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Judgment
This present revision petition has been filed against the Order dated 04.07.2018 of the State Commission in Appeal No. A/998/2016. The said appeal had been filed by the petitioner challenging the findings of the District Forum dated 19.09.2016 in complaint case no. CC/184/2015, whereby the complaint had been allowed.
Vide the impugned order, the State Commission, while concurring with the findings of the District Forum regarding deficiency in service on the part of the petitioner, modified the order to the effect that it allowed the petitioner to remove from the site the material at its own cost.
Arguments of the parties in the present revision have been heard. The petitioner was the opposite party before District Forum.
The brief facts of the case are that the respondent no. 1, recorded as complainant, needed an elevator to be fitted in the premises and they entered into a contract with the petitioner. The contract was in writing. The quoted price for the elevator was Rs.5,72,500/-and the petitioner was required to complete work within a limited period. Out of this money, a sum of Rs.5,17,000/- was paid by the complainant to the petitioner but the petitioner could not complete the installation within the specified period and after the expiry of the period demanded the revised cost for installation.
Aggrieved, the complaint was filed before the District Forum. In the reply the petitioner had taken the plea that they could not complete the work within the stipulated period because a part of the contract was not completed by the complainant and the delay had been caused due to fault on the part of the complainant. It is further submitted that they are entitled to the revised contract price in terms of the agreement between the parties. Parties led their evidences before the District Forum and the District Forum after perusing the evidences of the parties and after hearing arguments of the learned counsels for the parties held that the petitioner had defaulted in complying with the terms and conditions of the agreement and therefore found guilty of deficiency in service.
The District Forum had, after considering all the evidences on record, also concluded that the petitioner had not replied to the various letters written by the complainant asking them to install the said escalator. The District Forum has held as under:--
From the averment of petition of complaint, as well as written version filed by the OP-3 it is clear that the complainant paid 90% of the agreed amount to the OP-3 for installation of the lift at his premises, but till filing of this complaint, the same work had not been effected by the OP-3. The payment receipt shows that as per agreement dated 10.01.2014 the complainant had already paid 90% of the agreed amount through the OP-4 to the OP-3 for installation purpose. It was also scheduled in the agreement that entire installation work will be completed within 26 weeks from the date of agreement and payment of the advance amount. The complainant paid the amount within the stipulated period and money receipt issued by the Adams Elevator on 21.01.2014 and 02.4.2014. Two money receipts reveal that the complainant had already paid a sum of Rs.5,17,500/- out of the agreed amount of Rs.5,72,500/-. So it is crystal clear from the documents that in spite of receipt of the said amount, the OP-3 did not bother to discharge its liability by correspondences which was made with the OPs i.e. Adams Elevator Co. Pvt. Ltd. by him through e-mail, as well as, by issuing Lawyer's letter. From the said correspondences it is revealed that requests were made by the complainant on several occasions to the said OPs for installation of the lift at his premises. But we do not find that reply has been given by the OPs in respect of those correspondences. In the written version the OP-3 has mentioned that as the complainant miserably failed to provide clear dry elevator hoist way structure, lift could not be installed by it and hence it has no deficiency in service in respect of non-installation of the lift. Further submission has been made by the OP-3 that as installation could not be made within the agreed period i.e. 26 weeks from the date of agreement due to contributory negligence on behalf of the complainant and in the meantime the cost of the materials and equipments have been increased, the complainant is liable to make payment of escalated price to the tune of Rs.1,50,000/- to this OP along with balance payable amount and after making payment of the entire amount lift will be installed, though the agreement has already elapsed. In this context, we are to say that whether the complainant has failed to provide the appropriate site as mentioned in the written version to the OP-3 or not, no cogent evidence has been adduced by the OP-3 to prove this point. The ld. Counsel for the OP-3 has attracted out notice during hearing through the letter dated 12.03.2015 it is mentioned in the said letter 'on multiple occasion our technical team has visited our site for inspection and thereby installation of the proposed elevator as per technical specification approved by you, but you were unable to provide us clear dry elevator hoist way structure complete in all respects as per approved lay out drawing. Kindly intimate your site clearance as mentioned above at your earliest in writing so that we can proceed with the job of installation for ultimate fulfilment of the contract'. In respect of this letter we are to say that admitted both parties have entered into an agreement on 10.01.2014 wherein it was scheduled that within 26 weeks installation of lift would be completed. But the OPs by issuing a letter dated 12.03.2015 mentioning that as the complainant had failed to provide a proper site, installation could not be effected and their technical team had visited the site on several occasions. In this connection we are also to say that if the technical team of the OPs visited the site on several occasions, but no report is forthcoming from the said technical team mentioning that no proper place was provided to the OPs for installation of lift by the complainant. Therefore, the said letter has no force at all at his juncture after lapse of the agreement entered by and between the complainant and the OPs. It is mentioned by the OP-3 in its written version that several materials were sent at the residence of the complainant and the complainant received the said materials after putting his signature. But the document shows some names of the spare parts, but the documents do not prove that those ready materials were at all sent at the residence of the complainant and there is no endorsement either by the complainant or on behalf of the complainants by his any family members that the complainant had received those materials. There is only one stamp mentioning as 'delivered from store'. It means those materials may be delivered from the store but there is no iota of evidence on the record that those materials were received by the complainant and sent by the OPs at the residence of the complainant. In the written version of the OP-3 it is also mentioned in the page no. 6 that the ready materials and accessories of lift proposed to be delivered to the petitioner/creditor are lying idle with the company for no use of the same. Therefore, such averment is clearly proved that those materials are still lying idle with the company, not with the complainant.
Same contentions were raised by the petitioner in its appeal before the State Commission. The State Commission had dealt with all the contentions raised by the petitioner and has held as under:
It is though averred by the Appellant that as the construction site was not ready in all respects, the elevator could not be installed in time, no material proof is forthcoming before us to establish such fact. Rather, the e-mail correspondences exchanged between the parties are very much indicative of the fact that the actual bone of contention revolved around the reluctance of the Respondent No. 1 to pay the enhanced price of the lift.
Taking a holistic view of the entire dispute, it seems, the Ld. District Forum rightly directed the Appellant to refund the deposited sum to the Respondent No. 1. However, it seems that the Ld. District Forum has not settled the issue of return of the materials those were installed at site by the Appellant.
In view of this, we are inclined to modify the impugned order to some extent to eliminate this omission.
The Appeal, thus, succeeds in part.
Hence,
ORDERED
The Appeal stands allowed on contest in part. The impugned order is modified to the extent that the Respondent No. 1 shall allow lifting of materials of the Appellant from the construction site at the cost and peril of the Appellant. Before that, Appellant has to ensure strict compliance of the order passed by the Ld. District Forum.
Similar contentions have also been raised by the petitioner before this Commission in the present revision petition. It is a settled proposition of law that this Commission has a very limited revisional jurisdiction. It is not required to re-assess and re-appreciate the evidences on record and substitute with its own conclusion on facts, especially when the findings on facts are concurrent. It has been so held by the Hon'ble Supreme Court in the case of "Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. - (2011) 11 SCC 269" which is as under:
"23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora".
Again in "Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286," the Hon'ble Supreme Court has reiterated the same principle and has held as under:
"17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons."
In T. Ramalingeswara Rao (Dead) Through L.Rs. and Ors. Vs. N. Madhava Rao and Ors. decided on 05.04.2019 passed in Civil Appeal No. 3408 of 2019, the Hon'ble Supreme Court has held as under:
"12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction."
There is a concurrent finding on the fact that the petitioner had failed to establish on record the fact that the construction site was not ready and therefore the lift could not be installed by them. There is nothing on record to show that the materials as stated by petitioner were received by the complainant or sent by the petitioner at the residence of the complainant. The State Commission has also allowed the petitioner to lift the material from the construction site at its own cost and there seems to be some dis-agreement between the parties during the course of arguments regarding material lying at the site. In order to resolve this dispute among the parties, we have perused the file. The complainant has clearly stated in his complaint that except fixing up metal bars on provided space, no other construction material was delivered on the site by the petitioner. Petitioner has not brought to our notice any evidence which could show that any material other than fixation of metal bars at the provided space, was stocked at site. The petitioner, therefore, in compliance of the impugned order can remove the metal bars fixed by it at provided space.
We find no illegality or infirmity in the present revision petition. The present Revision Petition has no merit. The same is dismissed with no order as to costs .
Learned counsel for the petitioner submits that they had deposited a sum of Rs.6,75,481/- before the District Forum and the District Forum may be directed to release the said amount to the complainant towards the satisfaction of the decree. Accordingly, the District Forum is directed to release the said amount to the complainant on their application. If any amount is due against the petitioner, after receipt of this amount, the complainant is free to file execution.