BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 20^TH DAY OF MAY 2023

ORDER

SMT.K.ANITA SHIVAKUMAR, MEMBER

Complaint filed U/S 35 of Consumer Protection Act 2019 seeking direction to OP to refund the advance amount of Rs.5,50,000/- along with 18% interest per annum and to pay compensation of Rs.4,50,000/- for mental agony and such a other reliefs.

2. Brief facts of the case are as follows:-

Complainant is an employee of IT company, residing with his father aged about 68 years and mother is about 64 years along with spouse and children. He started construction of his new house at No.612, 2^nd cross, Mahalakshmi Layout, Bangalore in July 2021. Complainant decides to have a lift installation at his new house to ease old age parents. He identifies Aritco Home lifts which is at Chennai, sold by OP having channel partner certificate. For the purchase of home lift complainant signed a agreement with the OP for overall cost of Rs.15,00,000/- along with 12% GST. OP assured to deliver lift by April 2022. As per the agreement, complainant has Rs.1,50,000/- on 12.07.2021, Rs.4,50,000/- on 11.11.2021 and Rs.1,50,000/- on 08.12.2021 through NEFT to the OP’s Bank account at City Union Bank Ltd, Chennai account bearing No.510909010132847, in-total complainant has paid Rs.7,50,000/- to OP for installation of home lift. Complainant alleged in his complaint that since April 2022 OP has not delivered the lift and is not picking the phone calls of complainant. Complainant repeatedly requested OP for refund of advance amount paid but OP has repaid Rs.1,50,000/- on 19.07.2022 and Rs.50,000/- on 18.08.2022 to the complainant. OP is due for Rs.5,50,000/- which is to be repaid but he did not repaid yet. Neither OP pick up the call to answer nor refunding his amount. Due to the deliberate negligent act and malafide intention of OP, complainant faced mentally and physically since 6 months. Complainant stated that he is facing financial crisis to purchase the lift from other vendor. He is requesting to refund it at the earliest so that it will help to purchase the other lift for his home. Complainant raised consumer grievance at consumer helpline on 17.06.2022 but OP not responded to it. Hence this complainant.

3. After issuance of notice OP represented through its counsel. OP did not file his statement of objection till the lapse on 45 days. Later OP counsel filed IA with version. Since it is more than 45 days, the IA is rejected, version not taken on file. Hence, the case is set down to adduce evidence of complainant. Accordingly, Complainant filed his affidavit evidence along with supporting documentary evidence. Complainant reiterated as stated in his complaint. Complainant has filed certificate U/S 65B of Indian Evidence Act with 8 documents which are marked as Ex.P1 to Ex.P8. Heard the complainant and perused the materials on record.

5. On the basis of the pleadings, the following points will do arise for our consideration:-

i) Whether the complainant has proved the deficiency of the service on the part of OP?

ii) Whether the complainant is entitled to get relief as prayed?

iii) What order?

6. Our answers to the above points are as follows:-

i) Point No.1:- In the affirmative.

ii) Point No.2:- In partly affirmative.

iii) Point No.3:- As per the final order.

REASONS

7. Point No.1:- As complainant stated in his complaint, he has booked the home lift to install at his new home, after searching he finally decided to purchase home lift from OP company who has channel partner certificate of Aritco Home Lifts to sell both home lifts and public lifts. The OP company has partner contract with Aritco Home Lifts till 01.11.2022 which is at Ex.P1. As per the document Ex.P2, it proved that OP company is authorized distributor of Artico Home Lifts. Wherein Op has issued quotation in favor of complainant with all the particulars required for the transaction. It reveals that the said Home Lift with all specifications is cost around Rs.15,00,000/- excluding taxes.  The payment schedule is also mentioned in the quotation and with all the details pertains to the lift. After the receipt of the quotation, the complainant has decided to purchase the Home Lift from OP. Accordingly complainant has paid Rs.1,50,000/- on 12.07.2021, Rs.4,50,000/- on 11.11.2021 and Rs.1,50,000/- on 08.12.2021 through NEFT to the account of OP bearing No.510909010132847 which is at Ex.P3. After perusing Ex.P1 to P3 we observed that complainant has paid Rs.7,50,000/- out of Rs.15,00,000/- to the OP company for the purchase of Home Lift. Upon perusal of the documents placed by complainant, complainant has paid the last payment on 08.12.2021 but OP company not bothered to install the lift at new house of the complainant even though the complainant has requested him to install it at the earliest due to the health problem of their aged parents, OP did not act even on that. OP neither delivered the lift nor pick the phone calls of complainant made the complainant to approach to get relief through initiating legal proceedings. After several request OP has refunded Rs.2,00,000/- on 19.07.2022 and 18.08.2022 to complainant  account but OP is still due for Rs.5,50,000/-.

8. It is pertinent to note that complainant has paid 50% of amount but OP retained 50% of amount with him without providing lift and its installation as he assured, is not fair and not just. Either he could install the lift as he promised or he could refund the amount he received towards lift, OP did not do so. Hence it exhibits malafied intention of Op by retaining the heavy amount of Rs.5,50,000/- with him. At the same time complainant might have suffered financially and physically by not getting the services from OP. Without installation of lift, their aged parents have suffered physically, submits medical reports evidenting the health issues of parents.  Ultimately legal notice dated 29.06.2022 to OP calling upon to terminate the agreement entered on 02.11.2020 which is at Ex.P.6. By going through the documents placed by the complainant, here observed the deficiency of services on the art of OP and caused mental agony and physical exertion due to non-installation of lift, even after receipt of Rs.7,50,000/-. In our considered view retaining the heavy amount of Rs.5,50,000/- without providing any services is unfair trade practice. Complainant has sent several E-mail communication to OP and requested him to install the lift or otherwise refund the amount but OP refunded only Rs.2,00,000/- out of Rs.7,50,000/-, the balance of Rs.5,50,000/- is still with OP, did not refund. OP neither contested the matter before this commission nor refunded the amount he received from the complainant, is not fair. Hence the documents placed before this commission by the complainant are unchallenged. Therefore complainant has proved the deficiency of services on the part of OP. On the above reasons we answer Point NO.1 in affirmative.

9. Point No.2:- Complainant claimed refund of Rs.5,50,000/- paid by him for the installation of lift with 18% of interest per annum, when the OP has retained Rs.5,50,000/- which is received by complainant. Complainant is entitled to get refund of Rs.5,50,000/- with interest at the rate of 10% per annum, instead of 18% per annum. Complainant also claimed Rs.4,50,000/- compensation for mental agony and inconvenience caused to him and his family. By producing the medical report, complainant is seeking compensation for the inconvenience caused to his aged parents and the inconvenience caused to family because of non-installation of lift even after 50% of payment made to OP, is entitled to get Rs.30,000/-, whereas Rs.4,50,000/- seems to be exorbitant. Due to the negligent act and non bothered attitude of OP, made the complainant to approach this commission by incurring the money on proceedings, hence OP is liable to pay Rs.10,000/- towards cost of proceedings. For the foregoing reasons we answer Point No.2 in partly affirmative.

10. Point No.3:- In view of the discussion referred above, we proceed to pass the following:-

ORDER

i) Complaint filed U/S 35 of Consumer Protection Act 2019, is partly allowed.

ii) OP shall refund Rs.5,50,000/- to the complainant with 10% of interest per annum from 12.07.2021 till realization.

iii) OP shall pay Rs.30,000/- towards compensation Rs.10,000/- towards cost of litigation within 30 days from this day, failing which OP shall pay interest at the rate of 12% per annum on Award amount after expiry of 30 days till realization.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 20^th day of MAY, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;