Tripura

West Tripura

CC/32/2015

Sri Partha Pratim Bhattacharya, Inspector Legal Metrology. - Complainant(s)

Versus

Sri Nikhil Debnath. - Opp.Party(s)

Self

05 Mar 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM
WEST TRIPURA : AGARTALA

    CASE NO:  CC-  32   of   2015

State, through Sri Partha Pratim Bhattacharjee,
Inspector,  Legal Metrology,
Sadar, West Tripura.            ........Complainant.
    
                 ______VERSUS______

Sri Nikhil Debnath,
S/o- Sri Akhil Chandra Debnath,
Dhaleswar Road No. 14,
Agartala- 799007, 
Agartala West Tripura.            ........Opposite parties.
    
  __________PRESENT__________

 SRI A. PAL,
PRESIDENT,
  DISTRICT CONSUMER  DISPUTES REDRESSAL FORUM,
      WEST TRIPURA, AGARTALA. 

SMT. Dr. G. DEBNATH
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

SHR. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

C O U N S E L

For the Complainant        : Complainant in person.                   

For the Opposite Parties        : None appeared.                                               
        
              

        JUDGMENT  DELIVERED  ON:  05.03.2016

J U D G M E N T
    
        This case arises on the complaint filed by Partha Pratim Bhattacharjee, Inspector, Legal Metrology. By a govt. Notification dated 30th November, 2012 the Inspector is authorized to file complaint in the consumer court in the event of detection of unfair trade practice. Residents of 'Bijoy Apartment' made complaint to the Inspector, Legal Metrology about the unfair trade practice by O.P., Nikhil Debnath. Accordingly the Inspector enquired. Heard O.P. and was convinced to file complaint as unfair trade practice was detected by him. It is alleged that O.P. Nikhil Debnath installed a defective lift in the 'Bijoy Apartment'. Residents of the society of the 'Bijoy Apartment' found that the lift was not working, capacity was not 4+1 as promised by the Promoter, Nikhil Debnath. The promoter stated that lift provided as per agreement but later denied about the written agreement. O.P. Nikhil Debnath given some reply before the Inspector and denied any unfair trade. But the Inspector found unfair trade practised by Nikhil Debnath. So, he filed this complaint before this consumer Forum. 

Notice was then served upon the O.P., Nikhil Debnath but he did not appear nor given any reply. So, case proceeded against him exparte.
Exparte evidence was recorded, and after recording the exparte evidence we shall now decide whether the O.P. had deficiency of service and unfair trade practice and the residents of the Bijoy Apartment are entitled to get compensation as the O.P. failed to provide services as promised by him?

4.        The complainant produced the copy of the complaint filed by the society of the 'Bijoy Apartment', the copy of advertisement, power of attorney given by the flat owner in favour of the O.P., show cause notice issued by the Inspector, reply letter given by O.P., Nikhil Debnath, query by the Inspector and reply by Nikhil Debnath. Again the letter of the Secretary of the 'Bijoy Apartment' society. All these documents are placed before us. Petitioner also examined himself as P.W.1 and secretary of the Society, Nibir Sen  as P.W.2. 

5.        On the basis of all the evidence we shall now decide the matter.
FINDINGS AND DECISION
6.        It is established fact that advertisement was given by the Promoter of Bijoy apartment. O.P. Nikhil Debnath was the Promoter. He was empowered by the residents of the Bijoy Apartment to obtain permission from the Agartala Municipal Council and also to install 4 + 1 capacity lift for common use of the residents for Bijoy Apartment. He signed as an attorney. In reply to the show cause notice, the O.P. Nikhil Debnath stated that in the month of October, 2012 lift was installed and it was commissioned for services in the month of January, 2013. The flat owners started using the lift and he attended all complaints and arranged maintenance. He did it till warranty period of one year was over. After that he is not bound to extend free service. He assured that he had taken up the matter with the manufacturer, display weight meter will be provided soon. He again stated that he provided lift as per agreement. From his letter it is clear that he provided lift as it was enshrined in the agreement. In the advertisement it is also clearly written that lift facility will be provided in the apartment. The inspector after going through his reply asked him to give the agreement copy in respect of lift handing over taking over matter, name address of the manufacturer. In the reply letter, Nikhil Debnath stated that one Everest Elevator India was entrusted to supply and instal the lift at Bijoy Apartment. It was requested to send safety certificate which was yet to be received. Without the Safety Certificate the lift was allowed to be used. By the letter dated 1st day of September, 2014, Nikhil Debnath informed the Secretary not to use the lift as safety certificate could not be collected till then. From the letter of Secretary of the Society, 'Bijoy Apartment' it is found that builder did not provide any warranty certificate, did not hand over the lift to the society. Inspector, Legal Metrology in his statement on affidavit clearly stated that due to unethical trade practice the residents of 'Bijoy Apartment' were deceived and claimed for compensation of Rs.20 lakhs. P.W. 2, Nibir Sen stated that Nikhil Debnath promised to provide the lift in working condition, capacity should be 4+1 but quality product not provided  and the lift remained out of order and capacity was hardly for 3 person and there was no display of weight or number and lift was not handed over to the society in working condition. Maintenance  was not possible because ownership was not handed over. After one year 8 months Nikhil Debnath asked them not to use the lift, and he would not bear the responsibility for any untoward incident. 

7.        From scrutiny of the evidence on record it is found that without any safety certificate and without handing over the lift to the flat owners Nikhil Debnath allowed them to use the lift. The flat owners were kept in dark about the manufacturer of the lift or method of arranging maintenance. The capacity was not 4 + 1 as promised. There was no display of weight or number and after lapse of more than one year Nikhil Debnath assured them soon the same will be provided along with safety certificate from the manufacturer. 

8.        It is established fact that advertisement was given in respect of providing lift facility to the residents and the residents of the flat authorized him to install 4 + 1, 2 number of lifts but O.P., Nikhil Debnath failed to fulfill his promise. He provided lift which was not up to the mark, capacity only 3 and weight display number not found and it was admitted by him by his letter also. Lift was not handed over to the flat owners. No arrangement made for maintenance so the flat owners were not in a position to make any contract for maintenance of the lift. Safety certificate not provided to them. So they are to use the lift with hazard for some period. Thereafter O.P. Nikhil Debnath asked them not to use it as it was hazardous and safety certificate not yet obtained. 

9.        Thus the O.P. provided a hazardous lift to the residents of Bijoy Apartment. It was not working properly. No arrangement was made for maintenance. He did not keep his promise and misguided the residents by mischievous advertisement. The act of the Promoter, Nikhil Debnath, therefore, appears to be unfair trade practice. The practice of making any statement oral or in writing  or have visible representation which falsely represents that services are of particular standard and quality. Also falsely represents that goods are of particular standard quality, quantity material misleads the public then it is an 'unfair trade practice'. The warranty of the lift not also placed before the consumers, residents of 'Bijoy Apartment'. The residents of 'Bijoy Apartment' therefore were victimized and suffered because of unfair trade practice, deficiency of service of O.P., Nikhil Debnath. Therefore, they are entitled to get standard lift service which is to be provided by O.P. O.P. therefore is under obligation to replace the defective lift by a branded standard lift. The point is decided accordingly.

10.        In view of our above finding we direct the O.P. Nikhil Debnath to install standard 4 + 1 capacity 2 branded lifts in the 'Bijoy Apartment' by replacing defective one. Hand over the same to the society of the apartment along with warranty, other papers, disclose the papers of the manufacturer so that the residents can make an arrangement for maintenance of the lift after warranty period. The lift should have a display of weight or number of persons as promised by the O.P. The lift is to be manufactured by  a branded company. If the O.P. failed to do so then he is to pay Rs.10 lakhs to the society of the residents of 'Bijoy Apartment' as compensation for installing lift on their own. In addition O.P. is to pay Rs.25,000/- to the society for this deficiency of same. The O.P. is directed to comply the order within 2 months, if he fails to do so he will have to pay the interest on  Rs.10 lakhs @ 9% P.A from date of order. Supply copy of the judgment to the parties.         
                
Announced.

SRI A. PAL
PRESIDENT,
DISTRICT CONSUMER  DISPUTES 
REDRESSAL FORUM,
WEST TRIPURA,  AGARTALA.

 

 
SMT. DR. G. DEBNATH,
MEMBER,
 DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM,  AGARTALA, 
WEST TRIPURA.    SHRI. B. BHATTACHARYA,
MEMBER,
 DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM,  AGARTALA,
 WEST TRIPURA.