ORDER

SRI.H.R. SRINIVAS, PRESIDENT

1.      This is the complaint filed by the complainants against the Opposite Party (herein referred to as OP) under Section 12 of the Consumer Protection Act, 1986 for the deficiency of service in not installing the elevator though an advance amount of Rs.1,50,000/- was given to the OP, and for refund of the same with interest at 18% per annum and compensation of Rs.2,00,000/- for deficiency in service, harassment and mental agony, and Rs.10,000/- towards cost of litigation expenses and other reliefs as the commission deems fit.

2.      The brief facts of the complaint are: in order to have a lift to his house, Complainant approached OP and accordingly discussion were held, and a letter of installation testing and commissioning of TGSVT Elevator was also given by OP. He paid a sum of Rs.1,00,000/- on 17.12.2018 which was credited to the account of the OP and further sum of Rs.50,000/- transferred to an account on 11.12.2018 towards the advance of purchase of the elevator.  The said elevator was very much required for the use of the complainant. Since OP even after demanding to install the elevator to his house, did not take any care to demand the further amount and also did not refund the said amount hence he had to issue a legal notice dated 16.09.2019, which was returned with a shara that the addressee has left. The act of OP in not installing the lift/elevator to his house amounts to deficiency in service, having receiving the advance amount, and hence the complaint.

3.      Upon the service of notice, OP appeared before the commission and filed version contending that the complaint is not maintainable either in law or on facts which is to be dismissed. It has denied that after receiving the advance amount, it did not turn up to install the elevator  despite the request of the Complainant. It is averred that according to the terms and conditions of the contract complainant ought to have paid 50% of the total amount of Rs.11,40,000/- i.e. Rs.4,70,000/- and further 18% GST on the same. 

4.      Inspite of it, OP by investing 90% of the total cost of the project, obtained the required materials and dispatched to the site, even though complainant had paid only Rs.1,50,000/-. After receiving the said consignment, complainant terminated the contract and utilized the said materials. Afterwards, has issued a legal notice by making the breach of the contract. The delivery note has been filed to the commission to show that it has delivered the material to the complainant and without the complainant complying the obligation on his part.  Complainant has filed a false complaint.  Complainant has to pay Rs.7,85,880/- + penalty of 18% on the value of the order. There is no cause of action to file this complaint and prayed the commission to dismiss the complaint.

5.     In order to prove the case, both parties have filed affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1. Whether the complainant has proved deficiency in service on the part of the opposite party?

2. Whether the complainant is entitled to the relief prayed for in the complaint?

6.     Our answers to the above points are:-

POINT NO 1: PARTLY IN THE AFFIRMATIVE.

POINT NO 2 : PARTLY IN THE AFFIRMATIVE

                      For the following.

REASONS

POINT NO 1:

7.      Upon perusing the complaint, version, affidavit evidence, documentary evidence, it becomes clear that complainant approached OP to get the elevator installed to his house and paid a sum of Rs.1,50,000/- against the value of Rs.7,85,880/- + penalty of 18% on the value of the order and inspite of receiving the said amount OP did not take any steps to install the elevator and hence he had to cancel the order and claimed refund of the amount i.e. Rs.1,50,000/- paid to the OP, along with interest at 18% per annum.

8.      On the other hand, it is the specific case of OP that after receiving the advance of Rs.1,50,000/-, agreement has been entered into wherein the complainant agreed to pay 50% of the advance against clear and irrevocable purchase order,  40% against proof of dispatch of goods to client site as described and 10% against demonstrated successful installation and commission beyond 7 days of raising proforma invoice 18% per annum interest would be charged. Fright for forwarding within Bangalore city is of OP and exact actual beyond Bangalore city insurance by the client.

9.      It is also mentioned at 2.6 of the agreement that statutory permission wherever needed prior to and during the work and handing over of this contract is the responsibility of the client (complainant). OP will offer to provide help within its purview. It is also the specific case of the Op that even though it has received Rs.1,50,000/- only, it has purchase material of 90% and transported to the complainant site and the complainant has utilized the same and has issued legal notice claiming the entire amount paid as advance.

10.    It was mutually agreed that OP will facilitate the complainant supplying the design and its engineer visited the site to explain an elevator especially depth plan and checked the civil work of the building and complainant to pay additional advance 50% of the contract value. Complainant without paying the amount is making false allegations. First kit of materials required to install the elevator was supplied to the site of the complainant. Having received the said articles utilized the same has now come up with the notice and this complaint.

11.    It is also stated in the affidavit evidence of OP that it was always ready and perform its obligations provided complainant has proposal to pay the entire cost of the contract, and the complainant had to provide workable machine room for installation of the elevator. Whereas, the complainant failed to produce documents to evidence project site ready for installation. Complainant has agreed to the terms and conditions of the agreement. Complainant also agreed to the covenant and to the obligations under Terms of Contract at Para 2.13. “That for the reasons not attributable to TGSVT or for reasons that TGSVT finds teamed to in case the clients decides to terminate the contract prematurely for  reasons whatsoever not attributable to TGSVT, the client agrees to compensate the losses of TGSVT as below. 20% of the contract value plus all applicable taxes before drawings, 30% of the contract value after approval of the drawings and before readiness lot of materials at TGSVT manufacturing location or its warehouse, 60% of the contract value plus applicable taxes after intimation of material ready at warehouse, 90% of the contract value plus all applicable taxes after the materials dispatched and not installed, 100% of the contract value plus applicable taxes if installation has commenced.”

12.    In one of the letter written by the complainant to OP, states that after the OP receiving Rs.1,50,000/- has dumped door frame in the premises on 15.12.2018 except that, no response has been given by the OP and hence he cancelled the order placed with OP on 09.02.2019, whereas the order for elevator was placed on 05.12.2018. Taking into consideration the above facts and circumstances the negligence is on both the parties.

13.    Firstly, complainant did not pay 50% of the total cost of the project to the OP . Further secondly when the Op dumped the door frames did not demand to proceed with the project by paying the remaining amount. So also when OP received the advance amount towards the project, there is no materials placed before the forum having demanded the balance of advance amount or the total cost of the project.

14.    Thirdly, except the complainant admitting that only door frames have been sent, there is no other evidence by the OP to show that 90% of the materials sent to the site. No invoice, no gate pass, has been produced for having sent the said material to the site and no acknowledgement obtained by the complainant for receiving the same. In view of this, we are of the opinion that there is deficiency in service on behalf of OP and also complainant did not pay the balance of advance amount in order to procure the required materials by OP. In view of this, we answer POINT NO.1 PARTLY IN THE AFFIRMATIVE.

POINT NO.2:

15.  Further OP is hereby directed to refund a sum of Rs.1,00,000/- only to the complainant by retaining Rs.50,000/- to itself for the work it has done and complainant violating the terms and conditions. Further complainant is directed to return the door frames which he has received from the OP as admitted by him in the letter dated 09.02.2019. In view of the peculiar circumstances of this case, we hereby order parties to bear their own costs of the litigation and no order as to the damages suffered by the complainant. In view of this, we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:-

ORDER

1. The complaint is partly allowed with cost.
2. OP i.e. TGS ELEVATORS PVT. LTD., represented by its Manager/Authorized signatory is hereby directed to refund Rs.1,00,000/- to the complainant within 30 days from the date of receipt of this order - Failing which, the same shall carry interest at the rate of 12% per annum from the date of this order till payment of the entire amount.  
3. No order as to cost.
4. OP is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 18^th  day of February 2022)

MEMBER                          PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the offer letter for installing lift to complainant’s house.

Ex P2: Copy of the account statement wherein complainant have  issued a cheque for Rs.1,00,000/- and send Rs.50,000/- through RTGS.

Ex P3: Copy of amount transfer detail

Ex P4: Copy of the receipt issued  by OP in respect of receipt of Rs.1,00,000/-.

Ex P5: Copy of letter written by complainant to OP.

Ex P6: Copy of legal notice issued to OP.

Ex P7: Copy of the unserved cover.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Kishan B N, Authorized Representative of OP

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Email Correspondent dated 02.03.2019 to the complainant.

Ex R2: Certificate u/s 65-B of the Indian Evidence Act

MEMBER                  PRESIDENT

RAK*