Haryana

Sonipat

117/2014

MALWA - Complainant(s)

Versus

SCHINLDER - Opp.Party(s)

11 Apr 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

SONEPAT.

 

Complaint No.117 of 2014

Instituted on: 02.05.2014                 

Date of order: 11.04.2016

 

M/s Malwa Auto Mobiles Pvt. Ltd., 31 KM Stone, GT Karnal road, Kundli, distt. Sonepat through its authorized person Sunil Kumar Jha Accountant.

…Complainant.           Versus

Schindler India Pvt. Ltd., B-401, Delphi, Heernandani Business Park, Powai, Mumbai, having branch office at BK  Roy Court, 4^th Floor, 607, Asaf Ali rod, New Delhi through its Branch Manager.

 

                                      …Respondent.

 

COMPLAINT UNDER SECTION 12 OF

THE CONSUMER PROTECTION ACT,1986

 

Argued by: Sh.Kamal Hooda, Adv. for complainant.

Sh.Kumar Saket Adv. for respondent.

 

Before-  Nagender Singh-President. 

          Prabha Wati-Member.

         

O R D E R

 

          Complainant has filed the present complaint against the respondent alleging therein that the parties to the complainant have entered into an agreement dated 15.4.2008 for installation of two passengers elevators in the building of the complainant at Kundli, distt. Sonepat and the complainant paid total Rs.12,80,000/- from time to time to the respondent out of Rs.16,00,000/- , but as per terms and conditions of the agreement, the respondent did not install the passenger elevator, whereas it was settled that the delivery of the material will be provided within 8 weeks from the date of release of order and installation of the elevator will be completed form the date of start of work at site. After taking possession of the site, the respondent has started the work of installation of elevators, but did not complete the same as per terms and conditions of the agreement and they only installed one elevator at the time  of the complainant till date.  It was further agreed by the respondent to provide free maintenance for a period of 12 months from the date of intimation of physical completion of the work, but the respondent has failed to comply with the terms and conditions of the agreement and they also did not provide any free maintenance, so the respondent is liable to refund the payment of Rs.8 lacs i.e. full cost of one elevator.  This wrongful act and conduct of the respondent has caused unnecessary mental agony and harassment. So, he has come to this Forum and has filed the present complaint.

2.        The respondent appeared and has filed the written statement submitting therein that the respondent has entered into two binding agreement dated 15.4.2008 and the total consideration amount was agreed to the tune of Rs.16 lacs for both the elevators i.e. Rs.8 lacs for one elevator. The respondent has sent a letter dated 4.6.2008 to the complainant that the site was not ready for pull and the complainant has given the undertaking on 4.6.2008 that the site shall be ready by 6/2008 and also undertook to provide storage with lockable arrangement for keeping the material supply by the respondent for installation of the elevator.  Again on 27.6.2008, there was same problem as was on 4.6.2008 and the respondent clarified that if the site is not ready, the respondent shall not be able to meet the target of completion.   Infact the complainant has failed to provide the site and storage for installation of second lift and consequently the material supplied by the respondent got damaged.  When on 5.6.2009 the complainant requested the respondent to start the work afresh of installation of second lift, the respondent visited the site and found the material damaged.   The respondent has denied the fact that they failed to complete the work as per terms and conditions of the agreement or they are liable to pay the amount of Rs.8 lacs to the complainant.  The complainant has failed to make balance payment of elevator which has already been installed so, the respondent has issued legal/demand notice to the complainant and thus, to avoid the payment the complainant has filed the present case just to harass and humiliate the respondent.  The complainant is legally liable to pay a sum of Rs.320000/-  and reconditioning charges towards the second elevator to the respondent as on 29.1.2009 alongwith interest.  The complainant is not entitled for any relief and compensation since there is no deficiency in service on the part of the respondent and thus, prayed for the dismissal of the present complaint.

3.        We have heard the arguments advanced by both the parties and have perused the entire relevant documents available on the case file very carefully and minutely.        We have also perused the written arguments submitted by the ld. counsel for the complainant and respondent, very carefully and minutely.

4.       Ld. Counsel for the complainant has submitted that an agreement was entered into between both the parties for installation of two elevators in the premises of the complainant for total an amount of Rs.16 lacs.  The complainant has paid total Rs.12,80,000/- out of Rs.16 lacs for installation of two elevators to the respondent. But the respondent after great persuation has installed only one elevator and thus, the respondent is liable to refund the amount of Rs.8 lacs to the complainant alongwith interest.

         It is further submitted in the written arguments that the respondent started fake correspondence with the complainant only to avoid to perform their part of the agreement and the letter dated 4.6.2008 which were placed by the respondent as Ex.CW1/3, 4, 5 and copy of email dated 27.6.2008 as Ex.CW1/6 are totally false, vague and has been placed on record only to create evidence and to avoid their legal liabilities.

         The respondent in para no.1 of the preliminary objection has raised the objection that the complainant is not the consumer of the respondent.  In this regard, it is submitted that the elevators was to be installed for use of passengers and thus the same cannot be said to be used for any commercial purpose. So, the complainant is the consumer of the respondent.

         The other objection of the respondent is that this Forum has no jurisdiction to entertain, try and decide the present complaint since they have no office at Sonepat.    This objection of the respondent is also not tenable in the eyes of law because the agreement between the parties was executed at Sonepat.

         On the other hand, ld. Counsel for the respondent has submitted that the respondent has entered into two binding agreement dated 15.4.2008 and the total consideration amount was agreed to the tune of Rs.16 lacs for both the elevators i.e. Rs.8 lacs for one elevator. The respondent has sent a letter dated 4.6.2008 to the complainant that the site was not ready for pull and the complainant has given the undertaking on 4.6.2008 that the site shall be ready by 6/2008 and also undertook to provide storage with lockable arrangement for keeping the material supply by the respondent for installation of the elevator.  Again on 27.6.2008, there was same problem as was on 4.6.2008 and the respondent clarified that if the site is not ready, the respondent shall not be able to meet the target of completion.   Infact the complainant has failed to provide the site and storage for installation of second lift and consequently the material supplied by the respondent got damaged.  When on 5.6.2009 the complainant requested the respondent to start the work afresh of installation of second lift, the respondent visited the site and found the material damaged.   Ld. Counsel for the respondent has denied the fact that the respondent has failed to complete the work as per terms and conditions of the agreement or they are liable to pay the amount of Rs.8 lacs to the complainant.  The complainant has failed to make balance payment of elevator which has already been installed so, the respondent has issued legal/demand notice to the complainant and thus, to avoid the payment the complainant has filed the present case just to harass and humiliate the respondent.  The complainant is legally liable to pay a sum of Rs.320000/-  and reconditioning charges towards the second elevator to the respondent as on 29.1.2009 alongwith interest.  There is no deficiency in service on the part of the respondent and thus, prayed for the dismissal of the present complaint.

          After hearing both the learned counsel for the parties at length and after going through the entire relevant material available on the case file and after going through the written arguments placed on record by the respondent very carefully and minutely, we have come to the conclusion that there is deficiency in service on the part of the respondent because the respondent has failed to perform the part of the agreement and due to this, the complainant not only has suffered unnecessary harassment, but has also suffered huge financial loss.  Accordingly, in our view, definitely, the complainant is entitled to get some relief from this Forum against the respondent.  Thus, we hereby direct the respondent to make the already installed one elevator in running condition.  Since the second elevator has not been installed and the respondent has received Rs.12,80,000/- from the respondent out of Rs.16,00,000/- i.e. Rs.8 lac per elevator, the respondent is hereby directed to refund the amount of Rs.4,80,000/- to the complainant (i.e. by retaining Rs.8 lacs of already installed one elevator, out of Rs.12,80,000/-, balance comes to Rs.4,80,000/-) within a period of 45 days from the date of passing of this order, failing which, the above said amount of Rs.4,80,000/- shall fetch interest at the rate of 09% per annum from the date of passing of this order till its actual realization.

          With these observations, findings and directions, the present complaint stands allowed.

Certified copy of this order be provided to

both the parties free of costs.

File be consigned to the record-room.

 

Prabha Wati Member                     Nagender Singh

DCDRF SNP                          President, DCDRF, SNP

                                              

ANNOUNCED 11.04.2016