DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Consumer Complaint No. 330 of 13.8.2018

                                      Decided on:             12.7.2019

M/s Kamal Furniture House, Nabha Gate, Patiala 147001, through its Proprietor Sh.Kamaljit.

                                                                   …………...Complainant

                                       Versus

1.       M/s Prism Elevators & Engineering, through its Proprietor / Owner Sh.Arindam Datta, 41/34, Rashkhola Road, Khardaha, Kolkata-700117 (west Bengal) & now operating from New Address:

# 112, Rabindra Nagar, Dunlop, Kolkata-700108 (West Bengal)

2.       Sh.Arindam Datta, Proprietor/Owner of M/s PRISM Elevators & Engineering, Rashkhola Road, 41/34, Rashkhola Road, Khardaha, Kolkata-700117 (West Bengal) & now operating from New Address:

# 112, Rabindra Nagar, Dunlop, Kolkata-700108 (West Bengal)

3.       Sh.Sanjeev Johar, Senior Sales Manager, M/s Prism Elevators & Engineering, 41/34, Rashkhola Road, Khardaha, Kolkata-700117 (west Bengal) now operating from New Address:

# 112, Rabindra Nagar, Dunlop, Kolkata-700108 (West Bengal)

                                                                   …………Opposite Parties

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Sh. M.P.Singh Pahwa, President

                                      Smt. Inderjeet Kaur, Member

                                      Sh.B.S.Dhaliwal, Member 

ARGUED BY

                                      Sh.S.P.Verma,Advocate, counsel for complainant.

                                      Sh.Inderpal Singh,Advocate, counsel for OPs No.1&2.

                                      Opposite party No.3 Ex-parte.

 ORDER

                                     M.P.SINGH PAHWA,PRESIDENT

1. This is the complaint filed by M/s Kamal Furniture House through its Proprietor Kamaljit (hereinafter referred to as the complainant) against M/s Prism Elevators & Engineering and others (hereinafter referred to as the OP/s).
2. Briefly the case of the complainant is that OP No.1 is a Kolkata, West Bengal (India) based/settled ISO 9001:2015 certified company, working as an original equipment manufacturer. It is engaged in trade of designing and developing a range of elevators. It is manufacturer and supplier of corporate lift, escalator, office elevator, hospital lift/stretcher lift and its component. It supplies its offering in all States of India. It also works as service provider and render installation and maintenance services. It claims that both installation and maintenance services are rendered on time using right technology, advanced devices and tools. This information is also posted by OP No.1 on its website http://prismelevators.tradeindia.com/
3. Complainant wanted to have installed an elevator in his business premises M/s Kamal Furniture House, Nabha Gate, Patiala for his own use. Complainant came to know about OP No.1 through its then working website and contacted OP No.2 some time in October,2016 and enquired about the requisite suitable elevator/lift.
4. It is also alleged that OP No.1 said previous website is no longer working/available. OP No.1 is hosting its business- promotional web pages on the other website namely www.tradeindia.com and is a member thereof but with new address i.e. 112, Rabindra Nagar, Dunlop, Kolkata-700108( West Bengal).The said entity tradeindia is also known as Infocom Network Limited, having its registered office at C-1, Main Shopping Centre, Vasant Vihar, New Delhi.
5. It is further case of the complainant that in pursuance  of the enquiry made by him , OP No.2 deputed/sent OP No.3 Sh.Sanjeev Johar, Sr.Sales Manager of OP No.1 company. He visited the complainant on 2.11.2016 and inspected the proposed site for erection and installation of the intended passenger lift.
6. On 10.11.2016, OP No.3/Sr.Sales Manager, again visited complainant and discussed about the project of intended installation of passenger lift. On 19.11.2016, he again visited complainant and submitted price quotations for the intended installation of passenger lift. On 16.12.2016, a proposal-cum-agreement/contract  for the supply of materials & installation of one passenger lift at the price of Rs.5,50,000/-  was signed at Patiala between OP No.1through its Sr.Sales Manager Sanjeev Johar (OP No.3) and the complainant. This price of Rs.5,50,000/- included all prevailing taxes, installation, commissioning and freight. The OP No.3 Sales Manager also collected bank cheque of Rs.1,00,000/- in the name of OP No.1 towards advance payment of the project.
7. As per terms of payment stated in the agreement/contract, the breakup of the contract value per elevator is cost of material 85%, cost of installation, commissioning & testing 15%.  30% of the said cost  was to be paid in advance on acceptance of the  proposal/entering into the contract.In compliance to these terms, crossed cheque of Union Bank of India, Patiala branch, dated 26.12.2016 of Rs.1.00.000/- was issued in favour of OP No.1.
8. It is further pleaded that on 15.1.2017 OP No.3/Sales Manager again visited complainant and checked the location and site for passenger lift installation and took certain measurements.
9. On 18.1.2017, OP No.2/Proprietor Sh.Arindam Datta of OP No.1 alongwith OP No.3 visited the site and further discussed with complainant about execution of the project.
10. On 14.3.2017, another amount of Rs.1.00.000/- was credited/paid by the complainant through NEFT to OP No.1 in its account. The total advance payment of Rs.2.00.000/- stood paid, which was in excess of 30% of the agreed payment of Rs.5.50.000/-.
11. It is alleged that on 10.4.2017 one Basheer Khan/Basar Khan, employee of OP no.1 visited the complainant on behalf of OP No.1 and inspected the site. Again on 20.4.2017 he came alongwith his team of five persons for further inspection and measurement and assessments for the installation of the project. After 20.4.2017 and till date neither any material was supplied nor company engineer or contractor visited complainant and the site. General arrangement drawing was also not prepared and approved. The complainant contacted OPs on their mobile phone numbers repeatedly. They always gave false assurance of commencing the work and commissioning of the lift but nothing of the sort  ever happened. OPs willfully dilly dallied the installation of elevator till January,2018 and thereafter stopped visiting the complainant and answering  complainant’s phone calls.
12. The complainant also served legal notice dated 15.6.2018 through his counsel upon the OPs on their official address and through e-mails but to no response.
13. On this back of the facts, the complainant has alleged that the OPs indulged in fraudulent conduct, criminal negligence and they are liable to refund the payment of Rs.2lakh with interest @24% per annum from 16.12.2016 till payment. The complainant also claimed Rs.2lakh as compensation towards mental agony, harassment and detriment suffered due to non redressal of his grievance and violation of the contract and Rs.35,000/-as costs of the litigation. Hence this complaint.
14. Notice of the complaint was issued against the OPs but the same was received back unserved with the report ‘left’. Thereafter the OPs were ordered to be summoned through publication in The Tribune and accordingly the publication was effected. Thereafter, OPs No.1&2 appeared through counsel Sh.Inderpal Singh but none appeared on behalf of OP No.3. As such OP No.3 was proceeded against exparte.
15. OPs No.1&2 failed to file the written version within the stipulated period. As such the right to file the written version was stuck off vide order dated 20.3.2019.
16. It is relevant to mention that after appearance OPs No.1&2 also filed an application for dismissing of the complaint. The application was also dismissed vide order dated 15.3.2019.
17. In support of the complaint, the complainant tendered into evidence Ex.CA, affidavit of Kamaljit, Ex.C1 colly copy of website printout,Ex.C2, colly copy of  LBL & visiting cards, Ex.C3 colly copy of  website printouts, Ex.C4 colly copy of contract/proposal,Ex.C5 colly copy of bank cheque and accounts statement, Ex.C6 copy of bank account statement,Ex.C7 colly copy of legal notice and postal receipts, Ex.C7A colly copy of legal notice and postal receipts, Ex.C8 copy of e-mails printout dated 12.8.2018. The complainant has also submitted written arguments.
18. We have heard the ld. counsel for the parties and gone through the record of the case, carefully.
19. The ld. counsel for the complainant has reiterated his stand as taken up in his pleadings and detailed above.
20. We have given careful consideration to the rival submissions.
21. The complainant has pleaded that it entered into an agreement with the OPs for the installation of passenger lift. Copy of the contract dated 16.12.2016 is Ex.C4. Complainant also alleged that a sum of Rs.2.00.000/- was paid to the OPs as part payment. Copy of the bank cheque,Exs.C5 and C6 are brought on record to prove payment of Rs.2.00.000/-.
22. It is also the case of the complainant that the OPs have not installed the passenger lift. There is no written version to rebut this averment of the complainant. In these circumstances, this version of the complainant is also to be accepted.
23. As such it is accepted that the OPs failed to install the machinery despite receipt of Rs.2.00.000/- part payment. Therefore, the complainant is entitled to  the refund of this amount. The complainant remained deprive from utilization of this amount and the OPs have availed this amount. As such the complainant is also entitled to interest as compensation on this amount @12% per annum from the date of payments. The complainant has claimed Rs.35000/- as cost of litigation.
24. The notice to the OPs was issued through publication in The Tribune. Complainant has pleaded that he has spent about Rs.10,000/- for publication purposes. Complainant was also required to engage the counsel. Therefore, keeping in view all these aspects, Rs.20,000/- is awarded as cost of litigation.
25. For the reasons recorded above, complaint is partly accepted with Rs.20,000/-as costs of the litigation. The OPs are directed to refund the amount of Rs.2.00.000/- alongwith interest @12% per annum from the date of payments.
26. Compliance of the order be made by the  OPs within a period of 45 days from the date of the receipt of the certified copy of this order. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.

ANNOUNCED

DATED:12.7.2019       

 B.S.Dhaliwal                         Inderjeet Kaur              M. P. Singh Pahwa

       Member                                 Member                                      President