State Consumer Disputes Redressal Commission
Farook.E.K vs Secretary on 8 November, 2011
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/10/36 (Arisen out of Order Dated 05/08/2008 in Case No. CC 194/04 of District Kannur) 1. Ferook.E.K. ...........Appellant(s) Versus 1. Chokli Grama Panchayath ...........Respondent(s) BEFORE: HONARABLE MR. SRI.M.V.VISWANATHAN PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO: 36/2010
JUDGMENT DATED:08-11-2011
PRESENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI.M.K. ABDULLA SONA : MEMBER
Farook.E.K,
M/s Kinetic System, : APPELLANT
Faroke, Kozhikode.
(By Adv:Sri.P.U.Shylajan)
Vs.
Secretary,
Chokli Grama Panchayath, : RESPONDENT
Chokli.
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER Appellant is the opposite party and respondent is the complainant in CC.194/04 on the file of CDRF, Kannur. The complaint was filed alleging deficiency in service on the part of opposite party on account of their failure to comply with the agreement entered into between the complainant and the opposite party. The complainant, the Secretary, Chokli Grama Panchayath prayed for an order to direct the opposite party to replace all the CFL street lights, automatic street lights and also the other ordinary street lights 100 in numbers and also for compensation amounting to Rs.5.lakhs for deficiency in service on the part of the opposite party. The complainant has also claimed cost of the proceedings.
2. The opposite party entered appearance and filed written version denying the alleged deficiency in service. It was contended that the CFL lamps installed by the opposite party were defect free and the failure in the working of the streetlights was due to the non availability of electricity which was supplied by KSEB. Thus, the opposite party prayed for dismissal of the complaint.
3. When the complaint in CC.194/04 was posted for evidence of the parties, there was no representation for the opposite party. So, the opposite party was declared exparte.
4. Before the Forum below, Exts.A1 to A9 documents were produced and marked on the side of the complainant. No oral evidence was adduced from the side of the complainant. An expert commissioner was appointed to ascertain the defective nature of the CFL lamps and the expert commissioner filed his report and the same was marked as C1 by the Forum below, though no such marking of the expert report is seen in the appendix of the impugned order in CC.194/04.
5. The Forum below on consideration of the documentary evidence available on record passed the impugned order dated:5th August 2008 allowing the complaint in part and thereby the opposite party is directed to pay a sum of Rs.2,09,650/- to the complainant for the loss sustained by them and a sum of Rs.500/- by way of cost. It is against the said order, the present appeal is preferred by the opposite party therein.
6. We heard both sides. Learned counsel for the appellant/ opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that there is no oral evidence to substantiate the case of the complainant and that the expert who submitted expert report has not been examined before the Forum below. It is further submitted that the appellant/opposite party was absent and they did not get the opportunity to adduce evidence in support of their contentions in the written version. Thus, the appellant prayed for setting aside the impugned order passed by the Forum below and to remand the matter to the Forum below for affording an opportunity to the appellant/opposite party. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below. He pointed out the fact that the Forum below has not awarded any compensation for the loss and inconvenience suffered by the complainant, but the Forum below has only ordered refund of the amount which the complainant incurred for providing street lights in the Panchayath area. Thus, the respondent prayed for dismissal of the present appeal.
7. There is no dispute that the appellant/opposite party and respondent/complainant entered into A1 agreement for providing 200 street lights in Chokli Grama Panchayath area. It was also incorporated in the said agreement agreeing to provide warranty for a period of 15 months for the street lights 200 in numbers installed by the appellant/opposite party, M/s Kinetic System, Farook. It is the definite case of the respondent/complainant that the opposite party totally failed in curing the defects in the street lights which were installed by the opposite party. It is the further case of the respondent/complainant that the street lights failed in giving lights to the area where the same were installed and that the failure occurred due to the inferior quality or substandard of the electric lamps (CFL) supplied by the opposite party.
8. The appellant/opposite party in their written version adopted the contention that there was no defect in the street lights installed by the opposite party; but the failure occurred on account of non availability of electricity supplied by KSEB. But the appellant/opposite party has not adduced any evidence in support of the said contention. Admittedly, the opposite party was served with notice in CC.194/04 and they entered appearance. They also filed their written version, but there after the opposite party remained absent. No reason or ground is stated for the absence of the opposite party before the Forum below. It is alleged in the appeal memorandum that the counsel who was engaged by the opposite party neglected to appear before the Forum below. But there is nothing on record to show that the opposite party was prompt in contesting the complaint in CC.194/04. There is nothing on record to show that the opposite party was prompt in giving necessary advice to the counsel of their choice. It is to be noted that there was no hindrance for the opposite party in engaging another counsel of their choice. There is also nothing to show that the opposite party produced any document in support of their case. It is further to be noted that the opposite party has not even filed proof affidavit in support of their contentions. Thus, it can be concluded that no acceptable reason is stated for the absence of the opposite party before the Forum below.
9. An expert commissioner was deputed from the Forum below. The Forum below appointed Mr.Latheish P.B, Assistant Engineer, KSEB Electrical Section, Thalassery as the expert commissioner. He filed the expert report dated:26.02.2006 after conducting inspection of the CFL lights which were installed by the opposite party in Chokli Grama Panchayath area. It is further to be noted that the expert commissioner conducted inspection of the lights after issuing registered notice to both the parties. The aforesaid registered notices were served on the complainant and the opposite party. But the opposite party neglected to appear on 14.2.2006, the proposed date of inspection. No reason is stated for the failure of the opposite party in representing before the expert commissioner. It is also to be noted that the complainant appeared before the expert commissioner and co-operated with the expert commissioner. The expert commissioner after due inspection of the lights submitted the report. The Forum below was pleased to mark the said expert report as Ext.C1. The Forum below can be justified in relying on C1 expert report.
10. A perusal of C1 expert report would make it clear that the lights installed by the opposite party failed due to the inferior quality of the lights supplied by the opposite party. The expert commissioner has also reported that electricity was available at the relevant time and that even after the supply of electrical energy the street lights installed by the opposite party were not working. So, C1 expert report would make the case of the complainant believable and acceptable. It would in turn negative the case of the opposite party that the lights failed to function because of non availability of electricity supplied by KSEB.
11. The deficiency in service on the part of the appellant/ opposite party is established. The Forum below has rightly appreciated the documentary evidence available on record. Appellant/opposite party was least bothered and concerned on getting complaint from the complainant regarding the non functioning of the street lights. The complainant/Panchayath issued A6 notice to the opposite party informing the defects in the CFL street lights installed by the opposite party. Even after getting the A6 notice, the appellant/opposite party failed to cure the defects. Thus, the appellant/opposite party is to be made liable to refund the amount which they received from the respondent/complainant.
12. Ext.A3 cash/credit bill dated:17.12.2003 issued by opposite party, Kinetic Systems would show that the opposite party collected Rs.1,74,450/- from the complainant/Panchayath by way of the price of the CFL street lights installed by the opposite party. It would also show that the aforesaid amount of Rs.1,74,450/- was received by the opposite party on the strength of the accepted quotation. It would in turn make it clear that the amount was collected by the opposite party on the strength of A1 agreement entered into between the complainant and the opposite party. The evidence on record would show that the entire street lights were not functioning and those lights failed to function even within one or two months of the installation. So, the appellant/opposite party is to be made liable to pay the aforesaid sum of Rs.1,74,450/- to the respondent/complainant.
13. The Forum below has awarded total of Rs.2,09,650/- for the loss sustained by the complainant/Panchayath with a cost of Rs.500/-. It is to be noted that the Forum below has not awarded any amount by way of compensation for the deficiency in service on the part of the opposite party. It is the case of the complainant that they also paid huge amount to KSEB by way of electricity charges, though the street lights were not working. The aforesaid case of the complainant would show that they paid electricity charges to KSEB even without consuming electricity. Thus, the payment of that amount can also be treated as loss suffered by the complainant. The Forum below has taken a very lenient view in favour of opposite party while awarding compensation to the complainant. We do not find any reason or ground to interfere with the impugned order passed by the Forum below. Thus, in all respects the present appeal deserves dismissal. Hence we do so.
In the result the appeal is dismissed impugned order dated:5th August 2008 passed by CDRF, Kannur in CC.194/04 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER M.K. ABDULLA SONA : MEMBER VL.
[HONARABLE MR. SRI.M.V.VISWANATHAN] PRESIDING MEMBER