BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMRITSAR.

Consumer Complaint No. 913 of 2018

Date of Institution: 13.11.2018

                                                          Date of Decision: 4.10.2021   

Mr. Raj Kumar Aggarwal Authorized person ATAM Gunwanti Paramanand Charitable Society (Regd.), C-2552, Ranjit Avenue, Amritsar

Complainant

Versus

Schindler India Pvt. Ltd. having its Corporate Office at Chandigarh through its Chairman/Managing Director/Principle Officer service having its office at 2^nd Floor, Plot No.595, Sector 66, Opp.Bestech Square, Industrial area, Phase 9, Mohali

Opposite Party

Complaint under section 12 & 13 of the Consumer Protection Act, 1986 (now u/s 35  of the Consumer Protection Act, 2019)

Result : Complaint Allowed

Cases Referred:-

1. Udaipur Cement Works Vs. Punjab  Water Supply and Sewage Board 1999(1) CPJ 67 (NC)
2. M/s Gati Ltd vs. The Oriental Insurance Co. Ltd. & Anr. 2010 (4) SCC 114
3. Hon’ble Supreme Court in case  Amitabha Dasgupta Vs. United Bank of India and others  AIR 2021 SC (Civil) 1457

Counsel for the parties  :

For the  Complainant                         : Sh. Deepinder Singh,Advocate      

For the Opposite Party                       : Sh. Vishal Chamota,Advocate

CORAM

Mr. Jagdishwar Kumar Chopra, President

Mr.Jatinder Singh Pannu, Member

ORDER:-

Mr. Jagdishwar Kumar Chopra, President :-Order of this commission will dispose of the present complaint filed by Mr. Raj Kumar Aggarwal Authorized person of the complainant society u/s 12 & 13 of the Consumer Protection Act, 1986 (now u/s  35 of the Consumer Protection Act, 2019).

Brief facts and pleadings

1.       Brief facts of the case are that the complainant being authorized person for the Charitable society  which is for the welfare of the humanity and needy and old aged persons placed an order for the Elevator to the opposite party.  As such the complainant is a consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum/Commission. It is pertinent to mention here that the said elevator is for the facilitation of the heart patients and old and infirm persons and no commercial activity is generated from the said elevator . The complainant was approached by the opposite party executives to purchase and installation of the elevator at the aforesaid given address  and coming in their sweet words complainant placed the order  on 6.6.2018 for total consideration of  Rs. 9,75,000/- and in token thereof the complainant made the payment of Rs. 5,90,000/- and Rs. 2,90,500/-  as and when demanded by the opposite party.  The opposite party inspite of getting the said payment  and willingness of the making the complete payment by the complainant did not install the said ordered elevator at the site of the complainant  inspite of the fact that the  complainant time and again requested the opposite party to install the same. The aforesaid acts of the opposite party in not installing the ordered elevator  has made the purpose of getting the same installed fruitless as the senior citizens as well as the others have to face the lot of hardship and difficulties  and moreover the site of the complainant remains of no use and creating danger of getting physical harm at the point of proposed installation of the said elevator. The aforesaid act of the opposite party in not installing the elevator and using the payment made to the opposite party is an act of deficiency in service, malpractice, unfair trade practice and an illegal and arbitrary act which has caused lot of mental agony, harassment, inconvenience besides financial loss to the complainant. Vide instant complaint, complainant has sought for the following reliefs:-

 (a)     Opposite party be directed to install the ordered elevator forthwith or in the alternative to refund the paid amount with interest @ 12% p.a. from the date of payment till realization ;

(b)     Compensation to the tune of Rs. 1.00,000/- may also be awarded to the complainant.

(b)     Opposite party be also directed to pay adequate litigation expenses to  the complainant ;

(b)     Any other relief to which the complainant is entitled be also awarded to the complainant.

Hence, this complaint.

2.       Upon notice, opposite party appeared and filed written version taking certain preliminary objections therein interalia that  present complaint is vague, baseless , frivolous and vexatious and is a gross misuse of the process of law ; that complainant has not approached  this Commission with clean hands, therefore, present complaint liable to be dismissed; that  both the parties agreed in clause 19 as arbitration clause under heading commercial terms and conditions in the agreement dated 3.5.2018 executed between complainant and opposite party that if any matter is not resolved mutually, both party refer the matter to Sole Arbitrator appointed by from the panel of arbitrators maintained by the opposite party  and accordingly, the matter will be referred to and resolved by sole arbitrator placed at Mumbai, therefore, present complaint deserves to be dismissed ;  that this Forum has no territorial jurisdiction to try the present complaint as the opposite party neither reside or works for gain nor agreement was executed at Amritsar nor did cause of action arise in the local jurisdiction of the Forum as agreement was executed in its branch office at Mohali; that the present complaint has not been filed by authorized person, hence liable to be rejected;  that the complainant does not fall under the definition of consumer. In preliminary submissions it was submitted that  Atam Gunwanti Parmanand Charitable approached the opposite party and executed an agreement dated 3.5.2018 for 1 Units, elevator  model Schindler 3100 IN Gearless & machine room less for their project namely Atam Guntanti Parmanand Charitable Society at C-2552, Ranjit Avenue, Amritsar in accordance with terms and conditions  stipulated therein. The complainant agreed to pay Rs. 9,75,000/- as per schedule as mentioned  below in the chart:

The complainant agreed that he would complete civil and electrical work as mentioned in the agreement under heading scope of work and also agreed to pay 30% (Rs.2,92500/-) on order reception but  complainant paid short payment and paid Rs. 2,90,500/- on 24.5.2018  on order reception and assured to pay the short payment within week. The complainant after expiry of price validity i.e. 30.6.2018 and handover validity (16.8.2018) paid Rs. 5,88,000/-  to the opposite party through RTGS on 17.8.2018 without informing the opposite party  which came to the knowledge of the opposite party on 30.10.2018 while account was verified. As per agreement it was the complainant who had to complete general contract requirement, preparatory work at the site  in accordance with stipulated terms of the  agreement dated 3.5.2018. The complainant agreed to provide shaft size as per agreement but despite the agreement, complainant failed to provide the shaft size as required in the agreement. When complainant site was checked on 27.6.2018, it has been found that Civil requirements specially shaft  size area was not complete as was required as per agreement:-

          Technical data sheet as per agreement

                             Shaft as on 27.6.2018

Photocopy of site check report dated 27.6.2018 is attached as OPD. Apart from that the complainant was required to make balance payment  till 30.6.2018. However, the complainant has totally remained silent in making payment as per payment schedule. It is worth mentioning here that the opposite party had communicated the complainant various times but the complainant has not taken any step regarding the payment and civil and electrical work to be done by the complainant. It is apt to mention that clause 6 of Annexure I under the heading of “commercial terms and conditions”in the agreement about renegotiation  of price after expiry of price validity. Clause 6 is reproduced as under:-

“Äfter the expiry of equipment/contact validity date, except for reason solely attributable to Schindler, price and dispatch terms must be renegotiated within  90 days failing which termination as per clause 13 shäll be applicable.”

The officials of the opposite party met with the complainant alongwith documents in regard to renegotiation of price but the complainant denied renegotiating the price and to sign the documents. The opposite party emailed the complainant on 14.10.2018 informing that to sign revised document as per  clause 6 of the agreement and to make payment  and also sent a letter dated 18.10.2018  by post on 22.10.2018 that price validity has expired on 30.6.2018, copy of email is Ex.OPE (colly). It was submitted that lift has not been supplied  and installed due to omission and negligence of the complainant. On merits, the opposite party has taken the similar pleas as were taken in the preliminary objections, as such there is no need to reproduce the same. While submitting that there is no deficiency in service as it was the complainant who failed to provide shaft size as per agreement and also did not complete civil and electrical work and also failed to adhere terms of payment schedule as agreed in the agreement and while denying and controverting other allegations, dismissal of complaint was prayed.

Evidence of the complainant and Arguments

3.       Alongwith the complaint Sh. Raj Kumar Aggarwal, Authorized person Atam Gunwanti Parmanand Charitable Society has filed his affidavit Ex.C-1, copy of letter dated 3.5.2018 of the opposite party Ex.C-2 & Ex.C-3, copy of account statement Ex.C-4   closed the evidence of the complainant.

4.       On the other hand  opposite party alongwith written version has filed affidavit of Sh. Sandeep Srivastava , authorized representative power of attorney Annexure A, copy of KYC form Annexure B (consisting 18-34 pages), copy of statement of account Annexure C, copy of site check report dated 27.6.2018 Annexure OPD, copy of mail dated 14.10.2018 and letter dated 18.10.2018 (39-41 pages) Annexure OPE and closed the evidence on behalf of opposite party.

5.       We have heard the Ld.counsel for the parties and have carefully gone through the record on the file . We have also gone through the written arguments submitted by both the parties.

Findings

6.       From the appreciation of the facts and circumstances of the case, it stands proved on record that complainant being the authorized person for the complainant society placed an order of the Elevator to the opposite party on 6.6.2018 for the total consideration of Rs. 9,75,000/- . It also stands proved on record that the complainant made payment of Rs. 5,90,000/- on 17.8.2018 as well as Rs. 2,90,500/- on 15.5.2018  out of the total amount of Rs. 9,75,000/- and in this regard the complainant has placed on record copy of statement of account Ex.C-4 which depicts that the payment was made from his account. It was the case of the complainant that the opposite party inspite of getting the said payment  and willingness of making the complete payment by the complainant did not install the said ordered elevator at the site of the complainant  inspite of repeated requests made to  the opposite party to install the same. Ld. Counsel for the complainant has vehemently contended that the act of the opposite party in not installing the Elevator inspite of  receipt of payment, amounts to deficiency in service as well as unfair trade practice on the part of the opposite party.

7.       On the other hand the opposite party has taken certain pleas firstly both the parties agreed in clause 19 as arbitration clause under heading commercial terms and conditions in the agreement dated 3.5.2018 that if any matter is not resolved mutually, both party refer the matter to Sole Arbitrator appointed by from the panel of arbitrators maintained by the opposite party  and accordingly, the matter will be referred to and resolved by sole arbitrator placed at Mumbai, therefore, present complaint deserves to be dismissed . But we are not agreed with this plea of the opposite party as complainant cannot be debarred from filing the complaint under the Consumer Protection Act under the garb of any terms and conditions  specially under any Arbitration clause  as mere existence of arbitration clause should not come in way  from seeking relief under the Consumer Protection Act . Section 3 of the Consumer Protection Act , 1986 and section 100 of  New Consumer Protection Act, 2019 provides that the provisions of Consumer Protection Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Reliance in this connection has been placed upon  law laid down in Udaipur Cement Works Vs. Punjab  Water Supply and Sewage Board 1999(1) CPJ 67 (NC). As such the aforesaid  plea of the opposite party is not sustainable in the eyes of law.

8.       The other plea of the opposite party is  that this Forum has no territorial jurisdiction to try the present complaint as the opposite party neither reside or works for gain nor agreement was executed at Amritsar nor did cause of action arise in the local jurisdiction of the Forum as agreement was executed in its branch office at Mohali. Again we are not agreed with this plea of the opposite party so far as the matter of jurisdiction is concerned, section 34(2) of the Consumer Protection Act is reproduced as under:-

          “34- Jurisdiction of District Commission:-

(2) A complaint shall be instituted in a District  Commission within the local limits of whose jurisdiction ;

(a)      the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain ;

(b)     any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case the permission of the District Commission is given ; or

( c)     the cause of action, wholly or in part, arises ; or

(d)     the complainant resides or personally works for gain.

So far as the present complaint is concerned, since the complainant is residing personally within the jurisdiction of this Commission, he has preferred to file the present complaint within the jurisdiction of this Commission.  From the bare reading of this section, it clearly stated that as per section 34(2) the complainant has given right to file the complaint where he resides or work. So  the complainant is no doubt resident of Amritsar, he has right to file the complaint before this Commission. As such the said plea of the opposite party is also not sustainable in the eyes of law.

9.       Thirdly the opposite party has taken the plea that the present complaint has not been filed by authorized person, hence liable to be rejected. In order to meet with this plea we are of the view that complaint under the Consumer Protection Act can be filed by third party also. Reliance in this connection has been placed upon M/s Gati Ltd vs. The Oriental Insurance Co. Ltd. & Anr. 2010 (4) SCC 114 wherein it has been held that any plaint, complaint or petition for recovery of compensation can be filed in the name of the assured, or by the assured represented by the insurer as subrogee-cum-attorney, or by the assured and the insurer as co-plaintiffs or co-complainants. In the instant case the complainant  has been fully authorized vide letter dated 10.11.2018 placed on record to file the present complaint on behalf of Atam Gunwanti Paramanand Charitble Society. As such the said plea of the opposite party is also not sustainable.

10.     Moreover when we go through the facts of the case , it was admitted by the opposite party that the complainant has placed an order of installation of the elevator for total consideration of  Rs. 9,75,000/- . It was also admitted that complainant made payment of Rs. 2,90,500/- on 24.5.2018  on order reception and assured to pay the short payment within week. The complainant after expiry of price validity i.e. 30.6.2018 paid Rs. 5,88,000/-  to the opposite party through RTGS on 17.8.2018 without informing the opposite party  which came to the knowledge of the opposite party on 30.10.2018 while account was verified.  The case of the complainant that inspite of receipt of such a hefty amount the opposite party did not install the ordered elevator.  However, though on the other hand the opposite party has taken the pleas one after the other such as Civil requirements specially shaft  size area was not complete as was required as per agreement, that  the complainant was required to make balance payment  till 30.6.2018 yet the opposite party has admittedly not either returned the amount or install the machine i.e. elevator or cancelled the contract . However, the opposite party has totally remained silent after getting the said hefty amount. Rather it was the duty of the opposite party to make proper arrangement for the installation of the elevator when the complainant has hired the services of the opposite party for total consideration of Rs. 9,75,000/- out of which hefty amount of Rs. 8,80,500/- has been duly paid by the complainant which was  also not denied by the opposite party and till date the amount is lying with the opposite party. Moreover, the opposite party is also silent that what efforts have been taken by them , when as per the opposite party the complainant has not fulfilled the requirement for the installation of the elevator machine though the whole responsibility is of the opposite party as the complainant has hired their services for the installation of the elevator . The opposite party also in deep slumber after accepting the hefty amount of Rs. 8,80,500/- out of the total amount of Rs. 9,75,000/- and failed to prove that whether any steps have been taken by them to refund the amount so received from the complainant in case they are not in a position to install the ordered elevator .  This callous attitude of the opposite party certainly amounts to unfair trade practice as well as deficiency in service which they were supposed to provide the complainant particularly when they have taken such a hefty amount and till date they are silently using that amount  for their own use. Hence, this Commission has no hesitation to hold  the opposite party guilty of deficiency  in service and also guilty of unfair trade practice.

Relief

11.     Keeping in view the above facts, the complaint is  allowed with the following directions:-

 (a)     Opposite party is  directed  to refund Rs. 8,80,500/- alongwith interest @ 9% p.a. from the date of filing of the complaint till realization to the complainant.

(b)     So far as compensation is concerned, since the record of the complaint depicts that this complaint is pending since 2018 and the complainant has suffered agony of litigation since two years and during this period the opposite party has not bothered to atleast return the amount so deposited by the complainant when they have not provided the services for which they have charged such a hefty amount of Rs. 8,80,500/- and the complainant was compelled to knock the door of this Commission and the opposite party did not bother to redress the grievance of the complainant  and certainly this litigation could have been avoided . Though admittedly compensation term has not been explained in the Consumer Protection Act, however  since this  Act is based on principle of equity, good concise  and natural justice and the Commission is empowered to provide compensation after assessing the facts of each case. Hence, the opposite party is liable to pay exemplary compensation to meet the ends of justice. This Commission relied upon the latest law on this point of compensation i.e. the  Hon’ble Supreme Court in case  Amitabha Dasgupta Vs. United Bank of India and others  AIR 2021 SC (Civil) 1457 wherein it has been held that “ Deficiency in service- Duty of care  should be exercised by bank irrespective of application of laws of bailment to contents of locker- Bank inadvertently broke customer’s locker, without giving prior notice, inspite of clearing pending dues by him- Bank acted in blatant disregard to responsibilities owned to customer as service provider- Case of gross deficiency in service- Imposition of costs of Rs. 5,00,000/- on bank, would be appropriate compensation to customer.” As the complainant has suffered a lot of mental as well as physical agony besides financial loss due to the act of  gross deficiency of service and also the act of the opposite party falls in unfair trade practice,  as such the  opposite party is being guilty of  unfair trade practice as well as gross deficiency in service hence are liable to pay compensation to the tune of Rs. 75,000/- out of which Rs. 15,000/- be deposited in the Pingalwara Charitable Society  of Bhagat Puran Singh, Amritsar and Rs. 60,000/- be  paid  to the complainant.  Opposite party is also directed to pay litigation expenses to the tune of Rs. 5000/- to the complainant  .

Compliance of this order be made within 30 days from the date of receipt of copy of this order ; failing which the complainant is entitled to get the order executed through the indulgence of this Commission.  Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission.

Announced in Open Commission               (Jagdishwar Kumar Chopra)                                                                                                                                                                                                    President

Dated:4.10.2021

                                                                                     (Jatinder Singh Pannu)       

                                                                                     Member