Shaik Mohammad Esshaq,

S/o. Late Shaik Mahammod Saheb,

Muslim, aged about 50 years, Business,

Plot No.1, TUDA Plots,

RC Road, Tirupati,

Chittoor District. … Complainant



And



M/s. Everest Engineering Corporation,

Rep. by its Authorized person G. Sanjay,

Holding office at Plot No.91, SBI Officer’s Colony,

Moosarambagh, Hyderabad.

Presently situated at Door No.16-11-16/C/9,

Prasanth Nagar, T.V. Tower Rasta,

Moosarambagh, Hyderabad - 36. … Opposite party



This complaint coming on before us for final hearing on 13.05.2009 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri. K. Chakravarthy, counsel for the complainant and the opposite party having been called absent and set ex-parte and having stood over till this day for consideration, the Forum made the following:-



ORDER

This complaint is filed under Sections 12 and 14 of Consumer Protection Act, 1986 to direct the opposite party to refund the advance amount of Rs.25,000/- with interest at 24% per annum from 26.07.2007, to pay a sum of Rs.5,00,000/- towards the loss of rents, to pay a sum of Rs.1,00,000/- towards the damages for mental agony and also to pay the costs of the complaint.

2. The averments of the complaint in brief are as follows :

The complainant states that the complainant and his wife by name Smt. Shaik Naazneen Begum are the owners of the building bearing Plot No.1, R.C. Road, Tirupati, which is the commercial complex consisting of ground plus three floors. In view of several floors in the said complex lift is essential as such the complainant placed order with the opposite party and the opposite party agreed for design, manufacture, supply, installation, testing and commissioning of one EEC six passenger lift/elevator to the complainant’s building.

That the total contract value for erection of the lift was Rs.2,20,000/- and after negotiations the complainant has paid advance amount of Rs.25,000/- to the opposite party by way of cheque bearing No.678792 and the opposite party acknowledged the same and passed a receipt in favour of the complainant on 26.07.2007. That the site work has been completed in all respects and since February 2008, the complainant is requesting the opposite party for installation of elevator. The opposite party postponed the same on some reason or the other. The opposite party did not make any arrangements to supply the material required for installation of elevator. That after several repeated approaches and demands, in the month of September 2008, the opposite party has occupied the site / building and made some arrangements to erect the elevator and thereafter left the site informing that within two days they will come back and complete the work. But the opposite party did not keep up their promise and did not turn up. Hence, the complainant got issued legal notice dated 03.11.2008 calling upon the opposite party to come and perform their part of contract by erecting the elevator immediately.

After receipt of the said legal notice, the opposite party approached the complainant and made promise that the work will be commence within a week, but inspite of repeated reminders and demands, the opposite party failed to install the elevator. Again on 11.12.2008, the complainant got issued another legal notice to the opposite party calling upon them to repay the advance amount of Rs.25,000/- with interest at 24% per annum from 26.07.2007 and Rs.5,00,000/- towards loss of rents and also a sum of Rs.1,00,000/- towards the damages.

The opposite party received the same and neither complied nor issued a reply. That as the construction of the building was completed in the month of February 2008 itself, the complainant offered the same to public for rental basis. In response of the same, the Canara Bank, Tirupati agreed to carry their business in the first floor of the said building on monthly rent of Rs.30,000/- and entered into lease agreement dated 26.03.2008 with the complainant. But due to non-providing of elevator the said agreement was terminated. Afterwards the Life Insurance Corporation of India offered to take three floors in the said building on monthly rent of Rs.80,000/-, if the complainant provides the lift for all the three floors as already agreed upon.. But due to non-providing of elevator they did not come forward and withdrawn their offer. For want of lift facility nobody is coming forward to occupy the building and thereby the complainant sustained loss to a tune of Rs.5,00,000/- towards rents. That the complainant availed loan from APSFC to construct the said building and due to non-occupation of tenants the complainant is paying the loan instalments with great difficulty by borrowing the amounts on interest basis from the private financiers. Due to that the complainant is suffering not only mental agony, hardship but also financial crisis for which the opposite party is liable to pay a sum of Rs.1,00,000/-.

Hence, the complaint.

3. The opposite party remained ex-parte.

4. On behalf of the complainant Exs.A1 to A9 are marked. The complainant filed written arguments.

Ex.A1 is the quotation given by the opposite party.

Ex.A2 is the offer letter of the opposite party along with Annexure 1 to V to the

complainant

Ex.A3 is the receipt issued by the opposite party to the complainant dated

26.07.2007.

Ex.A4 is the Xerox copy of lease agreement between the complainant and Canara

Bank, Tirupati, dated 26.03.2008.

Ex.A5 is the offer letter of the Life Insurance Corporation of India, dt.19.09.2008

Ex.A6 is the office copy of legal notice issued to the opposite party along with

postal receipt dated 03.11.2008.

Ex.A7 is the postal acknowledgement from the opposite party.

Ex.A8 is the office copy of legal notice issued to the opposite party along with

postal receipt dated 11.12.2008.

Ex.A9 is the postal acknowledgement from the opposite party.

6. The points for consideration are :

1. Whether there is deficiency of service on the part of the opposite party?

2. Whether the complainant is entitled to Rs.25,000/- with interest at 24% per annum from 26.07.2007?

3. Whether the complainant is entitled to Rs.5,00,000/- towards the loss or rents?

4. Whether the complainant is entitled to Rs.1,00,000/- towards the damages for mental agony?

5. Whether the complainant is entitled to the costs of the complaint?

6. To what relief?



Point No.1:- The case of the complainant is that complainant and his wife by name Smt. Shaik Naazneen Begum are the owners of the building bearing Plot No.1, R.C. Road, Tirupati which is the commercial complex consisting of ground plus three floors. In view of several floors in the said complex the complainant placed order for the lift with the opposite party and the opposite party agreed for design, manufacture, supply, installation, testing and commissioning of one EEC six passenger lift/elevator to the complainant’s building.

The total contract value for erection of the lift was Rs.2,20,000/- and after negotiations the complainant has paid advance amount of Rs.25,000/- to the opposite party by way of cheque bearing No.678792 and the opposite party acknowledged the same and passed receipt in favour of the complainant on 26.07.2007. Ex.A3 is the receipt given by the opposite party. The opposite party failed to comply the demands of the complainant inspite of Ex.A6 and A8 issued by the complainant to the opposite party. The opposite party remained ex-parte. Therefore, the acts of the opposite party amounts to deficiency in service. This point is answered accordingly.

Point No.2:- In view of our finding of Point No.1, we are of the opinion that the complainant is entitled to Rs.25,000/- paid to the opposite party as advance under Ex.A3 with interest at 9% per annum from the date of Ex.A3, ie., 26.07.2007 till the date of realization. This point is answered accordingly.



Point Nos.3&4:- The complainant in para 5 of the written arguments stated as follows: “The construction of the building was completed in the month of February, 2007 itself, the complainant offered the same to the public for rental basis. In response of the same, the Canara Bank, Tirupati agreed to carry their business in the 1st floor of the said building on monthly rent of Rs.30,000/- and entered into lease agreement dated 26.03.2008 with the complainant. But due to non providing of elevator, the said agreement was terminated.

Thereafter the Life Insurance Corporation of India offered to take three floors in the said building on monthly rent if the complainant provides the lift for all the three floors as already agreed upon. But due to non providing of the elevator they did not come forward and withdrawn their offer. The lease agreement dated 26.03.2008 between the complainant and Canara Bank, Tirupati and offer letter dated 19.09.2008 of the LIC of India are filed along with the complaint for better appreciation. For want of lift facility nobody is coming forward to occupy the building and thereby the complainant sustained loss to a tune of Rs.5,00,000/- towards rent”. The opposite party is not a party to the alleged transaction of the complainant, Canara Bank and LIC of India. Therefore, the District Forum is of the opinion that the complainant is not entitled to Rs.5,00,000/- towards the loss of rent and Rs.1,00,000/- towards the alleged mental agony of the complainant. These two points are answered against the complainant and in favour of the opposite party.



Point No.5:- In view of our finding on Point No.1, we are of the opinion that the complainant is entitled to Rs.1,500/- towards the costs of the complaint. This point is answered accordingly.

Point No.6:- In the result, the complaint of the complainant is allowed in part directing the opposite party to refund a sum of Rs.25,000/- with interest at 9% per annum from 26.07.2007 till the date of realization and to pay Rs.1,500/- towards the costs of the complaint.

Time for compliance is 6 weeks.