Andhra Pradesh

Visakhapatnam-II

CC/424/2010

Dr. D.B. Subrahmanyareddi - Complainant(s)

Versus

High Power Elevators Private Limited - Opp.Party(s)

A. Kameswara Rao

27 Jun 2015

ORDER

                                              Date of Registration of the Complaint:20-02.2015

                                                                                                Date of Order:27-06-2015

BEFORE THE DISTRICT CONSUMERS FORUM-II AT

                             VISAKHAPATNAM

 

P  r  e  s  e  n  t:

1.  Sri H. Ananda Rao, M.A., L.L.B.,

     President           

2. Smt K. Saroja, M.A. B.L.,

     Lady Member 

                                3. Sri C.V. Rao,  M.A., B.L.,

                                     Male Member

 

                                Saturday, the 27^th day of June 2015.

                                 CONSUMER CASE No.424/2010

Between:-

Dr. D.B. Subrahmanya Reddy, son of late

Kannayya Reddy, aged 77 years, Hindu,

residing at Door No. 4-70-4, L.B. colony,

Visakhapatnam.

….. Complainant

And:-

The Managing Director, High Power Elevators Pvt. Ltd.,

ISO 9001: 2000 Certified Company, Door No. 49-16-11,

Flat No.403, Aishwarya Enclave, Lalithanagar,

Akkayyapalem, Visakhapatnam-16.

                                                                                          …  Opposite Party    

                     

          This case coming on 18.06.2015 for final hearing before us in the presence of Sri A. Kameswara Rao, Sri A.V.V.S. Rama Rao, and Sri P. Appala Raju, Advocates for the Complainant and Sri K.S.S. Narayana, Sri B.B. Subrahmanyam and Sri K.A. Naidu, Advocates for the Opposite Party  and having stood over till this date for consideration, this Forum made the following:

 

                                                ORDER

          (As per Sri. H. Ananda Rao, Honourable President, on behalf of the Bench)

 

1.       This consumer complaint is filed by the Complainant against the  Opposite Party directing him for recovery of Rs.1,20,000/- (Rupees One lakh and twenty thousand only) with interest @ 24% p.a. from the date of the payment  till the date of realization, for supply of installation of Testing and Commission of No.1 Passenger Elevator/for lift, damages of Rs.2,00,000/- (Rupees Two lakhs only) towards compensation with costs.

 

2.       The case of the Complainant in brief is that basing on the letter dated 2^nd April, 2010 the Opposite Party has placed order for supply of installation of Testing and Commissioning of  No. 1 High Power passenger Elevator for lift for his proposed site and also paid the amounts in two spells i.e., Rs.70,000/- under Cheque No. 796107 dated 24.5.2010 and Rs.50,000/- under Cheque No.727799 dated 10.05.2010 drawn on ICICI Bank, Visakhapatnam .   But the articles had not been supplied so far inspite of oral requests and also Registered Lawyer’s Notice dated 13.08.2010 and 24.08.2010 nor paid the said amount.   Hence, this complaint.

 

3.       The case of the Opposite Party denying the averments in the Complainant is that immediately after receipt of the notice of the Opposite Party contacted the Complainant and informed him that the Opposite Party was ready to deliver the material as per the agreed terms and conditions between the Opposite Party and the Complainant.   As per the agreed terms, the Opposite Party delivered the material in the 1^st week of July, 2010 for which the Complainant has to make payment of 60% of the contract value of the work order, but the Complainant made payment of Rs.1,20,000/- which comes to 40% only.   Thus, the Complainant failed to pay 20% of the amount contravening the conditions of contract by committing breach of trust, when the Complainant trying to play litigation in the matter and the Opposite Party has got sent reply notice dated 28.08.2010 with full details.  However, the Complainant got managed the postal authorities for returning the acknowledgement, that the Complainant paid Rs.1,20,000/- instead of paying Rs.1,97,000/-, that the Opposite Party erected bracket fixings, M.S. Door frames, landing ceils, guide rails, M.S. collapsible gates and L.P. boxes fixed  etc. to the lift of the Complainant.   But the Complainant is liable to pay Rs.77,500/- i.e., the balance amount.  For these reasons, the Complainant filed by the complaint is to be dismissed.

 

4.       To prove the case on behalf of the Complainant, he filed his affidavit   and got marked as Exs.A1 to A12.   On the other hand, on behalf of the Opposite Party, he filed his affidavit, but no documents are marked for the Opposite Party.

 

5.       Ex.A1 is the office copy of Registered Lawyer’s Notice issued by the Complainant to the Opposite Party dated 13.08.2010.   Ex.A2 is the original Postal acknowledgement card from the Opposite Party dated 17.08.2010.  Ex.A3 is the office copy of Reminder Regd. Lawyer’s Notice issued by the Complainant’s counsel to the Opposite Party dated 24.08.2010.  Ex.A4 is the Postal acknowledgement from the Opposite Party dated 26.08.2010.  Ex.A5 is the original letter sent by the Opposite Party to the Complainant dated 02.04.2010.   Ex.A6 is the attested copy of Statement of I.C.I.C.I Bank, issued by the Branch Manager, Visakhapatnam dated 22.10.2010.  Ex.A7 is the attested copy of Statement of Account issued by the Andhra Bank, Waltiar dated 20.05.2010 to 27.05.2010.  Ex.A8 is the original Introductions copy issued by the Opposite Party.  Ex.A9 is the original Lift Specifications issued by the Opposite Party.  Ex.A10 is the original copy of terms and conditions issued by the Opposite Party.   Ex.A11 is the original price schedule and terms of payment copy issued by the Opposite Party.  Ex.A12 is the original copy of Conclusion of Contract of the Opposite Party.  

 

6.       Both sides filed their respective written arguments.

7.       Heard oral arguments from Opposite Party.

8.       Now the point that arises for determination is:-

Whether there is any deficiency in service on the part of the Opposite   Party and the Complainant is entitled for the reliefs asked for?

 

9.       After hearing of arguments of both sides.   The complaint is dismissed, aggrieved, the Complainant preferred F.A. No.363/2014 against the order herein and the Hon’ble State Commission directed the Complainant to file enclosures appended to the letter dated 2.4.2010 which is marked as Ex.A5.

 

10.     After receiving the file, notices were issued to the respective parties through special messengers and after receipt of notice, the complainant filed written arguments by marking Ex.A8 to A12.   

 

11.     The case of the Complainant in brief is that he has placed order for supply of installation of testing and commissioning of No.1 of High Power Passenger Elevator for lift for his proposed site and also paid the amounts of Rs.1,20,000/- for the said purposes, but the Opposite Party failed to supply  the same inspite of  requests and also lawyer’s notices.   The Opposite Party denied the same and took a plea that he erected bracket fittings, M.S. door frames, landing cells, guide fails etc.  by filing photographs, but the Complainant denied the photographs.

 

12.     At page No.4 in the counter; the Opposite Party admitted the payments of Rs.50,000/- and Rs.70,000/-  i.e., total amount of  Rs.1,20,000/-, but in the same para the Opposite Party stated that after receipt of the notice dated 13.08.2010 the Opposite Party contacted the Complainant and informed that the Opposite Party is ready to deliver the material as per the agreed the terms and conditions between them, that the Opposite Party delivered the material to the Complainant in the 1^st week of July, 2010.   He stated in his counter that immediately after receipt of the notice, he contacted the Complainant and informed that he is ready to deliver the material and as per the agreed terms, the Opposite Party delivered the material in the first week of July 2010.   When the notice date is -08-2010 how; he could send the material in the first week of July, 2010.   For argument sake if it is true, the Opposite Party has to show the delivery receipt, or invoice to prove the delivery of the material, but he did not do so.   Another allegation of the Opposite Party is that the amount of Rs.1,20,000/- paid by the Complainant is to the extent of 40% only, and that the Complainant failed to pay 20% of the amount when the Opposite Party demanded for the said 20% payment, the Complainant has requested the Opposite Party to deliver the entire material without paying 20% due amount to the Opposite Party.   This itself is falsified by the above fact that in the first instance the Opposite Party stated that he delivered the material, again in the second instance he stated that the Complainant has requested the Opposite Party to deliver the entire material.

 

13.     It is not the case of the Opposite Party that he delivered short material, on the other hand, the question of delivering short material is not at all useful to the Complainant and in fact there is no such necessity to the Complainant.   In the same para the Opposite Party stated that he gave reply notice dated 28.08.2010 to the advocate for the Complainant vide Postal Receipt No.1497 dated 30.08.2010 demanding the Complainant to pay Rs.1,97,000/-, however, the Complainant got managed the postal authorities for returning the acknowledgment.    At this stage, it is relevant for me to  mention the date of notice is 28.08.2010, Postal Receipt date is 30.08.2010 and when the reply notice as stated above is sent to the advocate of the Complainant, how can the Complainant can manage the postal authorities from retuning the postal acknowledgement.   On the other hand, the Opposite Party should ascertain from the postal authorities in respect of postal acknowledgment, but no such paper is filed to show that the Opposite Party contacted postal authorities in this regard.   In fact what is the necessity for the advocate for the Complainant or to the Complainant to deny the reply notice, when it does not come in the way of the case of the Complainant.   It is also stated in the same para of his counter, that even though there is no due of Rs.77,500/- by the Complainant the Opposite Party erected bracket fixings, MS door frames, landing ceils, guide rails, MS Collapsible gates and L.P. boxes fixed to the lift of the Complainant.   Generally the business people would not supply material without full payment, but the above contention of the Opposite Party is not believable in the absent of proof of either oral or documentary in respect of erection of above items.  The Opposite Party would have issued notice to the Complainant for recovery of Rs.77,500/- said so have been due to him and would have filed case against the Complainant.  Even now the Opposite Party did not file any paper to show the erection etc.   Since acknowledgement is being obtained after erection of the material; so, it can be held the allegation as stated by the Opposite Party are baseless and cannot be given much wait.

 

14.     The evidence affidavit of the Complainant and Exs.A1 to A12 clearly shows that there is a deficiency in service on the part of the Opposite Party and due to the act of the Opposite Party the Complainant suffered mental agony and incurred financial loss.   When the Opposite Party having received the amounts for supply of the above material record shows the Opposite Party failed to supply the same and therefore, it can be held that there is a deficiency in service on the part of the Opposite Party, as such the Complainant is entitled for the relief as sought for sum of Rs.1,20,000/- with interest.

 

15.     Now the question that comes up for consideration, at this stages of our discussion what is the rate of interest for which the Complainant is entitled.   The rate of interest claimed by the Complainant is 24% p.a.  This rate of interest claimed by the Complainant appears to be excessive, of course, it is a fact that the transaction covered by Ex.A1 is in commercial in nature, but that does not and cannot mean to say that the Complainant is a licenced to claim interest @ 24% p.a. on Ex.A1.    But at the same time, it is an imperative on our part to award a reasonable interest.   Having regard to all these facts and circumstances, we sincerely feel having considered the case on hand awarding of interest @ 9% p.a. on Ex.A1 would better serve the ends of justice.    Consequently, we proposed to fix at rate in question @ 9% p.a. on Ex.A1 in question.   Accordingly interest is ordered.

 

16.     Whether the Complainant is entitled for compensation of Rs.,2,00,000/- is to be considered.   It appears as seen from the evidence of PW-1 that the Complainant was compelled to approach the Opposite Party and therefore experienced a lot of physical strain besides mental agony and financial loss. It is un-dispute fact that the Opposite Party did not refund the amount subscribed by the Complainant.   Naturally that made have put the Complainant to suffer some mental agony besides physical stress and strain.   In this view of the matter, we sincerely feel that it is a fit case to award compensation.   But that does not and cannot mean to say that the Complainant claim for compensation is acceptable.    Having regard to all these facts and circumstances, we are of the considered opinion, award of compensation of 25,000/- would serve the ends of justice.   We therefore, proposed to award compensation of Rs.25,000 /-,  in the circumstances of the case on hand. Accordingly this point is answered. 

 

17.     Before parting our discussion, it is incumbent and imperative on our part to consider the costs of litigation.    The Complainant ought not have to approach this Forum had his claim for refund of the sum of Rs.,1,20,000/- or reliefs sought for have been honored by the Opposite Parties within a reasonable time and in view of the matter, the Complainant’s claim for claims for cost deserves to be allowed.   In our considered and unanimous opinion awarding a sum of Rs. 5,000/- as costs would appropriate and reasonable.   Accordingly costs are awarded.

 

 

 

18.     In the result, the Complaint is allowed in part directing the Opposite Party to pay a sum of Rs.1,20,000/- (Rupees One lakh and twenty thousand only) with interest @ 9% p.a. from September, 2010 till the date of realization, Rs.25,000/- (Rupees Twenty five thousand only) towards compensation and Rs.5,000/- (Rupees Five thousand only) towards costs.   Time for compliance, one month.

     Dictated to the Steno, transcribed by him, corrected and pronounced by us in the Open Forum, this the 27^th day of June, 2015.

 

Sd/-                                         Sd/-                                               Sd/-                                                                                           

Male Member                      Lady Member                                 President

 

                                       APPENDIX OF EVIDENCE

For the Complainant:-

NO.	DATE	DESCRIPTIONOFTHEDOCUMENTS	REMARKS
Ex.A01	13.08.2010	Registered Lawyer’s Notice issued by the Complainant to the Opposite Party	Office copy
Ex.A02	17.08.2010	Postal acknowledgement card from the Opposite Party	Original
Ex.A03	24.08.2010	Reminder Regd. Lawyer’s Notice issued by the Complainant’s counsel to the Opposite Party	Original
Ex.A04	26.08.2010	Postal acknowledgement from the OP	Original
Ex.A05	02.04.2010	Letter sent by the OP to the Complainant	Original
Ex.A06	22.10.2010	Statement of ICIC Bank, issued by the Branch Manager, VSP	Attested copy
Ex.A07	20.05.2010 to 27.05.10	Statement of Account issued by the Andhra Bank, Waltair	Attested copy
Ex.A08		Introduction copy issued by the OP	Original
Ex.A09		Lift Specifications issued by the OP	Attested copy
Ex.A10		Terms and Conditions copy issued by the OP	Original
Ex.A11		Price schedule and terms of payment copy issued by the OP	Original
Ex.A12		Conclusion of Contract of the OP	Original

For the Opposite Party:-                                                                               

                                      -Nil-

Sd/-                                         Sd/-                                               Sd/-

Male Member                       Lady Member                                   President