- (1.) COMPLAINT has filed present complaint under Section 17 of the Consumer Protection Act, 1986 seeking relief of Rs.50,00,000 towards compensation besides refund of the amount paid by the complainant to the OP amounting to Rs.35,00,000 together with interest @ 12% p.a, of road to the satisfaction of the complainant or in alternative to pay cost of construction in case road is to be constructed from some other firm or company.
(2.) IN brief, facts averred in the complaint are that complainant is an educational Society registered under Societies Registration Act, 1973 having its office at Vidhan Sabha, Nardaha Chandkhuri Road, village Pached with Shri Surendra Kumar Jain as its President. The complainant approached the OP and issued work order dated 2.12.2007 for construction of road on the land owned by the complainant. The said work was to be completed by 5 1.2008. It was alleged in the complaint that the OP did not complete the work in time and also that the construction was not upto the mark. The OP neither took care of level of the road nor that of line marking and quality. It was further averred that the Coal Tar etc. used by the OP was of inferior quality hence several pits developed in the road. It was averred that Rs.35,00,000 has already been paid to the OP and as such, excessive amount has been charged by the OP. Several requests were made to the OP to rectify the defects. After serving legal notice dated 4.2.2008 complaint was filed. The complainant has filed two reports -one by M/s Marshal Test Labs (I) Pvt. Ltd. and the other by SUCON Surveyors and Consultants and on the basis of such reports it was averred that the quality of road built by the OP is inferior and as such amounts to deficiency in service and unfair trade of OP. It was further averred that due to defective road constructed by the OP the image of the complainant has suffered considerably hence the complainant claimed damages amounting to Rs. 50,00,000 and prayed for direction that road be properly constructed by the OP and in case, the work is to be constructed by some other firm or company, the OP be directed to pay the cost of work. The complainant also claimed refund of Rs. 35,00,000 paid by the complainant to the OP together with 12% p. a. interest and also cost of proceedings.
(3.) THE OP resisted the complaint and raised several preliminary objections in the written version. First objection taken by the OP was that the complaint has not been verified by the complainant. It was also averred that the complainant is not a 'consumer' because the road was got constructed by the educational institution for earning profit in the form of fees from the students as well as fees collected from the members of the society. Another objection taken by the OP was that the complainant had entered into oral agreement with OP regarding construction of road and as terms of the said agreement cannot be proved, the matter cannot be decided in summary jurisdiction. Another objection taken by the O.P. was that the complainant has tried to combine two causes of action -one for construction of WBM road and the other relating to construction of Tar road. The OP has also objected to valuation of the complaint and averred that the complainant has overvalued the claim. Subsequently by way of amendment another plea was taken that the land on which road was to be constructed is not a private land but it is government land hence the complainant has no locus standi to file complaint. Besides the aforesaid preliminary objections, the OP also denied allegations of deficiency in service and unfair trade practice against the OP. It was averred in the written version that on 2.12.2007 work order was issued only regarding WBM road and not for Tar road. It was further averred that document Annexure No.1 i.e. the work order has been fabricated by the complainant. The OP admitted receiving Rs.35,00,000 from the complainant and averred that the aforesaid amount was received towards part payment of both types of roads i.e. WBM road as well as Tar road. It was further averred that two agreements cannot be merged in one complaint. It was further averred in the written version that it has not been mentioned in the complaint as to road line marking, road level and quality of which type of road WBM or Tar was not proper. It was further averred that the test reports filed by the complainant have been obtained at the back of the OP hence same loose their credential value. It was averred in written version that complaint is false, frivolous and in repercussion to the OP filing complaint for demanding exorbitant consideration. The OP also denied the allegation that road was to be constructed by 5.1.2008. It was also denied that the quality of road constructed by the OP was of poor quality. Denying allegations of deficiency in service and unfair trade practice, it was prayed that complaint be dismissed.;