M/S. Bonsdag Industries Pvt. Ltd vs Yashpal Aggarwal

M. Shreesha, J

Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short the "Act") is to the order dated 20.06.2019 in First Appeal bearing No. 19/2019 passed by the UT Chandigarh State Consumer Disputes Redressal Commission (for short "the State Commission") by M/s Bonsdag Industries Pvt. Ltd. (for short "the Opposite Party"). By the impugned order, the State Commission has concurred with the findings of the District Consumer Disputes Redressal Forum-I, UT Chandigarh (for short "the District Forum") and dismissed the Appeal preferred by the Opposite Party.

The facts in brief are that the Complainant is a resident of Chandigarh and he intended to install a hydraulic lift for his personal use and for the use of his family. After going through the website of the Opposite Party wherein they claimed "our proficiency allows us to design and develop passenger elevators of various sizes and capabilities. It gives benefits of jerk less travelling, economically low power consumption and excellent design," he contacted them in 2016 for the installation of a passenger hydraulic lift in his house. Various advertisements and promotional materials had been shown to the Complainant and believing their promotions and numerous representations stating timely installation of lift, the Complainant in good faith decided to install their lift. It is stated that on 30.06.2016, the Complainant received quotations vide reference No. Qut/BND/16-17/CL-051 wherein apart from technical specifications the total price of the lift quoted was Rs. 8,00,000/- and as per terms and conditions, out of the total amount 10% was to be paid after successful installation of the lift. The complainant has paid Rs. 7,20,000/- out of the total amount but even after paying such a huge amount, the Opposite Party has not installed the lift fully and stopped the installation work of the lift without assigning any reasons to the Complainant. Thereafter, the Complainant visited their office several times and called the officials of the Opposite Party to complete the lift work but all in vain. Despite accepting a huge amount from the Complainant, no clear information regarding the installation of the lift was given to the Complainant. Thereafter, the Complainant made several requests to the Opposite Party to complete the installation of lift as his family was facing problems in old age but the Opposite Party did not pay any heed to his request. The Complainant, was forced to engage another company namely "IEE LIFTS" to complete the installation. The Complainant was informed that the lift could not be activated as the initial structure and base of lift was improper and not designed at the proper level. Due to this reason, the Complainant had to pay an extra amount of Rs. 2,29,335/- for the proper base and extra spare parts to make the lift operational. The Complainant approached the Opposite Party several times seeking refund of his money along with interest but there was no response. Aggrieved, the Complainant filed the Complaint before the District Forum seeking the following directions to the Opposite Party:-

1.to refund the amounts of Rs. 7,20,000/- and Rs. 2,29,335/- along with interest @ 9%;

2.to pay Rs. 25,000/- towards compensation for mental agony and harassment and misrepresentation and for indulging into unfair trade practice;

3.to pay litigation costs of Rs. 25,000/- and

4.Any other alternative remedy, for which the Complainant is entitled, may also be awarded to the Complainant.

The Opposite Party resisted the Complaint and filed a Written Statement stating that the Complainant was a defaulter and in spite of complete installation of the lift, remaining 10% of the amount which is Rs. 80,000/- had not been paid by the Complainant to the Opposite Party. The Opposite Party denied that there was deficiency in service on their part.

District Forum allowed the Complaint and directed the Opposite Party as under:-

"i) To immediately pay the amount of Rs. 2,29,335/- to the Complainant along with interest @ 9% p.a. from the date of payment made by the Complainant i.e. 25.04.2017 till realization.

ii) To pay Rs. 20,000/- to the Complainant towards compensation for deficiency in service and mental agony and harassment caused to him.

iii) To pay to the Complainant a sum of Rs. 10,000/- towards costs."

I have heard the Learned Counsel for the Petitioner and perused the record.

Prima facie the Complainant has established his case by filing an expert opinion vide Certificate dated 02.03.2018, issued by Syal & Associates, Chartered Engineers, Architects, Surveyors & Project Management Consultants in which the expert opined as follows:-

"I have physically inspected the site of installation of above mentioned Lift. There is working problem in the lift, the running is not smooth and jerks are also observed. In my opinion there is manufacturing defect in the Lift & is dangerous to use."

The District Forum while allowing the Complaint observed as follows:-

"10. Perusal of the record shows, it was set forth OP had not completely installed the lift so as to make the payment of the remaining amount of Rs. 80,000/- and it is also made out, extra amount of Rs. 2,29,335/- had to be spent by the complainant by employing the services of IFF LIFTS, as is made out from Annexure 3. This itself shows, complete work was not done by the OP. Had the OP done the complete work, there were no reasons for the Complainant to hire the services of another company i.e. IFF LIFTS and moreover it is not the pleading of the OP that such services were not hired by the complainant. Still further, even if it is believed OP had actually completed the installation work, then, being service provider, it was expected from the OP to have at least mentioned the date of such completion along with documentary proof etc. However, what to talk of any documentary proof, OP has surprisingly failed to mention such completion date in its reply or any documents annexed therewith. As such, OP is proved to have indulged in deficiency in service and unfair trade practice and is liable to refund the amount of Rs. 2,29,335/- spent by the complainant along with compensation etc. Since the completion of the lift is not proved to have been done by the OP, it is not entitled to get the remaining 10% amount i.e. Rs. 80,000/- from the Complainant."

The State Commission while concurring with the findings of the District Forum has observed that despite the Complainant's request to the Opposite Party to complete the installation of lift on time, there was no response. The State Commission has rightly relied on the afore-noted expert opinion report as Punjab Engineering College, Chandigarh to which the letter dated 30.08.2018 was sent had refused to conduct the inspection stating that they do not have the expertise in the relevant subject. Hence the State Commission has rightly relied on the expert opinion report and it is pertinent to mention that there were no objections filed by the Opposite Party. On a pointed query from the Bench as to the evidence filed by the Petitioner here with respect to the date on which the lift was installed, Learned Counsel replied that since the Complainant had defaulted some amounts a demand letter was sent to that effect and further submitted that the lift was installed and that the Complainant only to avoid paying the balance amounts, had raised this frivolous dispute. But it is observed from the record that if the lift was installed with all the facilities there were no substantial reasons given as to why there is no receipt or documentary evidence of the same.

For all the afore-noted reasons, I do not find any illegality or material infirmity in the concurrent findings of both the Fora below and I do not find it a fit case to exercise our limited jurisdiction as envisaged by the Hon'ble Supreme Court in Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. (2011) 11 SCC 269.

Accordingly, this Revision Petition is dismissed with no order as to costs.