DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA,
MALDA D.F.ORIGINAL CASE No. 58/2009
Date of filing of the Case: 30.12.2009
Complainant
Opposite Parties
B.J.S. Construction
Golapatti Bandh Road,
P.O. & Dist. – Malda
( to be represented by Agniv Saha, S/o. Anjan Kumar Saha,
of 6/6 Golapatti Lane,
P.O. & Dist. – Malda, a Partner of the firm )
1)
Thermo-Gen
( Reliable in Elevator Engineering )
Registered Office:- B-B-4/1, Rajarhat Road,
Kolkata – 700 059, West Bengal
(To be served upon Krishnendu Roy,
Operational Chief )
2)
Sri Krishnendu Roy,
Operational Chief and Proprietor of
Thermo-Gen
of B-B-4/1, Rajarhat Road,
Kolkata – 700 059, West Bengal
Present
1.
Sri Arjun Prasad Gupta, President
2
Smt. Sumana Das, Member
3.
Sri Krishna Prasad Chatterjee, Member
For the Complainant : Sri Asit Baran Chowdhury and Sri Nilanjan Sarkar Advocates
For the Opposite .Parties: Sri Mrinmoy Chakraborty, Advocate
Order No.20 Dt. 31.03.2011
Sri Agniv Saha, a partner, and constituted Attorney of other partners of B.J.S Construction, has brought this case alleging that Krishnendu Roy (hereinafter called O.P. No. 2) Proprietor and Operational Chief of M/s. Thermo-Gen (hereinafter called O.P. No.1) entered into a contract with the complainant for installation of two (5-passenger) lifts at Behani Abasan at Golapatty, P.S. English Bazar, Dist. – Malda, each valuing Rs. 2,80,000, totaling Rs. 5,60,000/-, out of which Rs. 60,000/- was paid in advance. In course of construction of the lift, the complainant paid Rs. 5,47,600/- to O.P. No.2, but the latter failed and neglected to make the lifts functional. Complainant sent several reminders by himself and through lawyer to O.P. No.1 to fit governor-safety to the lifts, but to no effect. As a result, service of the lifts remained an illusion to the complainant and other beneficiaries causing them agony, loss and inconvenience. Hence, this case, for refund of Rs.5,47,600/-to the complainant and to pay interest @ 16% p.a
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from the date of payment and Rs.1,00,000/- for agony, inconvenience pecuniary loss and litigation cost.
Opposite parties contested the case by filing a written version. Challenging the maintainability of the case, they claimed that they are not consumers within the meaning of the C.P. Act, 1986 and this Forum lacks the territorial jurisdiction to try this case. Denying the allegation of fraud and unfair trade practice, they contended that on 30.11.2007 the complainant accepted the terms of work and the terms of payment which is 30% as advance and 60% of the total amount before despatch of the material and 10% on completion of the work. But the complainant violated the terms of payment by making irregular and insufficient payment. The opposite parties, being a small entrepreneur, faced many difficulties in completing the work according to the work schedule. Yet the opposite parties completed about 95% of the work and only one governor-safety, costing Rs. 5,000/-, is required to be fitted. On the other hand, there is an outstanding of Rs. 55,000/- which is to be cleared along with the Government taxes against the bill given to the complainant. Complainant remained irresponsive to the requests of the opposite parties for payment. The opposite parties are ready to complete the work of the lifts within 15 days from the date of direction of this Forum provided the complainant agrees to pay a sum of Rs. 55,000/- after completion of the work.
Agniv Saha, the complainant submitted his affidavit-in-chief as P.W.-1.
Documents proved by P.W.-1 have been marked Exbts.1 to 18.
Opposite parties abstained from adducing evidence.
Pleadings of the parties demand decision on the following issues:-
1) Is the case maintainable?
2) Has there been any deficiency in service on the part of the opposite parties as alleged?
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3) Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
Point No. 1
Ld advocate for the opposite parties submitted that a petition had been filed on the date of appearance of the opposite parties, challenging the maintainability of the case on the ground that this Forum lacks territorial jurisdiction to determine the disputes between the parties and the said petition remains un-disposed. According to the terms of contract between the parties any dispute relating to the contract was to be tried in a Court of Kolkata.
Opposing such submission, ld. advocate for the complainant submitted that it is a fact that on the day of appearance of the opposite parties a petition had been filed challenging the maintainability of the case which remained undisposed due to non-showing of any interest by the opposite parties in disposal of the same. The plea of the opposite parties that there was a contract between the parties whereby all disputes relating to the transaction were to be decided in a competent Court in Kolkata is not true. The place of origin of the transaction falls within the jurisdiction of this Forum. The order for construction of the lift was given to the opposite parties at Malda by Exbt.-3 in response to their letter dt.21.04.2006 (Exbt.-4). There is no evidence in support of the opposite parties’ contention that there was any agreement between the parties whereby disputes arising out of this transaction were to be settled in Kolkata or outside Malda.
Having regard to the submissions of the ld advocates for the parties and on perusal of the petition dt. 02.03.2010 of the opposite parties challenging maintainability of the case and Exbt.-3, we find that O.P.No.2 for O.P. No.1 filed this petition, undertaking in the hearing of the application. Orders of the record reveal that the case stagnated for a considerable period at the stage of filing written version on the prayer of the opposite parties that they would settle
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the matter in the meantime. But the matter remained unsettled and the written version was filed finally. Several dates were fixed at the stage of hearing. But the opposite parties remained silent about the petition challenging maintainability and drew the Forum’s attention to the said petition on the day of argument. For reasons, best known to the opposite parties, no submission was made by the ld advocate for the opposite parties to explain why they remained silent in respect of production of the document despite the undertaking of O.P. No.2 in the said petition.
Opposite parties failed to make any capital out of the cross-examination of P.W.-1 in this respect. Documents exhibited by the complainant (Exbts.1to18) include letters of the opposite parties relating to the transaction. None of them bears any material that may oust the jurisdiction of the Forum from hearing the matter.
We find no adverse material to the maintainability of the case. The opposite parties’ petition dt. 02.03.2010 is found meritless and accordingly, the same be also treated as rejected by this order.
Point is answered in the affirmative.
Point No. 2
Ld advocate for the complainant argued that despite payment of Rs.5,47,600/-to the opposite parties on different dates as per their demand, the governor-safety was not fitted with the lifts for which the lifts remained non-functional. Reminder letters (Exbts.5, 6 and 7) and the lawyer’s notice (Exbts. 9 and 12) for supply of the governor-safety and completion of the construction of the lifts were disregarded. The commitment in the letters (Exbts.10, 11, 13 and 17) of the opposite parties that they were sending mechanics to install the governor-safety immediately was found illusory. So the complainant was forced to file this case. Negligence of the opposite parties deprived the residents and other beneficiaries of the Behani Abasan of getting the service of the lifts. It is a case of deficiency on their part.
In reply, ld advocate for the opposite parties submitted that it is
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a fact that the opposite parties did not supply the governor safety but the reason for non supply of the same is irregular payment of the costs and charges of materials for construction of the lift. Complainant was requested to pay the outstanding amount vide Exbts. 8, 10,11,12,13 and 17 but, instead of clearing it, he went on insisting that governor-safety be fitted and the lifts be made operational. The opposite parties are not responsible for the crisis of the complainant. The allegations of negligence and deficiency in service do not stand against the opposite parties.
Having considered the respective arguments of the ld advocates for the parties in the light of the evidence on record, we find stark difference between the words and deeds of the opposite parties.
Opposite parties’ letter dt.21.04.2006 (Exbt.4), prescribes validity of their offer for 45 days from the date of issue. But there is no evidence as to what prompted them to extend the validity of the contract for an indefinite period. The shady part of their conduct is that they have not produced any document from their custody to show how much amount they received and what their claim was against the complainant. There is no evidence in support of their alleged dissatisfaction over the mode of payment. On the contrary, complainant and his ld advocate’s letters expressing the complainant’s concern for non-functioning of the lifts despite payment of Rs. 5,47,600/- has significance due to suspension of construction of the lift on one hand, and exerting of pressure for further payment of Rs.55,000/- on the other, by the opposite parties before installation of the governor-safety.
Successive changes in the amount, received from the complainant, in Exbt. 14 and 17 are proof of disorder in the house of the opposite parties. Withholding of evidence in justification of the deductions in respect of payments to M/s. Dey Timber and Raju Majhi (Exbts.18) are pointers to the unfairness of the opposite parties in the deal. There is no evidence since when the construction of the lift was started and it remains suspended since when and for what reason. Opposite parties, being manufacturers should have enlightened the Forum over these vital facts as they are in driving seat.
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It is unlikely, that chowkaths made by the complainant through M/s. Dey Timber was a result of complainant’s unilateral decision. It was not even suggested to P.W.-1 that the opposite parties wanted to make the said chowkaths by themselves or that they did not ask the complainant to get the same made by an agency on their behalf. Under such circumstances the probability indicates that the payment made by the complainant in the name of O.P. No.1 by Exbt. -18 should be meant to be on account of the opposite parties and therefore, there is no scope for deduction of any amount paid by the complainant against Exbt.-18. As regards payment to Raju Majhi on account of O.P. No.1 by Exbt.-18 is also found genuine. After all, Raju Majhi is found to be an agent of the opposite parties and this goes unchallenged. Thus we find that dispute raised by the opposite parties over the payments to the aforenamed is purposive. Accordingly, we disapprove the same and hold that the complainant paid Rs.5,47,600/- to the opposite parties for the lifts. The figure Rs. 5,27,600/- given in Exbt.-17 is unacceptable and turned down.
Evidence on record establishes that the opposite parties failed to construct the lifts under contract due to their negligence and lack of service.
Point is answered in the affirmative.
Point No. 3
Answer to Point No. 2 having gone in favour of the complainant, he is entitled to get beck the amount paid by him to the opposite parties for construction of the lifts along with a consolidated award of compensation of Rs. 30,000/- for agony, inconvenience and litigation cost.
However, considering the totality of the facts and circumstances, before issuing a direction on the opposite parties to refund the amount received by them under the contract and to remove the materials from the building, as an alternative to accord them an opportunity to fit governor-safety and to complete the construction
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of the lifts and raise a bill for the balance amount in respect thereof which the complainant shall be liable to pay within 30 days. The opposite parties shall also give an undertaking that they will give free maintenance service for one year on the day of operation in case of any mechanical fault.
Point is answered accordingly in the affirmative.
Complaint succeeds in part.
Proper fee paid.
Hence, ordered
that the Malda D.F. Case No. 58/2009 is allowed on contest in part against the opposite parties.
Complainant do get an award of Rs. 5,47,600/-(Rupees Five Lakh Forty Seven Thousand and Six Hundred only) as compensation for the incomplete lifts and a further consolidated award of Rs.30,000/-(Rupees Thirty Thousand Only) for agony, inconvenience and litigation cost. The opposite parties are liable to pay the said sum individually and collectively within 30 days from the date hereof.
In pursuance of the observation in Point No.3,the opposite parties are given an opportunity to fit governor-safety and to complete the construction of the lifts and allowed to raise a bill in respect thereof payable within 30 days. The opposite parties shall give an undertaking that they will give free maintenance service for any mechanical fault in the lifts for one year since the day of operation.
In case of completion of the construction of the lifts and making them functional and acting in terms of the abovementioned direction by the opposite parties, the second part of the award of Rs.30,000/-(Rupees Thirty Thousand Only) passed in favour of the complainant shall be effective and will be payable within 30 days from the date hereof in default interest @12% p.a will be payable until realization.
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In case of repudiation of such option by the opposite parties the order of awards shall be operative as a whole. The complainant do further get an award of realization of interest @ 12% p.a. against Rs. 5,77,600/- (Rupees Five Lac Seventy Seven Thousand and Six Hundred only) operative from the date hereof.
A copy of this order be supplied to each of the parties free of cost.
Sd/- Sd/- Sd/- Krishna Prasad Chatterjee Sumana Das Arjun Prasad Gupta
Member, 31.03.2011 Member, 31.03.2011 President 31.03.2011
D.C.D.R.F., Malda. D.C.D.R.F., Malda D.C.D.R.F., Malda