JESUS CALLS TRUST vs SREEVASTSA INDUSTRIES

THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

THE 1st complainant is a Registered Trust established for public charitable and religious purposes. THE 1st complainant planned to construct a prayer centre at Karunya Nagar, Mathuvarayapuram village, Coimbatore (Tk.) known as "Bethesda Prayer Centre", which consisted of number of constructions. THE 1st complainant entrusted the construction and supervision of the work to the 2nd complainant, who is an Architect. One of the construction works is to provide Handrails in stainless steel to the prayer platform and the ramps leading to the prayer platform. THE 2nd complainant called for quotations. THE Quotation given by the 2nd comp lainant for Rs. 4,58,304 / - was accepted .THE Opposite Party agreed to give 5% discount. THE 1st Opposite Party has to fabricate and supply 24 numbers of handrails for prayer platform at Rs. 2,800/- each and 120 handrails for the ramps at Rs. 2,850/- with stainless steel frame work for glass and at Rs. 2,052/- each for handrails, without stainless steel frames. THE cost of erection of Rs. 5,000/- was separate. THE total cost came to Rs. 3,26,739/-. THE complainants paid to the Opposite Party a total sum of Rs. 2,39,000/- by cheque dated 18.5.92 for Rs. 1,00,000/-, by cheque dated 25.5.92 for another Rs. 1,00,000/- and by cheque dated 2.6.92 for Rs. 39,000 /-. THE fabrication and supply was agreed to be completed by December, 1992. In spite of several letters and telegrams, the Opposite Parties failed to complete the work. Only during the month of April, 1993, the Opposite Party supplied 11 handrails for the prayer platform. It failed to supply the remaining handrails. After repeated reminders the complainant gave a final notice to the Opposite Party to complete the work before 23.5.93. As the Opposite Party failed, the order was cancelled and the work was given to M/s. Kitchen Equipments. This complaint is filed for refund of the amount received in excess by the Opposite Party, interest thereon and for the difference in cost in entrusting the work to the third party and for mental pain and agony, in all Rs. 4,78,321 /-. The Opposite Parties resisted the claim. It is the 2nd complainant, who entrusted the work to the Opposite Party and hence the 1st complainant can not claim to be a consumer. Even the 2nd complainant is not a consumer according to the Opposite Party. It is pointed out by the Opposite Party that the 2nd complainant placed an order firstly for cladding of RCC dome over the prayer hall with stainless steel sheets and the rate fixed was Rs. 225/- per sq.ft. The work had to be carried out at the height of 50 to 100 feet above the ground level. The materials have also to be transported from Madras covering a distance of 600 K.Ms. The 2nd complainant promised for all help and co-operation. But, it failed to give the co-operation, even the scaffolding was not provided. There was, therefore, delay in the execution of the work, and the cost escalated many folds. The Opposite Party requested to reconsider the increase in price. In the meanwhile, the 2nd complainant entrusted the second job of fabricating and supplying S.S. handrails in May, 1992. Because of the cost of escalation in carrying out the first work, the Opposite Party utilized the funds given for the second order. Subsequently, the Opposite Party''s request for increasing the cost for the first work was refused. There was no delay on the part of the Opposite Party. It was purely due to the non-co-operation and deceitful attitude on the part of the complainants. It is denied that the 1st complainant suffered loss to the tune of Rs. 1,00,000/- and the difference in cost in entrusting the work to the third party to complete the work came to Rs. 1,24,300 /- is not admitted. It is the complainant who owes the money to the Opposite Party. The Opposite Party, therefore, applied for dismissal of the complaint.

Exhibits A1 to A27 and B1 to B11 are marked by consent. Proof affidavits are filed. No oral evidence has been let in.

THE Points that arise for consideration are : (1) Whether the complainants are consumers and the complaint is maintainable? (2) Whether there has been any deficiency of service or negligence on the part of the Opposite Party? and (3) To what relief, if any, is the complainant entitled? Point No. 1 : The 1st complainant is a Public Trust established for charitable and religious purposes. It proposed to construct a prayer centre at Karunya Nagar, Mathuvarayapuram village in Coimbatore talk and has entrusted the construction and supervision work to the 2nd complainant, who is an Architect. It is the 2nd complainant, who has invited the quotations and placed orders with the Opposite Party for the supply of handrails to the prayer platform and ramp. According to the Opposite Party it had nothing to do with the 1st complainant and the 1st complainant has no locus standi to file this complaint. The case of the complainants on the other hand is the 1st complainant is the Principal and the 2nd complainant is its Agent, and the complaint has been filed by both the Principal and the Agent. Exhibit A20 is the letter by the 2nd complainant to the 1st complainant giving details about the work done. Mr. A. Sevugapandian, Administrative General says that the work for the construction of the prayer hall was done through the 2nd complainant. There is, therefore, no doubt that the 1st complainant has entrusted the task of construction and supervision of the work to the 2nd complainant. The 1st complainant is, therefore, the Principal and the 2nd complainant is its Agent. As Agent, the 2nd complainant called for tenders and supervised the work. As Principal, the 1st complainant is entitled to maintain this complaint. Whatever it may be, the 2nd complainant, who has admittedly called for tenders and entrusted the work of fabrication and supply of handrails to the Opposite Party is a consumer, who has availed the services of the Opposite Party for consideration and hence the complaint filed by him is perfectly in order. We hold that the complaint filed by both the complainants is maintainable.

POINT Nos. 2 & 3 : The Prayer Centre planned to be constructed by the 1st complainant consisted of several construction works and the 2nd complainant was in charge of construction and supervision. It has entrusted to the Opposite Party two works. (1) Cladding with stainless steel of RCC dome over the prayer hall; and (2) Fabrication and supply of handrails for the prayer platform and for the ramp. The first work has been entrusted much earlier and during the progress of the first work the second work has been entrusted to the Opposite Party. This complaint pertains only to the second work viz. the fabrication and supply of handrails and this has nothing to do with the first work viz. Cladding of RCC dome with the stainless steel plates. According to the complainant the Opposite Party''s tender for fabrication and supply of handrails was accepted and the Opposite Party agreed to give a discount of 5%. The rate worked out as follows; 24 handrails for the prayer platform at Rs. 2,800/- each and 120 handrails for the ramp at Rs. 2,850/- with stainless steel frames for glass and Rs. 2,052/- for without stainless steel frame work. The total cost comes to Rs. 3,26,739/-. The erection charge of Rs. 5,000/- is separate. According to the complainant the fabrication and supply of these materials must be done before December, 1992. But the Opposite Party has failed to do so. The sample has been approved by the complainant on 24.11.92 under Ex. A11 with some modifications. Under Ex. A13 the 2nd complainant has written to the Opposite Party stating that the Opposite Party has agreed to finish the work on 30th December, 1992. It is significant to point out that the complainants have paid Rs. 2,39,000/- by 2.6.92. Ex. A16 is the letter of the 2nd complainant dated 13.5.93 to the Opposite Party complaining of the delay in the fabrication and the supply of handrails. It is also stated therein in clear terms that if the work is not completed by 29th May, 1993, the complainants would be forced to cancel the order and claim damages. The Opposite Party has so far supplied only 11 handrails and the value of these handrails worked out to Rs. 30,800/- as stated in page 7 of the complaint and it is admitted by the learned Counsel for the Opposite Party as correct. In view of the failure of the Opposite Party in fabrication and supply of the handrails within the extended time of 29th May, 1993, the com- plainants were forced to cancel the contract entrusted to the Opposite Party and entrust the balance of the work to another by name Kitchen Equipments. This is, therefore, a clear case of deficiency of service and negligence on the part of the Opposite Party. In the counter statement filed by the Opposite Party the contention is that the first work entrusted to it viz. the cladding of the RCC dome with stainless steel plates could not be completed in time due to the non-co-operation of the complainants in providing the necessary facilities. It is urged that the complainants did not, even, provide scaffolding for doing this work at a height of 50 to 100 feet from the ground level. On account of this non-co-operation, there was escalation in cost and the Opposite Party claimed revision of the rate. In the meanwhile, according to the Opposite Party it utilized the funds paid by the complainants for the second work viz. fabrication and supply 0f handrails, for the first work. This is a clear breach of the terms of the agreement entered into between the 2nd complainant and the opposite party for the fabrication and supply of handrails. The money paid for the said work has been utilized by the Opposite Party for the other work, which is not the subject matter of this complaint. According to the Opposite Party, the complainant, subsequently, refused to revise the rate for the first work viz. cladding of the RCC dome with stainless steel plates. This is a matter with which we are concerned in this complaint. If the Opposite Party is grieved by the conduct of the complainant in respect of the first work, the Opposite Party has to seek remedy before the ordinary Court of Civil jurisdiction. He can not club that work with the second works, both of which are independent. In fact, in the counter statement filed by the Opposite Party, the entire case is only in respect of the first contract and the counter statement does not deny the allegations of the complainant in respect of the second contract viz. fabrication and supply of handrails, for Jacks the complaint has been filed. We, therefore, accept the case of the complainant the Opposite Party has committed deficiency of service in the fabrication and supply of handrails. Out of 24 handrails for the prayer hall and 120 handrails for the ramp, the Opposite Party has supplied only 11 handrails for the prayer platform to the value of Rs. 30,800/-, while it has received a sum of Rs. 2,39,000/- by 3 cheques and it is not disputed. The opposite party is, therefore, liable to disgorge the excess amount of Rs. 2,08,200/- with interest thereon at 18% p.a. from the date of the last payment viz. 2.6.92. The complainant has claimed a sum of Rs. 1,24,300/- as the difference in cost in entrusting the work to M/s. Kitchen Equipments. Ex. A23 contains the work sheet on the basis of the cost of the handrails. But, this can not be accepted. It is admitted that the total cost of fabrication and supply of the handrails by the Opposite Party was Rs. 3,26,739/-, out of which a sum of Rs. 30,800/- has been paid by the complainants. The balance payable is Rs. 2,95,939/-. The cost of the balance of work entrusted to M/s. Kitchen Equipments is Rs. 4,12,261/-. The cost payable by the complainant in excess comes to Rs. 1,16,322/-. The complainants are entitled to claim only this amount as loss sustained by entrusting the work to another party. The contention of the Opposite Party that the handrails ordered with the 3rd party are different in size and gauge is not pleaded or proved.

THE complainant has also claimed a sum of Rs. l,00,000/- as loss for not being able to put into use the completed building. THEre is absolutely nothing to substantiate this claim. We are not inclined to allow this.

IN the result, we order as follows : (1) The Opposite Party shall refund to the complainants the sum of Rs. 2,08,200/- with interest thereon at 18% p.a. from 2.6.92 till payment. (2) The Opposite Party shall pay to the complainants a sum of Rs. 1,16,322/ - as loss sustained by entrusting the contact to another party. (3) The opposite party shall also pay costs of Rs. 2,000/- to the complainant. (4) All these payments shall be made within one month from the date of this Order. Complaint allowed.