CC No: 695/2014

 Filed on 19.04.2014

Disposed on 18.05.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU – 560 027

DATED THIS THE 18^th DAY OF MAY 2016

CONSUMER COMPLAINT NO.695/2014

PRESENT:

Sri. H.S.Ramakrishna,  B.Sc., LL.B.

                                    PRESIDENT

                        Smt. L. Mamatha, B.A., (Law), LL.B.

                        MEMBER

                                                        V/S

ORDER

BY SRI H.S. RAMAKRISHNA, PRESIDENT

1.         This is a complaint filed by the Complainant against the Opposite Party under Section-12 of the Consumer Protection Act, 1986, praying to pass an order directing the Opposite Parties 1 & 2 to pay a sum of Rs.9,50,000/- along with interest at 18% for the inconvenience and hardship caused to the Complainant.

2.         The brief facts of the Complaint can be stated as under:

In the complaint, the Complainant alleged that Complainant is a charitable religious trust.  The Complainant constructed a building at No.60, 15^th Cross, Malleshwaram, Bangalore 560 003 for the purpose of a charitable eye hospital.  The Complainant has plan to install two lifts for the abovesaid building with the 16 persons capacity of 3 stops and 8 persons capacity of 5 stops.  The Complainant approached the Opposite Party for installation of the lifts as per their requirement.  The Opposite Party issued a quotation on 22.03.2013 for 16 persons capacity with 3 stops for a sum of Rs.14,55,000/- and for 8 persons capacity of 5 stops for a sum of Rs.13,95,000/-.  The Complainant is in touch with the Opposite Party with regard to the installation of the lift for the building above mentioned ever earlier to the quotation issued by the Opposite Party and thereby paid an advance amount of Rs.9,50,000/-.  The Opposite Party sent a mail on 24.07.2013 and revised the price of the lifts as for 16 persons capacity with 3 stops for  Rs.17,50,000/-, for 8 persons capacity with 5 stops for Rs.13,95,000/- and the additional charges for installation is for Rs.3,00,000/-.  The Opposite Party unilaterally revised the price for the lifts and sought for confirmation of the quoted price.  The Complainant has not confirmed the quoted by the Opposite Party and requested them to cancel the order Job No.L-F 9216 and thereby requested them to adjust the advance amount towards the another Job No.L-F 9217.  The Opposite Party issued a letter dt.28.08.2013 and thereby confirming the cancellation of the order in respect of Job No. L-f 9216 and transferring of advance paid in respect of the above order number towards the order No.L-F 9217 for the installation of lift with the capacity of 8 persons of 5 stops.  Even after payment of substantial amount of Rs.9,50,000/- against the total agreed amount of Rs.13,90,000/-, the Opposite Party failed to install the lift as required by the Complainant.  Even after lapse of 7 months from the date of payment of the advance, the Opposite Party has not turned up to install the lift as sought by the Complainant.  To the surprise of the Complainant, once again the Opposite Party has written a letter stating that they cannot supply and install a lift with the capacity of 8 persons and 5 stops as agreed and they can supply and install the lift with the capacity of carrying 6 persons.  Being fed up with the attitude of the Opposite Party and failure of the Opposite Party with regard to their agreed commitment, the Complainant has written a letter on 06.11.2013 to the Opposite Party and thereby cancelled the entire order and requested them to refund the amount of Rs.9,50,000/- together with 18% interest per annum from the date of payment of advance amount.  The Opposite Party has not responded to the said letter, the Complainant issued another letter on 21.12.2013 requesting the Opposite Party to refund the amount.  To the shock and surprise of the Complainant, the Opposite Party has written a letter on 26.12.2013 stating that they are ready to refund a sum of Rs.8,31,000/- as against Rs.9,50,000/- after levying a nominal cancellation fee of 10% of the contract value i.e. Rs.1,19,000/-.  It is submitted that it is ridiculous on the part of the Opposite Party as they have not stick on to their commitment to supply the lifts as agreed and failed to supply the lifts even after seven months from the date of payment of advance amount of Rs.9,50,000/-.  The act of the Opposite Party amounts to deficiency in service as they absolutely failed to provide the service as agreed by them.  Hence, this complaint.

            3.         In response to the notice, the Opposite Party put their appearance through their counsel and filed their version.  In the version pleaded that the complaint is not maintainable in law or on facts.  There was any deficiency in service of any kind and specifically denied that there is any relationship of supplier and consumer between the parties to the complaint.  There was no any contract to supply the lifts as alleged by the Complainant.  The original order was changed by the Complainant itself and the changed order is very much evident from the documents.  The changed contract between the parties clearly demonstrates the type of contract, terms of contract and the order placed by the Complainant.  It is incorrect to state that the Opposite Party fails to provide service as agreed by them.  On the contrary the Complainant itself has committed the breach of contract and caused huge loss to the Opposite Party.  There was no cause of action to file this complaint.  The Complainant placed an Order for two lifts designated as L-F 9217 known as Standard Nextra on 22.02.2013 which are one number of 8 passengers and 5 stops and another designated L-F 9216 and another 16 passengers of 3 stops designated as L-F 9217 by paying initial deposit of Rs.1,50,000/- and Rs.1,00,000/- and there afterwards a sum of Rs.7,00,000/-.  The lift L-F 9217 is one for production schedule as per the life contract.  The Complainant unilaterally changed their lift specifications to machine roomless models and insisting the Opposite Party to design accordingly.  The Opposite Party after several rounds of discussions, negotiations, emails explained that changing of models effects the passengers capacity and also the price from the model what they originally order with the Opposite Party.  Inspite of that, indicated the revised capacity and price for the Machine Roomless models.  However the Complainant insisting that new models to be supplied as per the original contract price for which the Opposite Party pleaded its inability.  Hence, there was no any new contract and the Opposite Party is always ready to execute the models as per the original contract.  The Complainant then requested the Opposite Party to cancel one of the lift and the entire amount to be transferred to the other lift, however as per the contract 10% of the contract value was no deducted as a goodwill and cancelled the order and transferred the balance amount to the credit of second order.  The Complainant then wrote a letter to cancel the second order also sought for refund the entire amount of Rs.9,50,000/- with interest which is against the terms of the contract.  The Opposite Party after cancellation of one order started production of model as per the original contract.  The Opposite Party spent huge amount for its production activities and having started production of model as per the original contract.  The Opposite Party spent huge amount for its production activities and having started production, made it clear to the Complainant that it is not possible to refund the amount on the other hand insisted the Complainant to pay the balance amount and to take delivery of the lift.  The Opposite Party always ready and agreeable to sit for a conciliation and to resolve the matter by amicable settlement as the Opposite Party spent amount in regard to order placed by the Complainant.  The Opposite Party after deducting the said amount, ready and agreeable to refund the balance amount to the Complainant as the Opposite Party is a reputed company having established goodwill and reputation in the market and it has no any intention to cause damage to any of its customer or the public.  Hence, prays to dismiss the complaint.

            4.         In support of the complaint, the complainant has filed affidavit by way of evidence.  For the Opposite Party one Sri Ramesha Chari, authorized signatory of the Opposite Party has filed his affidavit by way of evidence.  Heard the arguments of both the parties.

5.         Now the points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Parties?
2. If so, to what relief the Complainant is entitled?

6.         Our findings on the above points are:-

                        POINT (1):-  Affirmative

                        POINT (2):-As per the final Order

REASONS

7.         POINT NO. 1:-         As looking into the averments of the complaint, it is the case of the Complainant that the Complainant placed an order with the Opposite Party for supply and installation of the lift to their building for 16 persons capacity with 3 stops and 8 persons capacity with 5 stops.  For this the Opposite Party sent a quotation for 16 persons capacity with 3 stops for a sum of Rs.14,55,000/- and for 8 persons capacity of 5 stops for a sum of Rs.13,95,000/-.  The Complainant paid an advance of Rs.9,50,000/- towards the Job No. L-F 9216 and L-F 9217.  But on 24.07.2013 the Opposite Party sent a mail and revised price of the lift as 17,50,000/- for 16 persons capacity with 3 stops and Rs.13,95,000/- for 8 persons capacity with 5 stops and additional charges for installation is Rs.3,00,000/- unilaterally.  To substantiate this fact, the Complainant in his sworn testimony reiterated the same and also produced the price schedule submitted by the Opposite Party.  By looking into this document, it is dt.22.02.2013 in respect of supply of erect and commission of site ONE No/s “JOHNSON” 16 persons passengers lift for the building of the complainant for a sum of Rs.14,50,000/- along with Karnataka Tax Rate 14.5%, Service Tax 12%, Cess on Service Tax 2% and Sec. & Higher Education Cess on Service Tax 1% and also produced the lift specification dt.22.02.2013 and revised price.  This revised price is sent through email by the Opposite Party to the Complainant on 31.07.2013 and as per the revised price, the cost of supplying 8 passengers lift with 5 stops without machine room will be Rs.13,95,000/- with SS car and doors.  The cost of supplying a 16 passengers MRL for 3 stops will be Rs.17,40,000/- with MS painted finished.  The extra cost of providing stainless steel car, doors and frames will be an additional Rs.3,00,000/- and requested the Complainant to confirm the same by return mail.  In response to this revised price, the Complainant by letter dt.23.08.2013 cancelled the order for supply of 16 passengers MRL 3 stops and transferred the deposit amount of Rs.8.5 lakhs to the other order.  In response to this letter, the Opposite Party issued a reply on 28.08.2013 informing that the advance amount of Rs.8,50,000/- against the Job No.L-F 9216 will be transferred to specification order No.L-F 9217.  So from this evidence, it is clear that the Opposite Parties have agreed to supply and install the lift of 8 passengers with 5 stops for a sum of Rs.14,55,000/- and for 8 persons capacity with 5 stops for a sum of Rs.13,95,000/- since the Opposite Party revised this price unilaterally.  The Complainant requested to cancel the order for supply and installation of L-F 9216 and requested to transfer the advance amount to Order No.L-F 9217.  This evidence of the Complainant has not challenged by the Opposite Party and there is no rebuttal evidence to disbelieve the contention of the Complainant, thereby it is proper to accept the contention of the Complainant that Opposite Parties have agreed to supply and install 16 persons capacity with 3 stops for a sum of Rs.14,55,000/- and for supply of 8 persons capacity with 5 stops for a sum of Rs.13,95,000/- and also the Opposite Party unilaterally revised this price on 24.07.2013 for the supply and installation of 16 persons capacity with 3 stops for a sum of Rs.17,50,000/- and for supply of 8 persons capacity with 5 stops for a sum of Rs.13,95,000/- and additional charges of Rs.3,00,000/-.  The Complainant has not confirmed the revised price and requested to cancel the order under Job No. L-F 9216 and requested to adjust the said advance amount towards the another Job No.L-F 9217.

            8.         It is the further case of the Complainant that even after payment of substantial amount of Rs.9,50,000/- against the total agreed amount of Rs.13,95,000/- the Opposite Party fails to install the lift as requested by the Complainant.  Even after lapse of seven months from the date of payment of advance amount, the Opposite Party has not turned up to supply and install the lift as sought by the Complainant.  To the surprise of the Complainant once again the Opposite Party has written a letter stating that they cannot supply and install the lift with capacity of 8 persons and 5 stops as agreed and they can supply and install the lift with capacity of carrying 6 persons.  Fed up with the attitude of the Opposite Party and failure of the with regard to their agreed commitment, the Complainant on 06.11.2013 requested the Opposite Party to cancel the entire order and demanded for refund of the advance amount with interest.  In order to substantiate this fact, the Complainant in his sworn testimony reiterated the and produced the letter dt.28.08.2013.  This letter is addressed by the Opposite Party to the Complainant informing the Complainant that an advance amount of Rs.8,50,000/- against the Job No. L-F 9216 will be transferred to you subsequent order No.L-F 9217.  So from this evidence, it is very clear that on the request of the Complainant, the Opposite Parties have transferred the advance sum of Rs.8,50,000/- paid by the Complainant in respect of order No.L-F 9216 to L-F 9217.  Inspite of this, the Opposite Party have not supplied the order and install the lift as agreed by them.  This fact is further clear as looking into the letter dt.06.11.2013.  This letter is addressed by the Complainant to the Opposite Party.  As per this letter, it is very clear that the Opposite Party has agreed to supply 8 passengers capacity lift to the Complainant and received advance amount of Rs.9,50,000/-, but the Opposite Party through mail informed the Complainant that they are not in a position to supply the lift of 8 persons, but they can supply the lift of 6 persons capacity only.  For that reason, the Complainant requested to cancel the order by addressing a letter dt.21.12.2013 and requested to refund the advance amount.  Further, the Complainant produced a letter dt.26.12.2013, this letter is addressed by the Opposite Party to the Complainant informing that they are ready to refund a sum of Rs.8,31,000/- after nominal cancellation fee of 10% of the contract value i.e. Rs.1,19,000/-.  So from this evidence, it is very clear as agreed by the Opposite Party that the Opposite Party fails to supply and install the lift to the Complainant’s building even though received a substantial amount of Rs.9,50,000/-, but on the other hand, after taking sufficient time, they informed their inability to supply and install 8 passengers capacity with 5 stops and on the other hand, they informed the Complainant to supply 6 passengers capacity as against 8 passengers with 5 stops.  Due to this reason, the Complainant become upset and requested to cancel the entire order by addressing a letter dt.21.12.2013 and to this letter dt.21.12.2013, the Opposite Party giving reply stating that they are ready to refund a sum of Rs.8,31,000/- after deducting a sum of Rs.1,19,000/- i.e. 10% of the contract amount.  Even this evidence is also not been challenged by the Opposite Party.  So to disbelieve the contention of the Complainant that there was no contra evidence, therefore, it is proper to accept the contention of the Complainant that the Opposite Party fails to supply and install the lift as agreed by them and when the Complainant asked for refund of the entire amount, they were not ready to refund the entire amount, but on the other hand, they are ready to refund a sum of Rs.8,31,000/- after deducting 10% of the contract amount for that the Complainant has not agreed.  Now the advance amount of Rs.9,50,000/- is still with the Opposite Party from April 2013.  The defence of the Opposite Party is that the Complainant unilaterally changed their lift specification to machine roomless model and insisting the Opposite Party to design accordingly.  But in support of this defence, except the interested version of the Opposite Party, the Opposite Party has not placed any supporting evidence, therefore, it is proper to accept the defence taken by the Opposite Party that the Complainant unilaterally changed the lift specification to machine roomless model and insisting the Opposite Party to design accordingly.  So as looking into the evidence placed by the parties, it is very clear that the Opposite Party fails to supply and install the lift as agreed by them to the building of the Complainant even though he has received substantial amount of Rs.9,50,000/-.  When the Complainant demanded for refund of the advance amount on the failure of the installation of the lift by the Opposite Party, the Opposite Party instead of refund the entire amount deducted 10% of the advance amount and for that the Complainant has not agreed.  So this evidence clearly goes to show that since April 2013, the advance amount of Rs.9,50,000/- paid by the Complainant is with the Opposite Party and the Opposite Party after receiving the same have not supply and install the lift as agreed by them, thereby it amounts to deficiency in service on the part of the Opposite Parties.  Hence, this point is held in the affirmative.

9.         POINT NO.2:-          In view of the finding on Point No.1, we proceed to pass the following;

ORDER

The Complaint is allowed holding that there is deficiency in service by the Opposite Parties 1 & 2.  The Opposite Parties 1 & 2 are directed to pay a sum of Rs.13,63,000/- to the Complainant.  The Opposite Parties 1 & 2 are further directed to pay a sum of Rs.1,00,000/- as compensation for the mental agony and Rs.5,000/- as costs of this litigation to the Complainant.  The Opposite Parties 1 & 2 are jointly and severally pay the aforesaid amount within 30 days from the date of this Order.  Failing which, the aforesaid amount shall carry interest at 18% p.a. from the date of this Order, till the date of payment.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 18^th day of May 2016).

       MEMBER                                                                               PRESIDENT

CC. NO.695/2014

LIST OF WITNESSES AND DOCUMENTS

Witnesses not examined, but affidavit of the witnesses is filed, as follows;

1. Sri Mahaveer Chand Choradia has filed his affidavit for Complainant.
2. Sri Ramesha Chari, authorized signatory has filed his affidavit for the Opposite Parties.

List of documents filed by the Complainant :

1. Copy of the lift specification with price schedule.
2. Copy of the email dt. 31.07.2013.
3. Copy of the letter dt.23.08.2013.
4. Copy of the letter dt.28.08.2013.
5. Copy of the letter dt. 29.08.2013.
6. Copy of the letter dt. 06.11.2013.
7. Copy of the letter dt. 21.12.2013.
8. Copy of the letter dt. 26.12.2013.

List of documents filed by the Opposite Party :

NIL

MEMBER                                                                               PRESIDENT