BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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1]        Smt.Indira Kapoor wd/o Late Sh.Subhash Chander Kapoor,

2]        Sh.Ashish Kapoor s/o Late Sh.Subhash Chander Kapoor,

Both residents of Kothi No.30, Sector 10-A, Chandigarh.

….…Complainants

                                V E R S U S

Sh.Arvind Mahajan, Prop. Aay Emm Creation, Plot No.579, Indl. Area-II, Chandigarh.

                                        ..…Opposite Party

CORAM:          SH.LAKSHMAN SHARMA                         PRESIDENT

                    SH.ASHOK RAJ BHANDARI            MEMBER

                    MRS.MADHU MUTNEJA                        MEMBER

PRESENT:     Sh.R.K.Sharma, Adv. for the complainant

Sh.Rajinder Mahajan, Adv. for the OP.

PER SHRI ASHOK RAJ BHANDARI, MEMBER

               Succinctly put, the husband of complainant No.1 and father of complainant No.2 i.e. late Sh.S.C.Kapoor engaged OP for fixation of finished stainless steel gates at his residence. The rate was fixed @Rs.340/- per kg. In addition, the OP was also to construct a  Pillar.  Rs.20,000/- was paid to the OP in advance for the said work against which he issued a receipt on the back of his visiting card and promised to supply and fix the gate by 20.3.2009 and also promised to issue a regular receipt.  However, the OP neither issued a regular receipt nor has supplied the gate till date inspite of several requests to either do the work or refund the amount.  The Architect, who had recommended the OP, was contacted and on his asking the OP promised to supply the gate by 20.4.2009 but the same has not been done.  Hence, this complaint alleging the above act of OP as gross deficiency in service and unfair trade practice causing the complainants great mental tension, harassment and financial loss and it is payed that the OP be directed to refund the advance money of Rs.20,000/- along with interest @18% per annum, pay a compensation of Rs.2.00 lacs on account of harassment, deficiency in service and causing mental pain and harassment.

2]             OP filed reply stating therein that initially Rs.5000/- was paid to him as advance without any receipt for the supply of stainless steel gate as per the drawing and design given by the complainant and the rate of Rs.340/- per kg. was decided against the approximate weight of gate which was coming to 200 kg. plus.  On 12.3.2009 the cost of the gate was settled to the tune of Rs.70,000/- approximately (without wood, but against actual weight @Rs.340/- p.kg.) excluding masonary job.  It was orally decided that the gate would be supplied within six weeks from 12.3.2009 (i.e. by 26.4.2009) and on agreeing to this, complainant paid another amount of Rs.15,000/- i.e. a total Rs.20,000/- for which a ‘kachchi’ receipt was  issued.  It is denied that the gate was to be supplied by 20.3.2009 or to issue a regular receipt of Rs.20,000/-.  The gate was ready for delivery by 20.4.2009 and as such the complainant was informed on that very date to come, verify and collect the gate after paying the balance amount for the finished gate as per his design and against actual weight to be weighed in the presence of the complainant.    It is submitted that the complainant insisted to send the gate at his residence but when the OP showed his inability to send it without a Proper Bill which includes a VAT of 12.5% extra on the total cost of the gate as per weight, the OP became furious and threatened him in the name of High Court Judge.  It is also submitted that the complainant in order to pressurize the OP and harass him, filed a criminal complaint of cheating and forgery with Police Station Sector 3, Chandigarh where both the parties appeared. At the police station the statement of OP was recorded but the complainant refused to record his statement before the police and kept on insisting for refund of Rs.20,000/- even when he was already told that the gate is ready for delivery, subject to payment of balance amount.  It is further submitted that SI Sohan Singh personally inspected the factory premises of OP On 7.5.2009 where the gate was lying in a finished condition. He also took photographs of the finished gate and on the basis of enquiry they found that no such case was made out against the OP.  Denying rest of the allegations, it is prayed that the complaint be dismissed.

3]             Parties led evidence in support of their contentions.

4]             We have heard the ld.Counsel for the parties and have also perused the record. 

5]             The basic facts of the case in respect of husband of complainant No.1 and father of complainant No.2 i.e. late Sh.S.C.Kapoor having engaged OP for fixing a finished stainless steel gate at his residence and having paid Rs.20,000/- as an advance for executing the said job, have all been admitted.

6]             The only grouse of the complainants against the OP is that although late Sh.S.C.Kapoor had paid a sum of Rs.20,000/- as advance for supplying a finished stainless steel gate at his residence, the OP has miserably failed to do the job and that the said gate has not been supplied till date and further the amount of Rs.20,000/- advanced earlier for the purpose has not been refunded to him.

7]             According to the complainants, the non-supply of the main gate at their residence has caused them a lot of harassment, financial loss, mental agony and pain and they have alleged that there is a clear deficiency in service on the part of OP in not executing the job ordered by them.

8]             The OP in its reply/written statement has admitted having received a sum of Rs.20,000/- from late Sh.S.C.Kapoor as advance for the supply of a stainless steel gate at his residence.  The contention of the OP is that the total cost of the gate was Rs.70,000/- out of which  late Sh.S.C.Kapoor had paid only Rs.20,000/-.  It is also denied by OP that the date of supplying of the gate was 20.3.2009.  As per the OP, the said gate was to be supplied to the complainants by 26.4.2009 and with a view to expedite the matter, the gate was made ready for supply to the complainant as on 20.4.2009.  The OP says that as soon as the gate was ready for supply, the complainant was informed to come to their workshop, make the payment of the balance amount as per actual weight and collect the gate after weighing it as the payment was to be made by weight @Rs.340/- per kg.  The OP says that he was not in a position to send the gate at the residence of the complainant without a proper bill, which was to be made after including Vat @12.5% as extra charges, which the complainant was not ready to pay.  As per the OP, this led to the present dispute between the parties.  The OP further says that the complainant went to the extent of filing a police case against him but the police after due enquiry and personally visiting the workshop of OP reached the conclusion that no such case was made out against the OP.  On these grounds, the OP has prayed that the present complaint be dismissed as it has no merits and substance.

9]             We have gone through the case very thoroughly and scrutinized all aspects of the same.  It is an admitted fact that late Sh.S.C.Kapoor had paid a sum of Rs.20,000/- as an advance to the OP for the supply of a finished stainless steel gate to be fixed at his newly built residence.  It is also true that the said steel gate has not been supplied and fixed at the residence of late Sh.S.C.Kapoor till date.  The allegation of the OP that the gate was not supplied to Sh.Kapoor on account of non-payment of the balance amount of the gate does not carry any weight, in the sense that the question of making payment of the balance amount for the gate would have arisen only after the OP had supplied the gate and fixed the same at the residence of late Sh.S.C.Kapoor on or before the date mutually agreed for the purpose.  All this has admittedly been not done by the OP, not only upto 26.4.2009 but also till date.  There is no document on record in the entire case file which shows that the OP has ever informed the complainant about completion of the job in question or demanded the payment of balance amount from the present complainants or from late Sh.S.C.Kapoor at any point of time upto 26.4.2009 or even thereafter.

10]            It has been further observed that so much so that not only the OP failed to supply the finished gate at the residence of late Sh.S.C.Kapoor, but also refused to refund the amount of Rs.20,000/- taken by him from late Sh.S.C.Kapoor even without any interest payment.  He instead retained the same without supplying the gate.  The amount of Rs.20,000/- kept by the OP with him is clearly an unearned profit for him which he had no right to retain.  As such, there is two fold deficiency in service on the part of OP, the one that he had failed to supply the finished stainless steel gate to the complainants on or before the mutually agreed date or even afterwards and secondly that he has also failed to refund the amount of Rs.20,000/- paid to him by late Sh.S.C.Kapoor as an advance for the said purpose at the time he was requested to do.  Even during case proceeding when the OP was asked whether he would refund the sum of Rs.20,000/-, the OP had not agreed to do so.  It is also observed that during the pendency of the case, Sh.S.C.Kapoor had expired on 1.11.2009 and the present complainants who are the Legal Representatives of late Sh.S.C.Kapoor were allowed to be substituted as complainants No.1 & 2.  The applicants were allowed to be impleaded as Legal Heirs of late Sh.S.C.Kapoor (the original complainant) in the interest of justice. 

11]            All said and done, in our considered opinion, there is a gross deficiency of service on the part of the OP in not supplying the finished stainless steel gate at the newly built residence of the complainants.  There is also an unfair trade practice on the part of the OP in not refunding the advance amount of Rs.20,000/- paid by late Sh.S.C.Kapoor to him for supply of the said gate.  Thus, the present complaint has a lot of merit, weight and substance in favour of the complainants and against the OP.  We therefore allow the complaint accordingly and direct the OP to make the following payments to the complainants:-

i)         Refund the sum of Rs.20,000/-, which the OP had received as an advance from the original complainant late Sh.S.C.Kapoor for supplying a finished stainless steel gate at his residence.

ii)        To pay a compensation of Rs.20,000/- for causing physical harassment, mental agony and pain apart from financial losses to the complainants on account of non-execution of job entrusted to the OP. 

iii)       To pay Rs.5000/- as litigation cost.

                The aforesaid amounts shall be paid by the OP within a period of 45 days from the date of receipt of certified copy of this order, failing which the OP shall pay the sum of Rs.40,000/- to the complainants along with interest @18% per annum as calculated from the date of filing this complaint i.e. 24.04.2009 till the date of actual payment, besides paying the litigation cost of Rs.5,000/- to the complainants.

12]            Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

3^rd Aug., 2010                                         Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                                                                Sd/-

                                                (ASHOK RAJ BHANDARI)

MEMBER

Sd/-

MADHU MUTNEJA

MEMBER

‘Om’