also due for replacement in the complainants R.O plant. But the complainant contended that the opposite party did not maintain the R.O plant properly in spite of the reports made then and there and by cleaning twice the membrane with chemicals and there was no improvement in the inflow of water which become reduced to 80 LPM. But the opposite party contended as soon as in the year 2007 itself it was suggested to replace the membrane as the life of the same was already entered which was due for replacement and in spite of the request for the same. The complainant instructed to operate plant without any change of spare parts as alleged in the written version and proof affidavit.
7. In those circumstances whether the complainant against the opposite party regarding the deficiency can be true is the point to be considered on the basis of the documents from either side. On perusal of the complainant side documents in Exhibit A3 the report send by the opposite party dated 2.4.07 that due to crack in the pressure tube the engineer modified the pipeline arrangement temporarily and lined up the R.O plant permeate water and the membrane tube has to be replaced immediately to sort out the problem and the cost of the spares one number pressure tube Rs.59,600/- and the chemical for membrane per kg at the rate of Rs.525/- for 20 kg are required and in the reply given by the complainant in Exhibit A4 it is stated only necessary action taken for supply of membrane preservative chemical and no mention about the change of pressure tube as suggested in Exhibit A3 and for the non attendance of engineer in the letter Exhibit A5 a reply was sent by the opposite party in Exhibit A6 as the engineers are out of station to depute them as soon as possible and also for the complaint given in Exhibits A7 and A8 for non functioning of the plant, a reply was given in Exhibit A9 stating that person will visit the site to discuss in detail regarding the plant and another complaint was made on 22.9.08, it is reported that service of the opposite party was not satisfactory and after that once again a complaint for non attending of persons in Exhibit A11 was given and after that a legal notice in Exhibit A12 was sent for which a reply was received from the opposite party as Exhibit A13 in which among other details in para 6 it was mentioned as already suggested the complainant failed to replace the membrane as they have already completed 3 years of life span and it is specifically mentioned that 3 persons were delay deputed for having operated and maintained the R.O plant as per the terms and conditions of agreement and there was no deficiency of service on their part.
8. Further it is stated in para 7 as per the agreement the complainant has to pay the maintenance charges from June 2008 to October 2008 at the rate of Rs.25,000/- p.m and a sum of Rs.26,735/- towards the spare parts and asking the complainant to recall the legal notice issued by them. Regarding the documents of opposite party side in Exhibit B1, B2 the field service reports for the maintenance on 31.7.2008 and 29.9.08 were all found to show that the opposite party has visited the plant and taken necessary maintenance like cleaning of membrane and other parts change of chemical etc., and as per Exhibit B3 letter to the complainants regarding the earlier suggestion for replacement of spares and membrane it would caused the deterioration of the functioning of the plan unless they were not changed and also change of feed water and stated the cleaning of membrane have resulted in increase of water flow and to meet the water quality since the feed water provided by the complainant contains colloids and silica it may affect the membrane and as per Exhibit B4 the quotation given to the complainant for modification of R.O plant for various supply of parts to the extent of Rs.7,96,000/- and as per Exhibit B5 which is copy of the reply notice as in Exhibit A13 both are one and the same and from these two sets of documents from either side it is clear for each and every complaints and the correspondence made by the complainant to the opposite party they have responded and had maintained their services to the complainant and from the documents of opposite party concerned it is clear that the complainant has not come forward to replace the spare parts like pressure tube, change of expired life of the membrane and to provide necessary feed of water to the level of the expectation required to give out put with standard out come of water.
9. In those circumstances the default or the defect alleged in the maintenance of R.O plant by the opposite party cannot be considered that only because of opposite partys negligence or carelessness alone they found, but also due to the non compliance of requirements demanded by the opposite party by the complainant also and in those circumstances the complainant cannot blame or allege any deficiency of service in annual maintenance of the R.O as per the terms of the contract dated 26.9.06 and the complainant also failed to file any technical report regarding the R.O plant to establish that because of the poor maintenance of the opposite party, the plant equipments and attached the equipments have become spoiled and the plant was not properly functioning only because of the wrongful handling of the plant or not maintaining properly by the opposite party. Further the opposite party contended that annual maintenance charges at the rate of Rs.25,000/- p.m was paid only up to May 2008 and from June 2008 to October 2008 the amount was not paid along with the sum of Rs.26,735/- towards cost of spare parts in all Rs.1,51,735/- to be payable by the complainant to the opposite party. This was not denied by the complainant. The document Exhibit B4 also shows in the month of August 2008 on the basis of letters the quotation for remodeling of the plant was furnished would go to show that the opposite party was in attending the plant till October 2008 and not discontinued the maintenance after May 2008. Hence in those circumstances we are of the view that there is no deficiency of service proved effectively by the complainant and if at all it is also because of complainants fault also and accordingly we answered the point in favour of the opposite party.
10. Point No.2 : The complainant has claimed for the refund of Rs.5,00,000/- towards total operation and maintenance charges received by the opposite party and Rs.25,00,000/- towards the damage caused to the R.O plant and consequential damage to the A/C plant, kitchen equipments etc., But the complainant has not produced or filed any documents to show the details regarding the damages caused to the R.O plant or to the other equipments and no technical report was also filed for the estimated damages.
Regarding the refund of the sum paid to the opposite party, the alleged payments relates to the maintenance which was based on the agreement entered in to between the parties dated 26.9.06 and since the opposite party stated that they have made the services from 26.9.06 to October 2008 and also the documents filed by the opposite party Exhibit B1 and B4 would go to show that they were attending the R.O plant of the complainant till October 2008 and the complainant also alleged in the complaint that only in September 2008, the deficiency of inflow of water was mentioned there is no reason for the complainant to demand for the repayment of charges already paid to the opposite party and in case of any dispute regarding the payments it is only through the appropriate form it should be dissolved as there is no deficiency of service was proved and also regarding the loss or damages to the R.O plants as there was no documents to prove the same to the extent of Rs.25,00,000/- this also cannot be considered. Regarding the damages of Rs.50,000/- towards mental agony since it is held that there is no deficiency of service by the opposite party, no compensation could be granted to the complainant.
Hence we answer this point also in favour of the opposite party.
11. Point No.3 : In view of the results in point No.1 and 2 the complainant is not entitled for any reliefs as prayed for and the complaint is liable to be dismissed.
12. In the result, the complaint is dismissed.
No costs.
S.SAMBANDAM A.K.ANNAMALAI, MEMBER PRESIDING MEMBER JUDICIAL LIST OF DOCUMENTS Exhibits of the complainant A1 Xerox copy of Contract Agreement between the complainant to the opposite party dated 26.9.06.
A2 Xerox copy of Minutes of the Meeting by the complainant and the opposite party dated 26.03.07.
A3 Xerox copy of Email from opposite party to the complainant dated 2.4.07.
A4 Xerox copy of Email from complainant t the opposite party dated 10.4.07.
A5 Xerox copy of Email by the complainant to the opposite party dated 20.9.07.
A6 Xerox copy of Reply by the opposite party to the complainant dated 21.9.07.
A7 Xerox copy of Email from complainant to the opposite party and the reply by the opposite party to the complainant dated 10.7.08.
A8 Xerox copy of Email from complainant to the opposite party dated 16.9.08.
A9 Xerox copy of Reply email by the opposite party to the complainant dt. 17.9.08.
A10 Xerox copy of Inter office communication of the complainant dt.22.9.08.
A11 Xerox copy of Email by the complainant to the opposite party dated 22.9.08.
A12 Xerox copy of Legal notice issued by the complainant to the opposite party with A.D.Card dated 20.10.08.
A13 Xerox copy of Reply issued the opposite party to the complainant dt.6.11.08.
Exhibits of the opposite party B1 Xerox copy of the field service report for the services done to R.O. Plant on 31.7.08 and also on 2.8.08 Annexure-A, dated 31.7.08.
B2. Xerox copy of the field service report for the services done to R.O.Plant on 29.9.08 - Annexure B. B3 Xerox copy of the email communication sent by the opposite party to the complainant Annexure C dated 21.5.08.
B4 Xerox copy of the offer letter issued by the opposite party to complainant Annexure D dated 6.8.08.
B5 Xerox copy of reply legal notice sent by the Advocate for opposite party to the Advocate for complainant-Annexure dated 6.11.08.
S.SAMBANDAM A.K.ANNAMALAI, MEMBER PRESIDING MEMBER JUDICIAL INDEX : YES / NO sg/B-II/aka/ Exchange services