STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                         U.T., CHANDIGARH 

                                            (Additional Bench)

Nibav  Lifts Pvt. Limited, through Sh.K.Prabhakaran(Senior Accountant) office at Elite Elevators,  Nibav Building, 2nd floor,  11, L. B. Road, Adyar, Chennai 600020.                                                                                                                                                                                          …Appellant

                                         V e r s u s

Kuldeep Singh Sondhi, House No.550/2nd Floor, Sector 16-D, Chandigarh.

                                                                                 .                       ..Respondent

Appeal under Section 41 of the Consumer Protection Act, 2019 against order dated 01.11.2023 passed by          District Consumer Disputes Redressal Commission-II, U.T. Chandigarh in Consumer Complaint No.199/2023.

BEFORE:       MRS. PADMA PANDEY, PRESIDING MEMBER

                        MR.PREETINDER SINGH,MEMBER

Present   :       Sh. Abhinav Singla,   Advocate for the appellant

                        Ms.Dolli Sharma, Advocate for the  respondent alongwith

                       Sh.Kuldeep Singh Sondhi, respondent/complainant in person.   

 PER PREETINDER SINGH, MEMBER

                       This appeal is directed against the order dated 01.11.2023, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (hereinafter to be referred as “the Ld. Lower Commission”), vide which, it allowed the complaint bearing No.CC/199/2023 by holding as under ;

“Taking into consideration the above facts & circumstances, we are of the opinion that unfair trade practice on the part of OP is proved.  Therefore, the present complaint stands allowed against the OP.  The OP is directed to refund an amount of Rs.6,30,000/- to the  complainant alongwith interest @9% per annum from the date of its receipt till the actual date of refund of amount to the complainant by the OP.

 This order shall be complied with by the OP within a period of 90 days from the date of receipt of copy of this order.”      

2.      Before the Ld. Lower Commission, it was case of the complainant/respondent that being a senior citizen and suffering from serious health issues, he used to face physical discomfort while climbing up & down the staircase several times a day as he was residing on second floor of the house and as such, was keen to have a lift installed in the said residence.  It is averred that the complainant also talked about installation of lift with the family members residing at the ground floor, and they expressed no objection to the installation of the lift.  Accordingly, the complainant approached the Opposite Party for installation of lift at his residence, who quoted the price of the lift to be Rs.13,29,742/- and asked to pay 25% amount of the total price while placing the order for the lift. Thereafter, the complainant paid an amount of Rs.6,30,000/- to the OP vide receipts Annexure C-2 (Colly).  However, to the surprise of complainant, the family residing on the ground floor refused to co-operate and instead filed a complaint against the complainant. Left with no option, the complainant informed the OP Company and requested to refund the amount paid by him.  The complainant also sent a legal notice to the OP calling upon  refund of his amount but the OP did not pay any heed to his request,  Hence, the complainant filed a consumer Complaint before the Ld. Lower Commission seeking  refund of  his amount and also pay compensation and litigation costs.

 3.               Pursuant to issuance of notice, the Opposite Party appeared before the Ld. District Commission and contested the complaint. In its written version,  the OP   while admitting the factual matrix of the case about receipt of Rs.6,30,000/- from the complainant for installation of lift at his residence, stated that the complainant is hand in gloves with his neighbour/owners of Ground floor and  with that excuse complainant wanted to avoid installation of Lift. It is stated that complainant signed the quotation and total price was fixed at Rs.13,29,742/-, out of which an amount of Rs.6,30,000/ - was paid and the complainant wanted to cancel the order without any reason.  He himself booked the order and partly paid the price with his own sweet will.  The complainant coined  the reason for cancellation of the order that   family living at ground floor of his premises raised a dispute for installation of lift and on the other side, as per email dated 6.05.2022, he stated that he has health issues and not able to install Lift at his premises, which are contradictory to each other. Moreover, this product is designed for special kind of persons, not sale-able in open market, in this scenario amount is not refundable. It is stated that the order once booked cannot be cancelled as it is very clear on proposal form, "once the order is taken it can neither be cancelled or refunded". It is further stated  that the OP is ready to install lift after balance payments and other formalities.    Denying other allegations and  pleading that there was no deficiency in service,   a prayer was made by the OP for dismissal of the complaint.

4.                   On appraisal of the pleadings, and the evidence adduced on record, Ld. Lower Commission allowed the Complaint of  the  Respondent/ Complainant, as noticed in the opening para of this order.   

5.               Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellant/Opposite Party.

6.                    We have heard Learned Counsel for the parties  and have gone through the evidence and record of the case with utmost care and circumspection.

7.              The   main ground put forth  by the appellant is that there was no deficiency in providing service and indulgence into unfair trade practice on its part as the respondent himself booked the Lift after understanding terms and conditions and paid the initial amount but without any sufficient reason, he cancelled the order of the Lift. According to the principle of ‘Cavate emptor’  the respondent being a buyer  should have been vigilant before placing the order for purchase of the Lift.  It is further case of the appellant that there is no policy to refund the amount as  the product ordered is designed specially as per site of the buyer and cannot be sold in the open market, as such, it was pleaded that the order once booked cannot be cancelled and the appellant is not liable to refund the amount.  On the other hand, it was contended on behalf of the respondent that the order passed by Ld. Lower Commission being  quite justified and reasonable does not call for any interference.  

8.            It is admitted case of the parties that the total amount of the Lift as communicated to the respondent vide Annexure C-1 was Rs.13,29,732/- and validity of the offer was  upto 28.02.2022 and the respondent paid Rs.6,30,000/- vide receipts dated 7.03.2022, 9.03.2022 and 17.03.2022.(Annexure C-2 colly). Time of delivery of the product was  two months after approval of drawings and finishes. However, the respondent vide mail dated 6.5.2022 requested the appellant to cancel his request for installation of the Lift.   However, later on, it was also intimated  that due to certain objections by the occupants of the same premises, the local administration refused to grant permission for installation of the Lift.    The appellant has not brought on record any document to show that the drawings were approved and any material has gone waste due to cancellation of the order by the respondent. The Learned District Commission rightly observed that when the product for which the amount was paid has not been supplied or provided by the appellant, then the appellant should have refunded the amount as per request of the respondent.                                                                                   

9.                Be that as it may,  the appellant   was ready to install the Lift but due to unavoidable circumstances, the respondent/complainant has to cancel the order for installation of the Lift, and as such, in these peculiar circumstances of the case, the impugned order requires modification. We are of the view that  ends of justice would meet, if the appellant is directed to refund an amount of Rs.6,30,000/- within 45 days from the date of receipt of copy of the order and in case of default, it shall be liable to pay interest @9% p.a. from the date of default till payment.  We order accordingly. 

10.                     For the reasons recorded above, the appeal is partly accepted and the impugned order is modified to the extent as stated in para-9 above. 

11.                  Pending interlocutory  application, if any, also stands disposed of

12.                 Certified copies of this order be sent to the parties free of charge.

13.               The file be consigned to Record Room, after completion.