Advocate V.A. Abhyankar for the Complainants
Advocate Aswini R. Singh for the Opponent
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date -18th November 2013
This complaint is filed by consumers against the service provider for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainants are husband and wife and doctor by profession. They are residing at Hadapsar, Pune 411 028. The Opponent is dealing in the profession of engineering works. Complainants are the owners of Pent House which is situated at 11th and 12th floor at Magarpatta Road, Hadapsar, Pune. They were interested in installing Hydraulic platform lift connecting terraces on the 11th and 12th floor in their pent house. Hence, they have called quotation from the opponent for the said work. The Opponent agreed to complete the work for Rs.3,00,000/- and the work was to be started from April 2010. The complainants paid Rs.1,00,000/- as first installment on 2/2/2010 and Rs.50,000/- on 7/4/2010 as second installment and the third installment of Rs.7,000/- towards transportation charges. Thereafter, on 27/4/2010 complainants paid Rs.25,000/- to the Opponent. After receipt of advance Opponent was expected to start the work. It was agreed that out of the remaining amount, 80% amount was to be paid against the proforma invoice and the balance of 20% was to be paid after commissioning. After lot of follow up from the side of the complainant, on 22/6/2011 representative of the Opponent visited the site and informed that the cost of the material is increased and demanded additional amount. Accordingly complainants paid Rs.20,000/- to the Opponent who agreed to complete the entire work on or before 9/7/2011. However, the work was not completed as the per assurance. On 7/10/2011 complainants warned the Opponent about legal action but still Opponent did not give any response, but demanded additional cost of Rs.55,000/-. Thereafter, the complainants have decided to complete the work through another contractor which cost additional burden of Rs.10,50,000/-. Accordingly to the complainants the Opponent has caused deficiency in service by not providing the lift as per the assurance. He has claimed refund of Rs.2,02,000/-, Rs.64,705/- towards interest @ 18% p.a. till January 2012, Rs.25,000/- towards compensation for physical and mental agony and Rs.8,48,000/- towards the difference of amount that will be required to spend for installation of new lift.
[2] Opponent appeared before the Forum and resisted the claim by filing written statement. It has admitted that the complainants had paid certain amount as alleged but it is the case of the Opponent that as the complainants did not place the work order the work could not be started. The Opponent has dumped the material at the site which was required for the installation of the lift as the cost of the installation and material was increased the complainants did not pay the difference in the prices, the work could not be completed. It is the case of the Opponent that complainants themselves are responsible for non completion of the work. The opponent has fairly admitted that the complainants had paid Rs.1,75,000/- as an advance in three different installments and Rs.7000/- for transportation charges. But it is the case of the Opponent that it has placed the material worth of the said advance. As the complainants did not pay the remaining amount, the work was not completed. The Opponent has also admitted that the complainants have paid Rs.20,000/- as per the negotiations between the interior decorator, complainants and the Opponent. The Opponent has prayed for dismissal of the complaint as there is no deficiency in service.
[3] After scrutinizing the documentary evidence, affidavits, correspondence and pleadings of both parties as well as considering the argument of both the parties, following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether the complainants have proved that the Opponent has caused deficiency in service ? | In the negative |
2 | What order ? | Complaint is partly allowed. |
Reasons
As to the Point Nos. 1 and 2-
[4] The admitted facts between the parties are that the complainants have engaged the Opponent for installation of the lift in their pent house. It is also not in much dispute that the complainants have paid Rs.2,02,000/- to the Opponent. It is the case of the Opponent that there is no agreement between the parties in writing, complainants have not placed purchase order. The cost of the material as well as services was increased and the complainants did not abide with the promise as regards payment of additional cost. Hence, there is no fault on the part of the Opponent for non completion of the work.
[5] It reveals from the record as well as the admission given by the Opponent in the pleading that the Opponent has received Rs.2,02,000/- from the complainants. In such circumstances, there is no question of placing purchase order or work order between the parties. According to the Opponent as the cost of the material and services were increased, the complainants have agreed to pay Rs.55,000/- in addition to the cost of agreement. But the complainants have paid only Rs.20,000/-. In order to substantiate this fact the Opponent has not produced any type of evidence. It reveals from the photographs which are produced by the Opponent that they have tried to install the lift at the site of the complainants. But it appears that the work of installation of lift was delayed at the hands of the Opponent and the material which was placed at site was damaged. By any stretch of imagination, it cannot be said that the complainants were liable for damage of that material. It appears from the quotation and other correspondence that the Opponent has agreed to install the lift for Rs.3,00,000/-. They have received Rs.2,02,000/- but the installation work was prolonged by one or the other reason. It is pertinent to note that the Opponent has not produced any documentary evidence to show that they were always ready and willing to perform their part of contract and due to non co-operation of the complainants, work could not be completed. In such circumstances, I held that the Opponent has caused deficiency in service, they are liable to refund the amount which was received from the complainants.
[6] The complainants have asked the difference amount in the amount paid by them to the Opponent and the new contractor. According to the complainants they had required to spend Rs.10,50,000/- for installation of the new lift. Hence, that amount is to be refunded to them. But as there is no agreement between the parties as regards payment of difference amount, complainants are not entitled to receive the cost of new lift or the difference amount from the Opponent. However, they are entitled to receive reasonable compensation on the ground of deficiency in service, mental and physical agony and cost of the litigation. I answer the points accordingly and pass following order-
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that the Opponent has caused deficiency in service by not providing proper service to the complainants.
3. Opponent is directed to refund Rs.2,02,000/- to the complainants within six weeks from the date of receipt of copy of order.
4. Opponent is at liberty to take back the material which was placed by them at the site of the complainants.
5. Opponent is directed to pay compensation of Rs.10,000/- to the complainants for deficiency in service, Rs.5,000/- for physical and mental agony and Rs.2,000/- for cost of litigation within six weeks from the date of receipt of copy of order.
6. If the amount is not paid or deposited by the Opponent within the stipulated period, it shall carry interest @ 9% p.a. from the date of filing of complaint till its realization.
7. Both parties are directed to collect the sets which are provided for the Hon’ble Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place – Pune
Date – 18/11/2013
