Tamil Nadu

North Chennai

CC/16/2023

Mr.Srividhya Raghavan.,W/o.Roghavan - Complainant(s)

Versus

M/s.Ojal Elevator India Pvt.Ltd.,Rep by its Managing Director - Opp.Party(s)

K.Prem Kumar

27 Nov 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

PRESENT: THIRU. G. VINOBHA, M.A., B.L.           : PRESIDENT

                                         TMT. KAVITHA KANNAN, M.E.,         : MEMBER-I

                                         THIRU V. RAMAMURTHY, B.A., B.L., PGDLA : MEMBER-II

 

C.C. No.16/2023

  DATED THIS MONDAY THE 27^TH   DAY OF NOVEMBER 2023

                                

1.Mrs.Srividhya Raghavan

W/o.Raghavan

 

2.R.Raghavan

S/o.Ranganathan

both are now residing at Plot No.14-B,

Mangala Vinayakar Koil Street,

Bhavani Nagar West, Thiruninravur,

Thiruvallur District-602 024

                                                                                                                                                                                                           …..Complainants

 ..Vs..

1.M/s.Ojal Elevator India Pvt Ltd

Rep by its Managing Director

Door No.2/53, Block 35^th Street,

Agathiyar Nagar, Villivakkam

Chennai-600 049

 

•  

Managing Director,

M/s.Ojal Elevator India Pvt.Ltd

Door No.2/53, Block 35^th Street

Agathiyar Nagar, Villivakkam,

Chennai-600 049.....Opposite Parties

 

 

Counsel for Complainant                      : M/s.Premkumar

Counsel for  opposite party-I                : Ex-parte

Counsel for  opposite party-II               : Anankumar (Exparte)

 

ORDER

 

TMT. KAVITHA KANNAN, M.E., MEMBER-I

 

This complaint has been filed by the complainants as against the opposite parties under section 35 of Consumer Protection Act 2019 praying to direct the opposite parties to refund the sum of Rs.5,10,000/- along with interest at the rate of 24% per annum w.e.f 30.07.2021 till the date of refund to the complainant and to pay a sum of Rs.5,00,000/- towards damages and compensation, Rs.14,300/- towards costs and hiring charges for arranging and fixing scaffoldings, to pay the cost of the complaint.

1. Complainant in Brief:

The 1st complainant and the 2nd opposite party entered into an agreement on 21-12-2020 on behalf of 1st opposite party for the purpose of installation of a Lift at the complainants, residence at Thirunindravur and a cheque was issued for Rs.10,000/- on 23-12-2021 by the 1st complainant and a cheque for a sum of  Rs.5,00,000/-based on revised pricing was issued by the 1st complainant in favour of the 1st opposite party and inspite of receipt of total sum of Rs.5,10,000/-out of the total agreed cost of lift of Rs.8,85,000/-, the opposite parties had failed tot ake any steps to install the lift at the complainants’ residence and on 28-12-2021 the 2nd complainant lodged a criminal complaint with the Villivakkam Police Station against the opposite parties. On 28-12-2021 the opposite parties promised to install the lift within a week, but failed to do so .Subsequently the opposite parties had agreed to refund the amount received from the complainants. While on 05-01-2022 the opposite parties issued 2 cheques for Rs.2,50,000/- and Rs.2,60,000/- in favour of the 1st complainant but the 2nd had taken back the cheque bearing No.037626 for Rs.2,50,000/- from the 1st complainant and issued two fresh cheques for Rs.2,00,000/- dated 31-01-2022 and Rs.50,000/- dated 02-02-2022. Subsequently, the 1st complainant presented the said 2 cheques for collection with her bank at New Delhi but both cheques were returned as dishonoured .Hence the complainants chose to file a legal notice on the opposite parties 0n 23-02-2022.The 1st complainant presented the 3rd cheque on 28-02-2022 and that was also returned as dishonored on 01-03-2022 by the opposite parties bank .Finally the complainant installed the lift at their site on 19-01-2022 by engaging new service at an expense of Rs.7.65 Lakhs and Grahapravesam was occasioned on 20-01-2022 .Another notice was issued to the opposite parties demanding refund of Rs.5,10,000/- ,neither  the legal notice was replied nor the request complied by the opposite parties and hence this complaint was lodged in this commission. 

 

2.  POINTS FOR CONSIDERATION:

1. Whether there is Unfair Trade Practice and Deficiency of service on the opposite parties?

2. Whether the complainant is entitled for Refunds and compensations as prayed for, If so, to what extent?

          Proof Affidavit of Complainant and Ex.A1 to Ex.A21 marked on the complainant side. Opposite parties remained Exparte.

POINT.NO.1

                   As per complaint the complainants both being senior citizens chose to build a house at the land they owned jointly and construction work was initiated in February 2021 after essential approval from statutory authorities. The complainants have stated to have approached the opposite parties for the purpose of launching lifts in their house being newly built, for 2 floors and followed by all discussions an agreement was arrived by both parties on 21-12-2020 between the 1st complainant and the 2nd opposite party and the costs of installation was arrived at Rs.6,99,153- + 18% GST Rs.1,25,848/- totalling to Rs.8,25,001/- and an advance of Rs.10,000/- vide cheque was paid by the complainant. In the month of july 2021 when necessary arrangements for civil work were done the opposite parties approached the complainants with a revised pricing for Rs.7,50,000/-+ 18% GST summing to Rs.8,85,000/- as the material costs had elevated due to covid pandemic as stated by the 2nd opposite party. The complainants had alleged that they had paid a sum of Rs.5,00,000/- vide cheque on 29-07-2021 to the 2nd opposite party for which the 2nd opposite party gave the Drawings and plans the for lift and also instructed the complainant for need of civil and electrical works for the installment of the lifts.

                   The complainants have alleged that while so in August 2021 when the complainants approached the opposite parties to inspect the site the opposite parties evaded from responding to the complainant and finally when the 2nd opposite party arrived at the complainants’ site in September 2021 they instructed the complainant to install 2 heavy iron hooks on the ceiling of the Lift room which was also duly complied and the complainants informed the 2nd opposite party. Further the 2nd opposite party insisted the complainants to arrange for scaffolding for specific erection of shafts based on which the complainants abided with necessary arrangements by hiring materials as they were necessary only for 15 days . When the complainants approached to inform the same to the 2nd opposite party about no materials arrived at the complainants’ site for the installation of the lift as the complainants had planned for the occasion of Grahapraveshsam by January 2022 and the same was well within the knowledge of the opposite parties and the complainants being in very much need of the lifts. As the 2nd opposite party evaded from delivering his service, the complainants chose to lodge a criminal complaint and emailed to the Villivakkam police station on 28-12-2021 expressing their grievance in the opposite parties thereby alleging for refund of the advance of Rs.5,10,000/- paid to the 2nd opposite party. It is submitted by the complainants that the 2nd opposite party was called upon by the said Police Station when the 2nd opposite party promised to install the lift within a weeks time but on subsequent days expressed their inability to install the lift at the complainants’ site and hence admitted to refund the amount received from the complainants and issued Cheque no.037626 dated 31-01-2022 for Rs.2,50,000/- and Cheque No.037629 dated 28-02-2022 for Rs.2,60,000/-.The complainant submitted that she sent a whatsapp communication to the 2nd opposite party about her depositing the cheques, the 2nd opposite party replied that they had only Rs.2.Lakhs in their bank account and hence requested the 1st complainant to wait until sufficient funds were arranged in their bank account and hence the 2nd opposite party received back the cheque for Rs.2,50,000/- and gave 2 fresh cheques for (i)Rs.2,00,000/- vide cheque no.037632 dated 31-01-2022 and (ii)Rs.50,000/- vide cheque no.036731 dated 02-02-2022.

          It is further submitted that when the cheque no.037629 dated 28-02-2122 was presented with the complainants bankers, both cheques were dis-honoured with an “Insufficient Funds” notes by the bank .Finally the complainant choose to issue a legal notice on the opposite parties calling the opposite parties to pay the due amount of the 2        dis-honored cheques ,which was neither replied nor responded by the opposite parties. And the other cheque  vide cheque no.037629 was    dis-honoured by the 2nd opposite party bank as ‘Payment stopped by drawer’. on 01-03-2022. It is alleged by the complainant that the opposite parties deliberately issued 3 cheques in favour of the 1st complainant with the full knowledge of shortage of funds in their bank account and had prayed for compensation for the deficiency of service on the opposite parties due to the failure of the opposite parties to deliver the lift materials in time and hence the complainant had engaged another Service Provider and installed the Lift on 19-01-2022 at an expense of Rs.7,65,000/- and the house warming ceremony was conducted on 20-01-2022.

          Perused documents and heard the counsel for complainant, Proof Affidavit filed and Written Arguments filed along with ExA1 to A21 marked on the complainant’s side. Opposite parties Set Exparte.

          On perusal of documents and averments of the complainants who are senior citizens it is found that they choose to construct a house at the jointly owned property of the complainants at Thirunidravur and had planned to install a Lift for 2 floors from ground floor, hence had approached the 2nd opposite party and signed a contract arriving at a tentative cost of Rs.8,25,001/- along with 2 year warranty as found in ExA1 dated 21-12-2020. The provisions to be provided by the complainant to the opposite party for the erection of the lift and the technical specifications along with the diagram plan of the lift was received by the complainants on 29-07-2021 as found in ExA1. The 2nd opposite party subsequently wrote a letter stating the increase in price  of materials due to covid pandemic and hence the basic cost of the project was increased from Rs.6,99,153/- to Rs.7,50,000/- dated 21-12-2020  and the same was valid till 30-01-2021 as found in Ex A1. The complainants have paid a sum of Rs.10,000/- on 23-12-2020  vide cheque no-292 to the opposite parties as advance and the same is found in ExA5. After submitting the lift plan and diagrams with the complainants the opposite parties have evaded from installing the lift and had not picked up calls from the complainants as a result of which the complainants choose to file a complaint against the 2nd opposite party in Villivakkam police station and lodged an online complaint on  28-12-2021 based on which an investigation was done by Crime Branch villivakkam  and an endorsement was given by the 2nd complainant  vide letter dated 28-12-2021 accepting the 2nd opposite party’s promise to install the said Lift within a week’s time as found in ExA4. Since the 2nd opposite party failed to install the lift as promised the 2nd complainant lodged a fresh complaint in the Crime Branch ,Villivakkam Police station on 05-01-2022 requesting for refund of the paid cost of Rs.5,11,000/- which is evident in ExA6 and an CSR was lodged vide CSR no.10/2022 on 06-01-2022  in the Crime Branch,Villivakkam Police Station as found in ExA7. The 2nd opposite party had issued 4 cheques in the name of the 2nd complainant vide Cheque(1) vide cheque no.037632 for a sum of Rs.2,00,000/- and Cheque(2) vide cheque no.03726 for a sum of Rs.2,50,000/- both dated 31-01-2022 and cheque(3) vide cheque no.037631 for a sum of Rs.50,000/- dated 02-02-2022 A8,Cheque(4) vide cheque no.037629 for a sum of Rs.2,60,000/- dated 28-02-2022 as found in Ex A8, Ex A9, ExA12 and ExA15 respectively .The cheque No 037632 was dishonored  and returned by the 2nd opposite party bank as “Fund Insufficient”  vide Return Memo Report dated and the same is evident in ExA11 and Cheque no 037631 was dishonored and returned by the 2nd opposite party bank as “Payment stopped by Drawer” vide memo report dated 03-02-2022 found in ExA13 and the Cheque No.037629 was dishonored and returned with a vide Memo Report dated 02-03-2022 with a note “Payment stopped by drawer”  found in ExA16. The 1st  complainant has issued 2 legal notices to the 2nd opposite party calling him upon to pay Rs.2,50,000/-,Rs.2,60,000/-and Rs.50,000/- being the value of the dis-honored cheques issued to the 1st complainant in ExA18 along with their acknowledgements in ExA19. The complainants have submitted their medical bills found in ExA20.

          Perused documents and averments, the undisputed facts of the case are that the complainant paid a sum of Rs.5,10,000/- towards installing lift at their new house at the 2nd opposite party and a contract was mutually arrived. Subsequently, the material cost for the installment was raised due to covid pandemic and also the complainant was instructed to raise scaffolding for erecting shafts the installation purpose by the 2nd opposite party evident vide ExA2. Dispute arose when the 2nd opposite party evaded from delivering materials for the installation and from mounting the lift within promised date. Alleging deficiency in service caused by the 2nd opposite party the 1st complainant lodged a complaint against the 2nd opposite party in Villivakkam Police Station and  the same as found from ExA4 based on which the 2nd opposite party had promised to install lift within a week and the same was accepted by the complainants. However the 2nd opposite party failed to install the lift and hence the complainant demanded for refund of the money paid and the 2nd opposite party issued 4 cheques which were deposited by the 2nd  complainant and was dishonoured by the 2nd opposite party’s bank with a note of Insufficient funds and Payment stopped by Drawer .This commission is of the considered opinion that the 2nd opposite party had failed from delivering materials for the installation of lift and from installing the lift and hence thereby breached the contract signed by  both parties. The 2nd opposite party had given cheques for refund of amount to the complainant but they could not be encashed due to insufficient fund in the opposite parties bank account and due to stop payment instruction given by the opposite party which amounted to   Unfair Trade Practice and deficiency in service on the part of opposite parties and further the non delivery of materials for the installation of the lift even after payment of Rs.5.10lakhs by the complainant which was not disputed by the opposite parties and which is evidenced by the bank statement which is filed as Ex.A21 and making the complainant to complete the installation work by engaging the another service provider amounts to deficiency in service on the part of opposite parties 1 and 2. Point No.1 answered accordingly.

Point No.2

Based on facts in point no.1 there is deficiency of service and unfair trade practice on the  part of opposite parties 1 and 2 and hence the complainant is entitled for a reasonable compensation for the deficiency of service and unfair trade practice . Though the complainant prayed for refund of Rs.5.10lakhs with interest from the opposite parties by a memo dated 05.09.2023 the complainant alleged that they have initiated proceedings against the opposite parties as per the provisions of Negotiable Instruments Act in CC.No.11424 and 11426 of 2022 on the file of metropolitian magistrate NI Digital Court-02 pattiala House Courts New Delhi regarding the dishonor of cheques and the same is now pending for adjudication and hence has given up relief (a) in the complaint further though the complainant prayed for a sum of Rs.14,300/- towards the cost for arranging and fixing the scaffholdings at the complainant’s residence since there is no proof for the same the complainant is not entitled for that amount. Considering the hardship and mental agony caused to the complainant for non completion of work by the opposite parties and not refunding the amount paid by the complainant. Hence the complainants are entitled for a compensation of Rs.1,50,000/- and Rs.5000/- towards cost of the complaint. Point No.2 answered accordingly.

In the result the complaint is partly allowed. The opposite parties are jointly and severally directed to pay the complainant’s a sum of Rs.1,50,000/- towards compensation and Rs.5000/- towards cost of the complaint. The above amount shall be paid to the Complainants within two months from the date of receipt of the copy of this order, failing of which the above said amount shall  carry 9% interest from the date of order till the date of payment.

Dictated  by the Member-I to the Steno-Typist taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Commission on this the 27^th day of  November 2023

 

MEMBER – I              MEMBER-II                         PRESIDENT

 

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT:

Ex.A1	21.12.2020	Terms of Contract between the 1st Opposite party and 2nd complainant Maps/Drawing etc
Ex.A2	29.07.2021	Letter from the 1st Opposite party to 2nd Complainant
Ex.A3	28.12.2021	Complainant e-mail from complainant to Opposite parties
Ex.A4	28.12.2021	Letter from 2nd complainant to Inspector of Police (crime branch)V-1 Vilivakkam Police station chennai
Ex.A5		Bank statement of 2nd complainant issued by ICICI Bank
Ex.A6	05.01.2022	Petition from the 2nd complainant to Inspector of Police (crime branch)V-1 Vilivakkam Police station chennai
Ex.A7	06.01.2022	CSR.No.10/2022 issued by V-1 Vilivakkam police station chennai
Ex.A8	31.01.2022	Cheque No.037632 for Rs.2,00,000/- issued by opposite parties in favour of 1st complainant
Ex.A9	31.01.2022	Cheque No.037626 for Rs.2,50,000/- issued by opposite parties in favour of 1st complainant
Ex.A10	31.01.2022	Petition from the 2nd complainant to Inspector of Police (crime branch)V-1 Vilivakkam Police station chennai
Ex.A11	01.02.2022	Cheque return memo from Axis Bank ltd to 1st complainant along with returned cheque
Ex.A12	02.02.2022	Cheque No.037631 for Rs.50,000/- issued by opposite parties in favour of 1st complainant
Ex.A13	03.02.2022	Cheque return memo from Axis Bank ltd along with returned cheque
Ex.A14	23.02.2022	Notice from complainants Advocate to the opposite parties and acknowledgment cards (u/sec 138 of negotiable instrument act)
Ex.A15	28.02.2022	Cheque No.037629 for Rs.2,60,000/- issued by opposite parties in favour of 1st complainant
Ex.A16	01.03.2022	Cheque return memo from Axis Bank ltd
Ex.A17	07.03.2022	Notice from complainants Advocate to the Opposite parties with postal receipt (u/sec.138 of Negotiable Instrument Act)
Ex.A18	29.07.2022	Notice from complainants Advocate to the Opposite parties with postal receipt (Under consumer protection Act)
Ex.A19	02.08.2022	Acknowledgement cards from the Opposite parties.
Ex.A20		Complainants medical report and Bills
Ex.A21		1st Complainant’s Bank Statement

 

 

MEMBER – I              MEMBER-II                         PRESIDENT