DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 9th day of May 2023.
Filed on: 27.03.2018
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N
CC No. 142 /2018
COMPLAINANTS
Park View Apartment Owners Welfare Association, Represented by Secretary, Benny Jose Market Road, Convent Junction ,
Emakulam 682011.
VS
OPPOSITE PARTY
Aag India Pvt Limited , Represented by Managing Director, KR Sajeev Door No. 42/2237, "Krishna" Behind Ernakulam Medical Centre, Century Club Road, Vennala, Cochin – 682028.
(Op rep. by Adv.C.A.Chacko)
F I N A L O R D E R
D.B. Binu, President.
- A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that the complainant is a registered association with no. EKM/TC/439/2012 formed for the welfare of the residential apartment owners of the apartments by name "Park View Apartments". The association is represented by the Secretary, who is also an owner and resident of the Park View Apartment. As per the minutes of the Managing Committee meeting held on 19/01/2018 the Committee has authorized the Secretary to file the Complaint against the opposite Party. The complainant approached the opposite party for Servicing Testing and arranging renewal of Fire license for the Fire Fighting system installed in the complainant's premises. The opposite party submitted its quotation no AIPL/SQ/16-17/043 dated 12th January 2016. The complainant, based on the Opposite Parties quotation dated 12th January 2016 and subsequent discussions awarded the contract to the opposite party for servicing, testing and arranging renewal of the license. The Complainant paid Rs. 68,000/- vide cheque no’s 134258 and 862323 (Rs.34,000x2). The Opposite party failed to provide the service as agreed, in spite of various telephonic reminders. After many failed telephonic complaints, the complainant sent a registered letter dated 14/09/2017 to the opposite party asking him to perform the services. The complainant sent another letter dated January 20, 2018, cancelling the order and demanding refund the amount paid as advance. The opposite party did not respond to both the letters and various telephonic reminders. The complainant had approached the Commission seeking an order directing the Opposite Party to pay Rs.68,000/- as refund of the amount paid by the complainant to the Opposite party with interest to pay Rs.10,000 as compensation for the loss, mental agony suffered by the Complainant and the cost of the proceedings.
2). Notices
Notice was issued from the Commission to the opposite party and the opposite party filed their version.
3). THE VERSION OF THE OPPOSITE PARTY
The opposite party submitted quotation dated 12/1/2016 for supply, installation, servicing and testing of firefighting system of Park View Apartment. Total amount quoted was Rs.1,36,557/- and the complainant paid only Rs.68,000/- in spite of the fact that the opposite party duly completed all the quoted work within time in 2016 itself. Servicing and revamping of the existing system have done by the opposite party and what remained was only supply of few materials. Though the opposite party was ready and willing to supply the same, the complainant failed to make balance payment due to them for the work done by them in spite of repeated requests made by the opposite party. The complainant is not entitled to get refund of Rs.68,000/- with interest as this opposite party had done the entire work as per the quotation and balance amount is due from the complainant. There was no quotation for renewal of fire license for the firefighting system. There was no contract for renewal of the license as alleged by the complainant. This opposite party duly informed the complainant regarding the real facts and requested to make balance also caused a letter dated 12/4/2018 to the complainant narrating the real facts. But the complainant was not willing to pay the balance amount. Instead, they insisted to renew the fire license without demanding any payment. Regarding renewal of fire license, it is further submitted that though there was no contract for the same, the opposite party expressed their willingness to renew the same if the complainant make available the requisite fee and documents like copy of original Fire NOC and copy of final approved drawing. But the complainant was not willing for that. Even now this opposite party is willing to take steps to renew the fire license, if the complainant makes payment of balance amount due to it and make available the requisite documents and fee. There is no deficiency in service on the party of this opposite party. The opposite party is no way liable to pay any amount to the complainant as claimed in the above case.
3). Evidence
The complainant had produced 1 document that was not marked as EXproof affidavit and 9 documents that were marked as Exhibits-A-1 and A-9.
Exhibit-A-1. True copy of the registration certificate.
Exhibit- A-2. the copy of the decision of the association to file complaint.
Exhibit- A-3. The quotation dated 12th January 2016.
Exhibit-A-4. Complainant's order dated 23/1/2016 enclosing the cheques.
Exhibit-A-5. Complainant's letter dated 14/09/17 4.
Exhibit-A-6. Complainant's ‘letter of cancellation’ dated 20/01/2018.
Exhibit-A-7. The opposite party issued a Letter dated 12/04/18.
Exhibit-A-8. The opposite party issued a Letter dated 23/05/18.
Exhibit-A-9. Complainant's letter dated 24/05/2018.
The complainant had produced 1 document that were not marked as Exhibit as per the proceedings.
Complainant's letter dated 01/05/2018.
The opposite party had produced 1 document that was marked as Exhibit-B1.
Exhibit-B-1. True copy of Letter dated 01.06.2018 issued by the opposite party to the Complainant.
4) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iv) Costs of the proceedings if any?
5) The issues mentioned above are considered together and are answered as follows:
As per Section 2 (1) (d) of the Consumer Protection Act,1986, a consumer is a person who buys any goods or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant had produced a copy of the Letter dated 12/04/18 issued by the opposite party (Exhibit-A-7). This document revealed that the complainant had paid the requisite consideration for the service to the opposite party. Therefore, we are only to hold that the complainant is a consumer as defined under the Consumer Protection Act, 1986 (Point No. i) goes against the opposite party.
In the present case in hand, the Opposite Party who is a service provider having realized the consideration from the Complainant, avoided doing the agreed work and also avoid refunding the amount.
The learned counsel for the complainant submitted that based on the Opposite Parties quotation dated 12 January 2016 (Exhibit- A-3) and subsequent discussions awarded the contract to the opposite party for servicing, testing and arranging renewal of the Fire departments license (called Fire NOC). The Complainant paid Rs. 68,000/- vide cheque nos 134258 and 862323 (Rs.34,000x2). The copy of the award cum receipt substantiating payment of Rs.68,000 to the opposite party and specifying scope of the work. The opposite party received the payment on 23rd January 2016, as seen from the endorsement on Exhibit A-4. The Opposite party never provided any service in spite of various telephonic reminders. Exhibit: A-5 is the registered letter reminder and Exhibit: A- 6 is the letter of cancellation of the order; and demanding refund of the amount paid in advance. Exhibit: A-7 is the reply letter Dated 12/04/2018, from the opposite party, received after filing of the complaint with the commission. The opposite party confirmed receipt of the Rs. 68,000/- in Exhibit A-7. There is no delivery challan to support the alleged of materials. There is no service report to supply support their alleged claim of servicing the system. The opposite party did not file any proof to support their claims and allegations made in the version filed by him.
The learned counsel for the opposite party submitted that the complainant is not entitled to get refund of Rs.68,000/- with interest as this opposite party had done the entire work as per the quotation and balance amount is due from the complainant. There was no quotation for renewal of fire license for the firefighting system. There was no contract for renewal of the license as alleged by the complainant. This opposite party submitted Ext. A-3 quotation dated 12/1/2016 for supply, installation, servicing and testing of firefighting system of Park View Apartment. Total amount quoted was Rs.1,36,557/- and the complainant paid only Rs.68,000/- in spite of the fact that the opposite party duly completed all the quoted work within time in 2016 itself. Servicing and revamping of the existing system have done by the opposite party and what remained was only supply of few materials. Though the opposite party was ready and willing to supply the same, the complainant failed to make balance payment due to them for the work done by them in spite of repeated requests made by the opposite party. This opposite party duly informed the complainant regarding the real facts and requested to make balance payment of Rs.68,557/-.The opposite party also caused Ext.A7 letter dated 12/4/2018 to the complainant narrating the real facts. But the complainant was not willing to pay the balance amount. Instead, they insisted to renew the fire license without demanding any payment. Regarding renewal of fire license, it is further submitted that though there was no contract for the same, the opposite party expressed their willingness to renew the same if the complainant make available the requisite fee and documents like copy of original Fire NOC and copy of final approved drawing as evident from Ext.A8 and Ext.B1. But the complainant was not willing for that.
The complainant has failed to provide the contract for renewal of the license to show deficiency in service on the part of the Opposite Party in renewal of fire licence.
The Honourable Supreme Court of India in Sgs India Ltd. vs Dolphin International Ltd. on 6 October 2021 (Civil Appellate Jurisdiction Civil Appeal No. 5759 of 2009) held that:
“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a Judgement of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4 , this court held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.” 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. 5, held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under: - “28. In our opinion, the approach of the Consumer Fora is in completely disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”
In the light of the above circumstances, the complainant had failed to prove his case on merit and hence points Nos. (ii),(iii) and (iv) are found against the complainant.
In the result, the complaint is dismissed with no cost.
Pronounced in the open Commission on this 9th day of May 2023.
Sd/-
D.B.Binu, President
Sd/-
V. Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s Evidence
Exhibit-A-1. True copy of the registration certificate.
Exhibit- A-2. the copy of the decision of the association to file complaint.
Exhibit- A-3. The quotation dated 12th January 2016.
Exhibit-A-4. Complainant's order dated 23/1/2016 enclosing the cheques.
Exhibit-A-5. Complainant's letter dated 14/09/17 4.
Exhibit-A-6. Complainant's ‘letter of cancellation’ dated 20/01/2018.
Exhibit-A-7. The opposite party issued a Letter dated 12/04/18.
Exhibit-A-8. The opposite party issued a Letter dated 23/05/18.
Exhibit-A-9. Complainant's letter dated 24/05/2018.
Opposite party’s Exhibits
Exhibit-B-1. True copy of Letter dated 01.06.2018 issued by the opposite party to the Complainant.
