Sri Ranjan Ray, Ld. Member

FINAL ORDER/ JUDGEMENT

This complaint U/S 34 of C.P. Act, 1986 was initially filed against the Opposite Party (O.P.) – 1) Arnidam Kundu, Teknica Elevator Kolkata, Mohon Ghosh Road, Ramchandrapur, Kolkat- 700103 and 2) Adil Zia, Teknica Elevator Kolkata, Mohon Ghosh Road, Ramchandrapur, Kolkat- 700103 and as per Order No.- 06, dated 22.08.2023 the O.P. No.1 and 2 declared ex-parte.

                    The case of the complainant as per his complaint is as follows-

The complainant entered into a contract with the O.P.s on 26.06.2021 whereby the O.P.s were to install 01 (one) hydraulic elevator at complainant’s residence and for this installation of elevator, the complainant was to pay a total sum of Rs. 7,50,000/- (Rupees Seven Lakh and Fifty Thousand) only to the O.P.s as contract value. In the said contract, it was mentioned that- (a) in the installation of the elevator would be completed within 55 to 56 days from the date of payment of 60% of the contract value, (b) 30% of the contract value is to be paid after delivery of materials and commissioning of the lift, (c) the rest of the contract value, i.e., 10% thereof is to be paid after handing over of the lift.

On the date of contract, i.e., on 26.06.2021 complainant paid a sum of Rs. 3,00,000/- (Rupees Three Lakh) only as advance to the O.P.s through a cheque being No. 000106, drawn on HDFC Bank, Siliguri and after receiving the said amount the O.P.s assured the complainant through an e-mail that they would start the work of installation of the hydraulic elevator soon after receiving 60% of the contract value and the first step would send necessary materials for installing the elevator to the spot concerned. On 30.11.2021 complainant informed the O.P.s through an e-mail about the readiness of the site where the elevator was to be installed and requested them to start the process of installation. Thereafter, on 06.12.2021, through an e-mail, the O.P.s asked the complainant to pay the balance of 60% of the contract value which was 60% of Rs. 7,50,000/- (Rupees Seven Lakh and Fifty Thousand) only, i.e., Rs. 4,50,000/- (Rupees Four Lakh and Fifty Thousand) only. Since the complainant had already paid Rs. 3,00,000/- (Rupees Three Lakh) only as advance, now to complete the 60% of the contract value, she was to pay only Rs. 1,50,000/- (Rupees One Lakh and Fifty Thousand) only (Rs. 4,50,000.00 - 3,00,000.00 ). But in violation of the contract the O.P.s in their e-mail dated 06.12.2021 asked the complainant for payment of Rs. 2,50,000/- (Rupees Two Lakh and Fifty Thousand) only.

          In response of the O.P.s e-mail dated 06.12.2021 complainant made a payment of Rs. 2,00,000/- (Rupees Two Lakh) only, i.e., 50,000/- (Rupees Fifty Thousand) only more than what was the due to be paid in advance through internet banking from HDFC Bank, Siliguri on 08.12.2021 and with this payment made by the complainant to the O.P.s, the total payment amount came to Rs. 5,00,000/- (Rupees Five Lakh) only which was more than 60% of the entire contract amount but after crossing 01 (one) year, 05 (five) months and 04 (four) days of the second and last installment  of Rs. 5,00,000/- (Rupees Five Lakh) only the O.P.s did not install the hydraulic elevator at the complainant’s residence.

          The complainant several times called the O.P.s over phone and requested them to complete the installation work of the said elevator but did not get any result. On 22.02.2022 the complainant sent an e-mail and stated her concern, sufferings and agony for this long pending work and also requested to complete the work as fast as possible.  After that, on 28.05.2022 the complainant sent a legal notice to the O.P.s but the O.P.s did not make any response. On 25.11.2022 the O.P.s again sent an e-mail to the complainant and asked for a further sum of Rs. 1,50,000/- (Rupees One Lakh and Fifty Thousand) only from the complainant for supplying the material and completing the work and again on 17.12.2022 received two more e-mails from the O.P.s for the said amount of Rs. 1,50,000/- (Rupees One Lakh and Fifty Thousand) only for the same. Finally, having no other alternative the complainant lodged this complaint.       

The prayers of complainant are as follows :

1. To pass an order directing the O.P.s to pay Rs. 5,00,000/- (Rupees Five Lakh) only which was paid to the O.P.s in two installments dated 26.06.2021 and 08.12.2021 as advance amount for installation of the said elevator along with interest @18% per annum from the date of payment.
2. To pass an order directing the O.P.s to pay Rs. 50, 000/- (Rupees Fifty Thousand) only as compensation to the complainant for agony and financial loss the complainant suffered from.
3. To pass an order directing the O.P.s to pay Rs. 25, 000/- (Rupees Twenty Five Thousand) only being lawyer’s fee the complainant had to pay.
4. Pendent lite expenses.

List of Documents filed by the complainant:

1. Photocopy of Contract between the parties. (Annex.-1)
2. Photocopy of the money receipt dated 07.07.2021. (Annex.-2)
3. Photocopy of E-mail dated 29.06.2021. (Annex.-3)
4. Photocopy of E-mail dated 30.11.2021. (Annex.-4)
5. Photocopy of E-mail dated 06.12.2021. (Annex.-5)
6. Photocopy of payment receipt dated 10.12.2021. (Annex.-6)
7. Photocopy of E-mail dated 22.02.2022. (Annex.-7)
8. Photocopy of E-mail dated 28.05.2022. (Annex.-8)
9. Photocopy of E-mail dated 25.11.2022. (Annex.-9)
10.   Photocopy of E-mails dated 17.12.2022. (Annex.-10)

         Regarding this instant case, after receiving the notice the Opposite Party (O.P.) – 1) Arnidam Kundu, Teknica Elevator Kolkata, Mohon Ghosh Road, Ramchandrapur, Kolkat- 700103 and 2) Adil Zia, Teknica Elevator Kolkata, Mohon Ghosh Road, Ramchandrapur, Kolkat- 700103 did not turn up before this Commission and as per Order No.- 06, dated 22.08.2023 of this Commission the O.P. No.1 and 2 declared ex-parte.   

 Having heard, the Ld. Advocate of the complainant and on perusal of the Complaint and documents filed by the complainant the following points are taken to be decided by this Commission.

POINTS FOR CONSIDERATION

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case? 

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?

DECISION WITH REASONS

          All the points are taken up together for consideration and decision.

Seen and perused the complaint petition filed by the party which is supported by the affidavit, documents filed by the parties. We are also heard arguments the complainant in full length.

The complainant resides in the jurisdiction of Matigara, Siliguri, Dist.- Darjeeling- 734010. Thus, the Commission has no doubt that the complainant is a very much consumer as per the Consumer Protection Act- 2019 and also there is no doubt that this Commission has its territorial jurisdiction to decide this case.

At the time of argument Ld. Advocate of the Complainant submits that the Complainant has been able to prove its case against the O.P.s not only through his Written Deposition but also by producing documents.

As per evidence of the complainant it is very much clear that the complainant entered into a contract with the O.P.s on 26.06.2021 whereby the O.P.s were to install 01 (one) hydraulic elevator at complainant’s residence and for this installation of elevator, the complainant was to pay a total sum of Rs. 7,50,000/- (Rupees Seven Lakh and Fifty Thousand) only to the O.P.s as contract value. In the said contract, it was mentioned that- (a) in the installation of the elevator would be completed within 55 to 56 days from the date of payment of 60% of the contract value, (b) 30% of the contract value is to be paid after delivery of materials and commissioning of the lift, (c) the rest of the contract value, i.e., 10% thereof is to be paid after handing over of the lift.

On the date of contract, i.e., on 26.06.2021 complainant paid a sum of Rs. 3,00,000/- (Rupees Three Lakh) only as advance to the O.P.s through a cheque being No. 000106, drawn on HDFC Bank, Siliguri and after receiving the said amount the O.P.s assured the complainant through an e-mail that they would start the work of installation of the hydraulic elevator soon after receiving 60% of the contract value and the first step would send necessary materials for installing the elevator to the spot concerned. On 30.11.2021 complainant informed the O.P.s through an e-mail about the readiness of the site where the elevator was to be installed and requested them to start the process of installation. Thereafter, on 06.12.2021, through an e-mail, the O.P.s asked the complainant to pay the balance of 60% of the contract value which was 60% of Rs. 7,50,000/- (Rupees Seven Lakh and Fifty Thousand) only, i.e., Rs. 4,50,000/- (Rupees Four Lakh and Fifty Thousand) only. Since the complainant had already paid Rs. 3,00,000/- (Rupees Three Lakh) only as advance, now to complete the 60% of the contract value, she was to pay only Rs. 1,50,000/- (Rupees One Lakh and Fifty Thousand) only (Rs. 4,50,000.00 - 3,00,000.00 ). But in violation of the contract the O.P.s in their e-mail dated 06.12.2021 asked the complainant for payment of Rs. 2,50,000/- (Rupees Two Lakh and Fifty Thousand) only.

In response of the O.P.s e-mail dated 06.12.2021 complainant made a payment of Rs. 2,00,000/- (Rupees Two Lakh) only, i.e., 50,000/- (Rupees Fifty Thousand) only more than what was the due to be paid in advance through internet banking from HDFC Bank, Siliguri on 08.12.2021 and with this payment made by the complainant to the O.P.s, the total payment amount came to Rs. 5,00,000/- (Rupees Five Lakh) only which was more than 60% of the entire contract amount but after crossing 01 (one) year, 05 (five) months and 04 (four) days of the second and last installment  of Rs. 5,00,000/- (Rupees Five Lakh) only the O.P.s did not install the hydraulic elevator at the complainant’s residence.

The complainant several times called the O.P.s over phone and requested them to complete the installation work of the said elevator but did not get any result. On 22.02.2022 the complainant sent an e-mail and stated her concern, sufferings and agony for this long pending work and also requested to complete the work as fast as possible.  After that, on 28.05.2022 the complainant sent a legal notice to the O.P.s but the O.P.s did not make any response. On 25.11.2022 the O.P.s again sent an e-mail to the complainant and asked for a further sum of Rs. 1,50,000/- (Rupees One Lakh and Fifty Thousand) only from the complainant for supplying the material and completing the work and again on 17.12.2022 received two more e-mails from the O.P.s for the said amount of Rs. 1,50,000/- (Rupees One Lakh and Fifty Thousand) only for the same. Finally, having no other alternative the complainant lodged this complaint.

In support of her statement the complainant referred a judgment of Hon’ble Supreme Court of India (Marine Container Services South Pvt. … vs Go Go Garments , January, 1998).

Regarding this instant case, the notice was issued to the O.P.s but after receiving the notice the Opposite Party (O.P.) – 1) Arnidam Kundu, Teknica Elevator Kolkata, Mohon Ghosh Road, Ramchandrapur, Kolkat- 700103 and 2) Adil Zia, Teknica Elevator Kolkata, Mohon Ghosh Road, Ramchandrapur, Kolkat- 700103 did not turn up before this Commission and as per Order No.- 06, dated 22.08.2023 of this Commission the O.P. No.1 and 2 declared ex-parte.   

So, as per the above discussion it is very much clear that there was a deficiency of service from the part of O.P.s and this Commission has no doubt that there was a deficiency of services from the part of the O.P.s. In this instance case, the O.P.s are jointly and severally liable. The O.P.s are directed to refund the entire amount of Rs. 5,00,000/- (Rupees Five Lakh) only which was paid by the complainant to them in two installment, dated 26.06.2021 and 08.12.2021 for installation of 01 (one) hydraulic elevator at complainant’s residence with a simple interest @ 7.5% per annum from the date of first payment, i.e., from 26.06.2021 by an Account Payee cheque in favour of the complainant within 30 (Thirty) days from the date of this order. After expiry of 30 (Thirty) days the award will carry 10% simple interest per annum till the realization of entire amount. The complainant is also entitled to get Rs. 25,000/- (Rupees Twenty Five Thousand) only for mental pain and agony and Rs. 15,000/- (Rupees Fifteen Thousand) only for litigation cost and the O.P.s are also directed to deposit Rs. 15,000/- (Rupees Fifteen Thousand) only to Consumer Legal Aid Account of this Commission.   

Hence, it is,

ORDERED

That the Consumer Case No. 72/2023 be and same is allowed against the O.P.s (Teknica Elevator Kolkata) with cost. The O.P.s are jointly and severally liable in this case.

The O.P.s are directed to refund the entire amount of Rs. 5,00,000/- (Rupees Five Lakh) only which was paid by the complainant to them in two installment, dated 26.06.2021 and 08.12.2021 for installation of 01 (one) hydraulic elevator at complainant’s residence with a simple interest @ 6% per annum from the date of first payment, i.e., from 26.06.2021 by an Account Payee cheque in favour of the complainant within 30 (Thirty) days from the date of this order. The complainant is also entitled to get Rs. 25,000/- (Rupees Twenty Five Thousand) only for mental pain and agony and Rs. 15,000/- (Rupees Fifteen Thousand) only for litigation cost and the O.P.s are also directed to deposit Rs. 15,000/- (Rupees Fifteen Thousand) only to Consumer Legal Aid Account of this Commission.     

Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.