(Delivered on  27/04/2022)

PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL  MEMBER.

1.         Appellant- Mr. Jitesh Amrutlal Bakhai has preferred the   present appeal   challenging  the impugned  judgment and order dated 24/06/2019 passed by the learned District Consumer Commission, Nagpur in Consumer Complaint No. 216/2018, whereby the complaint filed by the complainant  came to be partly allowed and only compensation  came to the granted  to the  appellant/complainant. .

2.         Short facts leading to filing of the present appeal  may be narrated as under,

            Complainant- Mr. Jitesh Bakhai  claims to be resident  of Nagpur whereas  the O.P.No. 1- Rely Engineering Services  is dealing in the  business of installation  of lift and others professional services. Complainant- Mr. Jitesh Bakhai   has alleged that  he was  constructing  house for his residence and therefore wanted  to install  the lift in his house. The complainant therefore, met the O.P.No 2- Mr. Farooq Rayeen  who was working for O.P.No. 1 and placed the demand for installation of lift. The complainant also entered into an agreement with the O.P.No. 1 relating to the installation of lift. The complainant has alleged that the O.P.  has specifically  mentioned in the agreement  regarding  specifications, scope of working  and salient  features of elevator, etc. . The O.P. also promised to install the lift and complete the same in all manner within the period of 90 days without taking  any service charges for the same. The O.P.No. 1 had also agreed to provide free maintenance for the period of 12 months.  Accordingly, the agreement also took place  between  the complainant and O.P.No. 1.  Complainant has contended that initially he paid 20% of total sum amounting  to Rs. 1,81,250/- to the O.P. No. 1 on 04/07/2015 and O.P.No. 1 also  issued a receipt regarding  the same.  The complainant has contended that as per the terms  of agreement  the O.P. was under obligation  to complete the work in  stages  and  payments were  also to be made accordingly.  But after receipt of amount of Rs. 1,50,000/- the O.P.No. 1 stopped the work on the ground that spare parts were not available.  The complainant was badly in need of completion of lift in his house and so he paid entire sum of Rs. 7,50,000/- to the O.P. No. 1 before 04/05/2017. The complainant also requested the O.P. No. 1  to restart the  work of installation  of lift  and complete the same  as per terms but the O.P.No. 1 did not complete the work and did not install the lift. The complainant thereafter requested the O.P.No. 1 on several occasions but the O.P.No. 1 gave no response and stopped receiving calls. The complainant was therefore, convinced that the O.P. No. 1- Rely Engineering Services had committed breach of  agreement  and also deficiency  in service as the O.P.No. 1 was Service Provider. The complainant  was therefore  left with no other option  except to file  the Consumer Complaint  with a prayer to direct the O.P. No. 1 to complete the  installation of lift or in the alternative  to refund  an amount of Rs. 7,25,000/- along with interest  at the rate of 12% and compensation  for  mental and physical  harassment.

3.         After receipt of the complaint due notice was issued to the O.P.Nos. 1&2 and the same was also served by way of paper publication  but the O.P.Nos. 1&2 failed to appear despite being duly served and so complaint proceeded exparte against the O.P.Nos. 1&2.

4.         The learned District Consumer Commission, Nagpur thereafter went through the evidence led by the complainant as well as written notes of argument. The learned District Consumer Commission, Nagpur thereafter gave a finding that   the O.P. Nos. 1 had committed deficiency in service.  The learned District Consumer Commission, Nagpur also  directed the  O.P.Nos. 1&2 to complete the work of installation  of lift as per  agreement  dated 04/07/2015 and also  to pay compensation  of Rs. 25,000/- for mental  and physical harassment  to the complainant.  However, the learned District Consumer Commission, Nagpur  did not  accept  the alternative   prayer of complainant of refund  of amount and dissatisfied by this order dated 24/06/2019 passed by the learned District Consumer Commission, Nagpur  the present  appellant/ complainant  has come up  in appeal.

5.         We have heard Mr. Nerkar, learned advocate for the appellant/complainant- Mr. Jitesh Bakhai. It is  pertinent  to note  that  the respondents  were duly served in appeal but  also they failed to  remain present. 

6.         A very short point has arisen for our determination in the present appeal relating to refund of amount paid by the complainant to the O.P.No. 1 for non completion and breach of conditions of terms of agreement.  There is no serious dispute that the O.P.No. 1- Rely Engineering  Services  was dealing  in the business  of installation  and providing  services  of machines like lift etc. and had offered to install  the lift in the house of the  complainant- Mr. Jitesh Bakhai . It is also  not in dispute  that the O.P. No.1- Rely Engineering  Services  entered into an agreement  with the complainant  for installation  of lift for total sum of Rs. 7,25,000/-. It is submitted by Mr. Nerkar, learned advocate for the appellant /complainant that in pursuance to the Agreement dated 04/07/2015, the appellant   had initially  paid a sum  of Rs. 1,81,250/- and thereafter had paid  remaining  amount from time to time.  Appellant /complainant had paid a sum of Rs. 50,000/- on 17/11/2015 and Rs. 1,00,000/- on 07/12/2015. It is further  the case of the appellant /complainant  that  he had paid  the  total sum of Rs. 7,25,000/- but despite  having   made payment  the O.P.No. 1 had not completed the work of installation of lift on the pretext that   the spare parts of lift were not available.  As pointed out earlier the O.P.No. 1- Rely Engineering Services did not appear and did not file written version so as to contest the claim of the appellant /complainant.  On the other hand, the appellant /complainant has placed on record several documents including copy of offer /agreement dated 04/07/2015. Annexure 1 attached to the agreement mentions the specifications regarding installation of lift in the house of the complainant.  Annexure 2 of the agreement mentions the scope of work and Annexure 3 mentions the price schedule and terms of payments of Rs. 7,25,000/-.

7.         It is vehemently submitted by the learned advocate for the appellant /complainant that despite  payments of entire sum the O.P.No. 1 did not install the lift and the work of installation was not at all completed. The O.P.No. 1 has not at all contested this claim of the appellant/complainant and so the evidence led by the complainant on this point has gone unchallenged.

8.         It is  argued by the learned advocate for the appellant /complainant  that  despite  the fact that  the complainant  had paid the  entire  amount and  also  despite the fact that  the work allotted to the O.P. Nos. 1 was not completed, the learned District Consumer Commission, Nagpur has only given a  finding that there was deficiency in service on the part of the O.P.No. 1 but has not passed any order relating to refund of the amount paid by the complainant to the O.P.No. 1. As per submission of the learned advocate for the  appellant /complainant, the  appellant  had paid his  hard earned  amount  for installation  of lift in the house  for  his family members  but the  work was  not  even  partly completed.  According to the learned advocate for the appellant the lift was being installed for convenience of his old aged mother but the same was not completed.  During the course  of argument  Mr. Nerkar, learned advocate for the appellant  has also drawn our attention  to the various documents filed on record namely the receipts regarding payment of Rs. 1,81,250/- on 04/07/2015, Rs. 50,000/- on 17/11/2015 and Rs. 1,00,000/- on 07/12/2015.  During the further course of argument the learned advocate for the appellant has also drawn our attention to the fact that the O.P.No. 1- Rely Engineering Services had also admitted the receipt of sum of  Rs. 7,25,000/- . It is  submitted  by the learned advocate for the appellant/ complainant  that  the learned District Consumer Commission, Nagpur  had not taken these documents into consideration  and also  the fact that  the complainant  had parted with   entire  sum of Rs. 7,25,000/- and despite  the fact that the  O.P.No. 1 did not fulfill his part of the contract, no refund was granted by the learned District Consumer Commission, Nagpur. According to the appellant/complainant  the  learned District Consumer Commission, Nagpur  had committed an  error  in not  granting  refund of  amount of Rs. 7,25,000/- to which  complainant has entitled  along with interest . We have  therefore carefully  gone through  document as well as  finding given  by the learned District Consumer Commission, Nagpur  and we do find considerable  force  in this contention. As pointed out earlier  the O.P. Nos. 1&2 both  have not  filed their  written version  contesting  the claim of the complainant and so documents  filed on record  by the complainant have  gone  unchallenged. We are therefore of the opinion  that  the learned District Consumer Commission, Nagpur  had not appreciated this  aspect in proper  perspective. We therefore,  hold that  the complainant  was also entitled  for refund  of the amount  paid by the  complainant  in the  event  of non compliance  of  work. The O.P. Nos. 1&2 have not  adduced  any evidence  to show that  they  had  completed  their terms  of the contract. As such  the  judgment  and  order dated 24/06/2019 passed by the learned District Consumer Commission, Nagpur  will have to be  modified and complainant  were entitled  to  refund  of Rs. 7,25,000/- paid by him to the O.P.Nos. 1&2.  The complainant was further entitled to interest at the rate of 12% on the said amount from the date of payment. As such order dated 24/06/2019 passed by the learned District Consumer Commission, Nagpur is hereby modified accordingly and so appeal is partly allowed and by way of a sequel we proceed to pass the following order.  

ORDER

i.          Appeal is hereby partly allowed.

ii.          Order dated 24/06/2019 passed by the learned District Consumer Commission, Nagpur in Consumer Complaint No. CC/216/2018 is hereby modified  as under,

a.         Respondents/O. P. Nos. 1&2 are jointly and severally  directed to complete  the work of  installation of lift as per agreement  dated 04/07/2015 and to  transfer the same after  obtaining  necessary certificate  from Competent  Authority.

b.         However, in case the appellant is unable to fulfill the terms of agreement dated 04/07/2015 the respondents/O.P.Nos. 1&2 are  jointly and severally directed to refund the sum of Rs. 7,25,000/- along with interest  at the rate of 12% p.a. from the date of  receipt of amount.

c.         Respondents/ O.P.Nos. 1&2 are jointly and severally further directed to pay sum of Rs. 25,000/- to the complainant  towards  the mental and physical  harassment.

d.         The compliance of the aforesaid order should be made by the Respondents/O.P.Nos. 1&2 within a period of one month from the date of receipt of order. 

iii.         Copy of order be furnished to both the parties, free of cost.