Smt. Shampa Ghosh, Hon’ble Member:-
The fact of the case in brief is that the complainant is having B+G+4 storied building on a portion of 50 Decimals of land comprising in 2R Dag No-696 and 697 appurtating to LR Khatian no-6687 of Mouza Akshaya Nagar under Kakdwip PS. On 28/12/2012 an agreement was entered into between the complainant and the opposite party No-1 & opposite party no-2 for installation of one passenger lift in the complainant’s B+G+4 storied building from ground floor to fourth floor. OP No -1 representing himself as a CEO of OP No-2 company, Korea Elevators & Escalator India. The settled consideration amount was Rs 18,25,000. In pursuant to the said agreement and acknowledging the said proposal cum agreement the complainant paid Rs 10,00,000/- in advance via two cheques. Complainant has filed the Bank statement showing debiting 500000/- for two times from his account to the account of the Opposite Party. Bank statement is annexed. Opposite parties promised to complete the erection, installation and commissioning of 1 no of passenger lift in the said building within 26 weeks from the date of receipt at advance payment. Despite receiving advance payment, opposite parties failed to commence and to the installation of the lift with the stipulated 26 weeks. Several times complainant requested to the opposite parties for installation of the lift, but the opposite parties did not done any work for installation of lift. On 23/09/2022 a meeting was held between the complainant and opposite parties herein in presence of local Panchayat members, during which the opposite party no-1 committed to completing the work within 45 days strating September 29, 2022, but they failed again. Ld advocate commission has filed detailed report after holding local inspection commission at the locale. From the report it transpires that no work of installation has been done. Finding no other alternative , the complainant here in reported the whole matter in the local PS, and lodged FIR against the opposite parties on 16/11/2022. Complainant also stated that he is not getting completion certificate from the concerned authority for non-installation of lift in the said building. Complainant stated that he is unemployed and he is going to use the said building for earning his livelihood by inducting tenants, licences under him. For the unreasonable delay of the opposite parties the complainant suffering mentally. Complainant also stated that he is no more willing to get the lift installed in the building by opposite parties, complainant seeking a returned of Rs 10,00,000/- due to failure of the opposite parties to perform their contractual obligations. Hence the complainant filed instant complaint case before the commission on the reliefs sought for in the petition.
Only OP No-2 contested the case by filing W.V and the instant complaint case was heard ex-parte against the OP No-1 by order being no-06 dated 03/08/2023. OP No-2 denied all the allegation stated by the complainant para wise. Opposite parties admits only that they hence received Rs 10,00,000/- as advance payment and after that they have started work and purchased all materials for installation. After delivey of materials at the site the complainant obstruct the opposite parties to do their job and threatened them and physically assaulted OP No-1. Opposite parties stated that complainant put lock on the entrance door of the site office of opposite parties for which all materials being damaged. Opposite party stated that the version of complainant stated in his petition that the complainants wanted to install the lift in such a building which will be commercially used by him and for that the subject matter at this case does not come with in perview of the commission. Therefore OP denied all the allegation stated by the complainant ultimately prayed for dismissed of the complaint case with cost.
Points for consideration :-
- Is the complainant a consumer?
- Is the OP guilty of deficiency in service and unfair trade practice?
- Is the complainant entitled to get relief as prayed for?
Decisions with reasons:-
On perusal of case records along with documents, it appears that on 28/12/2021 an agreement was enterd into between the complainant and the opposite parties for installation of one passenger lift in the complainant’s B+G+4 storied building. Complainant paid Rs 10,00,000 in advance via two cheques. Opposite parties encashed those two cheques. Therefore the complainant is a consumer as defined u/s 2(7) of C.P.Act 2019. As such the first point is decided in favour of the complainant and against the Ops.
Point 2 & 3
All points are taken up together for sake of convenience. Complainant entered into an agreement with the opposite parties for installation of one passenger lift in the complainant’s B+G+4 stories building. The agreed consideration was Rs 18,25000/-. The complainant paid Rs 10,00,000/- in advance via two cheques. Despite receiving the advance payment, the opposite parties failed to commence and complete the installation of the lift within the stipulated 26 weeks. The opposite parties did nt perform their contractual obligations despite receiving substantial amount as an advance. The agreement specified the complainant that the installation of the lift was to be completed within 26 weeks. Despite repeated assurance including a final commitment during the meeting on 23/09/2022 with local panchayat, the installation was not completed till today. Ld advocate commissioner has filed detailed report after holding local inspection commission of the locals. For the advocate commissioners report it transpires that no work of installation has been done. The opposite party in his written version stated that the complainant is not a consumer because the purpose of installation of lift is for commercial purpose. The complainant has specifically stated in the complaint that he is unemployed and he is going to use the said building for earning his livelihood by inducting tenants, licences under him. It is clear from the averments of the complainant that the complainant failed to get service from the Ops. It is clear that the Ops are guilty of deficiency in service and unfair trade practice. On the other hand the complainant was harassed by the Ops by various ways. Therefore the complainant is entitled to get reliefs as prayed for.
Therfore the point no 2 & 3 are also decided in favour of the complainant and against the Ops.
In the results the complaint case succeds.
Fees paid is correct.
Hence it is
ORDERED
The instant case be and the same is hereby allowed on contest against OP No-2 and exparte against OP No-1 with cost at Rs 25000/-
The Ops are jointly and severally liable and are directed to refund the entire advance amount of Rs 10,00,000/- only along with simple interest @9% P.A w.e.f 05/01/2022(date of encashed the first cheque) till the date of final realization with in 60 days from the date of passing this order.
Ops are jointly and severally liable and are also directed to pay compensation to the tune of Rs 50,000/- only for mental pain and agony suffered by the complainant within 60 days from the date of passing of this order.
Ops are jointly and severally liable and are also directed to pay the litigation cost of Rs 25,000/- only within 60 days from the date of passing of this order.
The Complainant has liberty to put the order into execution after the expiry of 60 days in case the orders are not complied with by the Ops within 60 days from the date of passing of this order.
Let a copy of this order be supplied free of cost to both the parties concerned.
That the final order will be available in the following website:www.confonet.nic.in.
Dictated and corrected by me.
Shampa Ghosh
Member
