Advocate R. A. Andhale for the
Complainant
Advocate Ashish Sudhir Nahar for the
Opponents
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 20th July 2013
This complaint is filed by retired IAS Officer against the Opponents for deficiency in service u/s 12 of the Consumer Protection Act, 1986 as regards installation of lift in his bunglow. Brief facts are as follows-
[1] Complainant is residing at Sahawas Society, 5th Lane, Karve Nagar, in his bunglow named as “Padma Sindhu”. He is 82 yrs. old and he has knee problems. Hence he found difficulty in climbing up and down the stair case. Hence he has decided to get home lift installed in his bunglow. The representative of the opponents approached the complainant and agreed to supply the services of the lift. After discussion it was agreed that the opponent shall prove lift and services for the consideration of Rs.7,50,000/-. Complainant paid Rs.1,00,000/- by issuing two cheques of Rs.50,000/- each on 6/12/2011. But the Opponents have not completed the installation work as per the schedule. He had also issued another cheque on 07/06/2012. But as the work was not done as per the schedule he requested his banker to stop the payment. Hence the installation work of the lift remained incomplete and it was not done as per the schedule which is referred in the agreement. Hence complainant has filed this complaint. Complainant has prayed that there is deficiency in service on the part of the opponents hence he has requested to direct the opponents to complete the work of installation of lift. In the alternative he has demanded refund of Rs.1,00,000/- alongwith interest @ 18% p.a. He has also asked damages of Rs.2,00,000/- for deficiency in service and Rs.1,00,000/- for mental agony and Rs.20,000/- for cost of proceeding.
[2] The Opponents resisted the complaint by filing written statement and denied the contents of the complaint. According to them there is no deficiency in service and complainant himself has committed breach of agreement. He had not complied the terms and conditions of the agreement. He had not paid the consideration amount in advance as per the terms and conditions. Eventhough opponents have done the work on the site as regards installation of lift. The consideration amount is not paid by the complainant. The contents as regards not attending the calls of complainants are denied. It is the case of the Opponents that they had invested huge amount for the installation of lift and it was pre-requisite condition that complainant should pay Rs.3,00,000/- before starting the work of lift. That condition is not fulfilled. Hence they cannot complete the work. It is also contended that it is the duty of the complainant to obtain permission from local authority before installation of lift. The Opponents have prayed for dismissal of the complaint and demanded compensatory costs.
[3] Both parties have filed their affidavits, documents, written argument. After considering the arguments, pleadings and documentary evidence on record following points arise for my determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainant has proved that there is deficiency in service on the part of the Opponents ? | In the affirmative |
2 | What order ? | Complaint is partly allowed. |
Reasons-
As to the Point Nos.1 and 2-
The learned Advocate for the Opponents argued before me that it is the duty of the owner to obtain permission from the statutory authority before installation of lift. He drew my attention to the section 4 of the Bombay Lifts Act, 1939. As per the said section every owner of a place intending to install a lift in such a place after the commencement of this Act, shall make an application to such officer as the State Government may authorize in this behalf for permission to erect such lift. Such application shall be in writing and in such form as may be prescribed. On receipt of such application the Officer authorized under this Section shall, after making such an inquiry and requiring the applicant to furnish such information as may be necessary, forward the application with his remark to the State Government. The State Government may thereupon either grant or refuse the permission. Such permission shall be valid only for a period of six months from the date on which it is granted.
As per section 5 of the said Act the license to use the lift is also necessary from the State Government.
It is significant to note that all these facts were not known to the complainant while entering into agreement and there is no clause as regards permission as well as license for the use of lift in the said agreement.
The learned Advocate for the Opponents also argued that as the complainant did not pay the consideration amount as per the terms and conditions the work could not be completed. The photographs of the incomplete work are produced by the parties and it reveals from the same that some of work has been done by the Opponents. In the written argument the Opponents had shown readiness and willingness to complete the work. The complainant had issued notices to the Opponents and requested them to complete the work. The complainant has also informed the Opponents that he is ready to pay the consideration through third party as he is not sure as to Opponents will complete the work after accepting the total consideration amount.
As the facts as regards the permission and obtaining license were not within the knowledge of complainant and those were not disclosed by the Opponents while entering into agreement this fact itself amounts to deficiency in service. Further Opponents have delayed the erection of the lift for one or the other reason. If the work will remain incomplete both parties will sustain loss. Hence it is convenient to direct both parties to complete the work of erection of the lift by co-operating each other. If the consideration is deposited before the Forum and the Opponents are directed to complete the work of installation of lift that would meet the ends of justice. Hence I answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that the Opponents have caused deficiency in service by not disclosing the fact as regards permission and license of lift to the complainant.
3. The Complainant is directed to deposit amount of Rs.6,50,000/- before the Pune District Consumer Disputes Redressal Forum within six weeks from the date of receipt of copy of order.
4. The Opponents are jointly and severally directed to complete the work of installation of lift within six weeks from the date of receipt of copy of order.
5. The complainant is directed to obtain the permission and license for the use of lift from the competent authority.
6. As per peculiar circumstances parties to bear their own cost.
7. Parties are directed to collect the sets which were provided for Members within one month from the date of order. Else the sets will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place- Pune
Date – 20/07/2013
