By Sri. Chandran Alachery, Member:

The complaint is filed under section 12 of the Consumer Protection Act for an order directing the Opposite Party to take back the installation from the Complainant's premises and to return the advance amount of Rs.50,000/- with interest at the rate of 18% per annum from 25.07.2011 till payment also to pay compensation towards damages.

2. Complaint in brief:- The Complainant had recently constructed a residential premises and was desirous of installing automatically opening gates and security cameras in the night vision facilities to monitor its surroundings. The Opposite party offered to supply and install all the necessary machineries hard and soft as per his requirements for an amount of Rs.1,00,000/-. Believing the representation of Opposite Party, the Complainant had paid an amount of Rs.50,000/- as advance on 27.05.2011 and the Opposite Party directed the Complainant to contact them at the time of erection of gate. Accordingly after finalizing the terms, before the installation of the gate pillars as early on 09.01.2012, the Complainant had contacted the Sales Manager of Opposite Party and informed them regarding the construction of the gate pillars and installation of the Gate by 29^th of same month. At the time of installation of the motor, Opposite Party's Sales Manager wanted to embed certain parts of the machinery within the pillars towards center by drilling out, which was refused by the Complainant as the same would destabilize the pillars especially because the gate constructed is with roof any disturbance to the structure of the pillars would destabilize the entire structure. The Opposite Party's installation work was not success and operational. The night vision exterior security cameras has ceased to technician. The Complainant send lawyer notice to the Opposite Party to settle the matter. But no response was there from Opposite Party. Aggrieved by their, the complaint is filed.

3. On receipt of complaint, notice was issued to Opposite party Opposite Party appeared before the Forum and filed version. In the version, the Opposite Party contended that the complainant had signed the work order at Wayanad, Mananthavady on 21.07.2011 and had made the half payment at the time of signing the work order. The information regarding the completion of the gate pillars and the intention of the complainant to install the gate by 29^th of January 2012 and other statements and allegations that the Opposite Party did not respond to these intimations regarding the completion are not true and hence denied by this Opposite Party. The complainant had placed the work order for installing an automatic gate opener with vertical look and IR night vision camera with the channel DVR card and other accessories at his then residence at Mananthavady. The Opposite party admitted the receiving of Rs.50,000/- as advance. The presence of the Opposite party is required only after fixing the gate on the pillar hence the allegation made by the Complainant that the Opposite Party was not present at the time of construction of gate not sustainable. The pillars are not standard size when Opposite party's men reached to the site to install the gate. There was Padippura with the roof of pillars. The Opposite Party explained to the Complainant that the gate will not open fully since the pillars were not of the normal standard measurement and hence asked the Complainant to opt for a change in the motor which he had opted for a better performance. The Complainant was not ready with that option. There is no deficiency of service from the part of Opposite party.

4. On perusal of complaint, version and documents, the Forum raised the following points for consideration.

1. Whether there is deficiency of service and unfair trade practice from the side of

Opposite party?

2. Relief and cost.

5. Point No.1:- The complainant filed proof affidavit and is examined as PW1 and documents are marked as Exts.A1 to A3. The Complainant's witness the commissioner is examined as CW1 and Exts.C1 and C2 are marked. The Opposite party also filed proof affidavit and is examined as OPW1 and Exts.B1 and B2 are marked. The marked documents Ext.A1 and A2 are the lawyer notices send to the Opposite Party by the Complainant. The Ext.A3 is the reply notice of Opposite party. In Ext.A3, the Opposite Party contented that “inspite of several hard instructions given from our Sales Manager to Mr. Mathew of fixing the automatic gate to the inner edge of both end pillars, Mr. Mathew took no care and wanted to fix at his required place. This has resulted in a problem where gate which opens to 90 degree automatically now only opens to 80 degree”. In Ext.B2 work order, there is no specific measurement of the construction of pillar is noted. The Commissioner in Ext.C1 report reported that he had seen the gate and motor which is fixed in the pillar and the same is not working and Ext.C1(A) series in the photos of gate and pillar. Another report is marked as Ext.C2 in the written version of Opposite Party, the Opposite Party states that the pillars constructed by the Complainant were not of the standard size and not of normal standard measurement. If so it is the duty of the Opposite party to inspect and examine the construction of gate pillars and to give at directions before the construction. The specific case of the Complainant is that the complainant, contacted the Opposite Party before construction of Pillars for getting proper directions. But Opposite Party not responded. There is no case to the Opposite Party that the Opposite Party had inspected the site before the construction of pillars in the premises of Complainant and gave necessary directions. In that circumstances, the Opposite Party cannot say that the pillar constructed by the Complainant is not of standard size and not of the normal standard measurement unless and until specific measurement and specific directions is given . In this case, the Forum found that there is no such measurement or direction is given to the Complainant by the Opposite Party. So annalysing the entire evidences, the Forum found that there is deficiency of service from the part of Opposite Party. Point No.1 is found accordingly. As per an interim order from this Forum, the Opposite party have already taken back the installations from the premises of complainant.

6. Point No.2:- Since point No.1 is found in favour of Complainant, the Complainant is entitled to get cost and compensation.

In the result, the complaint is partly allowed and the Opposite Party is directed to pay Rs.50,000/- (Rupees Fifty thousand) only to the Complainant being the advance amount received by the Opposite Party from the Complainant. Since the Opposite Party have already deposited the above Rs.50,000/- (Rupees Fifty thousand) only before the Forum,  the Complainant can release that amount. The Opposite Party is also directed to pay Rs. 5,000/- (Rupees Five thousand) only as compensation and Rs. 5,000/- (Rupees Five thousand) only as cost of the proceedings. The Opposite Party shall comply the order within 30 days from the date of receipt of this order.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 25^th day of May 2015.

Date of Filing:20.11.2012

PRESIDENT : Sd/-

MEMBER : Sd/-

/True copy/

Sd/-

PRESIDENT, CDRF, WAYANAD

APPENDIX.

Witness for the complainant:

PW1. Mathew George. Complainant.

CW1. Mohandas. T.G Advocate.

Witness for the Opposite Parties:

OPW1. Lineesh. Sales Manager, Camio Automations,

Ernakulam.

Exhibits for the complainant:

A1(a). Letter. dt:19.05.2012.

A1(b). Postal Receipt. dt:19.05.2012.

A1(c) Copy of Letter. dt:06.07.2014.

A2(a) Acknowledgment.

A2(b) Acknowledgment.

A3. Letter. dt:06.06.2012.

C1. Commissione Report. dt:29.10.2013.

C1(A) Series. Photos.

C2. Commissione Report. dt:28.04.2014.

Exhibits for the opposite Parties.

B1. General Power of Attorney

B2. Copy of Order Form. dt:21.07.2011.