DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. NO. 668/2015

Date of Institution: 31.08.2015

Judgement Reserved on: 02.02.2022

Judgement Passed on: 09.02.2022

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Order By: Shri S.S. Malhotra (President)

JUDGEMENT

1. By this order I shall dispose off the complaint of the complainant against the OPs inter-alia stating that there was deficiency of service in providing and installing elevator / lift at the premises of the complainant.  
2. However, before coming to the facts of the case it is worth to bring on the record that initially the complaint was filed in the year 2015. Somehow, the matter could not be disposed off and complainant had filed some complaints against the Ld. Predecessor about the delay and subsequently his matter was transferred from this Forum to other Forum. Since the matter somehow could not be disposed off before the Ld. Predecessor of transferee Forum, the complainant filed a writ petition (W.P. (C) 2289/2021) & CM Appl. 6634(2021) before the Hon’ble High Court and as per order dated 16.03.2021, the Hon’ble High Court, directed that the matter be placed before this Commission, with further directions to dispose off the matter within a period of four months from the 1^st date of hearing. The first date of hearing of this case before Ld. Predecessor was on 20.03.2021 but by then,    since the case file was not received in the Commission, a letter    was written to worthy Registrar, SCDRC with request to direct the official concerned so that the file be placed before this Commission. The file was accordingly received in this Commission, vide letter dated 19.03.2021 of DCDRC (Central), but due to pandemic restrictions, the matter was adjourned to 23.04.2021, 23.07.2021, 26.08.2021 and 06.12.2021.
3. The matter before this Commission came up for hearing for the first time on 06.12.2021 and after going through the file, the matter was adjourned for 15.12.2021 & 20.12.2021 for some clarifications and the matter was adjourned to 21.12.2021. On 21.12.2021 due to non availability of steno the matter was listed for 07.01.2022. However, the Commission was not functioning on 07.01.2022 on account of guidelines of DDMA and all the matter listed on 07.01.2022 got adjourn on 02.02.2022 and it was reserved for order for 07.02.2022. However, on 07.02.2022 Corum was not complete and matter was adjourned further for 09.02.2022. The complainant appeared on 09.02.2022 and he was informed through video conference that matter is under dictation, and is likely to be disposed off today. It is accordingly being disposed off.
4. Brief facts as stated by the complainant are that complainant in order to install a lift in his house contacted the OP and after formal discussion, a proposal dated 14.04.2014 was given by OP to provide lift for parking-ground floor,  first floor, second floor and third floor for an amount of Rs. 8,90,000/- out of which complainant had already paid an amount of Rs. 1100/- on 02.04.2014, Rs. 1,00,000/- on 15.04.2014 and in total the complainant had paid an amount of Rs. 5,71,100/- to the OP. But the OP was not doing the work satisfactorily and to be specific, it was agreed that OP would install the piston of `Blane’ Company (Germany) which must be in such a manner that part of this piston should not be more than 10 feet as the complainant in future may increase height of lift for an extra floor but despite that OP installed 21 feet piston which was objected to, by the complainant and when the complainant insisted to install the agreed piston only, OP informed that he has a piston in two parts of `Blane’ Company and demanded an extra amount of Rs.70,000/- which was paid on 14.02.2015 but despite that the needful was not done by the OP and as such complainant  asked for returning the extra paid amount of Rs. 70,000/ with a condition that when OP would deliver the agreed piston then he will be pay Rs. 70,000/- again. It is further submitted that OP had not installed the original piston of Blane Company (Germany) and also OP has not installed the original guide rails (Jade Italy) and had installed inferior quality of guide rails. In totality complainant had paid Rs. 5,71,100/- till 6.6.215 but complainant didn’t get the complete work in time, and OP did not provide the original parts which amounts to carelessness and deficiency in service and as such complainant  served a notice upon the OP which was not complied with and as such he filed the present complaint with prayer to direct the OP to return total amount with 2% monthly compounded interest, to pay Rs. 5 lacs as compensation due to harassment, distress and mental agony and Rs. 25000/- as litigation expenses.
5. The OP1 is the company and OP2 is stated to be M.D./AR of OP.  OPs were served for their appearance for 26.10.2015 and OPs filed their reply on 26.11.2015. Subsequently the rejoinder was filed by the complainant with evidence by way of affidavit. But the OP, instead of filing evidence by way of affidavit, had filed an application for filing additional statement which was declined by the Forum vide order dated 17.02.2016. The OP1 then filed an application u/s 6 rule 17 of CPC for filing amended  written statement which was taken on record on 21.07.2016 in pursuance of order of the Hon'ble State Commission in FA No. 55/16 dated 06.04.2016. Complainant was given opportunity to file rejoinder and fresh evidence, if any, and the complainant filed the rejoinder to the amended written statement but retained the same affidavit of evidence.  Subsequently, OP filed its evidence by way of affidavit .
6. For the purpose of appreciating the facts of written statement the contents of amended written statement only are being discussed herein below.
7. In the amended written statement, the OP has taken preliminary objection that the complaint is without any cause of action and the complainant has not come to Forum with clean hands. The complaint is vexatious and pre-planned. There is no deficiency in service on the part of the OP and the present complaint has been filed to have undue gain. It is further submitted that the OPs are in service of installation and furnishing of elevators and the complainant had approached the OP and after discussion an agreement for installation of hydraulic lift from parking-ground to third floor was to be executed on the terms that complainant would pay 30% of contract value as advance alognwith the orders, 50% at the time of intimation of delivery of material, 10% on mechanical completion and 10% at the time of handing over the machine. It is further submitted that complete hardware, brackets and guiderails with all accessories to install it alongwith  hydraulic cylinder for 05 openings, power pack, hose pipe, cantilever  and all accessories were delivered to complainant and were installed successfully and control panel was also delivered but subsequently complainant changed the requirement i.e. from `parking-ground to  three floors, to parking-ground to 04 floors and as such all the 5 installed openings were dismantled and new hydrologic cylinder for 06 openings were installed as per the complainant’s requirement on the increased payment of Rs. 70,000/- which was initially received by them but the same has been later on returned to complainant. The payment receipt by the OP is only for Rs. 5,00,000/- whereas he should have made the payment of Rs. 7,12,000 till the date of supplying the material and since the complainant had failed to release the payment, the fault, if any, is on the part of complainant but despite that all the material was delivered and installed on believing the face value of the complainant and as such there is no deficiency in service on the part of OP. It is also submitted that the consumer court does not have jurisdiction as the premises where the lift was to be installed is for the use of commercial purpose and the delay in installation process is only on account of changing requirements by the complainant and as such there is no deficiency in service on the part of OP, rather it is the complainant who breached the contract. It is further submitted that due to agreed plan, the OP had arranged the specific product which was imported and shipped to India but this process took some time and some delay happened. It is further stated that material used in the said work was of high standard. The complainant has not suffered any kind of loss or damage as claimed rather it is the OP who has suffered financial losses due to changing demand from time to time. It is accordingly prayed that complaint be dismissed.
8. Rejoinder was filed by complainant in which contents of amended written statement were denied and contents of complaint were reaffirmed and reiterated as correct. The complainant retained his evidence as filed originally by way of affidavit. Subsequently the complainant filed an application seeking permission to file additional evidence by way of affidavit and the same was allowed and complainant accordingly relied upon previously filed affidavit and also filed additional affidavit, by which he himself filed the opinion of the expert.
9. OP has filed his own evidence by way of affidavit.
10. I have heard the arguments from the complainant who himself is pursuing the matter. However, the Counsel for OP has not attended the court on last various dates.
11. I have gone through the written arguments as filed by the parties and not only this the complainant appeared in Court with request to mention the matter and he was also heard orally and since the OP was not appearing the written arguments as filed by OP have been taken into consideration. Before, the complaint is completely disposed off, reply of some small issues is necessary i.e. as to whether the lift was installed or not? Secondly, whether the complainant performed his part of obligation? And thirdly, whether there is any deficiency in providing the services by the OP. From the facts these issues are taken up one by one.

First of all, the Commission is coming to the aspect i.e. as to whether the lift have been installed or not?  The agreement between the parties is not disputed. The OP had to install the lift at the residential premises of the complainant. The complainant in his complaint has mentioned that he has paid Rs. 5,71,100/- and the OP started the work but in very slow manner and was not doing work satisfactorily as agreed upon between the parties. As to whether the work was being done satisfactorily is concerned, it would be dealt in next issue where the issue of deficiency in providing the service would be considered but this issue i.e. as to whether the lift has been installed or not, has to be decided first as the complainant in the oral arguments informed that lift has not been installed at all and the goods supplied by the OP are lying in the building of the complainant and his specific area for the purpose of installing the lift has remained idle which is causing inconvenience to him. In para 5 of the complaint, complainant states that OP has not installed the original guide rails and installed the inferior quality of guide rails and also he has mentioned that even the piston of Blane Company has not been installed. In para 7 the complainant stated that despite having taken handsome amount, the OP didn’t complete work in time and did not provide the original parts. Therefore, the oral submission of complainant that the lift has not been installed at all, is not in consonance with his written complaint. The contention of the complainant is that the lift was not been installed at all. This is not the pleadings either. From the pleadings it is clear that the lift has been installed. Therefore, the issue is disposed off by holding that the lift, in fact, has been installed in the premises of the complainant and first part of the issue stands replied.

12. Now coming to the aspect i.e. as to whether there was any deficiency in service by the OP or not? As per written agreement, the OP had to install the pump/power pack, the pressure control and Check ball of Blane Company, and guide rails of 6mm Jede (Italy). This has been stated by the complainant in complaint itself and it has also been stated that it was orally told to OP that the OP would install the piston which should not be more that 10 feet as the height of the ceiling which was 9 feet, and the complainant in future may increase the height of the lift for an extra floor which he wants to construct but despite this request OP has installed 21 feet piston. Admittedly this fact w.r.t. size of the piston is not mentioned in the agreement and therefore, as to whether the height of the piston would be 10 feet (two parts) or 21 feet in single piston is not in writing between the parties. Further, in reply to his para 4 of the complaint, the OP in his para 4 has stated that the complainant started objecting w.r.t. the material used in the said work although it was of the high standard, but the complainant started demanding specific product which the OP had even arranged by importing the same and the same took some extra time. Therefore, there appears to be an admitted fact on the part of OP that what was agreed upon between the parties in writing w.r.t. specific trademark part was not supplied by the OP. The OP even has admitted that the agreed trademark piston was not supplied at the premises of complainant.

As far as the height of the piston i.e. either one piece or in two pieces had not been specifically denied by OP. Here the contentions of the complainant is well found, to the extent that the lift was not installed as per agreement, nor the parts of requisite quality of the particular trade    mark   were installed by OP.    Hence, there appears to be deficiency in service for two aspects first i.e. the length of the piston, and secondly, the piston is not being of the agreed trademark.  The OP has also admitted that there was delay in installing the lift and it was on account of change of plan by the complainant i.e. initially from ground upper level to three levels, to ground upper floor to four level but he has not been able to prove this fact by any additional/supporting evidence and apart from the pleadings and self serving affidavit there is no other email or reply of either of the OP with respect to extension of additional floor. The OP has also failed to prove its plea that the lift was used for commercial purpose. Therefore, as far as this issue is concerned complainant has been able to prove that there is some deficiency of service in installing the lift.

13. Thirdly, coming to the issue i.e. as to whether the complainant performed his part of obligation? As per pleadings it was agreed upon between the parties that the complainant has to pay 80% i.e. Rs. 7,12,000/- of the total agreed amount as Rs. 8,90,000/- upto the time of delivery of parts of the lift. The complainant in his para 6 has stated that he has paid Rs. 5,71,100/- and the OP in its written statement has not denied this para specifically and as such OPs contentions stand proved that complainant has only paid an amount of Rs. 5,71,100/- and not Rs. 7,12,000/- i.e. 80% of the agreed amount. Further, the OP has stated in para 4 of the preliminary objection that the work had been started on spot and the complete hardware, brackets and all accessories to install, Hydrolic Cylinder for opening power pack hose pipe and all other accessories to install were delivered to complainant and were even installed and delivery of control panel was supplied to OP. In response of this para the complainant in his rejoinder has not denied this fact and quite surprisingly he only stated that there is deficiency on the part of OP, but as far as supply of material is concerned the hydraulic cylinder are not installed as per agreement, meaning thereby  it had been installed. Further guide rails were not installed as per agreement (again stand installed) and thirdly, the complainant surprisingly states that he is not in the knowledge as to which part have been delivered and which were not delivered. Saying this and showing such ignorance by the complainant demonstrate that the complainant is not coming to Commission with clean hands, as it can not be believed that a person is not aware of the fact as to what material has reached his premises. Further, although an amount of Rs. 5,71,100/- had not been denied but it is admitted fact that the complainant has only paid Rs. 5,71,100/- and not Rs. 7,12,000/- as agreed. When the Commission sought clarification of this fact from the complainant, who appeared in person, he stated that this amount was not given as it was never so demanded by the OP. This prima facie is not in consonance with the terms and condition of the agreement that complainant would pay the amount to the OP, only if it would be demanded by the OP. Rather in his written arguments the complainant has stated that if the complainant had given Rs. 5,71,100/- only i.e. less than 80% of cost of the lift, then why the OP delivered the material. The complainant has received the material, that too without making the agreed payment, therefore, stands proved.

Further, as pre record the delivery of the material is not in dispute, the installation of the lift also is not in dispute and to some extent, the complainant shows ignorance that he is not aware as to what material have been supplied or what not. The necessary conclusion, which therefore, arises, is that complainant has not fulfilled its part of obligation and has not paid the agreed amount to OP despite having received the material and not only this, despite having the lift installed. And therefore, his only grievance remains is that the ordered material was not of the quality so agreed and it was not installed within the time.

Coming to the quality aspect of the product, the complainant has filed his own evidence and even filed an additional evidence by way of affidavit with the permission of the Forum. He has also filed a letter from M/s Askon Elevator to prove that the agreed quality of the Guide rails and piston were not installed. This fact is otherwise not in dispute but what the complainant was supposed to prove by way of additional evidence  was, that the piston/cylinder and guide rail so installed were not of the same strength or were of lesser strength and this required opinion of the expert and the letter of M/s. Askon Elevator by way of additional evidence does not prove that guide rails or the piston so installed  were of low quality. An expert from M/s Askon Elevator has not deposed this facts on affidavit, rather this is deposed by the complainant only and the complainant is not an expert to say, with respect to the quality or strength of the such product, and the expert has not filed its own affidavit and has not deposed on oath. However, even the OP has not filed any evidence to show that the piston and guide rails as installed, were of the better quality than agreed or atleast of equal quality as agreed. There is no evidence of any expert from either party on this aspect.

14. Therefore, the Commission is of the opinion that the complainant has not fulfilled its part of obligation by making the payment as agreed and OP has not been able to prove that the quality of guide rails and of piston is of equal strength.
15. The combined reading of all the three issues bring the Commission to the conclusion that the complainant has not given the amount so agreed to OP. The fact that lift was installed at the premises of the complainant that too by receiving the less amount than agreed also stands proved and it is held that the complainant has paid only Rs. 5,71,100/-  and not even Rs. 7,12,000/- i.e. 80% of the cost  (total amount to be paid by complainant was Rs. 8,90,000/-) of the lift and got the lift installed. Further, it also stands proved that it is the OP who has suffered more than the complainant as far as pecuniary part is concerned as the OP received less amount to the extent of Rs. 3,18,900/- from the complainant.

  Now coming to the aspect of relief, as far as relief part is concerned the Commission has come to conclusion that lift has been installed at the premises of complainant and the deficiency in making the payment is on the part of the complainant, deficiency as far as affixing/installing the agreed parts is on the part of OP. Therefore, the complainant is not entitled to claim refund of Rs. 5,71,100/- as prayed for and that part of the relief is declined. The OP has not claimed any relief in counter claim nor has raised any demand for remaining amount and as such OP cannot be given any relief with respect to less payment received.

As far as deficiency in service is concerned, complainant has not been able to prove as to whether the installed part are of lesser strength nor the OP has been able to prove that it was of equal strength, therefore, this deficiency on the part of OP stands established to the extent that lift was not installed in time and two agreed parts were not installed.

Accordingly, the Commission grants compensation of Rs. 25,000/- payable by OP to complainant for deficiency in service on the part of OP.   With respect to mental harassment and legal expenses payable by OP the Commission grants Rs. 10000/- to complainant. The OP is directed to make the payment to complainant within a period of 30 days, failing which it will bear interest @7.5% per annum.

16. The complaint is disposed off.
17. Copy of the order be supplied / sent to the parties free of cost as per rules.
18. Announced on 09.02.2022.
19. File be consigned to Record Room.                                                            

Date : 09.02.2022

Delhi