Tamil Nadu

South Chennai

CC/124/2021

R.Ramachandran - Complainant(s)

Versus

Thiru. B. Sudhakar and another - Opp.Party(s)

Babu Rangasamy

26 Sep 2022

ORDER

Date of Complaint Filed : 07.06.2021

Date of Reservation      : 12.09.2022

Date of Order               : 26.09.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                            : PRESIDENT

                        THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                         THIRU. S. NANDAGOPALAN., B.Sc., MBA.,  : MEMBER II

 

CONSUMER COMPLAINT No. 124/2021

MONDAY, THE 26^th DAY OF SEPTEMBER 2022

Thiru.R.Ramachandran,

Aged 57years, S/o. Late (Thiru) R.Ragothama Rao,

Staying at Old No.5, New No.10,

49^th Street, Ashok Nagar,

Chennai – 600 083.

Indian Inhabitant.                                                                …Complainant

 

-Vs-

 

 

1.Thiru.B.Sudhakar,

   S/o.Shri C.Bathrinarayan,

   Director,

   Srivaari Elevators,

   No.441B, Ramarkoil Road,

   Sreenivasa Nagar,

   Madipakkam,

   Chennai 600 091.

 

Currently residing at:

No.12, Aikya Castle, Vivekanandar Street,

Nilamangai Nagar,

Adambakkam,

Chennai,

Tamil Nadu Pin:600088.

 

2. Thiru C.Bathrinarayan,

    13, Plot No.161,

    14^th Street, E.B.Colony, Kazhinjur,

    Vellore, Tamil Nadu 632 006.                                   ...  Opposite Parties

 

******

Counsel for the Complainant               : Party in Person

Counsel for the Opposite Parties          : Exparte

 

        On perusal of records and having heard the oral arguments of the  Complainant in person, we delivered the following:

ORDER

Pronounced by Member-I, Thiru. T.R. Sivakumhar, B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Parties to pay the balance Principal advance amount of Rs.2,75,000/-, and to pay interest at 12.6% on the respective due amounts which fell due on respective dates, as on 13.05.2021 totaling a sum of Rs.79,032.04p and  also liable to pay the Charges levied by Canara bank totaling a sum of Rs.1,180/- due to dishonoring of cheques given by the 1^stOpposite Party towards partre-payment, as demanded in the Notice dated 02.05.2021 and also to pay damages @Rs.3000/- per day from the date of initially accepted delivery period till actual realisation of the money due as committed by the 1^stOpposite Party vide written communication dated 23.02.2020 calculated from February 23, 2020 till date of compliance to the above said notice, i.e., till 13.05.2021 (445 Days) which works out toRs.13,35,000/-, along with cost of notice of Rs.15,000/- and for cost of the proceedings.

2.     The averments of Complaint in brief are as follows:-

 

  The Complainant had discussions with 1^st Opposite Party in installing a lift to his premises and had accepted the offer of the Opposite Party made under quotation dated 11.11.2019 for supply, installation, testing and commissioning of hydraulic lift for domestic use at his house. On 01.12.2019 the 1^st Opposite Party approached for advance payment and requested to pay the same in the name of the 2^nd Opposite Party, being father of the 1^st Opposite party. At the request made, a cheque bearing No.653695 dated 01.12.2019 for a sum of Rs.4,75,000/- drawn on Canara Bank was issued in the name of 2^nd Opposite Party on behalf of the 1^st Opposite Party and the said cheque was encased by the 2^nd  Opposite Party. As assured within a period of 4 to 6 weeks, from 02.12.2019, the lift work to be completed and to put in use. Till the date of filing of the Complaint neither the lift was delivered nor started the fabrication work in the site. And the Opposite Parties not even refunded the money. Inspite of several oral and written assurances the Opposite Parties had failed to complete the work nor delivered the lift and had failed to fulfil their contractual obligations. The 2^nd Opposite Party on 08.02.2020 had assured and committed in writing to complete the entire lift work by 28.02.2020, failing which to pay a sum of Rs.10,000/- per day from 01.03.2020, apart from confirming the receipt of advance amount of Rs.4,75,000/- from the Complainant. The 1^st Opposite Party in his communication dated 15.02.2020 had agreed to delivery the fabrication material by 17.02.2020 and to return a sum of Rs.1,00,000/- from the above said advance amount and start the fabrication work on 19.02.2020 and shall complete the entire work by 28.02.2020. Further had informed that if the lift components were not delivered by 19.02.2020 the contract shall stand cancelled and shall return the balance advance amount of Rs.3,75,000/-. But he had not returned a sum of Rs.1,00,000/- as agreed, the entire advance amount was due and payable by the Opposite Parties. Further by Communication dated 23.02.2020 the 1^st Opposite Party agreed to return Rs.1,00,000/- on or before 29.02.2020 and deliver the fabrication and scaffolding material on or before 29.02.2020, deliver the lift components by 04.03.2020 and complete the entire work by 15.03.2020 and had also agreed to pay damages @ Rs 3000/- per day from 02.02.2020 till completion of entire work to the satisfaction of the Complainant. The Opposite Parties have completely failed on all counts. In spite of such assurances and commitments, Opposite Parties neither completed the work nor returned the entire advance money.  He learnt that the 1^st Opposite Party was conducting similar lift installation, lift maintenance repairs businesses from alternate names and addresses viz., Thiru. B.Sudhakar, Director, M/s. Astro Lift. Out of Rs.4,75,000/-, the 1st Opposite Party had returned an amount of Rs.2,00,000/- that too in small amounts on various dates, after several requests and after complaint given before Police Authorities. Hence the Opposite Parties were liable to pay the balance amount of Rs.2,75,000/- with applicable interest and damages, and also liable to pay interest at 12.6% on the respective due amounts which fell due on respective dates, totalling a sum of Rs.79,032.04p and  also liable to pay the Charges levied by Canara bank totalling a sum of Rs.1,180/- due to dishonouring of cheques given by the 1^st Opposite Party towards party re-payment, as demanded in the Notice dated 02.05.2021 and also to pay damages @Rs.3000/- per day from the date of initially accepted delivery period till actual realisation of the money due as committed by the 1^st Opposite Party vide written communication dated 23.02.2020 calculated from February 23, 2020 till date of compliance to the above said notice, i.e., till 13.05.2021 (445 Days) which works out to Rs.13,35,000/-.The Opposite Parties had completely failed in their contractual obligations and thus committed the act of deficiency of service. It was also clear that the 1^st Opposite Party had deliberately not executed the contract and have caused huge loss of face and enormous difficulties and sufferings in terms of his health and the intended domestic users of the lift at his premises. Hence the Complaint.

3.  The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-16 were marked.

4.    The Opposite Parties did not appear before this Commission even after sufficient notice served and remained absent and set exparte.

 

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled?

Point No.1:-

From the perusal of the exhibits filed in support of the Complaint, it is clear that the Opposite Party had offered to supply, install and do the testing and commissioning of Hydraulic Lift at Complainant’s premises and the same was accepted by the Complainant, as evidenced from Ex.A-1 Quotation No.SEMC/EN5095/BS/2019 dated 11.11.2019. As per Ex.A-1 the Opposite Party had agreed to deliver the materials within 4 – 6 weeks from the date of purchase order with advance. Ex.A-2 is the Bank Passbook reflecting payment of Rs.4,75,000/- paid to the 2^nd Opposite Party by the Complainant. From Ex.A-3 the Undertaking Letter dated 08.02.2020 given by the 1^st Opposite Party to the Complainant, from which it is clear that the 1^st Opposite Party had not acted as per Ex.A-1, wherein he had acknowledged the receipt of a sum of Rs.4,75,000/- and had undertaken to deliver entire lift components on 12.02.2020 and to complete the entire work on 28.02.2020, if the work was not completed on 28.02.2020 he would pay damages at Rs.10,000/- per day to the Complainant. From Ex.A-4 the Undertaking Letter dated 15.02.2020 given by the 1^st Opposite Party to the Complainant,the 1^st Opposite Party had agreed to deliver the fabrication material by 17.02.2020 and to return a sum of Rs.1,00,000/- from advance amount and start the fabrication work on 19.02.2020 and shall complete the entire work by 28.02.2020 and had also informed that if the lift components were not delivered by 19.02.2020,shall repay the balance advance amount of Rs.3,75,000/- with interest @ 6% from 02.12.2019 on Rs.4,75,000/- and the contract shall stands cancelled. From Ex.A-5 the Undertaking Letter dated 23.02.2020 given by the 1^st Opposite Party before the Police Authorities, wherein the 1^st Opposite Party had agreed to return Rs.1,00,000/- on or before 29.02.2020 and deliver the fabrication and scaffolding material on or before 29.02.2020, deliver the lift components by 04.03.2020 and complete the entire work by 15.03.2020 and had also agreed to pay damages @ Rs 3000/- per day from 02.02.2020 till completion of entire work to the satisfaction of the Complainant. From Ex.A-6, Notice dated 18.06.2020 sent by the Complainant to the Opposite Parties, it is clear that the Opposite Parties had not adhered the undertakings given by the 1^st Opposite Party either by completing the lift work or by refunding the amounts as agreed, hence the said notice was sent and the same was found to be received in person by the 1^st Opposite Party on 07.07.2020. Ex.A-10 is the CSR copy issued by the Police Authority to the Complainant on the complaint dated 22.07.2020 lodged against the Opposite Parties. By Ex.A-11 the 1^st Opposite Party had undertaken to return the advance amount of Rs.4,75,000/- on or before 05.08.2020, failing which to abide by the legal action to be taken against him. Under Ex.A-13 Undertaking Letter given by the 1^st Opposite Party, wherein had agreed to refund the balance amount of Rs.3,75,000/- on or before 26.09.2020 to the Complainant. Under Ex.A-15 Undertaking Letter dated 22.03.2021 given by the 1^st Opposite Party, wherein had agreed to the balance amount of Rs.3,00,000/- on 08.04.2021 to the Complainant. From Ex.A-16 the Notice dated 02.05.20201 sent to the Opposite Parties, it is clear that the Opposite Parties had not refunded the balance advance amount to the Complainant, hence the demand notice was sent claiming the balance advance amount of Rs.2,75,000/- as well as the damages with interest as agreed by the 1^st Opposite Party.

            On foregoing discussions and in the facts and circumstances of the case, it is clear that the 1^st Opposite Party had failed and neglected to complete the Lift work as agreed upon under Ex.A-1 and in spite of several undertakings given by the 1^st Opposite Party by seeking time to complete the Lift work at Complainant’s premises. Though the 1^st Opposite Party had failed to complete the lift work, had also failed and neglected to refund the balance advance amount of Rs.2,75,000/- and the agreed damages of Rs.3,000/- per day as per Ex.A-5, to the Complainant. Hence, we hold that the 1^st Opposite Party had acted in lethargic and negligent manner and there was no material evidence to show the 2^nd Opposite Party involved in the said transaction except averring that the Complainant had issued a cheque towards advance amount of Rs.4,75,000/- in the name of 2^nd Opposite Party, that too, at the request made by the 1^st Opposite Party.  Therefore, we are of the considered view that the 1^st Opposite Party had committed deficiency of service and caused mental agony to the Complainant and as against the 2^nd Opposite Party the Complaint is dismissed.

Point Nos.2 &3:-

As discussed and decided Point No.1 against the 1^st Opposite Party the 1^st Opposite Party is liable to refund a sum of Rs.2,75,000/- together with interest @9% p.a from 22.04.2021 to till the date of this order and to pay a Rs.3000/- per day from 02.02.2020 to 23.07.2020 towards damages and also to pay a sum of Rs.25,000/- towards deficiency of service and mental agony along with cost of Rs.3000/-. Accordingly, Point Nos.2 and 3 are answered.

In the result the Complaint is allowed in part. The 1^st Opposite Party is directed to refund a sum of Rs.2,75,000/- (Rupees Two Lakh Seventy Five Thousand Only) together with interest @9% p.a from 22.04.2021 to till the date of this order and to pay a sum at Rs.3,000/- (Rupees Three Thousand Only) per day from 02.02.2020 to 23.07.2020 towards damages and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) towards deficiency of service and mental agony, along with cost of Rs.3000/- (Rupees Three Thousand Only) to the Complainant, within 8 weeks from the date of receipt of this order failing which the above amounts shall carry interest at the rate of 9% p.a from the date of receipt of this order till the date of realization.

In the result the Complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 26^th of September 2022. 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	11-11-2019	Exhibit-A: Mr. Sudhakar’s lift installation offer dated 11.11.2019 with delivery schedule and payment terms as annexures
Ex.A2	01.12.2019	Canara Bank Cheque No.653695 dated 01.12.2019 issued in favour of Mr.C. Badrinarayanan, received by Mr. Sudhakar and encashed on 02.12.2019-Pass book extract copy
Ex.A3	08.02.2020	Mr. Sudhakr’s written submission to complete all works by 28.02.2020 and accepting a penalty @ Rs.10,000/- per for non-compliance
Ex.A4	15.02.2020	Mr.Sudhakar’s repeat written submission to complete before 28.02.2020 else order cancellation & return of money with interest
Ex.A5	23.02.2020	Repeat commitment- by Mr. Sudhakar to complete lift works before 15-03-2020
Ex.A6	18.06.2020	Lift Notice-1 18 June 2020 sent by Whatsapp and speed post. Received at Vellore address
Ex.A7	27.06.2020	Notice speed post letters to Srivaari Elevators returned by Post Office in 2 addresses. Personally, received by Mr Sudhakar
Ex.A8	07.07.2020	Notice received by Mr. Sudhakar personally on 07-07- 2020 & post dated cheque issued by him
Ex.A9	20.07.2020	cheque issued by Mr. Sudhakar but asked not to present in bank (a 3rd time citing shortage of funds)
Ex.A10	22.07.2020	CSR-252 of 2020-R3PS complaint lodged by Mr.R Ramachandran against Mr Sudhakar Mr. Sudhakar
Ex.A11	23.07.2020	Mr. Sudhakar's submission at R3-PS-on 23-07-2020 stating he would return 4,75,000 before 5.8.2020 owing to his inability to complete job as committed in his work order
Ex.A12	26.08.2020	Mr. Sudhakar's undertaking submitted to ACP-R3-PS- Page-1- stating that he is unable to install lift and giving 3 PCD.2 cheques of Rs 1 lakh each were dishonoured.
Ex.A13	11.09.2020	Mr.Sudhakar's assurance letter at Manasarovar flats Voltas Colony to return the balance amount of Rs 3.75 lakhs with interest
Ex.A14	24.01.2021	Mr. Sudhakar's undertaking to ACP-R3-PS 24-01-2021 that he will return the balance amount of Rs 3.25 lakhs
Ex.A15	22.03.2021	Mr. Sudhakar's undertaking to ACP-R3-PS on 22-03-2021 to return balance amount
Ex.A16	02.05.2021	Lift Notice-2 on 2 May 2021

 

 

List of documents filed on the side of the Opposite Parties:-

 

NIL

 

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT