DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

 C.C. No. 102/2019

Date of Filing:                      Date of Admission:             Date of Disposal:

                   04.04.2019                                   23.7.2019                                04.08.2023

P R E S E N T                :-    Smt. Sukla Sengupta………………….President.

                                         :-    Sri.  Abhijit Basu…. …………………. Member.

            JUDGMENT

The Complainant has filed this petition of complainant under section 18 read with section 12 of this Consumer Protection Act 1986.against this Opposite parties, submitting a inter alia that the O.p. number 1 is a company incorporated under the companies act 1956.

The O.p. No. 2, 7, 3 in the capacity of being the Directors are acting on behalf of the o.,p. no.1

            It is further stated by the complainant that the O.p. No. 2 & 3 on the behalf of the O.p. 1 approached  the complainant to installed  elevator in the residential  unit of the complainant.

situated at 92, Canal street, Sreebhumi, Kolkata 700048 being impressed and satisfied with the proposal of the O.p No. 2 & 3. The Complainant was agreed to installed an Elevator being one

 BUCO Passenger Elevator at the complainants resident because the father of the complainant aged about 84 years was suffering immense difficulty while climbing up the stairs.

Accordingly the O.p. made a representation dated 19.4.2017 having reference numbers BE/EO/5010/17-18 with regard to the supply and installation of one BUCO Passenger Elevator at the residence of the complainant and providing him with a specification sheet regarding the technicalities of the elevator along with a schedule of payment.

The specification sheet and the representation dated 19.4.2017 collectively marked as “A”

The total cost of the entire work  was fixed on  an amount of Rs., 4,80,000/- out of which  Rs. 2,00,000/- to be paid in the beginning of the work and the rest amount of Rs. 2,80,000/- would be paid on completion of the work, that is after the installation of the lift in workable condition

Being satisfied with the representation of the O.p. made by complainant  accepted  the same and immediately issued  cheque of  Rs. 100000/- on that very date i.e. 19.4.17 being cheque no. 084187  drawn on Axis Bank, Lake town Branch. The another Rs. 100000/- was paid on 31.7.2017 vide cheque number 100503 drawn on Axis Bank lake town branch in favour of the O.p. number 1.and both the cheque were duly encashed by the O.p.

The concerned Bank statement has not been  brought into evidence Annexture”B”

It is alleged by the Complainant that on received of the payment the O.p. Parties did not take any effective steps regarding the commencement of the work and they did not make communication  with the Complainant to that effect, despite on receipt of the information from the complainant that all the residential facilities has already been done.

They avoided the Emails and phone calls of the complainant which has been brought into

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evidence Annexure “C”.

It is a further case of complainant that due to inaction of the o.p., the complainant compelled to made an application before the Assistant Director, Consumer Affairs and Fair Business Practice at their R.O. Salt lake  but such mediation was failed on 7.12.2018 thereafter the complainant has filed this petition of complaint before this Commission with a prayer to give direction to the O.p no.1 to refund the amount of Rs. 200,000/- as paid by the complainant along with interest at the rate of 18%

per anumn and also give direction to pay  compensation of Rs. 100,000/- for  harassment mental pain & agony  on from august 2017 till the date of payment. The O.p. have contested the application by filing a written version denied all the material allegation leveled against them.

It is alleged by the contesting O.p , that the petition of complaint  filed by the O.p.is misconsived,harrasing and concocted one. It is further stated by the o.p, that the complainant has no cause of action to file this case, thus the same is liable to be dismissed.

It is stated by the O.p. that it was agreed by the complainant that he  has to pay 80%  of the price before installation of the Elevetor but the complainant failed and neglected to pay as per contract and insist  the o.p. for installation of the Elevator  without making the payment.

It in the allegation of the o.p that  the complainant make false  allegation with regard to his visit  to the office of the O.p.,  and he filed of this case malafied with  intention  and illegal gain. It is further stated by the o.p. that the petition of complainant in  liable to be dismissed with cost

In view of above pleadings the point of considerations are fallows.-

1.Is the case maintainable ?

2. Has the complainant any cause of action to file the case?

3. Is the complainant a consumer?

4.Is there any deficiency in service on the part of the O.p.

5. Is the complainant entitled to get the relief?

Decision with Reasons

All the points are taken up together for convenience of discussion and to avoid unnecessary repetition. From the materials on record as well as facts and circumstances of the case and also considering the position of law it is revealed that both the parties  to this case are residing and running their business within the territorial jurisdiction of this Forum.

The valuation of the subject matter of this case shows that it is well within the pecuniary jurisdiction of this Forum.

 It is alleged by the complainant that he ,made contact with the O.p. No.1 i.e. “M/s. BUCO Elevators “ office  which is  situated at 10A,Monidra Mitra Road,Kolkata,700009

 For installation of an Elevator at his residential house at 92,Camac Street,Sreebhumi,Kolkata 700048. The O.p 1 agreed to install the same and made a representation dated 19.4.2017 as per representation (Annexure A) the complainant paid Rs. 2 lacs vide cheque no 084187 and 100503 dated 19.04.17 and 31.07.17 of Rs. 1 lacs each drawn on Axis Bank ,Lake town branch, in favour of the O.p. No.1 but on received of Rs 2 lacs till the case filing  of this case i.e 04.04.19 the o.p.1 did not install the Elevator in the house of the complainant

Hence the complainant filed this case. From which it is crystal clear that the complainant has /had sufficient cause of action to filed this case and he filed the case within the period of limitation.

In view of the discussion made above it is opined by this Forum that the case is well maintainable in the eye of law.

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From the written version as filed by the O.p.1 it is found that admittedly the o.p. recived rs 2 lacs out of Rs. 4,80,000/- the total cost of installation of the  Elevator in question by cheque issued by the complainant So as and when the o.p.1 received the part payment of the insatalltion cost of rs. 2,lacs out of Rs 4,80,000/- from the complainant since then the complainant is a consumer as per provision of C.P. Act 1986.                                                        

It is also admitted fact that it was agreed between the complainant and o.p.1 that the total cost of the installation of the Elevator in the house of the complainant was of Rs. 4,80,000/-

The complainant paid Rs. 2 lacs on 19.4.17 and 31.7.17  vide cheque no 084187 and 100503 of 1 lacs each on Axis bank lake town branch in favor of o.p. no.1 the o.p. no 1 admittedly encashed the same.from the evidence of record it is found that it was agreed between the complainant and o.p 1 that the balance amount of Rs. 2,80,000/- would be paid by the complainant after installation of the lift in workable condition at the residence of the complainant.

In their written version and also in the evidence on  record it is shown that till date the o.p. did not install the lift/ Elevators in question in the house of the complainant. From the evidence of the complainant as available on record it is found that on several occasions the complainant made contact with the o.p. 1 and other o.p.s  requested them to install the Elevators/Lift in his house but the o.p. did not pay any heed to his ward  even on several occasions they assured the complainant that the work would be started on1st march 2019 but ultimately they did not do the same. The complainant then made a complaint in the office of consumer affairs at Saltlake for getting relief but the o.p. refused to cordially participate in the hearing then the assistant director consumer affairs Saltlake passed an order dt. 7.12.18 with observation that mediation failed on account of difference between the parties then having no alternative the complainant filed this case.

In view of the discussion made above and also considering the evidence on record as well as  facts and circumstances of this case, it is palpably clear that  the o.p. ignored the complainant even on received money and neglected his request ultimately did not install the Elevators / lift in his (complainant)house in time. Such conduct of the o.p. should the considered as the deficiency on service and unfair trade practice. By such conduct the o.p. caused harassment mental pain and agony to the complainant and his old father. It also caused erepairable lose to the complainant.

From which it is established  that the complainant could be able to prove his case and his entitled to get relief as prayed for.

All the points of consideration are thus considered decided favourably and to the complainant.

The case is properly stamped.

 Hence

                                                         It is  Ordered,

That the case be and same is decreed on contest with cost of Rs. 5000/- against the o.ps

The complainant do get the decree as prayed for.

The o.p. no.1 is directed to refund the amount of Rs. 2 lacs to the complainant along with interest at the rate of 9% per annum on the amount from the date of filing of this case till realization within 45 days from this date of order. The O.p.no.1  also directed to pay a compensation of a sum of Rs. 1 lac to the complainant for harassment mental pain and agony within  45 days from the date of order.

If the o.p. no.1 failed to comply the decree with in stipulated period the complainant will be at liberty to execute the same  as per law.

Let plain copy of this order be given to the parties free of cost as per CPR, 2005.

Dictated & Corrected by me  

 President                    

Member                                                                                                         President