DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No. 82/2011
Dr. Sudhir Sachdeva
B-85, Defence Colony
New Delhi-110024. …Complainant
VERSUS
M/s Hi-Tech Elevators (P) Ltd.
H.O. GF-78, RDC, Raj Nagar
Ghaziabad-UP ….Opposite Party
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Date of Institution :28.02.2011
Date of Order : 01.09.2022
Member: Sh. U.K. Tyagi
The complainant has requested to pass an award directing M/s Hi Tech Elevators (P) Ltd. (hereinafter referred to OP to pay damages of Rs.5 Lakhs for the loss of reputation; (ii) to pay the total cost incurred in the installation of the aforesaid lift i.e. Rs.5,80,000/-; (iii) to rectify the defect in the said installed lift and procure the licence for working the lift; (v) to bear the cost/penalities levied by MCD till licence is obtained physically from MCD; (vi) to pay penal interest @ 18% p.a. and to pay Rs.5,000/- as litigation charges.
Brief facts of the case are as under:-
The complainant was a proprietor of commercial property at 2nd & 3rd Floor at B-85, Defence Colony and intended to install lift so as to make the said premises completely compatible with for any business purposes. The complainant contacted the OP, who professed to have technical know-how and expertise in installation of the lifts and also to procure the licence from MCD for working the lift. He gave the contract for installation of lift for 5 persons for Rs.6,85,000/- excluding taxes. It was agreed that if 70% of said contract amount i.e. Rs.4,80,000/- is given in advance thereafter lift shall be installed within 2 months. The complainant made advance payment in two trance i.e. of Rs.2,40,000/- vide cheque No.431029 drawn on OBC, Pahar Ganj dated 15.11.2007 and Rs.2,40,000/- vide cheque No.549362 drawn on OBC Pahar Ganj dated 19.11.2007. Shri D.K. Sharma, on behalf of the OP, demanded additional 20% of total costing vide its letter dated 02.06.2008. The work of installation of the lift was got delayed more than 7 months as contended by complainant till then, it was noticed that no work was taken up there. The complainant made the payment of Rs. One Lac in June itself to speed up the work as the complainant was losing rental income. Even after lapse of one and a half years, the work of installation was not completed and licence was also not obtained. Later on, the lift was started although defectively, without licence from MCD.
Owing to delay by OP, the complainant lost Rs. 42 Lac (10 months rent @ 4.2 Lac per month), he is liable to compensate the loss. The complainant maintained that cause of action arose last time where legal notice was got served on OP for calling upon him to make goods for deficiencies or else to pay the damages.
OP, on the other hand, filed reply inter alia raising preliminary objections. It was averred that the complainant did not comply with necessary civil part of the contract which the complainant was bound to complete. Moreover, the complainant could not decide whether the lift was to be installed from Basement to 3rd and otherwise. Copy of contract is annexed with the complaint. It seems that the complaint was filed to counter the demand of balance amount. It is also alleged that the complainant did not pay the balance amount of Rs.1,05,000/- alongwith Annual Maintenance Charges plus Service Tax. The civil work and other related work was not got completed within time frame. Contrary to the time schedule of contract and even the work could not be started by 31.01.2008. As mentioned above, the installation of lift from basement was not found practically feasible due to security hazard. Undecisiveness on the part of the complainant held up the installation. Hence the delay was totally on the part of the complainant. The complainant did not pay the Annual Maintenance Charges from 08.08.2009 to 07.08.2010 and from 08.08.2010 to 07.08.2011. Balance payment of Rs.1,05,000 also remained upaid. Bare perusal of breakdown report as furnished by complainant; reveals that lift was operational since July, 2008.
Both the parties have filed written submissions and evidence-in-affidavit. Written statement is on record so is rejoinder. As regards to oral arguments, the case was fixed for final arguments on 22.10.2021 & 25.04.2022, on both dates, none on behalf of both the parties appeared. Then case was fixed on 07.06.2022, none appeared on behalf of OP but counsel for complainant appeared. He argued stating that he is limiting himself to written arguments. Since it is an old case, no more date can be allowed in view of interest of justice. Hence it was reserved for orders.
This Commission has gone through the entire gamut of issues placed before us. The complainant has filed contract which is in many loose sheets. It is very difficult to get down and appreciate the provisions contained therein. It is noted by the Commission that the complainant has mentioned the exhibits and marking of same has also been carried out in its evidence-in-affidavit but those exhibits are not found marked on the complaint file.
The complainant had also tried to substantiate the view point that the certain payment as required under agreement/contract was made in two trance on 15.11.07 and 19.11.2007. As per agreement the elevator/lift could have been installed within two months from the date of payment of first trance. The Commission could not lay hands on such reminders/letters, which could prove the contention of the complainant that the delay was primarily caused by OP. However, there is one letter dated 06.12.2008 which speaks about delay in installation of the lift in first part of the said letter but in the later part, it is mentioned that “Every day we have to ring up several times to you for non-functioning of the lift”. The above clearly reflects the contradiction in the said letter itself. Further it is also noted why the complainant had not raised this point when the lift is not installed so far, how the further instalment of 20% was released.
During the examination of the documents filed with complaint that there are some hand written repair notes of dates 27.09.2008 and 30.09.2008 which suggest that lift was installed by this time and some repair work was to be done for smooth functioning of the same.
Commission feels that the bald arguments of the complainant could not substantiate the contentions made before us.
It may be apt to point out here that the complainant had filed an application under Rule 17 read with Section 13(4)(VI) of C.P. Act, 1986 for amendment in the complaint.
This Commission after examining the merits of the same, did not allow the application vide its detailed order dated 21.05.2019 stating that complainant had stopped the annual maintenance charges for elevator, therefore, OP is not liable to repairs/ maintenance of the elevator. The additional expenditure incurred by the complainant has nothing to do with OP.
It would be relevant to point out here that the above complaint was dismissed for non-appearance. The Hon’ble State Commission vide its order, dated 12.03.2018 set aside the said order subject to payment of cost of Rs.5,000/-. The Hon’ble State Commission further in FA 1377/2013 condoned the delay of 127 days as well.
Succintly, the complainant tried to prove that there was deficiency in service and resultantly, the complainant had to suffer huge loss on account of delay in installations of lift. But no substantive evidence was adduced by him. Apparently, it is found that delay was also caused by the complainant himself due to undecisiveness of installation of lift from basement or ground floor for the security reasons. As narrated above, the complainant failed to prove its case on these accounts. This Commission after having considered the facts and circumstances in the case and the narrations as explained above, is of opinion that there is no case of the complainant. Hence the complaint fails and request is rejected accordingly.
No order as to costs.
File be consigned to the record room after giving copy of the order to the parties as per rules.
